The Surface Versus Subsurface Divide

No-Go Zones

Overview of BC Law

In BC, mining activities are only explicitly prohibited in 13% of the province.111 For example, free miners or their agents do not have a right to enter lands that are:112

  • occupied by (i.e., under) a building;
  • within 75 metres113 of any buildings that are used as dwellings;
  • orchards;
  • actively under cultivation;
  • already lawfully occupied for mining purposes (exploring for and locating minerals is permitted);
  • protected heritage property, unless authorized by the local government or responsible minister; and
  • in a park, unless permitted by regulation.

Further “no go zones” or “off limit areas” are:114

  • Indian reserve lands under the British Columbia Indian Reserves Mineral Resources Act (unless permission is expressly given);115
  • protected heritage properties under the Heritage Conservation Act;116
  • national parks under the federal Canada National Parks Act;117
  • parks and conservancies under BC’s Park Act;118
  • regional parks under BC’s Local Government Act;119
  • parks, ecological reserves and conservancies under the Protected Areas of British Columbia Act;120
  • ecological reserves under BC’s Ecological Reserve Act;121
  • areas in which mining is prohibited under BC’s Environment and Land Use Act;122
  • crown lands designated under BC’s Land Act;123 and
  • No Registration Reserves under the Mineral Tenure Act.124

These no-go zone areas can be subdivided into three categories: cultural no-go zones; ecological no-go zones; and alternative use no-go zones.

Cultural No-Go Zones

Overview of BC Law

Under BC’s Mineral Tenure Act, the Minister of Energy and Mines may restrict the use of surface rights or the right to or interest in minerals if she or he considers that the surface area contains a cultural heritage resource.125 A cultural heritage resource is defined as: “an object, a site or the location of a traditional societal practice that is of historical, cultural or archaeological significance to British Columbia, a community or an aboriginal people”.126 In cases where the Minister imposes such a restriction, the law prohibits compensation for lost mineral use.127

Similarly, “protected heritage properties” are exempt from mineral lands.128 Three separate legal processes exist by which to have property designated as a “protected heritage property”. Land or objects may be protected under: heritage conservation legislation; municipal laws; or official community plans.129

Under BC’s Heritage Conservation Act, the following are automatically protected:130

  • provincial heritage sites or objects;
  • burial places with historical or archaeological value;131
  • Aboriginal rock paintings or carvings; and
  • sites that contain artefacts, features, materials or other physical evidence of human habitation or use before 1846.

It is an offence to alter, knowingly or unknowingly, any of the above-listed protected sites or objects without a permit. Because the offence does not require specific intent, the Act also applies to undiscovered sites that are disturbed by chance. In most cases, protected heritage properties are identified through an archaeological impact assessment, which forms part of the “technical exploration and development process” required by BC’s Mineral Tenure Act Regulations.132

Persons who wish to alter a protected object or site must apply to the Archaeological Branch for a site alteration permit.133 In deciding whether to issue the permit, the Branch will obtain sufficient information regarding the nature and extent of the protected site and specific alterations proposed to the site. In most cases, this will require the completion of an archaeological impact assessment by a professional archaeologist under a Section 14 Inspection Permit. Once sufficient information is obtained, the Branch will refer the application for a Section 12 Alteration Permit to the First Nation whose traditional territories include the site in question.134 If the permit is issued, it may be accompanied by conditions regarding the preservation and remediation of the object or site.  It is important to note that the Archaeological Branch routinely issues permits to alter or disturb cultural and heritage sites and that applications for these permits are rarely denied.

Protection is not automatically afforded to:

  • sites that contain artefacts, features, materials or other physical evidence of human habitation or use after 1846;135 or
  • sites or objects that are of particular spiritual, ceremonial or other cultural value to the Indigenous people where there is no physical evidence of historical human use.

