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This document was sourced from BC Assessment.
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SC 151 Newmont Mines v. The Queen

 

Quick Link to Stated Case #151 (BCCA)

JUDICIAL REVIEW ACT

NEWMONT MINES LIMITED

v.

HER MAJESTY THE QUEEN IN RIGHT OF THE
PROVINCE OF BRITISH COLUMBIA, ATTORNEY
GENERAL OF BRITISH COLUMBIA, MINISTER
OF FINANCE, BRITISH COLUMBIA ASSESSMENT
AUTHORITY AND SURVEYOR OF TAXES

Supreme Court of British Columbia (C8038l9) Vancouver Registry

Before: MR. JUSTICE A.A. MACKOFF

Vancouver, March 19 and 20, 1981

J.W. Elwick for the Plaintiff
J.E.D. Savage for the Defendants

Assessability - occupiers-mineral claims, located mineral claims, and mineral leases

 

The plaintiff operated a copper mine on certain Crown granted mineral claims, located mineral claims, and mineral leases near Penticton, B.C. The claims were assessed on the basis that the plaintiff was an occupier as defined in the Assessment Act, R.S.B.C. 1979, c. 21 and the Taxation (Rural Area) Act, R.S.B.C. 1979, c. 400. The rights of the holder of these claims are to the use and possession of the surface for the purpose of exploring, developing and producing minerals, etc. The Crown retained the right to grant to other parties other limited uses of the land.

HELD:

The plaintiff is entitled to a declaration that it is not assessable or taxable pursuant to the applicable statutes. The Court is bound by the decision in Construction Aggregates Ltd. v. Corporation of the District of Maple Ridge (1972) 6 W.W.R. 335 which held that it is necessary that the plaintiff have an exclusive right of occupation in order to be an "occupier" within the meaning of the said statutes.

 

Reasons for Judgment                                                                                            June 3, 1981

 

The plaintiff is the holder of certain Crown granted mineral claims, located mineral claims and mineral leases (to be referred to as the "Claims") which are located near Princeton, British Columbia.

 

The defendants have assessed the Claims on the basis that the plaintiff is an occupier of the Claims and is assessable pursuant to the provisions of the Assessment Act, R.S.B.C 1979 c. 21.

 

On June 15, 1980 taxes in the aggregate amount of $58,363.10 were levied against the plaintiff under the Taxation (Rural Area) Act, R.S.B.C. 1979 c. 400 and the School Act R.S.B.C. 1979 c. 375 in respect of the Claims.

 

The plaintiff's position is that the assessments and the taxes levied are based in respect of the plaintiff's use of the surface of the claims and since the plaintiff is not an “owner" or "occupier" of the surface of the Claims as those terms are defined in the Assessment Act, the Taxation (Rural Area) Act and the School Act, therefore the plaintiff claims:

 

(a) A declaration that it is not assessable under the Assessment Act.

 

(b) A declaration that it is not assessable for tax under the Taxation (Rural Area) Act.

 

The question for my determination therefore is: Is the operator of a mine assessable and taxable in respect of the surface of Crown land used for mining purposes when the only rights to use the surface flow from holding mineral claims and leases?

 

The definition of "occupier" appears in section 1 of the Assessment Act and the relevant portions read as follows:

 

“’occupier' means

 

(a) a person who, if a trespass has occurred, is entitled to maintain an action for trespass;

 

(b) the person in possession of Crown land that is held under a homestead entry, pre-emption record, lease, licence, agreement for sale, accepted application to purchase, easement or other record from the Crown, or who simply occupies the land;"

 

This definition is also used in the Taxation (Rural Area) Act and the School Act.

 

Is the plaintiff an "occupier" as defined in part (a) of the definition, that is, if a trespass has occurred, is the plaintiff entitled to maintain an action for trespass?

 

The rights of the holder of located mineral claims and mineral leases are only those derived under the Mineral Act R.S.B.C. 1979 c. 259. The rights of a Crown granted mineral claim are not set out in the Mineral Act, they are contained in the Crown grant itself. An examination of one of these Crown grants appended to the Agreed Statement of Facts indicates that the rights of a holder of a Crown granted mineral claim are virtually identical with those of a holder of a located mineral claim or mineral lease.

