Mineral Tenure and Land Use Planning: The Surface and Subsurface Divide


Modernizing current BC mining laws may help to achieve a more equitable division of land use that allows First Nations and other communities greater input into how and where mining activities are undertaken within their traditional territories.

One of the major issues with BC mining laws is that while First Nation land use plans may be considered, they carry very little legal weight. This limits the opportunities for First Nations to meaningfully participate in land use planning and control mining activities on their land.

This legislative gap is compounded by the way the provincial government distinguishes between surface and subsurface rights. In most cases, landowners only hold surface rights, while sub-surface rights (minerals in the ground) are held by the government. Sub-surface mineral rights are granted through a ‘free-entry’ tenure system (controlled by the Mineral Tenure Act), which has remained largely unchanged since 1859.

BC’s mineral tenure system is a ‘two-zone’ system:
87% of all land in BC is PRIORITIZED for mineral exploration.

Current mining legislation places an unreasonably high value on mining activities as it:

  • Does not give the government the option to deny a mineral lease.
  • Fails to require adequate consultation with First Nations.
  • Prioritizes mining over land use plans.
  • Lacks adequate control over the cumulative impacts of mining activities.
  • Fails to protect watersheds, parks and farmland.

Solutions to these issues call for First Nations and other communities to have power designate protected areas and the creation of ‘no-go zones’ for mining activities. Solutions also seek to prioritize First Nation participation in land use planning and recognize the importance of including traditional knowledge into these plans.

This section explains the ‘free-entry’ tenure system and describes how the system fails to seek input from communities and undermines land use planning efforts in BC.

  1. BC’s Mineral Tenure System: an Overview
  2. First Nation Involvement in Land Use Planning
  3. Land Use Planning VS. Mineral Tenure
  4. No-Go Zones


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