The Surface Versus Subsurface Divide


In British Columbia, the law distinguishes between surface rights and sub-surface rights. In almost all cases, landowners only hold surface rights. The sub-surface rights, which include the right to the minerals in the ground, are held by the provincial government.1 The provincial government grants mineral rights to third parties (‘proponents’) through its mineral tenure system.3Sub-surface tenure is available as mineral title,3which includes both mineral claims and mineral leases, and which allows proponents to explore for and produce minerals.

BC’s mineral tenure system is described as a ‘two-zone’ system – meaning that mining is either prohibited or prioritized.4 The lands on which mining activities are prioritized are called mineral lands, and these account for 87% of all the land in the province.5 The following sections describe the process for obtaining mineral title through BC’s ‘free-entry’ mineral tenure system, identify the lands on which mining is prohibited and describe how the current mineral tenure system fails to seek input from First Nations and undermines land use planning efforts in the province.

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