In this case, the Yukon Supreme Court considered whether a zoning bylaw and Official Community Plan (OCP) designating lands as green space amount to de facto expropriation or injurious affection of mineral claims on those lands.
In 1998, Lobo Del Norte Ltd. acquired nine mineral claims in the City of Whitehorse registered under the Quartz Mining Act, but did not apply for the required approvals or land-use permits from the Yukon government. Lobo had, however, performed some mineral assessment, drilling and geophysical work costing approximately $350,000. At the time Lobo acquired the claims, the city zoning bylaw did not permit mining. In 2012, the city passed a zoning bylaw and implemented an OCP that designated the area with the claims as a "Greenbelt," and informed Lobo that it would have to apply to the city to amend both the OCP and bylaw in order to conduct mining operations. Lobo instead applied for a declaration that the OCP and bylaw had resulted in a de facto expropriation or extinguishment of its mineral rights.
The Court found that the actions of the city did not amount to expropriation, which requires a finding of a confiscation or removal of virtually all of the aggregated incidents of ownership or all reasonable private uses. There was no evidence that Lobo's rights in the lands had been completely confiscated. The mineral claims remained vested in Lobo, and Lobo had not been denied permission to mine. In addition, Lobo had not made any efforts to exercise its rights, such as by applying for an amendment to the bylaw.
The Court went on to consider Lobo's claim for injurious affection under the Expropriation Act, which can be made out where some of the incidents of ownership are lost or damaged. The Court held that the test had not been met because the status of the mineral claims was the same as when Lobo acquired them. Even if the new OCP and zoning bylaw could lead to more scrutiny of Lobo's activities, mining had not been permitted at any time that Lobo had owned the claims.
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