British Columbia’s recent boom in mineral prospecting and exploration has cast light on some of the deficiencies in BC mining law. Chapter 5: Mineral Prospecting and Exploration compares BC’s current prospecting and exploration laws with laws from other jurisdictions in Canada and abroad, to highlight where BC should modernize and strengthen its legislation.
BC does not have any laws regulating the manner in which prospecting activities are conducted. Accordingly, prospecting occurs without any government guidance, direction or oversight. There is also no statutory requirement for the government or a proponent to notify or consult First Nations before prospecting occurs on their traditional territories or for miners to enter into access agreements with First Nations before prospecting activities may commence. Other jurisdictions have legislation that better protects Indigenous people’s interests and the environment. These laws include requiring prospectors to obtain consent from Indigenous people before entering the land, requiring prospectors to take a cultural awareness program on issues related to Indigenous interests and requiring a signed agreement to respect Indigenous people’s heritage. Other jurisdictions also mitigate environmental consequences of prospecting by attaching conditions to prospecting activities or requiring permits for prospecting activities. Introducing similar regulations for prospecting in BC would better protect First Nations’ interests and the environment.
If a mineral deposit is discovered during prospecting, the next step is to explore that deposit further. In BC, exploration permits are required for many exploration activities and in most cases are obtained by submitting a Notice of Work application to the Ministry of Energy and Mines. The information currently required in a Notice of Work application is often insufficient for the government to make an informed decision about the potential social, cultural, economic and environmental consequences of the proposed exploration activities and the proponent’s capacity to manage these potential consequences. In addition, First Nations often have very little time or resources to provide comments and recommendations in response to Notice of Work referrals.
BC should follow the example of jurisdictions with more stringent permitting processes and require proponents applying for exploration permits to include cultural heritage assessments, socio-economic benefits plans, environmental protection plans, closure and reclamation plans, and estimates of revenue and expenditures, as well as details of the miner’s experience, and technical and financial resources.
Additionally, the Chief Inspector of Mines is empowered to exempt a proponent from having to obtain a permit for exploration activities. When this happens, there is no residual legal requirement to complete an environmental protection plan, which creates a gap in environmental protection planning. Unlike BC, other jurisdictions require an environmental protection plan for all exploration activities.
Once the province receives a Notice of Work application, it refers it to other affected government agencies and stakeholders, including First Nations. The legal basis for referring the Notice of Work to First Nations stems from the Crown’s common law duty to consult and is not explicitly required by the relevant legislation. Furthermore, there are no provisions to ensure consultation occurs when a proponent is exempt from having to submit a Notice of Work application or requiring notifying the public about proposed exploration activities.
In most cases, First Nations and other stakeholders only have 30 days to comment on a Notice of Work application, which is often insufficient to evaluate the impact of the proposed exploration activities and to prepare a sufficient response.
After First Nations and other stakeholders have a cursory opportunity to comment on the Notice of Work Application, the government decides whether to grant an exploration permit. BC has no legislation specifying what factors the government must consider prior to issuing the permit. Thus, permits may be awarded irrespective of whether First Nations’ consent has been obtained or whether the proponent has proven it has the ability and resources to meet its social and environmental obligations. Other jurisdictions require Indigenous people’s consent prior to issuing an exploration permit. Decision makers in other jurisdictions must also consider input from other government agencies, and must consider specific factors, such as the proponent’s financial resources, technical competence, track record, and plan for local employment. Requiring the BC government to consider these factors prior to issuing an exploration permit would strengthen and clarify the decision making process and help BC meet its duty to consult with First Nations.
The only way the public can challenge the issuance of a Free Miner Certificate or approval of a Notice of Work application is through a judicial review. BC should provide a legal process for challenging the issuance of prospecting and exploration permits.
Exploration permits are usually issued with certain attached conditions. However, the Chief Inspector has discretion to waive most of these. In BC, exploration permits do not require mandatory posting of security bonds, do not adequately protect cultural heritage resources, and do not adequately regulate environmental issues in exploration camps. Laws in other jurisdictions attach conditions to exploration permits that address these issues. Examples include mandatory posting of security for all exploration activities, and extending compensation to third parties, including Indigenous people. Also, laws in other jurisdictions require the proponent to immediately cease work and notify the local Indigenous community, as well as the government if a cultural site or object is discovered. Additionally, stronger measures to protect the environment are attached to permits in other jurisdictions, where laws require wider riparian setbacks, mandatory reporting of the discovery of uranium or thorium, suspension or relocation of vehicles in cases of road degradation, and installation of permanent erosion control structures on abandoned roads. Additional measures to protect the environment include requiring ongoing refuse management and site maintenance at exploration camps, and shorter time periods for the removal of the exploration camp.
Although drilling activities are regulated in BC, additional conditions attached to the exploration permit could substantially reduce the environmental impacts of drilling. Laws from other jurisdictions include bans on the use of harmful contaminants in drill fluids, more stringent requirements regarding the storage of fuel and lubricants, regulation of the management of drill fluids, requirements for the management of ground subsidence areas and regulations for drill hole abandonment. Some jurisdictions also require that drill cores be preserved, which could help avoid unnecessary repeat exploration, preservation of borehole logs, which can contain important information for regional groundwater aquifer mapping, and identification on exploration equipment, which allows inspectors to more easily identify proponents and enforce the terms of a permit or licence. Incorporating these provisions into BC law would substantially improve the effectiveness and enforcement of reclamation in areas disturbed by exploration activities
In conclusion, modernization of BC mining laws pertaining to mineral prospecting and exploration would help clarify the relationship between First Nations and prospectors and ensure better protection against the environmental impact of exploration activities.
- Prospecting Versus Exploration
- Regulating Prospecting Activities
- Regulating Exploration Activities
- Exploration Camps
- Content of Notice of Work Application
- Consultation at Notice of Work Application Stage
- Criteria for Evaluating Notice of Work Application for Exploration Activities
- Government Accountability in Issuance of Exploration Permits
- Conditions to Attach to Exploration Permits