The Surface Versus Subsurface Divide

Overview of BC’s Mineral Tenure System

The process for obtaining mineral tenure in BC is as follows. First, a proponent must obtain a Free Miner Certificate by paying a nominal fee6 and filling out an application form to show they fall into one of the following definitions:7

  • an individual who is over the age of 18 and is either ordinarily a resident of Canada for at least 183 days in each calendar year or authorized to work in Canada;
  • a Canadian corporation; or
  • a partnership consisting of individuals or corporations (as per above).

After obtaining a Free Miner Certificate, the proponent has the right to stake a claim. This is done on BC’s Mineral Title Online (MTO) website, which is a publicly accessible on-line database that shows mineral claims across the province.8 The MTO allows proponents to stake their claim through the use of an online map, rather than having to physically drive claim stakes into the ground. BC’s MTO system was the first on-line claim registration system and remains one of the few such systems in the world today.9 Since the MTO’s inception in 2005, there has been an exponential increase in the number and area of claims staked across the province.10

By staking a claim and paying the required registration fee,11 the proponent (or “recorded holder”12) acquires the right to the minerals in the ground.13 This includes the exclusive right to:14

  • use, enter and occupy the surface of the claim area;
  • explore and develop the mineral resource situated vertically downward from and inside the boundaries of the claim;
  • produce up to 1,000 tonnes of ore per year from each cell in a cell claim (or, in the case of placer claims, produce up to 2,000 cubic metres of pay dirt per year); and
  • extract a bulk sample of up to 10,000 tonnes of ore once every five years.

In BC, proponents have a right to enter private lands to explore for minerals and are only required to provide eight days advance notice to landowners before doing so.15 Although landowners cannot prevent a proponent from entering the land, they may be able to:

  • request the Surface Rights Board to specify conditions of entry that will minimize the obstruction or interference with the land; or
  • obtain compensation for obstruction to or interference with enjoyment of the land caused by the entry.16

These same notice and compensation requirements, however, are not afforded to First Nations. The Mineral Tenure Act does not require the government or the proponent to notify or consult First Nations prior to the staking of a claim or the entering onto First Nations’ traditional territories to conduct exploration activities. Although the legislation is silent on consultation at this early stage, Canadian courts have held that the Crown has a duty to consult First Nations in resource decision-making affecting their traditional territories17 and that this duty may be invoked at the exploration stage.18

If a proponent wishes to produce higher volumes of ore than is permitted as part of exploration, the proponent must obtain a mineral lease.19 A mineral lease is an interest in land and has a term of up to 30 years, which can be renewed.20 To convert a claim into a lease, the claim holder must complete the following:21

  • register an application for the lease;
  • pay a prescribed fee;22
  • survey the land covered by the lease (as required by the Chief Gold Commissioner);
  • post a notice of the intention to apply for a lease at the Chief Gold Commissioner’s office; and
  • publish the same notice in one issue of the Gazette and once each week for four consecutive weeks in a local newspaper.

On meeting these requirements, the Chief Gold Commissioner cannot refuse to convert the proponent’s mineral claim to a lease.23 Because of this obligation to issue a mining lease where all requirements are met, the government cannot balance other competing land uses in deciding whether or not to grant mineral leases. As such, mining takes priority over all other activities on mineral lands, irrespective of who owns, occupies, or uses the land, or what other activities are currently taking place on the land.

After acquiring a mineral lease, proponents are eligible to apply for a major mine permit (or exploration activities that exceed the production and extraction thresholds listed above).24


Under BC’s ‘free entry’ mineral tenure system, the government has no discretion to deny the issuance of a mineral lease to a proponent. This means that proponents are awarded mineral leases irrespective of their relationship with First Nations, their commitment to local employment, their financial or technical capacity, or their track record for environmental compliance. This ‘free-entry’ regime also prevents the government from balancing other valuable land uses or preserving mineral deposits for future use.

Recommended Solutions

Replace Free-Entry System with Competitive Bidding System

[Tags: Free Entry; Mineral Tenure; Mineral Lease; Bid; Competition]

Instead of automatically granting mineral leases to mineral rights holders, BC could adopt a competitive bidding system to govern the issuance of mineral leases. This would encourage proponents competing for a mineral lease to present progressive plans for mineral development.

