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The need for the modernization of mineral tenure in British Columbia Lindsay, Alexandra 2013

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GEOG 419  Alexandra Lindsay  The Need for the Modernization of Mineral Tenure in British Columbia  By Alexandra Lindsay  Report prepared at the request of the Green Party of BC in partial fulfillment of UBC GEOG 419: Research in Environmental Geography, for Dr. David Brownstein  GEOG 419  Alexandra Lindsay  0. Executive Summary The Mineral Tenure Act in British Columbia is in need of revision. Free-entry access gives priority of lands to mining purposes, which reflects the principles of the society at the time of creation, when British Columbia was undergoing settlement. Over a hundred years later, the values of the province have changed, however the mineral tenure legislation has not modernized with them. Especially in recent years, this failure has caused conflicts across the province for miners and private land owners, for effective land-use planning, and for lands of environmental and First Nations concerns. The 10 Core Principles of the Green Party of BC aim to fairly balance aspects of economic, social, and environmental sustainability, and therefore can act as a basic framework for evaluating revisions to the Mineral Tenure Act that will comply with the values of British Columbians today and into the future. Amendments to mineral tenure legislation should primarily focus on abolishing the free-entry system. Further modifications, following the model of the recently revised mineral tenure legislation in Ontario, should aim to create a longterm mineral strategy plan, to allow protection of culturally significant land to First Nations as well as of sensitive ecosystems, and to require adequate environmental assessments for all mining activities (view Table 1 below for a summary of the recommendations). Abolish Free-Entry System  -Sustainability -Grass Roots Democracy -Gender Equality -Decentralization -Ecological Wisdom  Create Longterm Mineral Strategy Plan  -Sustainability -Community Based Economy -Gender Equality -Decentralization -Ecological Wisdom  Allow Protection of First Nations’ Culturally Significant Land and Sensitive Ecosystems -Sustainability -Diversity -Ecological Wisdom  Require Adequate Environmental Assessments -Sustainability -Ecological Wisdom  Table 1. Summary of the recommendations for revisions, and the Green Party of BC Core Principles that will be satisfied.  2  GEOG 419  Alexandra Lindsay  1. Introduction Particularly within the last few years, public concern regarding mineral tenure legislation in British Columbia has increased. It comes as a surprise to many British Columbians that the rights to their privately owned land apply only to the surface: The Crown has retained entitlement of the subsurface material on a vast majority of area within the province (Campbell 2004). Under the current Mineral Tenure Act, miners are given priority to the Crown’s subsurface rights, a system of free-entry that is better suited for initial settlement of territories, as described by Barry Barton: Historically, the covenant was that the miner would be pioneer and would open up the wilds, the untamed and forbidding wilderness. The miner would be the first agent of settlement and would push back the frontier, permitting other settlers such as farmers to follow in due course (Blue 2010). When mineral legislation was originally created in the early nineteenth century, British Columbia was undergoing colonization, thus a free-entry system was most appropriate in order to encourage population of the province. However, this old procedure has managed to persist to the modern day where it is no longer suitable. Mining should no longer receive priority access to lands through the free-entry system: It affects the rights of British Columbian residents, prevents effective land-use planning, and generates concerns for the impacts on the environment and First Nations. Revisions need to be made in order to modernize the Mineral Tenure Act to better reflect the values and needs of the present and future inhabitants of British Columbia.  2. Methods This study consists of information acquired from an extensive literature review. Sources include mineral legislation from British Columbia and Ontario, privately published books and 3  GEOG 419  Alexandra Lindsay  papers, and newspaper articles. A current PhD student in the department was also contacted to verify knowledge.  3. The Current Mineral Tenure Process in British Columbia Under the current mineral tenure system, any Canadian citizen is able to receive a Free Miner Certificate for a small fee. This certification permits the individual, with the intent of prospecting, to enter any mineral lands in the province. Mineral lands, which can be either public or privately owned, are areas where the subsurface mineral rights belong to the Crown. Exceptions to mineral lands include buildings and their dwellings, orchards and agricultural lands, provincial parks, conservancies, and reserves, unless authorized by the Lieutenant Governor (Harrison et al. 2010). The Free Miner Certificate further allows individuals to buy a mineral claim on available mineral lands. These claims, issued in one year intervals and which give the free miner the exclusive right to minerals in the subsurface material, allow for more extensive exploration. In order to retain a claim, a minimum amount of physical work must be carried out on the land each year. Failure to do so by the free miner can result in a forfeiture of the mineral claim. A correctly maintained claim can be easily converted into a mineral lease, at which point extensive mining activity can occur (figure 1). Leases are issued for longer periods, generally in ten to thirty year intervals, with the purpose of mining production.  