L. Kamerman ) Friday, the 19th day Mining and Lands Commissioner ) of January, THE MINING ACT

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1 File N. MA L. Kamerman ) Friday, the 19th day Mining and Lands Cmmissiner ) f January, THE MINING ACT IN THE MATTER OF An appeal by the Disputant frm the Decisin f the Acting Mining Recrder fr the Larder Lake Mining Divisin fr a declaratin that Mining Claims L , and , be declared invalid and fr the recrding f filed nly Mining Claims L , and AND - IN THE MATTER OF Mining Claim L , situate in the Twnship f Arnld, in the Larder Lake Mining Divisin; AND IN THE MATTER OF Mining Claims L , and , situate in the Twnship f Arnld, in the Larder Lake Mining Divisin, marked as "filed nly"; B E T W E E N: STRIKE MINERALS INC. - and - SUDBURY CONTACT MINES LIMITED Disputant Respndent AND IN THE MATTER OF An appeal by the Disputant frm the Decisin f the Mining Recrder fr the Larder Lake Mining Divisin fr a declaratin that Mining Claim L , be declared invalid and fr the recrding f "filed nly" Mining Claims L , and , hereinafter referred t as the "Filed Only Mining Claims"

2 2 ORDER UPON hearing frm the parties and reading the dcumentatin filed; 1. THIS TRIBUNAL ORDERS that the time fr appealing the Decisin f the Mining Recrder dated the 30th day f September, 1994, as allwed by subsectin 112(3) f the Mining Act by Sudbury Cntact cncerning Mining Claims L and , is extended t within 15 days f the filing f this Order with the Office f the Mining Recrder and any decisin cncerning thse Mining Claims and Filed Only Mining Claims L and shall be based upn a hearing f the merits invlving all aspects f staking. 2. THIS TRIBUNAL FURTHER ORDERS that the appeal cncerning Mining Claim L be dismissed and the matter is referred back t the Mining Recrder f the Larder Lake Mining Divisin fr an Order pursuant t clause 110(6)(b) f the Mining Act t reblaze the lines and cut the underbrush f Mining Claim L THIS TRIBUNAL FURTHER ORDERS that the ntatin f "Pending Prceedings" be remved frm the abstract f Mining Claim L THIS TRIBUNAL FURTHER ORDERS that the time during which Mining Claim L was befre the Mining Recrder and the tribunal, being the 17th day f May, 1994 t the 19th day f December, 1996, a ttal f 613 days, be excluded in cmputing time within which wrk upn Mining Claim L shall be perfrmed. 5. THIS TRIBUNAL FURTHER ORDERS that the 16th day f December, 1997 be fixed as the date by which the first and secnd prescribed units f assessment wrk shall be perfrmed and filed n Mining Claim L and all subsequent anniversary dates shall be deemed t be December 16 pursuant t subsectin 67(2) f the Mining Act. 6. THIS TRIBUNAL FURTHER ORDERS that n csts shall be payable by either party t this appeal. IT IS FURTHER DIRECTED that upn payment f the required fees, this Order be filed in the Office f the Mining Recrder fr the Larder Lake Mining Divisin. Reasns fr this Order are attached. DATED this 19th day f January, Original signed by L. Kamerman L. Kamerman MINING AND LANDS COMMISSIONER

3 File N. MA L. Kamerman ) Friday, the 19th day Mining and Lands Cmmissiner ) f January, THE MINING ACT IN THE MATTER OF An appeal by the Disputant frm the Decisin f the Acting Mining Recrder fr the Larder Lake Mining Divisin fr a declaratin that Mining Claims L , and , be declared invalid and fr the recrding f filed nly Mining Claims L , and AND - IN THE MATTER OF Mining Claim L , situate in the Twnship f Arnld, in the Larder Lake Mining Divisin; AND IN THE MATTER OF Mining Claims L , and , situate in the Twnship f Arnld, in the Larder Lake Mining Divisin, marked as "filed nly"; B E T W E E N: STRIKE MINERALS INC. - and - SUDBURY CONTACT MINES LIMITED Disputant Respndent AND IN THE MATTER OF An appeal by the Disputant frm the Decisin f the Mining Recrder fr the Larder Lake Mining Divisin fr a declaratin that Mining Claim L , be declared invalid and fr the recrding f filed nly Mining Claims L , and

4 2 REASONS This matter was heard n August 29 and 30, 1995 in the Blue Rm f the Ryal Canadian Legin, Summerhays Avenue, Kirkland Lake, Ontari. Strike Minerals Inc. ("Strike Minerals") was represented by Carl Frbes; Sudbury Cntact Mines Limited ("Sudbury Cntact") by cunsel Gary Sullivan with David Christie als in attendance. Backgrund: The lands which frm the subject matter f this appeal were riginally staked n April 15, 1992 and recrded in the name f Strike Minerals. As a result f an ptin agreement with Wheatn River Minerals Limited, an assessment wrk prgram was undertaken, but due t circumstances beynd the scpe f this hearing, the wrk was never recrded and the claims expired n April 15, The lands came pen fr staking at 7 a.m. Daylight Savings Time n April 16, The issue f a cause f actin between Strike Minerals and Wheatn River Minerals Limited wuld have t be decided by the Curts. Strike Minerals attempted t put frward the psitin that it had a superir right t the lands, wing t the circumstances which led t the frfeiture. Hwever, it was indicated at the hearing that there is n such cncept in law as a superir right t mining lands in the case f a dispute and that the matter wuld be determined based upn applicable staking principles. On April 16, 1994, Sudbury Cntact caused the lands t be staked as Mining Claims L by Ghislain Frappier, L and by Luc Maris, and L by Pierre Gervais. On April 16 and 17, 1994, Strike Minerals caused Mining Claims t be staked which crrespnd t the Sudbury Cntact claims as fllws: L , and by Patrick Harringtn and L by Gerge Harkin. The Mining Claims f Sudbury Cntact were recrded and thse f Strike Minerals were received by the Mining Recrder (the "Recrder") as Filed Only. Accrding t the Decisin f the Recrder, fund in Part 1 f Exhibit 7, disputes were filed by Strike Minerals cncerning Mining Claims L , and n April 29, Pursuant t a hearing held by the Recrder n August 18, 1994, a Decisin was issued n September 30, 1994 which dismissed the dispute against Mining Claim L The dispute against Mining Claims L and was allwed in part and dismissed in part, with the effect that thse Mining Claims were cancelled, but thse crrespnding Filed Only Mining Claims f Strike Minerals were refused. In tw Ntices f Appeal dated Octber 3, 1994, Strike Minerals appealed the decisin f the Recrder. Dcument N refers t Mining Claim L and.... 3