For sites and objects that are not granted automatic protection, the Lieutenant Governor in Council may designate various sites and objects as “protected heritage properties”.136 Protected heritage properties can also be identified by agreement between the provincial government and First Nations.137 In these cases, a description of the site’s “spiritual, ceremonial or other cultural” importance to the First Nation community must be attached as a schedule to the agreement.138

The protection of heritage properties may also occur at the local level, as municipal and regional governments are empowered to designate property with heritage value or character as “protected heritage properties”.139 Finally, properties designated by municipal governments are granted additional protection when they are incorporated in a schedule to an official community plan that limits their possible uses.140


The protection of cultural sites from mining activities does not extend to lands surrounding cultural sites or to lands required for the settlement of First Nations’ land claims.

Recommended Solutions

Create “no-go” buffers around cultural sites

[Tags: Land Use Plan; Cultural Site; Protection; No-Go Zone]

In BC, there are no legal limits on the proximity of mining activities to cultural sites. Although the Archaeological Branch recommends that a professional archaeologist assess any proposed activity within 50 metres of a protected heritage property, the Archaeological Branch does not issue development permits. Therefore, in the case of mining activities, it falls to the BC Ministry of Energy and Mines to make their own policies regarding the requisite distance between mining activities and protected heritage properties.141

By contrast, in the Yukon, exploration activities must provide a 30-metre buffer around known archaeological or paleontological sites.142 Similarly, in Ontario, no mining claim can be staked within 45 metres of a church, cemetery, or burial ground.143 In California, special requirements for re-grading a site to its original contours are mandated when a mining operation is located within one mile of a Native American sacred site and an area of special concern.144 In Sweden, no work may proceed within 200 metres of a burial ground without prior permission from the county administrative board.145

Protect lands required for the settlement of First Nations’ land claims

[Tags: Land Use Plan; Aboriginal Rights & Title; Protection; No-Go Zone]

Indigenous cultural or heritage sites, be they protected or not, can serve as important evidence in the settlement of Indigenous land claims.146 This is recognized in the Yukon where the regulatory authority may withdraw from mining activities those lands that may be required for the settlement of Indigenous land claims.147 In Malaysia, courts have held that government officials have a fiduciary obligation, under the Federal Constitution, “to protect the welfare of the aborigines including their land rights”.148 In Afghanistan, the Minister may declare certain areas to be “off-limits” to mineral activities for the “protection of indigenous peoples or the welfare of affected local communities”.149

These legislative provisions conform to the Supreme Court of Canada’s decision in Haida Nation, which acknowledged Indigenous peoples’ rights to fair treatment in claimed traditional territories even before a claim is proven.150

Ecological No-Go Zones

Overview of BC Law

Under Canada’s National Parks Act,151 mining is prohibited in national parks. In BC, this means no mining activities can be carried out in:

  • Glacier National Park of Canada;
  • Gulf Islands National Park Reserve of Canada;
  • Gwaii Haanas National Park Reserve and Haida Heritage Site;
  • Kootenay National Park of Canada;
  • Mount Revelstoke National Park of Canada;
  • Pacific Rim National Park Reserve of Canada; or
  • Yoho National Park of Canada.

In addition to the national parks, BC’s legislated two-zone system expressly restricts mining activities in the following ecological areas:152

  • areas in which mining is prohibited under the Environment and Land Use Act;
  • Crown lands designated under section 93.1 of the Land Act;
  • parks & conservancies under the Park Act;
  • regional parks under the Local Government Act;
  • park or ecological reserves under the Protected Areas of British Columbia Act; and
  • ecological reserves under the Ecological Reserve Act.


Although BC has among the highest percentage of protected areas in Canada, its park legislation has been criticized for failing to clearly prioritize the preservation of ecological integrity and to acknowledge the importance of parks for future generations.153

Not all provincial park land in BC is protected from mining. For example, the Strathcona-Westmin Park on Vancouver Island houses the Myra Falls mine, which produces ore containing zinc, copper, lead, gold and silver, and has an annual production capacity of 1.4 million tons.154

Under BC’s provincial park legislation, the level of protection from mining activities depends on how a park is classified. Mining activities are only absolutely prohibited in:155

  • small parks (less than 2,023 hectares);
  • parks listed in Schedule D of the Protected Areas of British Columbia Act;
  • conservancies;
  • ecological reserves; and
  • designated wildland areas.

