The Surface Versus Subsurface Divide


In British Columbia, the provincial government grants sub-surface mineral rights through its ‘free-entry’ mineral tenure system, which places an unreasonably high value on mining activities. An outdated concept, free entry is governed by the Mineral Tenure Act, which has remained largely unchanged since 1859. The system fails to require notification to or consultation with First Nations, does not mandate consideration of regional and municipal land use plans, contains no provision to control the concentration of mining activities and cumulative impacts in a particular region, and does not adequately protect watersheds, cultural heritage, agricultural lands or parks. Under it, the government has no discretion to deny the issuance of a mineral lease to proponents.

A competitive bidding system to govern the issuance of mineral leases would encourage proponents competing for a mineral lease to present progressive plans for mineral development. Such a system would allow the government to retain some control over mineral resources so it can protect the public interest. A similar system for petroleum and natural gas production is in place under BC’s Petroleum and Natural Gas Act.

Other jurisdictions go further, with innovative laws that allow for the conservation of minerals for future generations. Indigenous rights are accommodated in some jurisdictions through laws that recognize and affirm Indigenous rights in mining legislation, make mineral claims and leases conditional on obtaining Indigenous peoples’ free, prior and informed consent, require notification to Indigenous people when conditional mineral claims are staked on their traditional territories and require shared decision-making with Indigenous people about mineral tenure.

Moreover, BC laws do not require landowner consent for proponents to enter land to conduct mining activities. BC lags behind Alberta, Newfoundland and Labrador, and New Brunswick in this regard.

Another major issue is the prioritization of mining over land use plans: BC’s mineral tenure laws prevent the implementation of land use plans that appropriately recognize, protect and promote other valuable land use activities important to local communities. Many other jurisdictions employ land use plans to limit areas in which mining activities may occur. Such laws are found in Ontario, the Northwest Territories, the Yukon, the US, West Virginia, and Sweden. Some of these jurisdictions also require that land use plans be in place before new mining activities commence. BC should likewise restrict mining activities according to land use plan designations.

Land use plans currently exist for almost all regions in BC. However, many of these plans lack the necessary legal authority to control where mining activities take place. Land use plans with legal authority to prevent mining activities should be required before new mining activities are approved.

Moreover, while land use plans developed by First Nations must be acknowledged by the government when making decisions regarding First Nations traditional territories, they currently carry little legal weight. Thus, BC First Nations have limited opportunities to participate in land use and resource management plans to control mining activities on their traditional territories. BC should enact laws recognizing First Nations’ right to designate no-go zones for mining activities. It should also involve First Nations in protected area designation, cite Aboriginal people’s participation as an objective in land use planning legislation, empower First Nations boards and committees to carry out land use planning, and incorporate traditional knowledge into land use plans. These kinds of laws would strengthen BC’s land use plans and make them an important and appropriate tool in deciding where mining should and should not be carried out.

Finally, BC’s laws fail to adequately protect areas of cultural and historic significance, parks, protected areas, watersheds, important habitats, sensitive ecological areas, and alternative land uses, such as agriculture. BC should designate “no-go” zones around cultural sites to better balance the economic benefits of mining with cultural and environmental concerns, as well as other economically valuable uses.

Additionally, in BC, mining activities are allowed in many types of protected areas. Accordingly, BC’s parks, protected areas, watersheds, important habitats and sensitive ecological areas are not adequately protected from mining activities. Many other jurisdictions prohibit mining activities in parks, drinking water source areas, important watercourses and wetlands, migratory bird sanctuaries, and ecologically sensitive areas. Finally, recognizing the importance of protected area networks, innovative laws in other jurisdictions have created continuous networks of protected areas in which mining activities are prohibited. By adopting laws like these, BC’s “protected” areas would be truly protected from mining interests.

Further, agriculture is not explicitly recognized as an alternative land use that warrants the creation of a mineral reserve. Restricting mining activities on agricultural lands would enable BC to better balance the short term economic gains realised from mining with the long-term sustainable economic benefits of agriculture.

In conclusion, modernizing BC mining law could achieve a more equitable division of land use, with municipalities, First Nations and landowners all having greater input about where and how mining activities are undertaken.

  1. Introduction
  2. Overview of BC's Mineral Tenure System
  3. Land Use Planning versus Mineral Tenure
  4. First Nations Involvement in Land Use Planning
  5. No-Go Zones
  6. Cultural No-Go Zones
  7. Ecological No-Go Zones
  8. Parks
  9. Conservancies
  10. Ecological Reserves
  11. Alternative Use No-Go Zones
  12. Footnotes

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