The Surface Versus Subsurface Divide

Land Use Planning versus Mineral Tenure

When I say planning, I mean it in the broadest sense: the process of a community coming together; identifying problems; setting goals – a vision – for a time period such as twenty or forty years; adopting a program to fulfill those goals; and modifying the programs as conditions change … All across the West, stresses have built to the point where it is hard to imagine a sustainable future without some form of planning.62

– Charles Wilkinson (1992)

Overview of BC Law

The BC government has recognized the importance of provincial land use plans for providing the “framework and context for setting environmental, land use and resource management goals over provincial Crown land”.63 In the 1990s, the government of British Columbia invested significant time, energy and resources to develop regional land use plans. As a result, land use plans currently exist for almost all regions in BC.64

However, in BC many land use plans lack legal authority and thus do not control where mining activities take place. Only land use plans implemented by order of the Lieutenant Governor under the Environment and Land Use Act have legal authority to prevent mining activities.65 And, under BC’s free-entry system, mining activities continue to take priority over all other land use activities on “mineral lands”, irrespective of whether land use plans have designated these areas for other uses.66


The prioritization of mining under BC’s mineral tenure laws prevents the implementation of land use plans that appropriately recognize, protect and promote other valuable land use activities important to local communities.

Recommended Solutions

Restrict mining activities according to land-use plan designations

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

In contrast to BC, many other jurisdictions employ land use plans to limit areas in which mining activities may occur. In Northern Ontario, for example, no mining claims can be staked on lands designated under community based land-use plans for uses that are inconsistent with mineral exploration and development.67 In addition, boundaries of protected areas designated under community land-use plans may be enshrined under regulation,68 and no prospecting, staking, exploration, or new mines may be carried out in these protected areas.69

In the Northwest Territories, no prospecting or mineral claims can be staked in areas prohibiting such activities under land use plans that have been approved under federal legislation or a land claim agreement.70 Furthermore, planning is carried out under its Protected Areas Strategy by Aboriginal Land Use Boards, pursuant to the Mackenzie Valley Resource Management Act.71 In the Yukon, all proposed mining activities must be evaluated in accordance with existing land use plans.72

Under the 2009 Bill for reforms of Quebec’s mining legislation, legal provisions have been proposed that make it possible for the regulatory authority to take other land uses into account (as described in, for example, regional land use plans) and prohibit mining on specific lands.73

In the US, federal law requires individual states to establish planning processes “based upon competent and scientifically sound data and information” to determine which lands are unsuitable for all or certain types of surface coal mining operations. Operations deemed to be unsuitable include those that could result in significant damage to important historic, cultural, scientific, and aesthetic values and natural systems, or substantial loss or reduction of long-range productivity of water supply or of food or fibre products.74 In West Virginia, determinations of unsuitability of land for surface mining must be integrated as closely as possible with both present and future land-use planning processes at all levels of government (local, state and federal).75

In Sweden, exploration permits may not be granted within a planning area if the mining activities will have the effect of counteracting the purpose of the plan. In addition, the regulatory authority must seek and obtain a statement from the municipality before granting such an exploration permit.76

Require land use plans to be in place before new mining activities are approved

[Tags: Land Use Plan; Permit; Condition]

In BC, the regulatory authority is empowered to “restrict the right to or interest in minerals or placer minerals, comprised in all or part of a mineral title” if he or she considers that the surface area “should be used for purposes other than a mining activity”.77 The government could exercise this power to withdraw lands until the completion of land-use planning activities and before new mining claims can be staked.78

This approach has been adopted in Ontario’s legislation, which specifies that a community based land-use plan must be completed before any new mine can open in the “Far North” of the province.79 Similarly, under the Ta’an Kwach’an Council Lands and Resources Act, decisions on land-use authorization applications may be deferred until a land and resource management plan or land-use plan has been finalized.80

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