Criteria for Evaluating Notice of Work Application for Exploration Activities
Overview of BC Law
BC legislation does not specify what factors the Minister must consider in deciding whether to approve a Notice of Work application and issue a permit for exploration activities.
Issue
The lack of criteria to guide decision-making means that permits may be awarded irrespective of whether or not: a) First Nations’ consent has been obtained; or b) the proponent has proven it has the ability and resources to meet its social and environmental obligations.
Recommended Solutions
Require First Nations’ consent before Notice of Work application is approved and exploration activities commence
[Tags: Notice of Work Application; Exploration; Consultation; Consent; Exploration Agreement; Permit]
In BC, the Notice of Work application simply requires proponents to check a box to indicate whether they have “consulted with First Nations in the area of the proposed activity”. This provides scant details about who the proponent consulted with, what means of consultation were engaged, and the result of the consultation. Moreover, the law does not require the government to consider the proponent’s consultation efforts in deciding whether or not to issue the permit.
Other jurisdictions require decision-makers to consider this factor in deciding whether to issue an exploration permit. In Ontario, when reviewing the exploration licence applications, the regulatory authority must consider “whether Aboriginal consultation has occurred in accordance with any prescribed requirements, which may include consideration of any arrangements that have been made with Aboriginal communities that may be affected by the exploration”.59 In the Philippines, mineral exploration is prohibited on the “ancestral land” of Indigenous peoples unless Indigenous representatives provide prior consent.60
Many jurisdictions have incorporated the pre-exploration consultation requirements into a legal requirement that proponents and Indigenous peoples finalize an exploration agreement before mineral exploration activities may commence. For example, Queensland (Australia) requires that miners reach an agreement with all registered native titleholders in the area marked for exploration.61 Similarly, in New Zealand, an ‘access arrangement’ is a necessary precondition to explore on land owned or occupied by the Maori people.62 Where there is no single Maori land-owner, a Maori Trustee serves as the counter-party in negotiations over the access arrangement with miners.63 In Norway, miners seeking to explore in traditional Sami territory need a special permit that, if granted, conditions any explorations in light of Sami interests.64
There are several benefits for requiring such an agreement to be in place at the exploration stage. First, it provides First Nations with an opportunity to raise concerns (including the protection of cultural heritage) and discuss exploration plans with miners before exploration activities begin. Second, these agreements can serve as evidence to the provincial government that consultation has occurred and that free, prior and informed consent has been given for the exploration activity. Third, through the sharing of information, negotiations can promote more productive consultations between First Nations and the provincial government. Finally, such agreements may contribute to meeting the common law duty to consult and, if necessary, accommodate First Nations for potential infringements of aboriginal rights.
Although not required under BC legislation, some agreements between proponents and First Nations have been entered into voluntarily. For example, the Taku River Tlingit First Nation has signed a number of exploration agreements with mining companies operating in its traditional territory.65 Laws, however, are required to ensure that other First Nations in the province benefit from such agreements.
Consider proponent’s plan for local employment in activities related to mineral exploration
[Tags: Exploration; Employment; Economic Benefits; Permit; Pre-condition]
Mineral exploration activities offer employment for various contractors, consultants and services. Exploration involves hiring prospectors, line cutters, caterers, equipment suppliers, and construction workers for camps.66 Consultants may also be required to conduct environmental monitoring, sampling and field trials to predict environmental impacts, such as the effect of acid rock drainage (ARD).67 These tasks generally require site visits and the use of local knowledge. First Nations may be ideally suited for providing such information. Exploration activities may also require services that can be provided by local businesses, such as caterers and equipment suppliers.68
Such a preferential hiring policy is consistent with the United Nations Declaration on the Rights of Indigenous Peoples, which provides that “Indigenous peoples have the right to special measures for the immediate, effective and continuing improvement of their economic and social conditions, including in the areas of employment, vocational training and retraining, housing, sanitation, health and social security”.69
Consider proponent’s financial resources and technical competence in Notice of Work application review
[Tags: Notice of Work Application; Financial Disclosure; Expertise; Exploration]
In BC, applicants are required to provide very few details about their financial resources or technical competence to obtain a Free Miner Certificate or in a Notice of Work application. This means that the individuals and companies carrying out exploration often may not have the resources to work with First Nations or deal with problems that may arise. Often, an individual or junior mining company will carry out the initial exploration work with little involvement of First Nations and then sell the project to a larger mining company with more resources.