5 3 Dcument N refers t Mining Claims L and and states as fllws: The Mining Recrder refused t recrd claims and as he suggests they d nt satisfy a requirement fr strict cmpliance with the claim staking regulatins under the Mining Act. His decisin fr refusal was nt based n any physical evidence r testimny brught befre him at the August 18, 1994 hearing. His reference t a cmment in Mike Weirmeir's June 23, 1994 inspectin reprt suggesting nt enugh blazing has nt been substantiated by any evidence s the filed nly applicatins t recrd claims and shuld be accepted and recrded. This secnd appeal is nt an appeal f the Decisin f the Recrder regarding the dispute, per se, but is an appeal f the Decisin f the Recrder t disallw recrding f these Filed Only Mining Claims. At the hearing, Sudbury Cntact infrmed the tribunal it had been advised by the tribunal's ffice that an additinal appeal f the Decisin f the Recrder was unnecessary, as an appeal had already been filed by Strike Minerals. This infrmatin des nt appear t have been crrect as Strike Minerals' appeal relates nly t the refusal t recrd the Filed Only Mining Claims. As a result Sudbury Cntact prceeded n the errneus assumptin that it need nt appeal the Decisin f the Recrder. During the curse f the hearing, n evidence was presented n the validity f Sudbury Cntact's staking f the crrespnding Mining Claims L and Similarly, Strike Minerals did nt present evidence cncerning the staking f the Filed Only Mining Claims. This raises the issue f what must be dne cncerning these Mining Claims in light f the tribunal's riginal jurisdictin in these matters, based n misinfrmatin prvided by the tribunal which was relied and acted upn by Sudbury Cntact. Evidence was heard cncerning what tk place n the grund n the mrning f April 16, 1994, as well as that f tw Ministry f Nrthern Develpment and Mines inspectins and ne private inspectin. Included in the evidence is the fact that Strike Minerals used the same lines as Sudbury Cntact s that there was n way t discern between the blazing f the claims. Issues: 1. What shuld the status f Mining Claims L and be, given that Sudbury Cntact relied and acted upn errneus advice f the tribunal that it need nt file a Ntice f Appeal?.... 4

6 4 2. Des the staking f Mining Claim L as dne by Pierre Gervais meet the requirements f the Mining Act and Ontari Regulatin 115/91 ("O.Reg. 115/91")? Matters discussed include the length f time f the staking, the quality f clearing the brush and the number f blazes used. 3. What are the requirements f sectin 8 f O.Reg. 115/91 which the staker must persnally perfrm, where mining claims are staked utside f the first 24 hurs after the lands cme pen fr staking? This issue, and that f the validity f the staking f Filed Only Mining Claims L and will depend n the finding f the tribunal in Issue #1 abve. Evidence: Jacques E. Rbert, a prspectr and claims inspectr, was called as a witness by Strike Minerals and gave the fllwing evidence: He was cntracted by Strike Minerals t cnduct a private claims inspectin, the reprt f which is fund at Part 22 f Exhibit 7 alng with his field ntes, having perfrmed a dzen inspectins. At the time f the inspectin, he had n interest in Strike Minerals. His business card shws that he is als knwn as "Jack the Bear". The purpse f the inspectin was t inspect the quality f the staking f Strike Minerals nly, including the psts and blazes. Accrding t the reprt and field ntes, the number f ld and new blazes, being befre and after April 1994, respectively, red and pink flagging and duble and triple blazes were cunted. The results were 559 ld blazes, 1,753 new blazes, 90 ld axe cuts, 552 new axe cuts, 368 red flagging and 147 pink flagging. He als tk pictures (Part 22 f Exhibit 7) which are numbered t cincide with numbered cmmentaries set ut n Schedule 3 t his reprt. The numbers caused sme cnfusin as Mr. Rbert used tw rlls f film, numbered accrding t the negatives, and several numbers were duplicated. Hwever, based upn the descriptins given, n difficulty was experienced by the tribunal in fllwing. He stated that based upn 12 years experience, these claim lines were as gd r better than any he had seen, with the calibre f staking being quite fair. In his pinin, the staking was adequately dne t cmply with the Mining Act. Under crss-examinatin, Mr. Rbert was challenged regarding the number f years he wrked independently

7 5 The retainer by Strike Minerals, whereby he was called n Octber 22, 1994 t d an inspectin, was t walk the claim lines and cunt the ld and new blazes, axe cuts and flagging, the purpse f which was t determine whether there were adequate markings alng the claim lines. New markings culd be distinguished frm ld, based upn the absence f sap and hard gum with the latter, where the tree grws arund the blaze. The April staking was mst likely dne under cnditins invlving a few feet f snw. It wuld be difficult, if nt impssible, t distinguish stakings dne within a few days f ne anther. It tk fur r five days t g arund the lines. Upn questining, Mr. Rbert clarified that he was called n Octber 17 and cmpleted his visual inspectin n Octber 23. In ttal three r fur days were taken up in the bush and a cuple f days in the ffice. The cst f the cntract was between $1,500 and $2,000. Mr. Rbert stated that he wned sme stck in Strike Minerals fr a perid f ne r tw mnths, due t staking sme claims in the Heml greenstne belt as part f a jint venture. Hwever, he received n stck fr ding the inspectin fr Strike Minerals invlving Sudbury Cntact. Mr. Rbert stated that ne picture #12 was beside a lake, the ther in the bush. One picture #20 is ne the nrth bundary and ne n the west bundary, ne being in the grassy area with a creek running thrugh it, the ther in the bush. One picture #21 is n the west bundary f Mining Claim L , the ther n the east bundary, nrth f the creek. Michael Barrette was called as a witness by Strike Minerals and gave the fllwing evidence: He was a helper t the staking f the Filed Only Mining Claims fr Strike Minerals. He and fellw stakers, Gerge Harkin, Vaughan Renaud, Patrick Harringtn and Le Mffette, left the rad at apprximately 7 a.m., arriving frm the west t a pint between Mining Claims L and , which crrespnd t the Filed Only Mining Claims f Strike Minerals numbered L and , als referred t in the curse f the hearing as Statin #