4  GEOG 419  Alexandra Lindsay  Free Miner Certificate  Enter Mineral Lands  Mineral Claim  Mineral Lease  Mineral Exploration  Mine Production  Figure 1. The process of mineral tenure in British Columbia. The steps are shown in green, and the rights associated with each step are shown in blue.  No discretion is exercised during the mineral tenure process: Eligible individuals are guaranteed the acquisition of a Free Miner Certificate, as well as the subsequent conversion of a mineral claim to a mineral lease without any consideration to the land in question. Amendments to the Mineral Tenure Act in 2004 further eased the process for miners by establishing Mineral Titles Online. The revisions now allow miners to stake claims online from a computer rather than through traditional post-staking methods (figure 2). This has caused a huge increase in the amount of mineral claims in British Columbia: In 2004, only 1.1million hectares of land were claimed, but this grew to 5.2 million hectares by 2008.  5  GEOG 419  Alexandra Lindsay  Figure 2. Mineral (red) and coal (grey) tenures in British Columbia as of May 2010. Protected lands are shown in green. Online staking has significantly increased the amount of mineral tenures in the province, especially compared to coal tenures which still require traditional post-staking methods (Harrison et al. 2010).  The mineral tenure process additionally does not ask miners to inform surface holders of mineral claims under their property, although notification before entering privately owned land is required, nor do the surface landowners have the ability to refuse mining activity.  4. The Issues of the Free-Entry System The free-entry system gives mining top priority in accessing lands throughout the province, often to the disadvantage of private land owners, of effective land-use planning, and of  6  GEOG 419  Alexandra Lindsay  environmentally sensitive and First Nations lands (Campbell 2004). This is especially problematic considering the extremely easy process of obtaining mineral tenures. 4.1 Rights of British Columbian Residents Miners have no obligation to notify private land holders of mineral claims or to consult the property owner about mining or environmental strategies. Furthermore, they have no right to refuse mining activity on their land (Harrison et al. 2010). This emphasizes the extreme precedence of mining over the interest of citizens. Surface land owners have no option but to allow destruction of their property and accommodate the needs of the mining activity despite the disruption to their lives. 4.2 Land-Use Planning In the case of Crown owned surfaces, planning the future uses of lands can be particularly difficult given the free-entry system. Unless an area is explicitly excluded from mining, a proposal for land-use can be undermined by the priority given to mining (University of Victoria 2012). Once a mineral claim has been staked, no other land-use can be applied. Mineral tenures can be obtained with the click of a mouse, whereas any other land-use proposals for an area must go through long processes of acceptance. Mining therefore takes huge precedent over any other uses of land (Bradley et al. 2011). 4.3 Environmental and First Nations Concerns Although some areas of environmental or First Nations importance are part of the exclusions for mineral claims in British Columbia, many lands are not. This is problematic with the free-entry system because no considerations are made before receiving mineral tenure of the possible impacts to ecosystems or of the cultural significance of the lands to First Nations  7  GEOG 419  Alexandra Lindsay  (Harrison et al. 2010). An area could be nurturing a very sensitive environment at risk of crashing, or could still be undergoing negotiations between the government and First Nations over territorial rights, yet these areas are not protected from mineral claims.  5. Case Studies Although many instances exist of the Mineral Tenure Act in British Columbia failing to reflect modern values, the cases of the issues in Pender Island and Flathead Valley serve as good examples of the negative impacts of the current legislation for citizens. 5.1 Pender Island Recently, residents of Pender Island, located in the Gulf of Georgia, have become alarmed that much of their land has been claimed for mineral activity without their knowledge or agreement. Although Islands Trust policy discourages mining, the province’s Mineral Tenure Act could override those wishes: The residents have no right to reject the mineral plans, nor are they given the option of providing consultation to the miners (Lavoie 2013). Unless a loophole can be found, many of the lives of the locals will be severely disrupted, indicating the priority of mining over the welfare and desire of citizens. 