BRITISH COLUMBIA, CANADA - MINING REGULATION

GENERAL

Canada, located on the North American continent between the Atlantic and Pacific Oceans to the east and west and the Arctic Ocean to the north, is the second largest country in the world by total area, with the 11th largest economy based on GDP (World Bank, 2014). Canada is one of the largest mining nations in the world and the minerals industry is a solid part of the country’s economy, contributing over $54 billion to the GDP in 2013 and accounting for almost 20% of Canadian goods exports. The most important mining provinces are Ontario, Quebec, British Columbia and Saskatchewan.

British Columbia (BC) is located on the west coast of Canada and is the fourth largest of the Canadian provinces and territories by both land area and GDP. Due to its wealth of mineral resources the economy of BC was traditionally reliant upon industries such as mining and forestry. Rises, or most recently falls, in commodity prices have impacted considerably on the province’s mining industry and diversification away from these traditionally strong sectors has been required. Today, while these industries still play a crucial role in BC, the economy relies mainly upon the services sector, which has the highest employment figures in the province by some margin.

BC is considered to be the fourth largest mining province in Canada; it is the largest producer of copper in the country and the largest exporter of metallurgic coal (2014). In 2013 it was responsible for 16% of Canada’s mineral production, with coal accounting for just over 50% of the province’s total production. Aside from coal and copper, BC’s mineral resources include gold, iron, lead, zinc and silver, and a variety of aggregates.

In 2015 the Fraser Institute placed the province at 41st of 109 jurisdictions surveyed in its annual Policy Perceptions Index.

PRINCIPAL LEGISLATION AND REGULATOR

Pursuant to the Canadian Constitution, regulation of mining activities and mineral rights in the Canadian provinces is the responsibility of the provincial governments. The principal mining legislation in BC is the Mineral Tenure Act 1996 (MTA), as amended in 2004 and the Mineral Tenure Act Regulation 2004 (MTA Reg.), as amended in 2012. Other relevant legislation includes the Mines Act 1996; Health, Safety and Reclamation Code 2008; Mineral Tax Act 1996; Mineral Title Online Grid Regulation 2004; Mining Right of Way Act 1996; Mines Fee Regulation 2015; Mines Act Permit Regulation 2013; and the Mining Rights Compensation Regulation.

The sector is overseen by the Ministry of Energy and Mines and Responsible for Core Review (Ministry), headed by the Minister of the same title (Minister). Within the Mines and Mineral Resources Division is the Mineral Titles Branch, headed by the Chief Gold Commissioner (CGC). The CGC is responsible for the issuance and management of mineral titles in BC. Other important ministry departments include the Major Mines Permitting Office (MMPO), which manages the permitting requirements established by the Mines Act; the BC Geological Survey (BCGS); and the Health and Safety and Permitting Branch.

Since 2005, applications for mineral titles have been made via the Mineral Titles Online (MTO) administration system, which is managed by the Mineral Titles Branch of the Ministry. The system is now used to renew Free Miner Certificates, acquire and register claims, apply for leases, maintain and manage leases, track and pay fees and various other administrative tasks. In order to use the system an electronic identification known as a BCeID is required, as well as a valid Free Miner Certificate (FMC).

GRANTS AND FORMS OF MINERAL TITLE

According to the MTA, in order to hold a mineral title in BC applicants must first acquire a FMC (s. 7, MTA). To do so applicants must be at least 18 years of age and ordinarily resident in Canada for at least 183 days per year, or a non-resident who is authorised to work in Canada; corporations must be incorporated under the relevant legislation or be a Chartered Bank. It is possible to acquire a FMC as a partnership consisting of corporations or individuals who meet the relevant criteria (see s. 8(1) and (2), MTA).

Separate licensing applies to minerals and placer minerals, the definitions of which can be found within Section 1 of the MTA. Claims are served on a first come / first serve basis, although claims are subject to legacy claims (those made prior to the MTA), which have been maintained (s. 29, MTA and s. 10 MTA Reg. (see also s. 24(1), MTA Reg.)). Titles must be registered online via the MTO and the prescribed fees paid in order to be effectual (s. 4, MTA Reg.).