 

By section 10 of the Mineral Act the holder of a mineral claim or lease may use and possess the surface of the claim or lease for certain specific purposes. The purposes are: exploring for, developing and producing minerals, including the treatment of ore concentrates and all operations related to the exploration, development and production of minerals and the mining business.

 

The holder is not only subject to the restriction contained in section 10 as to his use and possession of the surface area but he is also subject to contrary rights. This is not in dispute and in fact in paragraph 16 of the Agreed Statement of Facts herein the following is set out:

 

"The Crown is entitled to grant other rights for the use of the lands covered by the Claims to third parties and has done so in connection with Placer claims over parts of the Magnetic and Princeton claims and also in connection with a grazing permit over the Claims located on or near Copper Mountain."

 

Such contrary rights to surface area may be obtained, inter alia, under the Coal Act R.S.B.C. 1979 c. 51; the Range Act R.S.B.C. 1979 c. 355; the Forest Act R.S.B.C. 1979 c. 140; the Mining (Placer) Act R.S.B.C. c. 264.

 

The restricted surface rights given under section 10 of the Mineral Act are further restricted by section 11 which reads:

 

"11. (1) Notwithstanding this or any other Act, the minister may restrict the use of surface rights by a person who holds a mineral claim, mining lease or certified mining lease where, after inspection and giving reasonable notice to that person, he is of the opinion that the surface is so situated that it should be used for purposes other than mining."

 

From the foregoing it is evident that the Crown has reserved its rights and is therefore free to grant rights to other parties for the use of the lands covered by the Claims for purposes other than those given exclusively to the plaintiff.

 

In Construction Aggregates Ltd. v. Corporation of the District of Maple Ridge (1971) 4 W.W.R. 214, Gould, J. examined the word "occupier" which was defined in the Municipal Act R.S.B.C. 1960 c. 255 in terms almost identical to the definition here being considered. In that case the Crown entered into an agreement with the predecessor in title of the plaintiff giving it the sole and exclusive right during the life of the agreement to use certain Indian reserve lands for the purpose of extracting gravel, rock, sandstone and aggregates. Under the agreement was reserved the right for the Indians to carry on logging over the land and as well the Crown could grant an interest in the land, including a lease, to a third party, subject only to the permittee's rights under the agreement (Exhibit No. 22) to come onto the land for the purpose of removing gravel, etc. Gould, J. held that the plaintiff did not possess any interest in the land by way of exclusive occupancy under its agreement with the Crown and so could not maintain an action for trespass.

 

In my view the plaintiff's rights in the present case are very similar to the plaintiff's rights in the Construction Aggregates case. In both cases the plaintiff has only an exclusive right for certain specific purposes but does not have an exclusive right to use or occupy the land. As well, as in the Construction Aggregates case, the Crown here, as previously stated, has reserved its right and is free to grant rights to other parties to use the lands covered by the Claims for other purposes. Since the plaintiff does not have the exclusive right of occupation it cannot maintain an action for trespass and is therefore not an "occupier" as defined in Part (a) of the definition.

 

Is the plaintiff an "occupier" as defined in Part (b) of the definition as one who is “in possession" or as one "who simply occupies the land"? In answering the same question in reference to an almost identical definition Gould, J. in the Construction Aggregates case stated at page 214:

 

"There remains the question of whether the land was and is 'occupied' by or through the plaintiff.

 

The British Columbia Municipal Act, section 2, defines 'occupier' as:

 

(a) one who is qualified to maintain an action for trespass; or

 

(b) the person in possession of land of the Crown that is held under any homestead entry, pre-emption record, lease, licence, agreement for sale, accepted application to purchase. easement, or other record from the Crown, or who simply occupies the land.

 

The plaintiff Permittee does not qualify as an occupier under subsection (a) (supra), because it could not maintain an action for trespass. Nor is it in possession of the land, as required by the first part of (b) (supra). The question remains, does the plaintiff come under the second part of (b) (supra), as one "who simply occupies the land”? To “occupy" land for the purpose of municipal taxation there must be an element of exclusive occupancy. See Re City of Oshawa and Loblaw Groceteria Company Limited (1963) 38 D.L.R. (2d) 216; 1 O.R. 605. There is, and has been, as an agreed fact, logging over the land in question, being lawfully carried out by an Indian or Indians, and in the light of Exhibit 22 I find that the Crown Dominion could grant an interest in this land, including a lease, to a third party, subject only to the Permittee's rights under Exhibit 22 to come onto it for the limited purpose of removing gravel, etc. I hold that the plaintiff Permittee is not an "occupier" of the land within the definition of section 2 of the Municipal Act, nor is the land "occupied" by the plaintiff within section 335 or section 327(1)(f) of the same Act."