5.2 Flathead Valley The Flathead Valley is a pristine area in the Rocky Mountains and is unique in the fact that its watershed extends from Canada into the State of Montana in the United States. The territory supports a variety of wildlife, including the highest density of non-coastal grizzly bears in North America (Harrison et al. 2010). Prior to the Flathead Watershed Area Order, mineral claims throughout the valley permitted exploration with the potential of future mining  8  GEOG 419  Alexandra Lindsay  production. However, to preserve the sensitive ecosystem, environmentalist groups, with support from the United States, persuaded the British Columbian government in 2010 to ban all resource development in the area (The Associated Press 2010). Although successful in preserving the wilderness of Flathead Valley, the environmentalist groups were required to buyout the mineral claims, which amounted to $10 million and has only recently been accomplished in September of 2012. Additionally, some mining companies who held claims in the valley are not satisfied with the buyout (Keating 2012). Cline Mining is suing the province for $500 million due to loss of profits and (technically) unjust removal of mineral claims. Because of the current legislation in British Columbia which gives greatest importance to mining, taxpayers will be paying the price for the negative consequences of the free-entry system.  6. Recommendations (Table 1, shown below) Although it is important to note that not every individual agrees with the politics of the Green Party of BC, their 10 Core Principles (see Appendix for full list) nonetheless provide a suitable model for economic, social, and environmental sustainability, which aligns with more modern societal views. These standards can therefore aid in framing revisions to the Mineral Tenure Act by ensuring the proposed amendments will continue to benefit the province into the future. Predominant efforts should be aimed at abolishing the free-entry system for mining. Mineral tenure should not be so easily obtained nor given priority over other land uses. Instead of the first-come first-serve basis, mineral tenures could instead be claimed through bidding of the land, as is done for other natural resources. This would give citizens the chance to express  9  GEOG 419  Alexandra Lindsay  concern and/or preference of the use for the land (grass roots democracy) thereby giving influence to the locals most affected (decentralization), while also allowing equal access to the areas for all possible land uses (gender equality). It would further promote a more sustainable future by ensuring the most beneficial land use for the community (sustainability, ecological wisdom). Once the concept of free-entry has been removed, efforts can begin to promote amendments similar to those applied in Ontario recently, specifically the creation of a longterm mineral strategy plan, the allowance for the protection of First Nations’ culturally significant land as well as sensitive ecosystems, and the requirement of adequate environmental assessments for all mining activity. Without priority given to mineral claims, these amendments will be much easier to implement. Although Ontario has not actually given up the system of free-entry for mining, it will only be known whether the latter revisions are successful without its abolishment once the legislation has been fully enacted, which occurs as of April 2013. A longterm mineral strategy plan will: promote sustainable mining so that future generations will continue to benefit from mineral extraction (sustainability, ecological wisdom); allow the province to determine the mineral needs and feasible extraction at local scales (community based economy); and ensure communities have influence in decisions affecting themselves (gender equality, decentralization). First Nations and environmentalists should be able to allow protection of lands that are either culturally significant or environmentally sensitive in order to guarantee a variety of unique lands continue to exist throughout the province (diversity). In the case of ecosystems, this will  10  GEOG 419  Alexandra Lindsay  help to ensure that greater biodiversities continue to persist into the future (sustainability, ecological wisdom). The current legislation does not require an environmental assessment until the mineral lease stage at which point production is supposedly large enough to warrant such an evaluation. This could be too late for delicate ecosystems since exploration and some mining work would have been accomplished during the mineral claim stage, which could have the potential of irreversibly damaging the environment. In order to ensure the least amount of damage possible to the environment for the longterm, environmental assessments should be completed before any mining activity is done on the land (sustainability, ecological wisdom).  Abolish Free-Entry System  -Sustainability -Grass Roots Democracy -Gender Equality -Decentralization -Ecological Wisdom  Create Longterm Mineral Strategy Plan  -Sustainability -Community Based Economy -Gender Equality -Decentralization -Ecological Wisdom  Allow Protection of First Nations’ Culturally Significant Land and Sensitive Ecosystems -Sustainability -Diversity -Ecological Wisdom  Require Adequate Environmental Assessments -Sustainability -Ecological Wisdom  Table 1. Summary of the recommendations for revisions, and the Green Party of BC Core Principles that will be satisfied.  