The MTA provides for the following:

• Mineral Claim (MC): Grants the holder the exclusive right to explore and develop minerals within the area of the claim (see s. 28 and s. 41(1), MTA). An individual MC may consist of up to 100 complete or partial adjoining cells (s. 4(1), MTA). The MTA Reg. outlines the requisite exploration and development work, which much be registered in accordance with the MTA Reg. no less than one year after completion of the work (s. 7(1), MTA Reg.). Specific requirements for exploration and development, and the reporting of such activities, are provided for in the MTA and MTA Reg. (see s. 33, MTA and s. 7, 8, 15, 16 and Schedule A, MTA Reg.); prospecting activities may only be registered as exploration and development work for the first three years of a claim (s. 7(8), MTA Reg.). MC are valid for one year, extendable year on year, providing the holder completes exploration and development, registers a statement of exploration and development work and registers a revised expiry date (s. 29, MTA). Payment can be made in lieu of exploration and development work (s. 29, MTA and s. 10, MTA Reg.).

• Mining Lease (ML): Recorded holders of MC can apply for the conversion of title to a ML (s. 42(1), MTA). An ML is an interest in land, conveying to the holder the minerals within and under the area of the lease (s. 48, MTA). To convert a claim to a ML, holders must register an application under Section 6(32), MTA; pay the prescribed fee; at the request of the CGC conduct a survey using a BC land surveyor and have the survey approved by the Surveyor General; post a notice of intention to apply for a ML in the office of the CGC; publish a notice in the Gazette; and a post a notice in a newspaper local to the area of the claim for 4 consecutive weeks (see s. 42(1), MTA). If the CGC is satisfied that the above requirements have been met the CGC must issue a ML (s. 42(4), MTA). A ML is issued for a period not longer than 30 years, on conditions deemed necessary by the CGC. Assuming the titleholder complies with the regulations and any conditions of the ML, the ML can be renewed for one or more further terms not exceeding 30 years each, subject to the approval of the CGC that the ML is required for a mining activity (s. 42(5), MTA).

The MTA also provides for placer claims and placer leases, which may overlap with MC and ML; overlap of other titles is prohibited by the MTA (see s. 6.7, MTA).

MC and ML can be transferred, in whole or in part, according to the terms of the MTA Reg. (see s. 12, MTA Reg.); transfers are effective upon registration. FMC are non-transferable (s. 8(3)(b), MTA). MC, ML and FMC can all be cancelled under the MTA if the titleholder acts in contravention of the MTA, the MTA Reg. and associated laws; hearings and appeals are possible.

DEVELOPMENT CONSIDERATIONS

Under Section 14 of the MTA, titleholders may use, enter and occupy the surface of a claim or lease for exploration, development or production of minerals including the treatment of ore and concentrates, and all associated operations for the business of mining. Surface rights may also be disposed to titleholders under Section 15, MTA. Section 19 of the MTA provides for access to private land and compensation, which is based upon loss or damage caused. The Surface Rights Board (SRB) is a specialist arbitrator established to deal with conflicts when the CGC cannot find a suitable resolution. The SRB has the power to specify conditions of entry and determine levels of compensation (s. 19, MTA).

Under the EA Act and Reviewable Projects Regulation proponents of mines with the relevant production capacity (over 75,000 tonnes per year of mineral ore for a new mineral mine) require an Environmental Assessment Certificate (EAC) before activities can begin. The application process consists of a pre-application and application review stage and the Ministry of Environment provides clear guidelines on the process, along with detailed timelines. Consultation with First Nations is a key feature of the EA process and project proponents are primarily responsible for the consultation process.

Other permitting requirements are provided for by the Mines Act 1996 (MA) and the Health, Safety and Reclamation Code 2008 (Code), both of which are administered by the Chief Inspector of Mines (Chief Inspector), as appointed by the Ministry. The MA is applicable to all mines as defined under Section 1 and mining activities extend to exploration and development, as well as production. Section 10 of the MA requires that a Permit be obtained before work is started, unless exemption is granted under Section 10 (1.1). Two types of permit application are possible under the Code.

