You may recall that last November, the BC Supreme Court ruled in favour of my client, New Nadina Explorations Limited, in a case that involved the interpretation of the phrase “land under cultivation.” Following that decision, the landowner appealed, and this week the BC Court of Appeal dismissed the appeal.
The appeal was heard by three judges of the Court of Appeal on May 5, 2015. The key issue before the court was whether the BC Supreme Court (and the Surface Rights Board before that) made an error when they concluded that
Once the crop is harvested, or is no longer capable of being harvested because of poor weather, infestation or disease, the land is no longer “under cultivation” until such activities begin on the land again the following season for the purpose of nurturing and harvesting a crop
The Court of Appeal found that this conclusion was not an error of law. It said, at paras. 56 and 57:
 In my view the court and tribunal below did not err in finding that, in the context of this statute, the phrase “land under cultivation” connotes a present and active state of cultivation.
 Whether any particular land is land under cultivation for the purposes of these statutory provisions must be examined at a point in time and is highly context driven…
The Court of Appeal’s decision also contains a helpful review of some of the changes that have been made to the Mineral Tenure Act over the last twenty years. The Court points out, at para. 29, that:
I have set out a brief summary of the legislative history above. In my view this history illustrates that in balancing the interests of surface and subsurface rights holders, the Legislature has intentionally shifted the fulcrum at various times in accordance with the policy of the day.
This decision represents a significant victory for New Nadina in a dispute that has been ongoing since 2012 – but the decision may also provide some assistance to other participants in the mining industry (whether mineral tenure holder or landowner) as it also addresses the legislative scheme in relation to entry onto private land, the distinction between a “free miner” and a “recorded holder”, and the different rights that are conferred on each of those persons under the Act.