The Surface Versus Subsurface Divide

Alternative Use No-Go Zones

Overview of BC Law

In addition to withdrawing mineral lands for cultural and ecological reasons, the Mineral Tenure Act allows BC’s chief gold commissioner to establish, by regulation, a mineral reserve in which mining activities are absolutely (No Registration Reserves) or conditionally (Conditional Registration Reserve) prohibited.190

No Registration Reserves (NRRs) prevent proponents from acquiring mineral claims on parcels of land that have been deemed incompatible with mining activity.191 Conditional Registration Reserves (CRRs) impose specific conditions on proponents who acquire mineral claims on those mineral lands “to ensure that the acquisition of mineral tenure does not interfere with another use of the land”.192

The alternative land uses that the Chief Gold Commissioner may consider in determining whether mining activities are incompatible include:193

  • “First Nations (Indian reserve additions, cultural sites, Treaty Lands, federal transfer of administration and control);
  • archaeological (fossils);
  • energy (hydropower, pipelines, energy transmission lines, wind power);
  • transportation (roads and highways);
  • parks (additions, proposed or new protected areas);
  • recreation (camps and ski development areas); and
  • watershed (water reservoir, drinking water, community watershed, fish).”

For example, a CRR may be established to prevent a person from interfering with, obstructing or endangering the construction, operation or maintenance of a proposed hydro transmission line”.194

Anyone with the appropriate documentation can apply to the government to create an NNR or CCR for one of the above purposes.195 Although the application form suggests that these reserves can only be in place for up to five years, this limit is not prescribed in the legislation. If these reserves are created on lands on which mineral claims have already been staked, the proponents may be entitled to compensation for the loss of the use of this land.


Agriculture is not explicitly recognized as an alternative land use that warrants the creation of a mineral reserve.

Recommended Solution

Restrict mining activities on agricultural lands

[Tags: Agriculture; No-Go Zones]

In BC, mineral claims may be staked and, with the proper authorization, proponents may conduct mining activities on agricultural land that is not either an orchard or currently under cultivation.196 Where such agricultural lands are located on settlements lands over which a First Nation has legislative authority, the application must be filed with the applicable treaty government.197 The application must then be authorized by a law of that First Nation before being approved.198

If the agricultural land is not situated within the jurisdiction of a First Nation or a local government, adequate notice of the intention to use the land for mining must be filed with the Provincial Agricultural Land Commission. Permission will likely be granted with associated conditions.199 In BC, there is no explicit requirement that preliminary surveys of agricultural lands be completed before mining rights are granted in a specific area.

In contrast, under US federal law, a permit application to use agricultural lands for coal mining must include a reconnaissance inspection to identify prime farmlands, and a soil survey of such lands.200 Use of prime farm land for mining will only be permitted if, after consultation with the government authority responsible for agriculture, the regulatory authority finds that “the operator has the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as non-mined prime farmland in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards”.201 In addition, permission to mine on prime farmlands will contain specific conditions for soil removal, storage, replacement, and reconstruction.202

In New South Wales (Australia), a landholder entitled to use land for agricultural purposes who is served a notice regarding the granting of a mineral claim on those lands may object to this occurring.203 Clear procedures for conflict resolution in such a case are outlined in the applicable legislation.204

In Victoria (Australia), a miner applying to carry out mining activities on agricultural land must submit a statement of the economic significance of the work that compares the benefits of the proposed work (including employment and revenue considerations) to those benefits that would accrue if the mining activity was not carried out on the agricultural land.205 This statement must be shared with the owners and occupiers of the agricultural land within a set time period.206 Where the regulatory authority decides “that there would be greater economic benefit to Victoria in continuing the use of the land as agricultural land than in carrying out the work proposed to be carried out on that land under the licence”, a process is provided for excising the agricultural land from the mining lease.207

The above examples ensure that due regard is granted to important agricultural lands, so that mining activities are not granted an unreasonable preferential land-use status.

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