• For mineral and coal exploration activities, placer mining, sand and gravel pits, rock quarries and industrial mineral quarries, Notice of Work applications (NOW) are required (see. s. 10.1.1, Code). NOW must include a reclamation program containing costs, information about engagement with First Nations and a description of activities to be undertaken, as well as other relevant documents. Applications are submitted via the online FrontCounter BC service and are reviewed by the relevant regional offices.

• For major mines, major modifications to existing mines and major exploration and development, full Permit applications under Section 10 of the MA are required (see s.10.1.2, Code). Applications must include: mapping details; a variety of geotechnical and baseline information; a mine plan; a plan for environmental protection; a reclamation plan; cost details; and any other information required by the Chief Inspector (for full details of requirements see s. 10.1.4, Code). Annual reports of reclamation and environmental monitoring are required. Applications are coordinated by the Major Mines Permitting Office of the Ministry and are reviewed by the relevant Mine Review Committee, which may be regional or project specific, depending on the complexity of the project.

A security may be required under Section 10 (4) of the MA as a condition of the Permit, of an amount established by the Chief Inspector, to cover mine reclamation and to provide for protection and mitigation of damage to watercourses and cultural heritage resources affected by the mine. Additional deposits into the fund may be required on a yearly basis (see s. 10(5), MA). The EA Act and Concurrent Approval Regulation provide for applications for environmental assessment and permit applications under the MA to be made concurrently; as with the EAC, work is prohibited until the Permit has been obtained. Projects which do not require an EA may still require a Permit under the MA.

ENVIRONMENTAL REGULATION

See British Columbia - Environmental Overview Commentary.

BRITISH COLUMBIA, CANANDA - ENVIRONMENTAL REGULATIONS

GENERAL

Canada is the second largest country in the world by geographic size, covering nearly 10 million square kilometres. The country is divided into ten provinces and three territories, namely Alberta; British Columbia; Manitoba; New Brunswick; Newfoundland and Labrador; Nova Scotia; Ontario; Prince Edward Island; Quebec; Saskatchewan; Northwest Territories; Nunavut; and Yukon. Canada’s only international land border is shared with the U.S and is the longest in the world; eight of the thirteen provinces and territories, plus 13 U.S. states sit along the border.

British Columbia (BC) is located on Canada’s west coast and is bordered by the Canadian territories of Yukon and Northwest Territories to the north, the province of Alberta to the east, the US states of Washington, Idaho and Montana to the south, the Pacific Ocean to the west and Alaska to the northwest.

BC is recognised for its geographical splendour and is Canada’s most ecologically and biologically diverse province; a considerable portion of the land is protected. It has an extremely mountainous topography with ranges including the Canadian Rocky Mountains, Coast Mountains and Saint Elias Mountains. Around 75% of BC is mountainous, over 60% is forested and just 5% is arable. Due to its size and landscape the climate of BC varies across the region; rainfall is common on the coast, with warm summers in the south and cold winters in the north. The average yearly temperatures in BC’s most populated areas are considered the warmest in Canada at 12 °C. BC has a plethora of wildlife; it is particularly noted for its bear population, with the highest population of black bears in the world, as well as grizzly bears and rare white Kermode bears (also known as spirit bears).

Perhaps the biggest environmental threat faced by BC is that of climate change.

PRINCIPAL LEGISLATION AND REGULATOR

Matters of environmental protection are, for the most part, the responsibility of the provincial governments. In BC the Ministry of Environment (Ministry) is responsible for the effective protection, management and conservation of BC’s water, land, air and living resources while the Environmental Assessment Office (EAO), a neutral government agency, is responsible for managing and administering the environmental assessment (EA) process and ensuring that proposed major projects meet BC’s environmental, economic and social objectives.