8 6 Gerge Sadquis and Jerry Kanpka arrived at 7:20 a.m. The line f the prir staking was visible. He heard smene cming frm the nrth, alng the west line f Mining Claim L , blazing in a sutherly directin. The staker prceeded t make a stump pst at 7:30 a.m. Mr. Barrette intrduced himself and asked the name f the staker, wh tld him in French that it was Mr. Frappier. Mr. Frappier cntinued blazing t the suth, in a cunterclckwise directin. Prir t crss-examinatin, Mr. Sullivan stated that the staking f Mining Claim L is nt the subject matter f the appeal, being ut f time fr a dispute. Any evidence related t this staking is irrelevant. Mr. Barrette was 50 r 60 feet away when Mr. Frappier was cutting his pst. Mr. Barrette never read what came t be inscribed n the pst. Mr. Frappier cntinued blazing suth f his N. 3 pst nt Mining Claim L until he was ut f site. Upn redirect, Mr. Barrette cnfirmed that he saw Mr. Frappier befre he reached the N. 3 pst f Mining Claim L , which crrespnded t the N. 4 pst f Mining Claim L at apprximately 7:30 a.m. Patrick Michael Harringtn, a claims staker and prspectr, was called as a witness by Strike Minerals and gave the fllwing evidence: He was present at the site n behalf f Strike Minerals n April 16, He travelled t the lcatin by skid, referred t as Statin #1, which crrespnds t the N. 3 pst f Mining Claim L and t the N. 4 pst f Mining Claim L , lcated 300 feet west f the little cabin. When he arrived at 7:20 a.m., he nticed fresh flagging tape and saw that the grund was staked. He headed east alng the claim line, past the suth end f the pnd, t the first line pst, and then anther 300 feet east t the N. 1 pst f Pierre Gervais, f Mining Claim L He returned t Kirkland Lake t ask Carl Frbes f Strike Minerals whether he shuld verstake and was tld that he shuld

9 7 Withut referring t the Applicatin t Recrd, he culd nt recall details f his time f return. He was accmpanied by Gerge Harkin, Vaughan Renaud and Jerry Kanpka. Under crss-examinatin, Mr. Harringtn stated that he arrived at Harker- Hllway Rad at 7 a.m., having been tld t cmmence staking at 8 a.m. The reasn fr the early arrival was that it wuld take a while t rganize the men and get t the claims by skid, which tk 10 r 15 minutes. They arrived at the west line f the Mining Claims at 7:20 a.m. Frm there he travelled t the nrth bundary f Mining Claim L t the pnd by skid and then walked t the N. 1 pst. He did nt see the N. 3 pst f Mining Claim L and N. 4 pst f Mining Claim L , but did see fresh axe cuts and blazes. It tk 20 minutes t walk the trail frm the east side f the pnd t the N. 1 pst. He nticed the blazes and flagging and saw fresh snwshe tracks. The line was clean and easy t fllw. The N. 1 pst f Mining Claim L had a starting time inscribed f 7 a.m., shwing the name f Pierre Gervais. At this pint, he determined he wuld have t seek further instructins, because he culd nt stake grund which was already staked, accrding t the Mining Act. He had been planning t start at 8 a.m., s that the questin f the validity f the staking was in his mind. Mr. Harringtn knew that Mining Claim L was staked t the suth, because he examined the blazes fr abut 20 feet suth f the N. 1 pst. When he returned frm Kirkland Lake, he and Mike Barrette prceeded t stake what was recrded by Luc Maris as Mining Claim L , starting at the N. 1 pst. Althugh his recllectin was vague as t time, Mr. Harringtn stated that he staked the Filed Only Mining Claim clckwise, starting frm the N. 1 pst, executing fresh blazes and using flagging tape. On April 17, 1994, he returned t the prperty and staked what has been recrded by Luc Maris as Mining Claim L All f the claim lines were the same as thse f Mr. Maris', even thugh the nrth line veered sutheast t the N. 1 pst

10 8 Gerge Harkin was called as a witness by Strike Minerals and gave the fllwing evidence: He attended at the staking with ther Strike Minerals cntractrs n April 16, When they arrived at Statin #1, he nticed the new east-west line. Mr. Harringtn went t investigate. After they had waited at Statin #1 fr apprximately ten minutes, they heard smene blazing. There were ld and new blazes apparent, s that Mr. Harkin cncluded that blazing had been dne the day befre. They bserved smene cme dwn the west line and cmmenced making a pplar pst and when Michael Barrette spke t him. He tk ff blazing alng the west line suth f his mining claim. Mr. Harkin culd nt identify the staker. This all ccurred at 7:30 a.m. and afterwards. He was able t bserve the staker fr a 100 feet t the suth, because there were n leaves n the trees. Cnditins were such that the snw was terrible. It was raining and there was build up n his snwshes, making ging difficult. The underbrush was under snw, with sme leafless tag alders shwing abve the snw line. Mr. Harkin stated that he always cuts the underbrush if it interferes with his line. Hwever, this was under the snw. Under crss-examinatin, Mr. Harkin stated that the staker bserved at Statin #1 did nt write n his pst r perhaps he did nt see him inscribe the pst. Mr. Harkin drve in with tw thers. He culd nt recall hw lng the trip in n skid tk, nr culd he recall when they arrived at Harker-Hllway Rad. He stated that it was imprtant t remember details f the cmpetitive staking, hwever. He culd hear the staker fr several minutes befre he saw him. The cutting f the pst tk fur r five minutes. Mr. Harker thinks he may have asked the staker if he culd take his picture and the answer was in French, which he did nt understand. The staker then prceeded suth. Thse n the "Strike Minerals team" agreed that they shuld return t Kirkland Lake and speak with Carl Frbes. They had lunch at Smitty's and returned t stake, he thinks, at arund 1:30 p.m