Mining activities may still be permitted in Class A parks (except for those listed in Schedule D of the Protected Areas of British Columbia Act), Class B parks, Class C parks, and recreation areas if the Minister:

  • considers the mining activity is necessary for the preservation or maintenance of the recreational values of the park involved; and
  • issues a “park use permit” or “resource use permit.156

Park use permits that were issued before 1995, when amendments to the park legislation were introduced, remain valid today. The Minister may renew these permits even where they conflict with the current legislation.157

It is also possible to allow or prevent mining activities to take place by modifying park boundaries. The regulatory authority has broad powers to modify park boundaries, to reduce park size, or even cancel a park.158 For example, large areas were removed from Tweedsmuir Park to make way for the Kemano hydro development project. There is, therefore, no guarantee that lands protected under BC’s park legislation will remain protected over the long-term.

These broad powers can also be used to expand park boundaries. However, recent amendments to the law provide that the government may be required to compensate the proponent in the event that lands with existing claims are added to a new park.159 In this manner, public funds may be used to “buy-back” the minerals that the Crown holds in trust for the public and which are transferred to a proponent at virtually no cost.


Although provincial legislation explicitly prohibits mining in conservancies, these areas are not necessarily protected from mining-related activities. The Minster retains the authority to approve road building and use in over a dozen existing conservancies to access natural resources lying beyond the conservancy boundaries.160

Ecological Reserves

The most significant protection of environmentally sensitive areas in BC is granted to ecological reserves, in which mineral prospecting and road building is explicitly prohibited.161 Unfortunately, 50% of such reserves are in poor to very poor condition, or in fair condition and in need of restoration.162


BC’s parks, protected areas, watersheds, important habitats and sensitive ecological areas are not adequately protected from mining activities.

Recommended Solutions

Prohibit mining activities in parks, conservancies and other protected areas

[Tags: Parks; Protected Areas; No-Go Zones]

As explained above, BC’s laws still allow mining activities in many types of “protected” areas. In contrast, absolute prohibition of mining activities in parks is provided in other jurisdictions. For example, in Ontario, staking of mining claims, development of mineral interests and working of mines are explicitly prohibited from provincial parks and conservation areas.163 Mining in national parks is also explicitly prohibited under Canada’s national parks legislation.

In Sweden, no mineral exploration may be undertaken in national parks.164 In the Philippines, mining applications are prohibited in parks, old growth or virgin forests, proclaimed watershed forest reserves, wilderness areas, mangrove forests, mossy forests, national parks, provincial and municipal forest parks, greenbelts, game refuges and bird sanctuaries as defined by law.165 Under the Ecuadorian Constitution, mining activities are forbidden in protected areas. Mining will only be permitted in exceptional cases at the substantiated request of the President and after a declaration of national interest issued by the National Assembly, which can, if it deems it advisable, convene a referendum on the issue.166

Prohibit mining activities in drinking water source areas

[Tags: Water; No-Go Zones]

Nova Scotia explicitly prohibits exploration in municipal water supply watershed lands unless the proponent has first obtained the necessary approvals from the provincial environment ministry.167 Under proposed amendments to the Quebec mining legislation, eskers with drinking water potential will also be declared off-limits for mining.168 No similar legislation is present in BC.

