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Comment: Outdated mining rules trump privacy in B.C.

In September 2011, Premier Christy Clark put $24 million toward accelerating B.C.’s mining-permit process. More than a year later, free-entry mineral staking continues to cost investors, the public and indigenous peoples time and money.

In September 2011, Premier Christy Clark put $24 million toward accelerating B.C.’s mining-permit process. More than a year later, free-entry mineral staking continues to cost investors, the public and indigenous peoples time and money. How about putting some of that $24 million worth of taxpayers’ money toward productive mining reforms?

Under free entry, with a mining licence, I can trespass on your land and it is difficult for you to prevent this. Miners’ rights receive preferential treatment and trump private property rights. In fact, I can stake a mineral claim online that gives me subsurface rights to your property before I even set foot on it.

This provincial mineral tenure regime has caused alarm on Pender Island when residents realized mineral claims have been staked throughout the island.

However, a recent court decision in the Yukon could be a catalyst to reform free-entry mineral staking in B.C. On Dec. 27, 2012, the Ross River Dena Council won a court of appeal case against the Yukon government. The court stated the government must provide for consultation before staking a mining claim.

Now more than ever, it is time to question the preferential treatment the mining industry receives regarding free entry. It is time to overturn the free-entry mineral-staking regime and reform B.C.’s Mineral Tenure Act.

Mechanisms are needed to ensure permission is granted before entering private lands and First Nations territories. The notification required before entering private lands is not enough, as mineral rights are already secured after a claim is staked. Consent at the mineral exploration stage would prevent future financial losses through lengthy environmental impact assessments and territorial battles that take place years after mineral rights have been staked.

Mineral tenure is the key to mining financing. An overhaul of the free-entry system would provide more certainty to increasingly speculative mining investments. It would also give the opportunity for the residents of Pender Island to grant permission to those digging around in their backyards, as opposed to taking legal action.

The archaic free-entry principle dates back to B.C.’s colonial gold-rush era and was enshrined in the Goldfields Act in 1859. The recently appealed Yukon Quartz Mining Act was originally based on B.C.’s system. More than a century later, B.C. was the first province in Canada to implement an online claim-staking system, Mineral Tenures Online, though other provinces have since followed suit.

Mineral-staking needs to reflect the present, not only in terms of GIS-mapping capabilities, but indigenous-rights protocols and fundamental courtesies that prevent trespassing. B.C. cannot continue to be governed like a tech-savvy colonial territory, subject to the Queen of England.

Indigenous organizations such as the Union of B.C. Indian Chiefs, First Nations Women Advocating Responsible Mining and the B.C. First Nations Energy and Mining Council oppose free entry that continues to allow mineral staking without prior consent. Similarly, environmental organizations such as West Coast Environmental Law have had mineral-tenure reform on their agenda for a decade.

B.C.’s mineral-staking regime is not only annoying for the residents of Pender Island, it legally infringes on the United Nations Declaration on the Rights of Indigenous Peoples and Section 35 of Canada’s Charter of Rights and Freedoms.

B.C. is not just a resource frontier, and its private and unceded territories are not empty. Free entry does not make sense, and miners need to join the 21st century. If they don’t get there themselves, the courts will force them to update the free-entry regime.

Clark’s $24 million went to streamlining a broken system. Taxpayers’ money should be put toward useful mining reforms.  

It is clear. It is simple. Prospectors and mining companies must be required to seek consent before entering private lands and indigenous territories, online or otherwise. It would be to the benefit of all involved, including industry.

 

Dawn Hoogeveen is a PhD candidate in the University of B.C.’s geography department.