11 9 Mr. Harringtn filled ut the Applicatin t Recrd. Hwever, they all wrked n them tgether and Mr. Harkin signed it. The Applicatin t Recrd f Filed Only Mining Claim L appears t have a crrectin t the pst where staking cmmenced. Mr. Harkin culd nt recall the nature f the errr which had been crrected. It tk frm 1:30 p.m. t 7:30 p.m. t cmplete the staking. Mr. Harkin stated that he had tw helpers plus there was a cmmn line. The reasn that it tk s lng was that he staked it legally, ensuring that adequate blazing was dne. The snwsheing was terrible as it rained all day, having cmmenced the night befre. Mr. Harkin believed that sme f the blazing n the line had been dne the day befre, based n the quality f the snwshw tracks. He culd nt tell what ther activity might have taken place n the previus day, althugh he thught perhaps blazing had als ccurred. It was easy t fllw the line f the staking. In redirect, Mr. Harkin reiterated that Mr. Harringtn had filled ut the Applicatin, but he had signed it, having satisfied himself f its accuracy. He was able t cmment n the age f the snwshe tracks, having snw shed frm the age f tw. Ghislain Frappier, a staker n behalf f Sudbury Cntact, was called as a witness by Strike Minerals and gave the fllwing evidence: Mr. Frappier identified himself as the staker f Mining Claim L n April 16, He agreed that he arrived at Statin #1 and cut a cmmn pplar pst fr his #3 pst. This, accrding t Mr. Frappier, ccurred at 10 a.m. He denied being at Statin #1 at 7:30 a.m. Hwever, he did encunter smene at that lcatin during his staking, being there at 10 a.m. He met sme peple at this lcatin and culd nt cmmunicate with them. He tld them t wait 15 minutes. He did speak French with smene, but it was difficult t understand as t many peple were speaking at nce. Mr. Frappier identified Messrs. Harkin and Barrette as the peple he spke with. When he arrived at his N. 3 pst, he made the pst and Messrs. Harkin and Barrette spke with him. He did nt write n the pst, but went ff in search f Pierre Gervais

12 10 Mr. Frappier stated that he prceeded suth in search f Mr. Gervais, but did nt blaze. He did, hwever, blaze upn his return heading nrth. He wanted t find Mr. Gervais because he was his bss and perhaps he culd reach an agreement with the men he had encuntered. Mr. Gervais was five minutes away, and as far as Mr. Frappier had understd, the men were seeking smene wh culd speak English. Messrs. Harkin and Barrette had said they were stakers fr the same mining claims. Mr. Frappier wanted t avid a dispute r cnflict. Mr. Frbes suggested that, if Mr. Frappier were at the N. 3 pst at 10 a.m., he wuld knw that the staking was nt cmpetitive and shuld nt have been cncerned. The reasn that he blazed part f Mr. Gervais' line ging nrth was simply t let them reach the men at Statin #1 sner. Mr. Frappier culd nt state what kind f pst Mr. Gervais made at his wn N. 4 crner. Rather, Mr. Frappier prceeded nrth t his wn N. 4 pst. When at Statin #1 with Mr. Gervais, Mr. Frappier did inscribe his pst befre prceeding nrthward. On crss-examinatin, Mr. Frappier cnfirmed that he had nly blazed n Mr. Gervais' Mining Claim heading nrth. Pierre Gervais, wh staked Mining Claim L n behalf f Sudbury Cntact, was called as a witness by Strike Minerals and gave the fllwing evidence: In the curse f staking his Mining Claim n April 16, 1994, he encuntered Mr. Frappier abut 300 metres frm his N. 4 pst n the west bundary f the claim line, while he was blazing in a nrtherly directin. Mr. Frappier did nt cme suth t help with the blazing. Mr. Gervais culd nt recall whether his N. 4 pst was spruce r pplar, but did nt think it was relevant. He arrived at his N. 4 pst at 10:25 a.m. Under crss-examinatin, Mr. Gervais stated that they arrived at the rad turn ff at 5:50 a.m. It takes five r ten minutes t unlad the equipment frm the truck. He arrived at his N. 1 pst at 6:30 a.m., having gne by skid t the end f the trail, lcated 1,000 feet suth f the nrthern bundary f his Mining Claim

13 11 He walked back t make sure f the psitin f his N. 1 pst and then waited fr 7 a.m. He encuntered Mr. Frappier arund 10:15 a.m. r 10:20 a.m. and reached his N. 4 pst at 10:30 a.m.. There was n ne else there. Mr. Gervais yelled ut in the directin f the cabin, lcated near the pnd, but n ne answered. Mr. Gervais has been staking claims since Apprximately 50 percent f the claims he has staked are in Ontari. Instructins frm Sudbury Cntact were that this was a cmpetitive staking and t ensure that they were there n time. Smene had been sent t lcate the psts the day befre. The weather was nt bad when they reached the Harker-Hllway turn ff. Hwever, it started t rain arund 10 a.m. There was n difficulty in either snwmbiling in r in snwsheing, s that he had n difficulty in walking first ff. Mr. Gervais cnfirmed that his Applicatin t Recrd indicated that he had cmmenced staking at 7 a.m. and cmpleted it at 11:08 a.m. Cncerning the length f time it tk t cmplete the staking, Mr. Gervais thught that it was reasnable, given that it was t be a cmpetitive staking. Withut cmpetitin, he agreed that he wuld have dne better. Stakers n behalf f Sudbury Cntact came frm Ruyn-Nranda, Quebec, and tk abut an hur t drive t the turn ff. Mark Dixsn Hall, Chief Mining Recrder, cnducted an inspectin f the staking n behalf f Strike Minerals and Sudbury Cntact, and was called as a witness by Strike Minerals and gave the fllwing evidence: There were five psts fund at Statin #1. He indicated that his inspectin reprt, fund at Part 13 f Exhibit 7, shuld be changed t shw that Mining Claim L was staked by V. Renaud instead f V. Reivard. Mr. Hall cnfirmed that there were tw stump pplar psts lcated at this statin, being thse f Messrs. Harkin and Gervais. Mr. Frappier's pst is a lse pplar pst