Competitive bidding is already used in BC for issuing leases for petroleum and natural gas production.25 Each month, leases are disposed of by way of public tender. The bids are reviewed by an adjudication panel to ensure: a) the highest bid received is sufficient for the rights being offered; and b) it is in the public interest to dispose of the interest in the land.26 The Minister of Energy and Mines reserves the right to reject any or all bids received. The law governing petroleum and natural gas production in BC specifically allows regulations to be made that would allow the Minister to apply the following criteria when deciding whether to dispose of Crown reserves of petroleum and natural gas:27

  • environmental values;
  • technological innovation;
  • community interests;
  • First Nations considerations;
  • long-term economic planning;
  • the purpose for which the area is to be used; and
  • other matters that the Lieutenant Governor in Council considers are in the public interest.

The government of Queensland (Australia), which also has a bidding process to award petroleum and gas rights to proponents, recently announced that it will be applying this same procedure to coal resources. The government intends to periodically release areas for coal mining through a competitive tender process.28 The government will assess each proposal against established criteria to optimise the value of the state’s resources. The government’s rationale for this “controlled release approach” is to “provide for improved stewardship of Queensland’s coal resources and strike a better balance between resource development and other land uses”.29 To facilitate the implementation of this “much-needed reform”, the government has prohibited the submission of new applications for coal while the tender process is put in place.30 Notably, it is proposed that “any potential land use conflicts will be considered prior to land being released” for coal.31

Afghanistan is another jurisdiction where mineral tenures are awarded through a bidding process. There, tenure is awarded to the bidder “which provides the best value for Afghanistan”.32 In evaluating the bids, an inter-ministerial committee is required to consider the proposed work plan, the implementation method, the amount of investment and the bidder’s previous experience and financial and technical capacity.33

BC could adopt a similar bidding regime to award mineral leases and list additional criteria to evaluate proposals, such as support of First Nations, sufficiency or reclamation security, and plans to minimize ecological disturbance and long-term environmental impacts.

Conserve minerals for future generations

[Tags: Free Entry; Mineral Tenure; Future]

Mineral resources are non-renewable. However, the need to conserve mineral resources for future generations is not reflected in BC’s current free-entry system, which has no mechanism in place to control the pace of resource extraction apart from controlling which areas are designated as mineral lands. Conversely, in India, the regulatory authority is empowered to reserve certain areas not already held under a mining licence for the sole purpose of conserving minerals.34 This type of legal provision helps empower governments to conserve non-renewable mineral reserves for the needs of future generations.


BC’s online free entry staking system allows mineral claims to be staked and exploration activities to commence on First Nations’ traditional territories without consultation or obtaining First Nations’ free, prior and informed consent.

Currently, First Nations often do not become aware that mineral claims have been staked until after a proponent has entered the land and commenced exploration activities.35 Similarly, proponents are often surprised to learn, after they have commenced exploration, that the area of their claim is significant or contentious from a First Nations perspective. This lack of notification or consultation is often the source of conflict and distrust between the different parties.36 Requiring prior consultation with First Nations before mineral claims are staked on their traditional territories could minimize such conflict.

BC First Nations have expressed concern that the online claim-staking process fails to accommodate their rights and interests.37 Even the Association for Mineral Exploration British Columbia has suggested increased engagement with First Nations at all stages of mining, beginning with initial mineral claim staking.38

The Yukon Court of Appeal recently ruled that a similar free entry regime in the Yukon fails to meet Canada’s consultation and accommodation requirements:

For reasons that follow, I agree with the chambers judge’s finding that the statutory and regulatory regime currently in place for the recording of mineral claims within the traditional territory of the Ross River Dena does not measure up to the consultation requirements in Haida. …The current regime may allow mineral claims to be granted without regard to asserted Aboriginal title.  They also allow exploratory work that may adversely affect claimed Aboriginal rights to be carried out without consultation.39

It is likely that this ruling and reasoning applies to the on-line staking and free entry regime in British Columbia.

Recommended Solutions

Recognize and affirm First Nations’ rights in mining legislation

[Tags: Indigenous Rights; Mineral Tenure]

BC’s mining legislation makes no reference to First Nations’ rights. In contrast, Ontario’s mining legislation explicitly states that its purpose is to “encourage prospecting, staking and exploration for the development of mineral resources, in a manner consistent with the recognition and affirmation of existing Indigenous and treaty rights in section 35 of the Constitution Act, 1982”.40 The recognition of Indigenous peoples’ rights is even more clearly articulated in the Philippines, where Indigenous peoples are granted priority rights over harvesting, extraction, development or exploitation of any natural resources within their ancestral domains.41

Make mineral claims & leases conditional on obtaining First Nations’ free, prior and informed consent

[Tags: Free, Prior and Informed Consent; Mineral Claim]