 

Gould, J. was upheld on appeal. Maclean J.A. after adopting the portion of the foregoing beginning with the words "To 'occupy' land" to the end of the above quoted passage stated:

 

"If this statute were to be interpreted as taxing a restricted and limited interest such as held by the respondent here an absurd situation would result. If a person is taxable as an occupier section 335 (2) (of the Municipal Act which is identical to section 34 (2) of the Assessment Act) authorizes assessment of the occupier at 'the actual value of the lands and improvements'.

 

In the present case, unless "occupier" means exclusive occupier, the lands could be assessed for their actual value against a person having the right to occupy for the purpose of cutting and removing timber as well as assessing and taxing for the actual value for persons having other non exclusive rights such as the present respondent." Construction Aggregates Ltd. v. Corporation of the District of Maple Ridge (1972) 6 W. W. R. 335 at 363.

 

Maclean J.A. held that in that case the expression "occupied by a person" should be interpreted as referring to an exclusive right of occupation.

 

As in that case, for the reasons earlier set out, the plaintiff herein has neither an exclusive right of possession nor an exclusive right of occupancy and is therefore not an "occupier" within the definitions of the applicable Acts.

 

Counsel for the defendants seeks to distinguish the present case from the Construction Aggregates case on the fact that in that case an Indian or Indians were logging over the land in question.

 

In that case there were two findings of fact, either of which, in my view, supports the conclusion reached that the plaintiff did not have an exclusive right of occupation. First was the fact above stated. Second was the fact that the Crown reserved the right to grant an interest in the land to a third party subject only to the plaintiff's rights under the agreement to use it for the limited purpose of removing gravel, etc. Since the latter finding of fact in that case is indistinguishable from the facts herein, the distinction pointed out by counsel for the defendants does not affect the conclusion that the plaintiff in that case and in the present case does not have an exclusive right of occupation.

 

Counsel for the defendants submits that the Ontario case followed by Gould, J. and the B.C. Court of Appeal majority in their decision was wrongly decided since the trial judge in the Ontario case misinterpreted a House of Lords decision upon which he based his judgment. Counsel therefore urges that I not follow the Construction Aggregates decision. This submission would be more appropriately made to the Court of Appeal and not to a trial judge who is bound to follow the law as stated by the Court of Appeal.

 

Having reached the conclusion that the plaintiff is not an "occupier" within the definition section, it is unnecessary for me to deal with the secondary argument advanced on behalf of the plaintiff.

 

The plaintiff is entitled to the declarations sought.

 

 

SC 151cont Newmont Mines v. The Queen et al

Declaratory Action

NEWMONT MINES LIMITED

v.

HER MAJESTY THE QUEEN IN RIGHT OF THE
PROVINCE OF BRITISH COLUMBIA, ATTORNEY
GENERAL OF BRITISH COLUMBIA, MINISTER
OF FINANCE, BRITISH COLUMBIA ASSESSMENT
AUTHORITY AND SURVEYOR OF TAXES

British Columbia Court of Appeal (CA810686) Vancouver Registry

Before: CHIEF JUSTICE N.T. NEMETZ,
MR. JUSTICE P.D. SEATON
MR. JUSTICE E.E. HINKSON
MR. JUSTICE J.D. LAMBERT
MR. JUSTICE H.E. HUTCHEON

Vancouver, March 2, 1982

John E.D. Savage for the Appellant, H.M. the Queen in Right of the Province of British Columbia, et al
J.W. Elwick and R.B. Carrothers for the Respondent, Newmont Mines Limited

Assessability-Occupiers-Mineral Claims, Located Mineral Claims, Mineral Leases

 

In the Court below the Court held that to be an occupier within the meaning of the Assessment Act, R.S.B.C. 1971, ch. 21 and the Taxation (Rural Area) Act, R.S.B.C. 1979, ch. 400 it was necessary that the occupier have the exclusive right of occupation.