The key environmental legislation pertinent to the mining sector is the Environmental Assessment Act 2002 (EA Act), which details the EA process and the Reviewable Projects Regulation 2002 (Regulation), which designates certain projects as automatically reviewable. The majority of mining projects will automatically qualify as ‘reviewable’ based on the Regulation and will thus require an Environmental Assessment Certificate (EAC) before any activity is undertaken. Several other relevant regulations were issued in 2002 including: the Prescribed Time Limits Regulation; the Public Consultation Policy Regulation; the Concurrent Approval Regulation; and the Transition Regulation; while the Environmental Assessment Fee Regulation was issued in 2014.

According to the EA Act the Executive Director of the EAO (Director) and the Minister for Environment (Minister) are responsible for the EA process. In addition the EA Act grants ultimate responsibility for the issuance of EACs to the Minister and the ‘Responsible Minister’, which in the case of mining activities is the Minister of Energy & Mines & Responsible for Core Review (Responsible Minister). The EAO uses the e-PIC, an online project information facility, to manage information during the EA process. All documentation relating to the project and its EA, including the EA application itself, are made available via the system, which is also used to facilitate public involvement in the process.

Certain projects may require both a federal and provincial EA. In such cases the relevant federal legislation will be the Canadian Environmental Assessment Act 2012 (CEAA), while the relevant authority will be the Canadian Environmental Assessment Agency (Agency). The BC government and the EAO work together with the Agency to streamline the EA process via two methods, substitution and coordination. Substitution allows for the EAO to conduct a single EA that meets both federal and provincial requirements, as provided for by the CEAA; a Memorandum of Understanding, signed between the EAO and the Agency in 2013, outlines this process. The coordination method requires separate reviews by the EAO and the Agency, however the two bodies will co-ordinate and align the various stages of review to allow for a more efficient process.

As with the other Canadian provinces and territories, common law provides for the requirement to consult with First Nations on issues which may impact upon their Aboriginal rights. As such, consultation with potentially effected First Nations is a key aspect of the EA process and the project proponent is generally required to play a primary role in such consultations.

EIA PROCESS

The EA process in BC aims to identify, mitigate and evaluate the potential significant adverse environmental, economic, social, heritage and health effects of a proposed project. According to the EA Act there are three ways by which a project can classify as reviewable: (i) a project is classified as reviewable via the Regulation (s. 5, EA Act); (ii) a project is classified as reviewable by order of the Minister following a determination that the proposed project may have significant adverse effects (s. 6, EA Act); or the project proponent makes an application for the project to be classified as reviewable and the application is accepted by the EAO (s. 7, EA Act). Prospecting and exploration activities are highly unlikely to qualify for review. The Regulation sets out thresholds as to when a mining project will be classified as reviewable and thus require an EAC (Table 6, Reg.).

For mineral mines the following thresholds apply:

• New Project: A new mine facility that, during operations, will have a production capacity of over 75, 000 tonnes/year of mineral ore.

• Modifications of Existing Projects: Modification of a mine facility that meets Threshold E, namely: a project with the same production capacity as above with a modification resulting in the disturbance of: (i) at least 750 hectares of land that was not previously permitted for disturbance, or (ii) an area of land that was not previously permitted for disturbance and that is at least 50% of the area of land that was previously permitted for disturbance at the existing facility.

The Regulation also includes specific thresholds for placer mines; coal mines; sand and gravel pits; construction stone and industrial mineral quarries; and offshore mines.

The EA Act requires that all reviewable projects obtain an EAC before undertaking or carrying out any activities, or constructing, operating, modifying, dismantling or abandoning all or part of the facilities of a reviewable project, unless the Director has determined that an EAC is not required (s. 8(1), EA Act). There are two key stages to the EA process, the Pre-Application Stage and the Application Review Stage. 

