Update B.C. mining law to bring it into this century



What will it take to build a vibrant, thriving mining sector in B.C.? Decades of experience suggest that only when B.C.’s “gold rush”-era mining laws are modernized will companies secure the social licence they need to successfully develop new mines in the province.

In December, Pender Island residents became alarmed when two men suddenly appeared on private property with flagging tape and hammers. The duo, searching for “fortunes,” quietly staked mining claims over most of North Pender and a generous portion of South Pender.

Tramping through those Pender properties, it turned out, was illegal, but only because the speculating pair had failed to provide the requisite eight-day notice to landowners.

In British Columbia, there is nothing illegal about staking an online mining claim on private property (and most public and First Nations land, for that matter), for $1.75/hectare, and then going on to develop a mine.

Once a “mineral claim” is staked, with the click of a mouse, the provincial government has no discretion to refuse the holder a lengthy mining lease and all the rights that come with it.

You might own your land, but in most of B.C., the Crown owns the subsurface rights, with often shocking results for landowners.

This week, as the annual Mineral Exploration Roundup Conference gets underway in Vancouver, the province’s 150-year-old Mineral Tenure Act is creating unnecessary conflict and uncertainty around the province. It’s time to modernize the Act, before B.C. taxpayers are once again (and again, and again) on the hook to pay millions of dollars in compensation to mining companies for mineral rights they have acquired in locations that just don’t make sense for mining.

For example, Cline Mining, a company that applied to have a mountaintop removal coal mine in the Flathead River Valley (near a World Heritage Site), is now suing the B.C. government for half a billion dollars. And B.C. recently paid $30 million to a uranium company that staked a claim in the Kelowna-Kamloops area before B.C.’s decision to ban uranium mining.

What does this mean for the city of Kamloops, which is struggling to deal with the proposed Ajax open-pit gold and copper mine, part of which would be located within city limits — near schools, seniors’ residences, a hospital, a university and hundreds of homes?

Or for North and South Pender Island, where the flurry of recent staking, and the chaos it represents, has left residents frustrated, angry and worried? Not surprisingly, Islands Trust representatives are busy fielding calls. Despite the fact the Gulf Islands Trust Policy does not support mineral extraction in the Islands Trust Area, there is legally little the Trust can do in the face of the so-called “free entry” system that assumes mining is always the best use of land — even rural residential and agricultural properties.

Likewise, the proposed Ajax mine would be incompatible with agriculture, tourism and other land uses in and around Kamloops. Yet B.C.’s Mineral Tenure Act severely limits the power of municipalities and regional districts to make decisions about what happens within their boundaries, or on their doorsteps. It also ignores the pressing issue of First Nations title and rights.

In the Williams Lake area, the proposed “New Prosperity” mine beside Fish Lake is undergoing a federal environmental assessment, even though the Tsilhqot’in National Government has said unequivocally it does not want the mine. The federal cabinet rejected an earlier incarnation of the mine, following an environmental assessment that concluded it would have “high-magnitude, long-term and irreversible impacts on fish and fish habitat” and “significant adverse effect on the Tsilhqot’in Nation” and “established Tsilhqot’in aboriginal rights.”

In what will likely prove to be a watershed moment, the Yukon Court of Appeal Ross River Dena Council v. Government of the Yukon decision, delivered Dec. 27, may be the long-missing link in a much needed rewrite of B.C.’s antiquated mining laws. The landmark decision essentially holds that the “free-entry system” — our current system of allocating mineral rights — is inconsistent with the obligation of the Crown to consult First Nations on decisions that may impact Aboriginal title and rights.

A number of provinces, including Alberta, have already abolished the free-entry system. It’s time to reform the B.C. Mineral Tenure Act to identify some common sense areas that should be off-limits to new claims and leases, and end taxpayer compensation for claims affected when areas of ecological importance are protected. Comprehensive legislative reform would go a long way toward reducing land-use conflict and strife, while providing more certainty and security for the mining sector and investors.

The subtitle of this year’s Mining Round Up is Resources for Life: Digging Deeper. It’s time for the B.C. government to dig a little deeper itself, and to work with First Nations, environmental groups, landowners and local governments to reshape the Mineral Tenure Act for the benefit of all British Columbians.

Sarah Cox is the interim executive director of Sierra Club B.C. Jessica Clogg is the executive director and senior counsel of West Coast Environmental Law.

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