14 12 Under crss-examinatin and referring t the pictures taken by Mr. Rbert, Mr. Hall indicated that it was nt pssible t tell which f the stakings had been cmpleted first, except by the inscriptin times. Mr. Renaud's staking shws that the N. 3 pst was inscribed at 8 a.m. The staking tk place n April 17, Mr. Gervais' N. 3 pst was inscribed at 10:25 a.m. n April 16, Questined abut the phtgraphs fund at Part 21 f Exhibit 7, Mr. Hall explained the reasn fr the pst f L leaning n that f L , which was staked later, was that smene had likely picked it up t lk at it. It is an infractin t mve psts. Hwever, ne is nt precluded frm lking and he did nt believe that this was significant. His inspectin tk place n May 26, He culd nt recall that the psts were this way. Hwever, he agreed that it was cmmn fr newer psts t lean n the lder nes. Mr. Hall fllwed the lines f Mining Claims L and Hwever, he did nt lk at the interir line between the tw. He was accmpanied by Mr. Harringtn fr Strike Minerals and Kevin Mntgmery fr Sudbury Cntact. Mr. Harringtn tld him that the dispute was t challenge nly the length f time it tk fr the Sudbury Cntact staking. He was nt cncerned abut the psts r faces, but nly the lines. This was made clear. There were a number f statins where it appeared that the inscriptins had been blazed ff and pssibly reinscribed. Hwever, Mr. Hall did nt nte this in his reprt, but just kept track f the psts. He saw three lines f the Gervais staking. In his pinin, if snw cnditins were gd, a time f fur hurs and eight minutes was nt unreasnable fr the staking. In his pinin, the staking f Mining Claim L , dne in three hurs and fifteen minutes was a rush jb. The Strike Minerals staking invlved the same lines. Hwever, the psts were a little ff. The nrthern bundary f Mining Claim L slants dwn quite a bit, s that it is nt a prper east-west line. In a prperly staked claim, there shuld be units f 16 hectares. The line shuld have extended further nrth apprximately 200 metres r half a claim width

15 13 Mr. Hall stated that it was his understanding that, if nt a cmpetitive situatin, if smene cntemplates a dispute, he must strictly cmply with the staking requirements in the legislatin. Michael Anthny Weirmeir, Mining Recrder fr Thunder Bay, cnducted an inspectin f the varius mining claims, was called as a witness by Strike Minerals and gave the fllwing evidence: His inspectin reprt is fund at Part 12 f Exhibit 7. The Cmment fund at page 3 f the reprt was read int the recrd: Cmment: The ver all pr rating f the claim lines is a result f t few blazes and n apparent effrt tward brushing ut lines despite the thick underbrush. There is als an ver reliance n the use f range flurescent flagging tape as a means f line marking. Simply put, where the bush cnditins are termed as heavy and medium the sum f all f the effrts f the disputants, respndent and helpers d nt cnstitute ne prperly marked ut claim line. When nrmal summer fliage returns t the deciduus underbrush grwth the lines wuld be all but impssible t fllw except pssibly fr the range flagging. The inspectin tk place n May 24, At that time there was the dd patch f snw in the darker edges f the hillsides. Hwever, there was n snw in the bush. On April 16, 1994, there wuld have been snw n the grund. Under snw cnditins, the tag alders are pulled under the snw. Hwever, this is nt the case with the higher alders. Therefre, nly sme f the smaller brush wuld have been bscured by snw. Mr. Weirmeir has never seen snw cnditins which ttally bscure the brush. Mr. Weirmeir develped his time element fr assisted and unassisted staking. At page 4 f the reprt: Using the times recrded fr walking a time f staking was develped fr scenaris (a) where the staking was cmpleted unassisted and (b) a staker had assistants wh blazed. T develp these times the fllwing amunts were added t my walking times: - fur minutes fr each crner r line pst erected

16 14 - tw (2) minutes per minute f walking time fr lines in heavy bush. - ne (1) minute per minute f walking time fr lines in medium bush. - ne half (1/2) minute per minute f walking time fr lines blazed in mderate bush. The develped times were an effrt t add t the inspectin reprt f Mr. Hall. Mr. Weirmeir walked all the claim bundaries except the cmmn bundary between L and Snwsheing wuld be a factr in the develped times, depending n the quality f the snw invlved. If it were heavy r a pwder, it wuld be difficult ging; a crust might be quicker; subject t rain wuld be different again. Mr. Weirmeir was given an pprtunity t lk at Mr. Rbert's inspectin reprt but indicated that he wuld stand by his wn cmments. While Mr. Rbert's reprt indicates that lines are adequately blazed, Mr. Weirmeir stated that his cmments are directed t the quality f the claim lines in general. Recgnizing that sme areas are blazed adequately, he fund that all are nt marked prperly. This is a case where all lines must be marked prperly. If it had been the case that nly a small prtin were marked inadequately, it wuld have s stated in his reprt. Therefre, he wuld nt dispute Mr. Rbert's cmments cncerning the phtgraphs indicating adequate blazing. Mr. Weirmeir walked the claim lines nting details which are reflected in his reprt. He did nt cunt ld r new blazes. His judgement f the quality f the staking is based upn his ability t fllw the lines. Mr. Weirmeir wuld nt refute the evidence f Mr. Rbert, but nly indicated that the phtgraphs d nt indicate the cnditin f the claim lines. He disagreed that 95 percent f the lines were satisfactry. While Mr. Rbert indicated that the claim lines are as gd r better than many seen in his career, Mr. Weirmeir stated that there was n effrt t blaze r clear brush. Referring t the flagging bserved by Mr. Rbert, Mr. Weirmeir stated that it is nt a legal frm f claim demarcatin in mst cases. It certainly is nt sufficient t mark the bundary when the fliage has grwn in

17 15 Mr. Weirmeir stated that it is impractical t flag brush. Under crss-examinatin, Mr. Weirmeir indicated that he designed his develped time system t inspect this particular grup f claims. Referring t the cmmn line between Mining Claims L and , Mr. Weirmeir stated that it was irrelevant that there be a cmmn bundary t staking and blazing times, because a staker is required t blaze, whether r nt blazing already exists. In the case f that line, the ttal blazing fr the shared bundaries was ttally inadequate. This was true f all f the bundaries examined. Mr. Weirmeir indicated that, if he were asked t recrd these Mining Claims, and knew f the cnditins f blazing, he wuld nt accept them fr recrding. Mr. Weirmeir clarified that the use f the cmpass did nt significantly add t the develped times. Mark Dixsn Hall was recalled as a witness n behalf f Sudbury Cntact and gave the fllwing evidence: Mr. Sullivan referred t Mr. Harringtn's Applicatins t Recrd three mining claims, fund at Part 23 f Exhibit 7, in particular t Filed Only Mining Claims L and The Applicatin indicates that bth were staked n April 17, 1994, cmmencing at the N. 3 pst at 8 a.m. and finishing at 11 a.m. Mr. Hall stated that he vaguely recalled that Mr. Harringtn said that he did nt stake Filed Only Mining Claim L Mr. Hall cncurred that it wuld be impssible t be in tw places at ne time. One wuld need t knw the circumstances t determine whether these Filed Only Mining Claims were staked prperly. Hwever, after the first 24 hurs after land cmes pen fr staking, the rules change in that helpers can be used mre extensively in the staking. Subsectin 8(7) f O.Reg. 115/91 allws thers t be used as helpers and subsectin 8(8) nly requires that the staker inscribe ne crner pst with the time f cmpletin. This is cntrasted with subsectin 8(9), where within the first 24 hurs, the staker must cmmence at the N. 1 pst, erect and inscribe all psts and mve in a clckwise directin