In contrast to the lack of requirements to disclose financial information in BC, other jurisdictions mandate that the applicant include details about its financial resources and technical competence, which must be considered by the decision-maker when reviewing an application for an exploration permit. For example, in the Australia state of New South Wales, the application for an exploration permit must include “particulars of the financial resources and relevant technical advice available to the applicant”.70 In Zambia, when the regulatory authority reviews a permit application, it must take into account whether “the applicant has, or has secured access to, adequate financial resources, technical competence, and experience to carry on effective prospecting operations”.71 In Papua New Guinea, an application for an exploration permit must include “a statement giving particulars of the technical and financial resources available to the applicant”.72 In Western Australia, the exploration permit application must include a statement of the applicant’s technical and financial resources.73
Some jurisdictions have gone even further to ensure that proponents have adequate resources to perform the exploration activities. For example, Quebec’s amended Mining Act will require proponents engaged in exploration activities to provide a financial guarantee to cover the anticipated cost of completing the work required under the rehabilitation and restoration plan.74 Alberta’s legislation provides the regulator with discretion to refuse to issue an exploration permit where the proponent is indebted to the Crown.75 In Afghanistan, persons who have been declared bankrupt or convicted of financial, economic and management offences are not eligible to obtain mineral rights.76
Consider miner’s track record in review of Notice of Work application
[Tags: Exploration; Notice of Work Application; Track Record]
In BC, the Chief Gold Commissioner may cancel a Free Miner Certificate, with 30 days prior notice and an opportunity for a hearing, if satisfied that a free miner has, with respect to activities related to the operation or use of a mineral title, contravened the Mineral Tenure Act, the Criminal Code, the Heritage Conservation Act, the Mines Act, the Mining Right of Way Act or the Health, Safety and Reclamation Code for Mines in British Columbia (HSR Code).77 However, there are no legal requirements to consider an applicant’s past conduct with respect to these laws prior to granting the Free Miner Certificate or issuing a permit for exploration activities.
In contrast, other jurisdictions clearly mandate that the applicant’s past practices be considered at the permit application review stage. For example, in New Mexico, an exploration permit application will be denied “if that person’s failure to comply with the provisions of the New Mexico Mining Act, the regulations adopted pursuant to that act or a permit issued under that act has resulted in the forfeiture of financial assurance”.78 In Zambia, a prospecting licence will not be granted if the applicant is the holder of another mining right and is in breach of any condition of that right or any provision of the mining legislation.79 Similar legal requirements are also in place in New South Wales.80 In Sweden, an exploration permit may not be granted to a party who has proven to be unsuitable to carry out exploration. Examples of situations where permits may be refused on this basis include previous failure to consider the landowner’s interests, or engaging in conduct harmful to the natural or cultural environment.81 In Mozambique, an application to extend the geographical limits of the exploration licence will be denied when the applicant has not met its obligations with respect to other mining licenses it might hold.82
Consider input from other government departments in review of Notice of Work application
[Tags: Notice of Work Application; Exploration; Intergovernmental; Discretion]
In BC, the Chief Inspector has discretion as to whether to refer the Notice of Work application to other government agencies.83 As a result, Notice of Work applications are not always referred to other interested agencies, such as the Ministry of the Environment or local/regional governments. The importance of notifying other affected agencies is recognized in Alberta where the application for an exploration permit must also be submitted to “(a) the forest superintendent of each forest, (b) the senior forest officer for each ranger district, and (c) the district supervisor of the Rural Development Division of the Department of Agriculture and Rural Development for each district, in which the program of exploration or any part of it was conducted”.84