HELD:

            The appeal allowed in part. Possession in fact or occupation in fact, based on an exclusive or non-exclusive right to possession or occupation, or even on no right at all, is sufficient to make the person in possession or occupation subject to assessment and taxation. An Occupier should be rated on the piece or parcel which he actually occupies. The City of Westminster v. Southern Railway Company (1936) Appeal Cases 511 applied, Sammartino v. Attorney-General of British Columbia (1972) 1 W.W.R. 24 applied, Construction Aggregates v. Maple Ridge (1972) 6 W.W.R. 335 not followed.

 

Reasons for Judgment of Mr. Justice Lambert                                                      March 2, 1982

 

Per Curiam

 

The trial judge granted Newmont Mines Limited a declaration that it was not assessable under the Assessment Act nor taxable under the Taxation (Rural Area) Act or the School Act in respect of the mineral claims and leases upon which it works its open pit copper mine in the Similkameen Valley about ten miles from Princeton. This is an appeal by the Crown from that decision.

 

Newmont has been operating an open pit mine on the claims since 1971. In 1980 the operating mine consisted of the lngerbelle Pit on the west bank of the Similkameen River near the Hope-Princeton highway, Pit No. 2 at Copper Mountain on the east bank of the Similkameen, a crusher plant at each of those pits and a single concentrator plant near the lngerbelle Pit.

 

The ore is blasted from the walls and bottom of the pit and carried in large pieces to the crusher plants. It is there broken down to pieces about nine inches across. Those pieces are carried from the crusher plants to the concentrator where they are ground up and the mineralized material, copper sulphide, is separated from the non-mineralized waste material.

 

At the pits and crushers there is waste rock. It is disposed of by piling it on the hillside in waste dumps. The waste material from the concentrator is the consistency of sand or mud and it is pumped from the concentrator across a bridge over the Similkameen to a tailings disposal pond from which the water is pumped back across the bridge to be used again in the concentrator.

 

A second bridge has recently been built. It is a suspension bridge and it carries a conveyor belt on which the crushed ore is carried from the crusher plant at Pit No. 2 across the river to the concentrator on the west bank.

 

There is a truck repair shop on each side of the river, there is a pump house and there are water tanks. Campsites have been built from time to time using portable camp trailers. Roads connect the various locations to each other and to the Hope-Princeton highway. Areas that are to be used for waste dumps or for camps or other purposes have been cleared of timber.

 

Pit No. 1 and Pit No. 3 on the east bank of the river have been cleared of timber but were not being worked in 1980.

 

Newmont's title to the mine site consists of a patch-work of mineral claims coupled with a title to the surface of the land on which all or a majority of the permanent buildings are located. There is no dispute about the land to which Newmont holds the surface title.

 

The mineral claims are of three types, Crown granted mineral claims, mineral leases, and located mineral claims.

 

The Crown granted mineral claims grant "all minerals . . . found in veins, lodes or rock in place . . . and the right to the use and possession of the surface of such mineral claim, including the use of all the timber thereon for the purpose of winning and getting from and out of such claim the minerals contained therein, including all operations connected therewith or with the business of mining." (my underlining)

 

The mineral leases and located mineral claims confer on the holder the rights set out in s. 10 (1) of the Mineral Act:

 

10 (1) The holder of a mineral claim, 2 post claim, lease, mining lease or certified mining lease may use and possess the surface of his claim or leasehold for the purpose of exploring for, developing and producing minerals, including the treatment of ore and concentrates, and all operations related to the exploration, development and production of minerals and the business of mining.                                                 (my underlining)

 

In short, the ownership of the mineral claims, no matter of which type, confers on Newmont a right or a power to use the surface, and a right or a power to possess the surface. There is no deemed possession or use. Possession and use remain questions of fact. Ownership of the claims only puts Newmont in a position where it can take possession of the surface if it wishes to do so. The ownership does not put Newmont into possession. This distinction is important and I will return to it.

 

In January 1980 Newmont was assessed under the Assessment Act on the actual value of the land covered by some, but not all, of its mineral claims. The ones which were not assessed were claims where the surface was not being used in any way by Newmont. The 37 claims which were assessed were used in whole or in part in the mining operations at that time. The uses may be summarized as mining in the open pits, dumping waste rock, storing mine tailings, the building and operation of a pumping system and bridge for tailings, the building and operation of a conveyor system and bridge for carrying crushed rock, the erection and maintenance of construction camp-sites, field offices and security buildings, and the building and operation of roads. In some cases the whole claim was in use, as for example, by being a part of the open pit or the waste dump, and in other cases only a very small part of the claim was in use, as where a roadway crossed a corner of a claim that was otherwise in a state of nature.