18 16 Messrs. Hall and Sullivan discussed varius interpretatins f sectin 8. Mr. Hall indicated that it was nt the intent f the regulatin, nr a practice in the industry, t have ne persn in a grup staking have n mre participatin than inscribing the time f cmpletin n ne crner pst. Cnditins f the land were described as pen field, swamp and tag alder. It was nt, in Mr. Hall's pinin, as heavy bush as is fund in sme areas, in that the swamp was nt deep and there were nt a lt f rivers and dams. Despite f assistance n the inspectin frm Mr. Harringtn and the use f the cmpass, Mr. Hall ccasinally did lse the line during the inspectin. Hwever, the intent f the inspectin was verificatin f the time taken t stake. Under crss-examinatin, Mr. Hall agreed that the drafting f O.Reg. 115/91 creates sme cnfusin as t wh must assume respnsibility fr the staking. It was suggested that it may be pssible fr a staker t d nly what is necessary n a number f mining claims being staked simultaneusly, with helpers carrying ut the bulk f the staking. Hwever, Mr. Hall stated that the staker must sign page tw f the Applicatin t Recrd, indicating that he r she was n the grund and that all infrmatin is crrect. This can be dne nly with persnal knwledge. The purpse f the inspectin is t evaluate what is fund in the field. It is nt typical fr an inspectr t nte when a cmpass was necessary. Mre typical are cmments regarding when a line was bscured. Kevin Mntgmery was called as a witness n behalf f Sudbury Cntact and gave the fllwing evidence: Mr. Mntgmery was emplyed by Mr. Hubachek fr 2 1/2 years, hlding a bachelrs and a masters degree in gelgical science. He accmpanied Mr. Hall n the inspectin f May 26, They arrived at 8:55 a.m. at Statin #1 and fllwed the line acrss arund the pnd. Mr. Harringtn went ahead t lcate the line. Mr. Mntgmery described the trail fllwed by the inspectin. Sme difficulty was experienced alng the suth line f L They were n the rad again by 5 p.m. There was a discussin with Messrs. Harringtn and Hall cncerning the purpse f the inspectin and the upsht was that there was n cncern regarding the line psts, nly the staking times

19 17 Mr. Mntgmery stated that the staking times fr Mining Claims L and were reasnable. Mining Claim L , staked by Luc Maris, was nt inspected. Sudbury Cntract hired a staking cmpany frm Ruyn-Nranda, whm it had dealt with fr seven years. He rates the quality f their staking as excellent. Under crss-examinatin, Mr. Mntgmery clarified that he wrks fr Mr. Hubachek. Hwever, he was present n the inspectin as an agent fr Sudbury Cntact. There was n way t tell the difference in the lines f Strike Minerals and Sudbury Cntact. David William Christie was called as a witness n behalf f Sudbury Cntact and gave the fllwing evidence: Mr. Christie has wrked as a prject gelgist with Mr. Hubachek since He is familiar with the Mining Claims in dispute, having cntacted Ed Chartré f Ruyn-Nranda t d the staking. The assignment was t stake the fur mining claims plus thers t the east. As a cmpetitive staking was anticipated, it was arranged that tw stakers wuld walk the land the day befre the staking. Mr. Christie reviewed the times invlved with the Sudbury Cntact staking and cnsidered them nrmal fr a rush staking. Sudbury Cntact has never been subjected t a dispute until nw, even in rush situatins. Under crss-examinatin, Mr. Christie stated that, while it was anticipated that smaller units wuld have t be staked, due t the rush situatin, when it became apparent that there was n rush, the multiple claim units were staked. Submissins: Mr. Frbes submitted that the evidence f Mr. Rbert, which was given with n interest in the utcme, demnstrated that the claim lines substantially cmply with the requirements f the Mining Act and regulatins, being better than average. This refutes the

20 18 evidence f Mr. Weirmeir, whse evidence is biased in favur f a summer, rather than a winter, staking. In this staking, there were several feet f snw invlved, which bscured the underbrush. Based upn Mr. Rbert's cunt f blazes, there was ne blaze averaging every 27 feet. (Mr. Sullivan bjected t this calculatin, which was nt perfrmed by Mr. Rbert in his reprt r given in evidence.) He submitted that the requirements fr blazing, as set ut in subsectins 8(4) and (5) f O.Reg. 115/91 were met. Referring t the Decisin f the Recrder, which disallwed the staking f Luc Maris f Mining Claim L due t false statements n the Applicatin t Recrd, Mr. Frbes submitted that there shuld be n questin f the cancellatin f the Mining Claim. That Decisin shuld stand, as there has been n appeal by Sudbury Cntact within the 15 days required by legislatin. Mr. Frbes referred t the dctrine f strict cmpliance and quted the Decisin f the Recrder at page 10: 3) Turning t the staking f the disputant, it has lng been cnsidered a requirement that a disputant must satisfy a standard f strict cmpliance. The principal (sic) ges as far back as 1915 when the Cmmissiner said in Whiting vs Mather (MCC Vl. 2 page 324) "He wh seeks equity must d equity". In Hdge et al vs Canandian (sic) Nickel (MCC Vl. 7 page 640) the Cmmissiner said, "..., the tribunal is satisfied that a higher standard f staking is required fr thse wh verstake recrded mining claims." It shuld be clear frm these cases that a mining claim which is nt in substantial cmpliance with the legislative requirements will be deemed abandned pursuant t subsectin 71(1) f the Mining Act, s that Strike Mineral's actins cannt be cnstrued as verstaking, but ne f staking lands which have been deemed abandned. He submitted that the tribunal shuld verrule the Decisin f the Recrder and allw the recrding f the Strike Minerals Filed Only Mining Claims. Witnesses n behalf f Strike Minerals shuld be fund t be credible as t the times when Messrs. Frappier and Gervais were bserved n the land, namely 7:30 a.m. The nly discrepancy between the evidence f Messrs. Frappier and Gervais and thse n behalf f Strike Minerals was the issue f time. Mr. Frbes invited the tribunal t prefer the evidence f witnesses n behalf f Strike Minerals