• Pre Application Stage: Proponents of reviewable projects must submit a project description to the EAO, which will issue an order under Section 10 of the EA Act requiring the project to undergo an EA if it is determined that the project may have significant adverse environmental, economic, social, heritage or health effects. At this point the relevant government agencies and local governments will be notified, along with any potentially effected First Nations. A working group, consisting of government staff with the appropriate skills for the review and representatives of First Nations who are potentially impacted, will also be established to conduct the technical review of a project. The EAO will then issue a Section 11 order, which outlines the scope, procedures and methods for the EA. Section 11 orders may also include directions on consultations with First Nations for the proponent and details on the EAO’s own consultations, where required. Valued Components (VC) (defined as aspects of the natural and human environment that have significant ecological, economic, social, cultural, archaeological, historical or other importance) must be selected by the proponent and the potential impacts assessed (useful guidelines on this process have been published by the EAO). Following identification of the VC the proponent must, under guidance from the EAO, prepare draft Application Information Requirements (AIR). The AIR will contain numerous details including: a description of the project; consultation details; scope of assessment and potential effects on the relevant VC; methodology for assessing and mitigating the impact of the project; details of significant adverse effects; and a summary of proposed environmental and operational management plans. A first public comment stage will be initiated and the opinions of the working group and First Nations sought on the selected VC and / or AIR. The proponent is required to analyse and respond to written comments and post such information on e-PIC. Following this period the EAO will approve the final AIR, allowing the proponent to put together the EAC application. According to the guidelines the application must address all issues outlined in the AIR; include the baseline data of the study areas; and analyse the potential environmental, social, health, heritage and economic effects of the project, with mitigation and compensation measures a key focus. A report must also be prepared by the proponent detailing the consultation activities and outlining plans for on-going consultation. Once complete, the proponent submits the application to the EAO, which then has 30 days within which to accept or reject the application; the working group and First Nations are part of this review process. Proponents of rejected applications will be given the opportunity to address any deficiencies and resubmit the application to the EAO. 

• Application Review Stage: Following the acceptance of the application, and providing the proponent has distributed copies of the application to the relevant parties, the EAO has up to 180 days within which to complete its review. This period can be suspended, for up to thee years, at the request of the proponent or by the EAO if further information is required. During the review stage the proponent may be required to attend meetings with the working group and EAO to answer questions relating to the application. The application itself will be posted on e-PIC and a second public comment stage will be initiated, typically between 30-60 days following submission. The proponent is required to record comments and provide a report, generally within 14-21 days of the comment stage closing, to the EAO detailing the issues raised and its responses. During the review stage the EAO will compile an Assessment Report (AR). The AR will detail the procedures and findings of the application, issues addressed and issues outstanding; it will also provide details as to whether the consultation requirements with First Nations have been met. Before the AR is delivered to the Ministers, it will be shared with the working group, proponent and First Nations and their input will be sought. First Nations have the option to prepare a separate submission for consideration by the Ministers, should they disagree with the EAO’s findings in the AR. The Director will supply a copy of the AR to the Ministers along with recommendations on the issuance of an EAC (s. 17(2), EA Act). According to the EAO’s guidelines the Director may also provide a draft EAC including conditions of grant and measures to prevent significant adverse effects. Ministers have 45 days to reach a decision; according to Section 17(3), EA Act, Ministers must consider the AR and accompanying recommendations and may also consider other matters they consider relevant to the public interest. The Ministers then have three options: (i) issue an EAC, attaching any conditions considered necessary; (ii) refuse to issue an EAC; or (iii) order that further assessment be carried out (see s. 17(3)(c), EA Act). The decision of the Ministers will be communicated to the proponent via the Director and posted on e-PIC.   

The EA Act does not formally provide for an appeals process. According to the government website judicial review is possible but only in cases where a perceived violation of the EA Act’s legal requirements has occurred.

An EAC will include a deadline of at least 3 years (and no more than 5 years) from the date of issue by which time the project must have been ‘substantially started’ (s. 18(1), EA Act). Applications for extension of the deadline are possible and will result in a review by the Minister or Director, the result of which will be the grant of the requested extension or refusal of extension (s. 18(2)-(4), EA Act). It is also possible to make applications for amendment of the EAC under Section 19 of the EA Act. EACs can be cancelled under Part 5 of the EA Act: if a project is not ‘substantially started’ by the relevant deadline; in cases of non-compliance; if the holder is convicted of an offence under the Act; or if a holder defaults in payment of costs (see s. 37(2), EA Act).