A mountain-top coal mine.

Laws of the land

Photo: Garth Lenz / ILCP RAVE

Did you know an individual in British Columbia can apply for a $25 free miner’s certificate and claim mineral rights on land for $5 a hectare or less1? With a few clicks of a mouse, almost anyone over the age of 18 can gain the right to extract up to 1000 tonnes of ore per year. If that sounds a bit too easy to you, that’s because it is. Our mining laws have changed little since the 1859 Gold Fields Act – and they’re in desperate need of some updates. Luckily, they’re about to get them. 

In 2021, the Gitxaala Nation filed a petition seeking review of several claims granted on Gitxaala territory without consultation or notice. The Ehattesaht First Nation filed a similar petition in June 2022. Wildsight, as part of the BC Mining Law Reform Network, was one of several intervenors in the case who argued against B.C.’s outdated mineral tenure regime. 

On September 26, the B.C. Supreme Court ruled in agreement with the Gitxaala Nation that there should be a duty to consult with First Nations when applying for mineral claims in their traditional territories. Supreme Court Justice Alan Ross gave the B.C. government 18 months to update the Mineral Tenure Act. The Gitxaala have since partially appealed the decision, protesting that the mineral claims in question are still able to operate and the ruling does nothing to stop additional claims from being placed, as well as expressing great disappointment in the Court’s decision not to enforce BC’s 2019 Declaration on the Rights of Indigenous Peoples Act.

While the full effects of this decision remain to be seen, it is a significant step forwards in terms of First Nations reconciliation and environmental protections. 

Gold in the hills

One way the Gitxaala ruling is likely to benefit the environment is by drastically reducing the number of future mineral claims that are approved. 

The Kootenays have a history of gold mining dating back to the late 1800s, with the Wild Horse River gold rush attracting thousands of prospectors and starting communities such as Fort Steele and Cranbrook. As the prospecting communities grew, mineral exploration expanded. Interest in abundant lead-zinc deposits led to the formation of the long-running Sullivan mine and the establishment of the city of Kimberley.

Today, many small-scale miners in the Kootenays target gold deposits known as placers, which have the potential for significant profits and require limited equipment. Gold extraction from placer deposits is essentially mechanised gold panning: miners use excavators to move large quantities of ‘pay dirt’ (earth than contains valuable minerals) from riverbanks into machinery that separates the heavy gold particles from lighter materials such as soil and sand. Up to 20,000 cubic metres of pay dirt – about 246 full semi-trailer loads – can be legally processed from a claim every year. 

While not as damaging as large-scale operations, the sheer number of these small-scale mineral claims means there’s enormous potential for environmental disruption. There are over 2300 individual mineral claims in the East Kootenay and Columbia Valley alone, 400 of which are on the aforementioned Wild Horse River and its tributaries near Cranbrook. Each of these claims could be worked without any environmental assessment or consultation.

Flathead Valley from Mount Hefty, British Columbia, Canada
The Flathead Valley is protected from mining and energy development. Photo by Garth Lenz / iLCP Flathead RAVE

More protected areas

The Gitxaala ruling may also allow provincial parks and Indigenous Protected and Conserved Areas (IPCAs) to be created more easily. Currently, B.C. requires full compensation for all mineral claim owners within a proposed conservation area. For example, in 2010 the B.C. Government banned mining and energy development within the Flathead Valley. Environmentalists celebrated the move, but the government was forced to settle, with support from land conservation and philanthropic organizations, with existing mineral claim owners in compensation settlements of up to $9.8 million dollars. 

These large payouts pose a significant obstacle to the formation of new conservation areas; any changes to the Mineral Tenure Act that restrict the number of new claims or limit compensation settlements for existing claims will have huge impacts on the size and number of new protected areas we see in the near future. Changes to these laws are likely to be necessary if Premier Eby’s recent commitment to protecting 30% of B.C.’s land base by 2030 is to be met.

Additionally, the B.C. Government is currently in the process of accepting feedback on its Critical Minerals Strategy and has posed a number of discussion questions that are open for public comment. This opportunity to help shape the future of mining in B.C. remains open for comments and discussion until November 6, 2023, and we highly recommend all our readers to take a moment and submit their thoughts on any or all of the discussion questions on the B.C. Critical Minerals Strategy website.

  1. https://www2.gov.bc.ca/gov/content/industry/mineral-exploration-mining/mineral-titles/mineral-placer-titles/fees-mineral-placer-titles