21 19 Mr. Frbes pinted ut that Mr. Frappier did admit t blazing nrth n Mining Claim L with Mr. Gervais. This was crrbrated by Mr. Gervais. Similarly, the inscriptin n Mr. Gervais's N. 4 pst is 10:25 a.m., while the inscriptin n Mr. Frappier's N. 3 pst is 10:28 a.m. N explanatin fr the discrepancy was given. The issue f the rigins f the stump pst must als be addressed. Mr. Hall's reprt shws that there are tw stump pplar psts, ne stump balsam and ne lse pplar pst. The evidence f Strike Mineral's witnesses is that Mr. Frappier cut a stump pplar pst. This raises the questin f why the inspectin uncvered that a lse pst is attributable t Mr. Frappier. Mr. Frbes suggested that Mr. Frappier inscribed a stump pplar at 7:30 a.m., which is illegal. There are many cases where stakers have erected stump psts prir t the cmmencement f staking, such as Cmba et al. v. St Luis (7 M.C.C. 88); Cunningham et al. v. Smlarczyk (4 M.C.C. 178); and Lacasse v. Phillips (7 M.C.C. 560). Mr. Frbes submitted that Mr. Gervais's staking f Mining Claim L shuld be deemed abandned fr nn-cmpliance, in that a pst was used which was erected prir t the cmmencement f staking and a helper was used t blaze ging cunter clck-wise. Therefre, the Applicatin t Recrd shuld be cnsidered false. Referring t the case f Dupnt et al. v. Inglis et al. 3 M.C.C. 193, Mr. Frbes quted the fllwing passage f that decisin frm the bdy f the Decisin f the Recrder: "It was urged that the issue was in reality between the respndents and the individual appellants, but that cnfuses the matter. The questin is the validity f the alleged first staking, and that is a matter between the licensee and the Crwn. Its adjudicatin may affect a subsequent staking by anther licensee; but there is n vinculum juris and n lis between the tw licensees, and the disputant is befre the tribunal nly as he is permitted by the statute t have the claim f anther put in questin befre the Recrder. In the enquiry the subsequent staking is irrelevant, and the decisin shuld be the same as if n such actin had taken place." Hwever, the Recrder shuld nt have dismissed Strike Mineral's dispute and nt allwed the recrding f its three Filed Only Mining Claims. Mr. Sullivan pinted ut that the nly issue raised by Strike Minerals was that f the time it tk t stake by Sudbury Cntact. This was cnfirmed by Messrs. Hall and Mntgmery

22 20 Strike Minerals called Messrs. Harringtn, Frappier and Gervais as its wn witnesses and the fact that the evidence cnflicted must affect its case. Hwever, the fact remains that these were Strike Minerals' witnesses and this is its evidence. The issue is ne f credibility. The reprt f Mr. Rbert is made six mnths after the riginal stakings. Mr. Sullivan submitted that it is ttally incrrect. He was hesitant, his crss-examinatin cntradicted his evidence in chief. Mr. Sullivan submitted that the ttal reprt shuld be disregarded. Similarly, the reprt f Mr. Weirmeir ges t the ppsite extreme. Even thugh the inspectin was executed shrtly after the staking, it cntradicts the inspectin reprt f Mr. Hall. Mr. Rbert has indicated that the claim lines can be fllwed easily. While this is intended t apply t Strike Minerals' claim lines, the same can be said fr that f Sudbury Cntact. As the respective lines cannt be differentiated, the reprt shuld be disregarded. It is the evidence f Mr. Hall that times mentined in the Applicatins t Recrd are pssible. The evidence f Mr. Weirmeir sets a very strict standard f staking, setting ut rather arbitrary times. The variables cannt be given weight, as there is n basis fr why tw minutes r three minutes shuld be added t actual times. The entire reprt des nt allw fr variables in calculatins. Cncerning interpretatin prblems with sectin 8 f O.Reg. 115/91, cmmn sense shuld be applied. The reference t the licensee in subsectin 8(8) refers back t the licensee in subsectin 8(7). Mr. Sullivan agreed with Mr. Hall that a staker cannt be in tw places at nce. The statements n page tw f the Applicatin t Recrd must be truthfully admitted. This raises the questin f hw Mr. Harringtn culd be in tw places at nce. The facts f the case must be gverned by the substantial cmpliance requirements f sectin 43 f the Mining Act. The leading case regarding substantial cmpliance is Clark v. Dcksteader 36 S.C.R. 622, invlving British Clumbia, with the interpretatin t a prvisin similar t that cntained in sectin 43 f the Act. The placement f the N. 2 pst utside f the mining claim n lands already staked by anther was held nt t be invalid as it culd be crrected by the curative prvisins f the Act. The legislative test was ne f bna fides and nt f a character calculated t mislead. Mr. Sullivan submitted that nne f the deficiencies in the Sudbury Cntact staking were calculated t mislead and that the sympathies f the tribunal shuld rest with the riginal staker. Similarly, Ramsay v. Fernberg et al. 7 M.C.C. 385 dealt with the issue f whether there can be substantial cmpliance, ntwithstanding a number f technical deficiencies. The Supreme Curt f Ontari, Divisinal Curt held that the nature f the deficiencies was such that they culd be cured by the curative prvisins in the legislatin