Under the Ecuadorian Constitution, Indigenous peoples are granted the right to free, prior and informed consent, within a reasonable period of time, on the plans and programs for mining activities carried out on their lands that could have an environmental or cultural impact on them.42 In the Philippines, mineral exploration is prohibited on the “ancestral land” of Indigenous peoples unless Indigenous representatives provide prior consent.43 Similarly in New Zealand, Maori consent must be obtained before the government may issue permits for activities that will or are likely to have adverse effects on recognized customary activities.44

In BC, free, prior and informed consent could be incorporated into the existing on-line staking system by affording mineral claims a conditional-status. This recommended conditional-status mineral claim would carry limited ownership rights (precluding other miners from registering competing claims) and no land access rights. To qualify for full-status mineral claim, the First Nations on whose traditional territory the mineral claim is staked would have to give their free, prior and informed consent.

Notify First Nations when conditional mineral claims are staked on their traditional territories

[Tags: Free, Prior and Informed Consent; Mineral Tenure Online]

BC’s Mineral Titles Online does not require miners to notify First Nations when claims are staked on their traditional territories. Conversely, the need for adequate prior notice to Indigenous peoples is recognized in other jurisdictions. For example, under proposed regulations in Ontario, notice to First Nations communities must be given as soon as mineral claims are recorded on their traditional use areas.45 In New Zealand, proponents seeking to enter Maori land to carry out minimum impact activities must first notify the local iwi authority (the recognized local Maori tribal authority).46

At a minimum, notice to First Nations should include information about the proponent’s: other registered claims; experience in exploring and developing those claims; and, where available, assessments of their cultural sensitivity in carrying out other mining activities. Where such information contains confidential or proprietary data, the proponent could enter into a confidentiality agreement with the First Nation to whom the information is provided. Such an approach is provided for under Saskatchewan legislation, where the regulatory authority is empowered to enter into agreements with First Nations “with respect to the release of confidential information that may be required to advise those bands of the existence of the interests of third parties in certain Crown minerals and Crown mineral lands”.47

Consult and share decision-making with First Nations’ about mineral tenure

[Tags: Consultation; Shared Decision-Making]

Where substantive consultation and accommodation are going to be required, and there is no mutually agreed process in place to get to common ground, the chances of project acceptability by the First Nation are non-existent.

– First Nations Energy & Mining Council(2009)48

First Nations in BC have recommended that the provincial government develop a joint provincial-level consultation protocol with First Nations to set out the objectives, principles, standards to be employed, and procedures of consultation for all Crown land-use decision-making.49 Although a joint-protocol has yet to be developed, the provincial government has developed its own consultation procedure.50 This procedure, however, is mere policy and therefore not enforceable.

In contrast, other jurisdictions have taken steps to legislate consultation requirements. For example, Yukon legislation outlines a clear procedure for consultation with First Nations. This procedure requires that the duty to consult be exercised by providing, to the party to be consulted:

  • notice of the matter in sufficient form and detail to allow the party to prepare its views on the matter;
  • a reasonable period for the party to prepare its views; and
  • an opportunity to present its views to the party having the duty to consult, coupled with full and fair consideration of any views so presented.51

Similar provisions are provided under the Mackenzie Valley Resource Management Act.52

In Norway, the federal government has signed a consultation agreement with the Norwegian Sami Parliament, which establishes how, and under what circumstances, consultations should be carried out.53 Under the Bolivian Constitution, Indigenous peoples are granted the right to compulsory prior consultation by the state whenever legislative or administrative measures may affect them, including when non-renewable resources (such as mineral deposits) are to be exploited in the territories that they inhabit.54


In BC, landowner consent is not required for proponents to enter the land to conduct mining activities.

Recommended Solution

Require landowner’s consent to mining activities

[Tags: Free Entry; Mineral Tenure; Landowner; Consent]

Several jurisdictions require surface landowner consent to mining activities before proponents may proceed. For example, in Alberta, the law explicitly provides that “no person shall conduct exploration …on private land, except with the consent of the owner of the land or a person authorized by the owner to give that consent”.55 A similar requirement is in place in Newfoundland and Labrador.56 In New Brunswick, a miner must submit a written agreement to the regulatory body that indicates that the owner of the land consents to work being done on the land. This agreement must be submitted before an application for a mining licence is made.57 In Victoria (Australia), a holder of a mining licence must also obtain the written consent of owners or occupiers of private land before commencing mining activities.58 Germany’s mining law also requires the consent of the owner to undertake any prospecting or exploration activities on the land.59 In the Philippines, areas covered by small-scale miners must give prior consent before mining operations can be carried out on these lands.60 In Mali, legislation provides that exploration and mining rights are not valid without prior consent of the landowner.61

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