 

In due course tax was levied in the amount of $58,363.10 under the Taxation (Rural Area) Act and the School Act. The tax was paid under protest and this action was begun for a declaration that Newmont was neither assessable nor taxable, and for a refund of the tax paid under protest. Mr. Justice Mackoff granted the relief that was claimed by Newmont. His decision is reported in (1981) 30 B.C.L.R. 331 and (1981) 124 D.L.R. (3rd) 710. He was invited by the Crown to distinguish, or not to follow, the decision of this Court in Construction Aggregates v. Maple Ridge (1972) 6 W.W.R. 335. But Mr. Justice Mackoff felt unable to distinguish that decision and said that the argument that it should not be followed should more appropriately be addressed to this Court.

 

In bringing this appeal, the Crown requested that the Court sit in a division of five. It is, of course, the correct practice in British Columbia to make such a request when counsel proposes to invite the Court to reconsider one of its own previous decisions. It is not, however, necessary in this case to digress as to the limits that this Court places upon itself with respect to overruling one of its own previous decisions. This is so because there are two other decisions of the Court on the point that may broadly be said to be in issue and, since they are contrary to the Construction Aggregates decision, we must, of necessity, make a choice. The other decisions are B.C. Telephone Company v. West Vancouver (unreported, 5 April, 1955, Victoria Registry, No. 160/54) which reversed the decision of Wilson, J. reported at (1955) 9 W.W.R. (N.S.) 468, and Sammartino v. Attorney-General of British Columbia [1972] 1 W.W.R. 24. Mr. Justice Mackoff was not referred to those decisions.

 

I now turn to the statutory provisions which raise the principal point in issue in this appeal. Section 34 of the Assessment Act provides that land and improvements, the fee of which is in the Crown, but which are held or occupied by someone other than the Crown, shall be entered on the assessment roll in the name of the holder or occupier, whose interest is to be valued at the actual value of the land and improvements. The Taxation (Rural Area) Act provides in s. 2 and s. 16 that every occupier of Crown land is to be assessed and taxed on the land and improvements held by him as an occupier. The School Act, in s. 204, makes the Taxation (Rural Area) Act apply to the assessment and levying of taxes for school purposes.

 

In the result, therefore, the Assessment Act provides for assessment if the land is either held or occupied by Newmont but the Taxation (Rural Area) Act only provides for taxation if the land is held by Newmont as an occupier. Counsel for both parties argued this appeal on the basis that if Newmont was an occupier it was assessable and taxable, and if it was not an occupier it was not taxable. I am content to treat the appeal on that basis.

 

The word "occupier" is defined in the Taxation (Rural Area) Act as being "occupier" as defined in the Assessment Act. So it all comes back to the definition of "occupier" in the Assessment Act. That definition reads in this way:

 

"occupier" means

 

(a)  a person who, if a trespass has occurred, is entitled to maintain an action for trespass;

 

(b)  the person in possession of Crown land that is held under a homestead entry, pre-emption record, lease, licence, agreement for sale, accepted application to purchase, easement or other record from the Crown, or who simply occupies the land;

 

(c)  a person in possession of land the fee of which is in a municipality and that is held under a lease, licence, agreement for sale, accepted application to purchase, easement or other record from the municipality or who simply occupies the land; or

 

(d)  a person in possession of land the fee of which is in, or held on behalf of, a person who is exempted from taxation under an Act and that is held under a lease, licence, agreement for sale, accepted application to purchase, casement, or other record from the person exempted from taxation or who simply occupies the land;

 

(my underlining)

 

Newmont's position is that only a holder of an exclusive right of occupation is subject to assessment and taxation.

 

Counsel for Newmont seeks to support that position by saying that in order to be an occupier under the definition, Newmont must meet both the test in paragraph (a) of the definition and the test in paragraph (b) of the definition. That argument arises from the fact that the conjunction "or" only appears after paragraph (c). But that is the customary technique of legislative counsel in British Columbia when all the paragraphs are intended to be disjunctive alternatives.

