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Gold/Mining/Energy : Crystallex (KRY)
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To: Moot who wrote (8055)4/10/1998 4:14:00 PM
From: E. Charters  Read Replies (1) of 10836
 
First and foremost if Mael had surrendered its rights to the claims by that agreement after the first expropriation it may have prevented the court from gazetting title. It has not done so. So we may assume that the MEM and other parties with an interest in blocking this would have addressed the matter of waiving of rights to sue.

If the agreement had been perfected then Crystallex MAY not have had this right to sue Minca and Dome for their dispossession of the claims. At least it MAY have been contested on this basis. But the agreement is a bit cloudy and speaks of the waiving of the right to sue for damages. It does not specifically state that they may not attempt to redress the matter of the rightful ownership of the claims in the first place. A fine point but an important one. Further if it wrongful in the first instance to expropriate the claims then all other things that flow from the wrongful act are as you would guess, moot. For instance if I resist a wrongful or fraudulent arrest I cannot be charged with resisting arrest. What arrest? Therefore whatever I agree to as a compensation for being wronged is in itself non-binding. ( I think it would depend on the nature and circumstance of the offer) Wronged is wronged. No entity can abrogate itself of its basic rights by agreement with the one who would deny him these rights on one hand and compensate him for that denial on the other. Why the compensation? And admission of some wrongdoing it seems. Remember this offer is a papering over, it is not based upon fact finding and admission of government error. Therefore the recipient of the largesse has no real choice in the matter of acceptance of these offers. Also even if Mael refused to perfect the agreement and did not negotiate it isn't necessarily binding on them that they then accept the offer and relinquish their rights. It isn't necessarily bad faith that Mael would do this. It's moot, moot.

Further the non-perfection of the agreement is a matter of importance. It did not take place. The agreement was dependent on a negotiation. We do not see the MEM pointing the finger and saying that that error was Crystallex's or Mael's fault. This speaks volumes.

echarter@vianet.on.ca

The Canadian Mining Newsletter
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