Regulating Prospecting Activities
Overview of BC Law
Upon obtaining a Free Miner Certificate and staking a claim (see Chapter 4: Mineral Tenure & Land Use Planning), a person has the right to enter land to conduct the following prospecting activities:6
- use of hand tools;
- geological/geochemical surveying;
- airborne geophysical surveying;
- ground geophysical surveying without use of exposed, energized electrodes;
- hand trenching without use of explosives; and
- establishment of exploration grid lines that do not require felling of trees (except trees and shrubs that create a hazard to safe passage and danger trees as defined in the Workers’ Compensation Board Regulation).
- land occupied by a building;
- the curtilage of a dwelling house;
- orchard land;
- land under cultivation;
- land lawfully occupied for mining purposes, except for the purposes of exploring and locating for minerals or placer minerals as permitted by the Mineral Tenure Act;
- protected heritage property, except as authorized by the local government or minister responsible for the protection of the protected heritage property; and
- land in a park unless authorized by the Lieutenant Governor in Council.
The remaining 87% of the land in BC is designated as ‘mineral lands’ on which holders of a Free Miner Certificate may enter to search for minerals.9 BC does not have any laws regarding the manner in which prospecting activities should be conducted. Therefore, prospecting activities are conducted on mineral lands without any government guidance, direction or oversight.
There is no statutory requirement for the government or a proponent to notify or consult First Nations before prospecting occurs on their traditional territories.
Require proponents to obtain consent from First Nations before entering the land
[Tags: Access Agreement; Consent; Prospecting; Pre-condition]
First Nations’ consent to prospecting activities on their traditional territories can be realized by way of entering into an access agreement with the proponent. There are several reasons why such access agreements should be finalized prior to allowing proponents to enter the land. First, it provides First Nations prior notice of the intended prospecting activities. Second, it provides an opportunity for First Nations to exercise some control over the timing, location and type of prospecting activities. Third, the reaching of an agreement could help foster more positive relations between proponents and First Nations. Finally, it could assist in ensuring common law consultation and accommodation requirements are met (See Chapter 3: Indigenous Rights, Consultation & Consent for a discussion on recent developments in the law regarding the duty to consult and accommodate First Nations before entering their territories to engage in exploration and prospecting activities).
BC law does not require miners to notify First Nations, obtain their consent, or enter into an access agreement before obtaining a Free Miner Certificate. In contrast, other jurisdictions require that access agreements be in place with Indigenous peoples before prospecting activities may commence. For example, in New Zealand, an “access arrangement” is a necessary precondition to explore on land owned or occupied by the Maori people.10 Where there is no single Maori land-owner, a Maori Trustee serves as the counter-party in negotiations over the access arrangement with miners.11 In Queensland (Australia), Indigenous peoples have the right to be consulted and enter into access agreements before prospecting activities occur in their territories (ie, where they are the recognised holders of native title for a particular area or are the registered native title claimants for that area).12 In Alberta, although a formal ‘access agreement’ is not required, the consent of the Métis settlement council must be obtained before any exploration can be carried out on land within the boundaries of a Metis settlement.13
Require miners to take cultural awareness program as pre-requisite to obtaining a Free Miner Certificate
[Tags: Prospecting; Exploration; Cultural Awareness; Pre-Requisite]
In BC, miners are not required to have any prior knowledge or understanding of First Nations’ territories, rights and concerns. By contrast, other jurisdictions have taken affirmative steps to encourage cultural sensitivity among miners operating on indigenous peoples’ traditional territories. For example, in Ontario, potential prospectors must successfully complete, within 60 days before the submission date of a prospecting licence application, a prospector awareness program on issues related to Indigenous interests.14 In the United States, similar training is required for employees of the Department of the Interior.15
Require miners to pledge to respect First Nations’ cultural heritage as pre-requisite to obtaining a Free Miner Certificate
[Tags: Prospecting; Exploration; Cultural Protection; Pre-Requisite]
The Association for Mineral Exploration British Columbia has recommended that miners recognize and respect the traditional heritage of First Nations when pursuing mining activities in BC. Such a pledge could raise awareness about the rights of First Nations, and could foster on-going relationships between proponents and First Nations across the Province.16 In Western Australia, government policy requires applicants for a “prospecting licence” to either sign the relevant ‘regional standard heritage agreement’ (which sets out procedures for protecting Indigenous heritage) for the area or “prove” they have an existing heritage agreement in place before the application can progress through a ‘fast track’ native title process to allow for the prospecting licence to be granted.17
Prospecting activities have the potential to create adverse environmental consequences, such as waste generation, off-road use of motorized vehicles, and impacts to water from chemical spills. However, BC’s Free Miner Certificate does not mandate how certificate holders should conduct prospecting activities.
Attach conditions to prospecting activities to minimize environmental damage
[Tags: Prospecting; Permit]
In BC, there are no legal requirements for how Free Miner Certificates should conduct prospecting activities. In contrast, Queensland (Australia) has a Code of Environmental Compliance for prospecting activities.18 Attaching conditions to prospecting activities has also been recognized under international law. The UN Convention on the Law of the Sea, 1982 states: “prospecting shall be conducted only after the Authority has received a satisfactory written undertaking that the proposed prospector will comply with this Convention and the relevant rules, regulations and procedures of the Authority concerning cooperation in the training programmes…and the protection of the marine environment, and will accept verification by the Authority of compliance therewith”.19
In BC, such conditions could be incorporated into the Free Miner Certificate application process or by requiring a permit for prospecting activities. Many other jurisdictions already require permits for prospecting activities. In Canada, these jurisdictions include: Manitoba,20 Ontario,21 Quebec,22 Northwest Territories23 and Nunavut.24 Outside Canada, jurisdictions that require prospecting permits include: Sweden,25 Finland,26 Mozambique,27 and the Australian states of Western Australia,28 Queensland,29 New South Wales30 and Victoria.31