7. Future Research While this paper focused on the issues concerning mineral tenure, future research conducted for the Green Party of BC in this field should more extensively evaluate the environmental impacts of mining and the legislation in place ensuring proper mine closure and  11  GEOG 419  Alexandra Lindsay  restoration. Rehabilitation of the environment following mining is particularly important for guaranteeing longterm sustainability for generations to come.  8. Conclusion Barry Barton’s quote from above continues: ...The premises on which the parties entered into this covenant in the nineteenth century have changed... There are other values besides mineral exploration that need nurturing... The reality is that the frontier has closed (Blue 2010). The free-entry system of mineral tenure is not suitable for the views of society today in British Columbia, as can be seen by the conflicts it creates with private property owners, land-use planning, and inadequately protecting significant environmental and First Nations territories. Until mining no longer receives precedence over the land, British Columbia will continue to have problems surrounding mineral tenure legislation.  12  GEOG 419  Alexandra Lindsay  Appendix The 10 Core Principles of the Green Party of BC (retrieved from http://www.greenparty.bc.ca/ 10_core_principles): Sustainability: This is really the heart of British Columbia's Green Party thinking. We must consider the welfare of our descendants, for at least seven generations, if we are to be wise stewards of the earth. Social Justice: The worldwide increase in poverty and inequity is unacceptable. All must be able to fulfill their potential regardless of gender, race, citizenship, or sexual identity. Grass Roots Democracy: Every human being deserves a say in the decisions that affect their lives and not be subject to the will of another. We will work to increase public participation at every level by directly including citizens in decision-making processes. Non-Violence: We all know in this complicated world there are times when we may be called to arms, but we will maintain that violence is almost always self-defeating, and always the very, very last choice. We must work to end war, and eliminate the root causes of crime. Community Based Economy: Rather than people being subservient to the economy, the economy should provide for human needs within the natural limits of the earth. Local self-reliance to the greatest practical extent is the best way to achieve this goal. Gender Equality: The ethics of cooperation and understanding must replace the values of domination and control. Diversity: We celebrate the biological diversity of the earth and the cultural, sexual, and spiritual diversity of the human race. Decentralization: The people most affected by a problem must have the authority to solve it. Distant administrations cannot be responsive. Power must be returned to local communities. Personal and Global Responsibility: Global sustainability and international justice can only be achieved when responsibility is shared at all levels of society. Ecological Wisdom: The earth sustains all life forms. Whatever we do to the earth we do to ourselves.  13  GEOG 419  Alexandra Lindsay  Work Cited Blue, Gregory. Annotated British Columbia Mineral Tenure Act. Aurora, Ontario: Canada Law Book, 2010. Bradley, Ben, Jenny Clayton, and Graeme Wynn. One Hundred Years of Struggle: The Ongoing Effort to Establish Provincial Parks and Protected Areas in British Columbia. BC Studies 170 (2011): 4. British Columbia. Ministry of Energy, Mines, and Natural Gas and Responsible for Housing. Mineral Tenure Act. Victoria: Queen’s Printer, 1996. British Columbia. Ministry of Energy, Mines, and Natural Gas and Responsible for Housing. Mineral Tenure Act Regulation. Victoria: Queen’s Printer, 2008. British Columbia. Ministry of Energy, Mines, and Natural Gas and Responsible for Housing. Mines Act. Victoria: Queen’s Printer, 1996. British Columbia. Ministry of Energy, Mines, and Natural Gas and Responsible for Housing. Mines Regulation. Victoria: Queen’s Printer, 1996. British Columbia. Ministry of Energy, Mines, and Natural Gas and Responsible for Housing. Mining Right of Way Act. Victoria: Queen’s Printer, 1996. British Columbia. Ministry of Energy, Mines, and Natural Gas and Responsible for Housing. Mining Rights Compensation Regulation. Victoria: Queen’s Printer, 1996. Campbell, Karen. Undermining Our Future: How Mining’s Privileged Access to Land Harms People and the Environment. Vancouver, BC: West Coast Environmental Law Research Foundation, 2004.  14  GEOG 419  Alexandra Lindsay  Harrison, Judah Ferguson, Keith Ferguson, and Michael Beishuizen. Too Much at Stake: The Need for Mineral Tenure Reform in British Columbia. Vancouver, BC: Ecojustice Canada, 2010. Keating, Bob. “Environmentalists’ buyout of Flathead Valley mining complete.” CBC News. September 15, 2012. http://www.cbc.ca/news/canada/british-columbia/story/2012/09/14/ bc-flathead-valley.html. Lavoie, Judith. “Mining claims on Pender Island alarm residents.” The Victoria Times Colonist. January 26, 2013. http://www.timescolonist.com/news/mining-claims-on-pender-islandalarm-residents-1.18535. Ontario. Ministry of Northern Development and Mines. Mining Act. 2010. Ontario. Ministry of Northern Development and Mines. An Act to Amend the Mining Act. 2009. The Associated Press. “B.C. to ban mining in Flathead Valley.” CBC News. February 10, 2010. http://www.cbc.ca/news/canada/british-columbia/story/2010/02/10/bc-flathead-valleymining-oil-ban.html. University of Victoria. Environmental Law Center. Maintaining SuperNatural BC for our Children: Selected Law Reform Proposals, edited by Calvin Sandborn. Victoria, 2012.  15  

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