23 21 Mr. Sullivan submitted that the bject f the Mining Act, as stated in the Clark case, is t mtivate the search fr and t secure the discvery f minerals. Stakings shuld be upheld where there is an hnest attempt t cmply with the requirements f the legislatin. Abslute cmpliance is nt a requirement. It was submitted that the standard set by Mr. Weirmeir was t high. The Mining Claims were staked in gd faith and there is nthing indicating an intent t mislead. All times f stakings were set ut and the evidence f Messrs. Hall and Mntgmery was that they were reasnable. Mr. Sullivan submitted that the appellant has nt discharged the nus f prving that the stakings were invalid. In the alternative, Mr. Sullivan submitted that Strike Minerals' Filed Only Mining Claims shuld nt be recrded. Cncerning the issue f Mr. Maris' staking f Mining Claim L , Mr. Sullivan stated that the times were fund t be reasnable by the inspectin f Mr. Hall. The nly issue raised by the dispute is that f the time invlved and this had been satisfactrily dealt with. Findings: Status f Mining Claims L and The result f the Decisin f the Mining Recrder was that neither f the tw Sudbury Cntact Mining Claims r the crrespnding Strike Minerals Filed Only Mining Claims were recrded. In appealing this Decisin insfar as it affected its interests nly, the effect f the Strike Minerals' appeal was t appeal the refusal t recrd a mining claim. In rder t have a full hearing n the merits f bth stakings, it wuld have been necessary fr Sudbury Cntact t appeal the Decisin f the Recrder insfar as it disallwed recrding f its tw Mining Claims. The tribunal finds that Sudbury Cntact relied n errneus infrmatin frm the tribunal that it need nt appeal the Decisin f the Recrder t disallw the recrding f Mining Claims L and The result f this errr is that the hearing itself did nt invlve a dispute f the tw Sudbury Cntact Mining Claims. The tribunal cannt cnsider the issue f the validity f the Strike Minerals Filed Only Mining Claims withut first ruling n thse f Sudbury Cntact. The tribunal itself did nt pick up n the cnsequences f this absence f appeal n the part f Sudbury Cntact, and therefre, the matter was nt reslved during the hearing. If it is the case that the tribunal is incrrect, the result wuld be that, in failing t make a case against the Mining Claims, cmbined with the riginal jurisdictin f the tribunal

24 22 set ut in clause 113(a) f the Mining Act, there is n evidence t supprt a dispute with the result that the dispute must be dismissed. This wuld allw the Mining Claims t be recrded where there is a Decisin f the Recrder that the stakings d nt meet the requirements f the legislatin, ntwithstanding that the Decisin was based upn a hearing f the merits and n such hearing tk place befre the tribunal. Such a finesse is nt cntemplated by the prcedural requirements f Part VI f the Mining Act. Each decisin f the tribunal must be n the "real merits and substantial justice f the case". It becmes clear that the rigins f the prblem rest with the tribunal itself, fr having given incrrect advice t Sudbury Cntact and fr having failed t crrect the situatin created when pprtunity presented itself at the hearing. The tribunal finds that a substantial injustice has been suffered by Sudbury Cntact by virtue f the incrrect advice which it received frm the tribunal regarding the filing f a Ntice f Appeal. Under the circumstances, it is clear that Strike Minerals' Ntice f Appeal is filed within the time requirements prvided in subsectin 112(3) f the Act. Based upn its equitable jurisdictin under sectin 121 f the Act and the jurisdictin t extend time cntained in that subsectin in the case f inadequate ntice and substantial injustice, as well as the jurisdictin t extend time fund in sectin 137 f the Act, the tribunal finds that it will extend time t Sudbury Cntact fr the filing f its wn appeal in cnjunctin with that already filed by Strike Minerals, cntained n Dcument N The time fr appealing the Decisin f the Recrder shall be within 15 days f the filing f this Order f the tribunal. It shuld be nted that, fr purpses f any prspective appeal, the jurisdictin f the tribunal t inquire int the validity f the riginal staking extends t all issues f staking, and nt merely the matter f time taken t stake. This is the apprach taken by the Recrder and his Decisin clearly raises issues aside frm the matter f time. In the event that Sudbury Cntact des nt appeal the Decisin f the Recrder within the time frames set ut, the tribunal will render its decisin cncerning the tw Strike Minerals Filed Only Mining Claims in due curse. Validity f Staking f Mining Claim L There are tw versins f what tk place at Statin #1 n the mrning f April 16, Details aside, the mst glaring discrepancy is the time when the meeting f the tw staking teams was alleged t have taken place. With the greatest f respect t Mr. Frbes wh sent ut his team t cmmence staking at 8 a.m. Daylight Savings Time, the tribunal finds that it cannt accept the evidence f his witnesses. It might have been helpful t have Mr. Frbes' evidence f when he met with Mr. Harringtn, upn his return frm the lands t seek advice n whether r nt t verstake

25 23 The fact remains that Arnld Twnship is nt far frm Kirkland Lake. While evidence varied, it wuld appear t be apprximately ne hur away, including the trip by skid t Harker-Hllway Rad frm Statin #1. The tribunal cannt fathm n hw, if the team left Statin #1 after 7:30 a.m., they wuld have arrived in Kirkland Lake fr an early lunch and nt returned until 1 p.m. r 1:30 p.m. There is lst time which is nt accunted fr in any f the evidence. The tribunal finds that it far prefers the evidence f Messrs. Frappier and Gervais that the encunter tk place clser t 10 a.m. r 10:30 a.m. Nt nly des this cincide with the inscriptins n the psts fund in Mr. Hall's inspectin reprt, but als is in keeping with the evidence presented. The evidence f Messrs. Hall and Weirmeir des nt indicate that Mining Claim L culd nt be staked in the fur hurs and eight minutes indicated. Rather, the evidence is that the blazing and cutting f the underbrush culd have been better. The test fr substantial cmpliance is set ut in sectin 43 f the Mining Act. There are n circumstances which are persuasive t this tribunal t suggest that the staking was nt in substantial cmpliance with the requirements f the legislatin, save fr the cutting f the blazes and underbrush. Similarly, there is n indicatin that the failure t perfrm these staking requirements adequately was due t an absence f gd faith r likely t mislead. Therefre, the tribunal finds that there is deemed substantial cmpliance with the requirements f the Act. The Recrder is directed t make an Order pursuant t clause 110(6)(b) t re-blaze the claim lines and alter them s that the brush is adequately cleared. Requirements f Sectin 8 f O.Reg. 115/91 Findings n submissins made cncerning this sectin are reserved until such time as the staking f the tw Strike Mineral Filed Only Mining Claims is cnsidered. Exclusin f Time Pursuant t clause 67(1)(b) f the Mining Act, the time during which Mining Claim L was pending befre the Recrder and the tribunal, being May 17, 1994 t January 19, 1996, a ttal f 613 days, will be excluded in cmputing time within which wrk upn Mining Claim L is t be perfrmed. Pursuant t subsectin 67(2) f the Mining Act, December 16, 1997 shall be deemed t be the date fr filing f the first and secnd units f prescribed assessment wrk n Mining Claim L All subsequent anniversary dates shall be deemed t be December