 

If, in any particular case, possession was based on an exclusive right of possession then an action in trespass could be maintained if the possession was disturbed. Accordingly, if Newmont's position were correct there would be no purpose in paragraphs (b), (c) and (d). The presence of those paragraphs therefore tends to indicate what I think is the correct position, that is, that possession in fact, or occupation in fact, based on an exclusive or on a non-exclusive right to possession or occupation, or even on no right at all, is sufficient to make the person in possession or occupation subject to assessment and taxation.

 

On each of its claims Newmont is given a right to possess and use the surface of the land. The Crown is not seeking to assess or tax Newmont merely because Newmont holds those rights. No assessments were issued and no taxation levied on the claims where Newmont has done nothing on the surface. But in the exercise of those rights on some of the claims, Newmont has removed the surface completely and dug a hole in the ground; in the exercise of those rights on other claims it has completely covered the surface of the claims with a pile of waste rock; and in the exercise of those rights on still further claims it has cleared the land and built a road or a conveyor or a construction camp or the footings for a bridge. To suggest that those uses of the land amount to anything less than exclusive possession and occupation in fact, of the land so used, would be absurd.

 

Perhaps Newmont would not have done so had it not been for the fact that the Crown has sought to assess and tax the whole of every claim on which Newmont has exercised its right of possession by occupying a small part. To the extent that the Crown has done that, in my opinion it has done so wrongly.

 

Newport says that it is being assessed and taxed on land to which it does not have an exclusive right of possession. It is conceded by the Crown that a grazing permit under the Range Act has been issued and that it confers certain rights of use for grazing purposes over part of the surface on which Newmont is being assessed and taxed. It is also conceded by the Crown that a lease under the Mining (Placer) Act has been issued and that it confers rights of possession to part of the surface on which Newmont is being assessed and taxed.

 

The Crown's approach has required its counsel to advance an intricate argument to the effect that where part of the surface of a parcel of land, whose boundaries are the boundaries of a mineral claim, is occupied by one occupier with non-exclusive rights and another part of the surface of the same parcel of land is occupied by another occupier with non-exclusive rights, then one occupier is subject to assessment and tax on the actual value of the whole parcel and the other occupier is not assessable or taxable at all. Counsel for the Crown then says that the selection of which of the contiguous occupiers is to bear the tax depends on which of them is paramount, a test he seeks to support on the basis of English decisions on the rates for the relief of the poor, which is a levy on occupiers, not on owners. Those cases had to solve the problem that arose when two persons simultaneously occupied the very same premises, as in the case of a home owner and his lodger, and it was decided that the home owner should be rated as the paramount occupier. But those cases adopt a different solution where the occupation is of the same parcel of land but the two occupiers each has exclusive occupation of part of the parcel, as in the case of a bookstall in St. Pancras railway station. In that case the House of Lords decided that each of the occupiers should be rated on the piece of the parcel which he actually occupied. City of Westminster v. Southern Railway Company [1936] A.C. 511. That approach to the problem of contiguous occupancy is not adopted by the Crown in this case, perhaps because it was not what was done when Newmont was assessed and taxed for 1980. But in my opinion, it is the correct approach. And, of course, it should apply whether there is a contiguous occupier on the same mineral claim or not. That is, Newmont should be assessed and taxed only on that part of the surface of the claim that it actually occupies. If part of the remainder of the surface of the claim is actually occupied by someone else, then that someone else should be taxed on the part which he actually occupies. If the remainder of the surface of a claim is not possessed or occupied by anyone, then no one should be assessed or taxed on that remainder, even though Newmont or others may have a right to possession or occupancy, exclusive or non-exclusive.

 

The theory of the Crown requires the addition to the statutes of a complex body of law that would be required to determine which occupier is the paramount one. It could also lead to absurd results. For example, it was said by Crown counsel that if 'Newmont built a road over a mineral claim in 1979 then it would be assessed and taxed on the actual value of the whole claim in 1980; but if a placer miner started to work the other end of the mineral claim in 1980, under the authority of overlapping rights, and became the paramount occupier by reason of doing so, then in 1981 Newmont would cease to be assessable and taxable and would cease to be an occupier notwithstanding that no change had occurred in its operation and its use of the road.