Prohibit mining activities in important watercourses and wetlands

[Tags: Water; Wetlands; No-Go Zones]

BC’s Water Protection Act, which applies to all watersheds in the province,169 seeks to “foster [the] sustainable use of BC’s water resources in continuation of the objectives of conserving and protecting the environment”.170 However, unless they happen to fall within one of the protected areas described above, mining activities are not explicitly prohibited in watershed areas.  This is particularly important since the Canadian federal government has amended legislation and policy to enable mines to destroy water bodies.  The proposed use of lakes for mining tailing ponds have created major controversies and have been opposed by First Nations such as the Tse Keh Nay, who successfully opposed the proposed use of Amazay Lake for tailings from Kemess North,171 and the Tsilhqot’in who have been battling against the proposed destruction of Fish Lake for the proposed Prosperity and New Prosperity Mines.172

In contrast, mining is explicitly prohibited in some important watercourses in other jurisdictions. For example, in Nova Scotia, no mining is permitted in protected water areas.173 In the US, specific protection is provided to wild rivers: minerals located in the bed or bank or situated within one-quarter mile of the bank of any river designated a wild river are withdrawn from mining activities.174 This US federal law protects not only the watercourse and also ensures that an adequate buffer is maintained to support the natural migration of the watercourse.

In Colombia, the Mining Code prohibits mining in certain protected moors and wetlands.175 This legislative provision was recently relied upon by the Colombian Minister of Mines to prevent the development of an open-pit gold mine in a sensitive high-altitude wetland that supplied freshwater to more than a million people in nearby communities.176

Prohibit mining activities in migratory bird sanctuaries

[Tags: Birds; Wildlife; No-Go Zones]

Canada’s Migratory Birds Convention Act prohibits persons or vessels from depositing harmful substances into waters frequented by migratory birds.177 In Quebec, mineral claim staking cannot be carried out on land designated as a migratory bird sanctuary under the Migratory Birds Convention Act without prior authorization of the Minister.178 Similarly, under Philippine mining legislation, mining applications cannot be made for “game refuge and bird sanctuaries as defined by law”.179 No similar protection of these important habitats is explicitly provided under BC’s mining legislation.

Prohibit mining activities in ecologically sensitive areas

[Tags: Environment; Ecology; No-Go Zones]

Some lands, due to unique environmental sensitivities or lack of current technical capacity, are impossible to reclaim after intrusive mining activities. In BC, many environmentally sensitive areas are protected as ecological reserves in which mineral prospecting and road building are explicitly prohibited.180 Many other jurisdictions also recognize the importance of protecting ecologically sensitive areas from mining activities through stronger legal provisions.

For example, in Alaska citizens can petition to have certain lands designated as unsuitable for surface coal mining: lands will be designated as such if the regulatory authority determines that reclamation is not feasible.181 In Minnesota, the regulatory authority must develop procedures to identify areas, or types of areas, that cannot be reclaimed from mining activities with existing techniques. In such cases, permits will not be issued in these areas until such time that the authority determines technology is available to satisfy reclamation laws.182 In Montana, the regulatory authority can rely on past mining experiences in determining whether substantial deposition of sediment in streambeds, subsidence, landslides, or water pollution cannot feasibly be prevented. If this determination is made, the regulatory authority must withdraw such areas from mining activities.183

Create continuous network of protected areas in which mining activities are prohibited

[Tags: Protected Areas; Network; Connected; No-Go Zones]

The Whitehorse Mining Initiative recognized that “protected area networks are essential contributors to environmental health, biological diversity, and ecological processes, as well as being a fundamental part of the sustainable balance of society, economy, and environment”.184 This principle highlights the importance of maintaining linkages between protected areas to provide adequate habitat and migration corridors.

The importance of protected area networks for contributing to cultural integrity, environmental health, landscape and biological diversity, and ecological processes has been recognized by the Innu Nation.185 The importance of networks of protected areas was also recognized in an assessment of Canadian national parks where it was found that “to successfully fulfill their mandate, national parks must be nested within a larger, sustainably-managed landscape, including a network of protected areas”.186 In Ontario, the objectives of land-use planning include the protection of ecological systems in the Far North in an interconnected network of protected areas designated in community based land-use plans.187

The European Union is in the process of establishing Natura 2000, a biological network for the preservation of biodiversity throughout the European Union. Under this framework, member states are required to avoid damaging activities that could significantly disturb protected species or their habitats.188  A number of countries, including Sweden, have already prohibited mining in the Natura 2000 areas.189

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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