BRITISH COLUMBIA, CANADA - MINING REGULATION
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.
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.
See British Columbia - Environmental Overview Commentary.