 

By contrast, the opinion that I have expressed as to the manner in which the assessment and taxation ought to operate is supported by the words of the statutes. Under paragraph (b) of the definition of "occupier" it is the person in possession of Crown land or the person who simply occupies Crown land who is subject to assessment and tax. Surely the question of possession and the question of occupation must be questions of fact. The paragraph does not purport to refer to persons who have rights of possession or rights of occupation, exclusive or otherwise. It refers to possession itself and occupation itself, though in relation to possession it limits the application of the paragraph to those cases where the possession is coupled with the holding of a right, exclusive or non-exclusive, the exercise of which could give legitimacy to the possession. Consequently, I conclude from the definition of "occupier" that possession or occupation in fact is sufficient to make Newmont assessable and taxable whether the right that is exercised by Newmont to carry out the possession or occupation is an exclusive right or not.

 

The definition of "occupier" refers to "the person in possession of Crown land" or "the person . . . who simply occupies the land". It says nothing about land that is part of the same parcel for registration purposes under real property legislation or mining legislation but which is not possessed or occupied by the person who has the right to possess or occupy it. The same is true under the Taxation (Rural Area) Act and the School Act. In the words of the Taxation (Rural Area) Act, "Every occupier of Crown land shall be assessed and taxed on the land and improvements on it held by him as an occupier." Nothing is said about land that he does not occupy but which is part of the same parcel as the land which he does occupy.

 

In my opinion Newmont is assessable and taxable on the land and improvements of which it has possession in fact, and which it holds by reason of the exercise of its rights under its Crown granted mineral claims, mineral leases and located mineral claims.

 

In my opinion Newmont is not assessable or taxable on land which it has not is reduced to possession and which it has not occupied, even if that land is within the boundaries of the same mineral claim as land on which Newmont is assessable and taxable.

 

There is no reason in this appeal to explore the question of what happens when the very same land is occupied simultaneously by two different occupiers for two different purposes. There are no cattle grazing in the open pits or browsing on the waste dumps. No placer miner is hosing away the foundations of the bridge towers. I would leave that question until it arises.

 

I do not think that it is necessary to discuss Construction Aggregates v. Maple Ridge, B.C. Telephone Company v. West Vancouver, and Sammartino v. Attorney- General of British Columbia. I do not think that they can be reconciled with each other. There is nothing in Sammartino that is inconsistent with the conclusion that I have reached in this case, and to the extent that it can be said to apply to this case I would follow it. To the extent that B.C. Telephone Company says that an occupier of land can be taxed on land in the same parcel which he has a right to occupy but which he does not occupy in fact, I would not follow it, and to that extent I would overrule it. Construction Aggregates may be distinguishable from this case on the ground that, being land held in trust for a band of Indians, only paragraph (a) of the definition of "occupier" in the Municipal Act at that time was applicable. But if Construction Aggregates decides that only a person who holds an exclusive right to possession can be assessed and taxed as an occupier, I would not follow it.

 

Counsel for Newmont raises two secondary arguments. The first is that the open pits are within the exemption from taxation that is conferred by S 13 (n) of the Taxation (Rural Area) Act on "tunnels and similar excavations of a mine". If the exemption had been for "excavations of a mine" then the open pits would have qualified. But once excavations of a mine are divided into two classes, those which are similar to tunnels and those which are not, in my opinion the open pits must fall into the category of those which are not. I suppose those that are similar to tunnels would be shafts, drifts and other underground workings.

 

The secondary argument is that the waste dumps are within the exemption that is conferred by s. 13 (r) of the Taxation (Rural Area) Act on " land used . . . for control or abatement of . . . pollution". In my opinion the land on which the waste rock is dumped is polluted by the rock in that the rock "is of a character to substantially alter or impair the usefulness of the land". See s. 1 of the Pollution Control Act. The fact that the pollution is somewhat ameliorated by the management of the dumping of the waste and the eventual covering of the waste with top soil and vegetation, does not mean that the land is used for control or abatement of pollution. It is the very land that is being polluted.

 

I would allow the appeal in part. I would grant the plaintiff only a declaration that it is not assessable or taxable on land that it does not possess or occupy in fact, even if it has a right to possession of that land under a Crown granted mineral claim, a mineral lease or a located mineral claim, and even if it possesses or occupies another part of the land covered by the same claim or lease. I would grant a further declaration that the plaintiff is entitled to recover from the Crown the tax that the Crown was not entitled to levy in accordance with the first declaration. If the parties can not agree on interest on the amount to be refunded then I would permit that matter to be spoken to. Success has been divided. I would not award costs of the appeal or costs of the trial to either party.