The Surface Versus Subsurface Divide

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

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