Very useful and insightful information provided by user "ROF"

Easement rights should not be granted in the case of 2274659 Ontario Inc. v Canada Chrome Corporation based upon reasoning within the following topics relevant to the case;

• Priority of Rights: "First-Come" Basis
• Intended Use For Staking a Mining Claim
• Scope: A Section 51 Hearing
• The Multiple Use Principle
• Infringement of the Rights Holder

Priority of Rights: "First-Come" Basis

An underlying principle in both the Mining Act and Aggregate Resource Act is that rights, patents, leases, licences or other instruments of title are granted on a "first-come priority" basis.

Except where the Mining Act otherwise expressly provides, section 63 states that the "priority of recording" prevails. In subsection 44.(2), regarding the staking of claims, it is the "priority of completion of staking" that prevails. Under the surface rights compensation subsection 79.(8), the Commissioner "shall take into account which of the rights was applied for first and, except where injustice would result, shall give the holder of those rights due priority in the consideration of the dispute between the parties."

In subsection 28.(3) of the Mining Act, an application accepted under the Public Lands Act or any other Act, the application shall have priority over any mining claim staked "during" the time that the application is pending. However, in the easement case of "2274659 Ontario Inc. v Canada Chrome Corporation", the respondent's unpatented mining claims were recorded "before" the Crown's Order No. W-TB-172/11, dated January 17, 2012, which withdrew all surface and mining rights to make way for the applicant's Transload Facility and Transportation Corridor. Canada Chrome Corporation's staked mining claims take priority over the Crown's application for withdrawal.

Non-observance of this fundamental "first-come priority" principle by the tribunal would allow the Crown to effect an expropriation from a minority joint-venturer, the respondent, in order to prefer the exclusive interest of the majority joint-venturer, the applicant."

Further, under the Aggregate Resources Act, the right to consolidated aggregate is granted on a first-come priority basis (i.e. "receipt" or "acceptance" by the MNR of an aggregate permit application vs. staked mining claim). It is a question of timing as to which instrument takes precedence. (ARA Guiding Principles policy no. A.R. 5.00.06) The respondent's staked mining claims were registered previous to the Ministry of Natural Resource's "receipt" or "acceptance" date of the Cliffs Natural Resource's applications for aggregate permits along the Transportation Corridor, should the area covered by the aggregate permit applications and mining claims overlap.

If a mining claim is staked and/or recorded before an application for an aggregate permit or licence is received for the same land, then an aggregate permit will be issued only to the recorded holder(s). The former instrument, CCC's staked mining claims, have priority in the consideration for aggregate right permits by the MRN under the Aggregate Resource Act.

According to section 51(4) of the Mining Act, "where an application is made for

disposition under the Public Lands Act of surface rights on an unpatented mining claim

and the holder of the unpatented mining claim does not consent to the disposition and

provision for the reservation or exclusion of the surface rights is not otherwise provided

for in this Act or any other Act, the Minister may refer the application to the

Commissioner". KWG and its subsidiary CCC do not consent to Chromite's application

and are advised that the MNR has no authority to deal with such rights until the matter is

determined by the Mining Commissioner.

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