A proposal for BC land claims

The tremendous mineral wealth of British Columbia is part of our collective heritage, and all British Columbians have a right to share in the benefits of its development, which include an increased standard of living and economic support for health and education.

The many benefits that accrue from mineral development are naturally enjoyed by communities close to mines. However, negotiators working on behalf of the Crown and various First Nations should be able to negotiate treaties so that these benefits can be extended more widely. In doing so, it is essential that two fundamental facts about mining be recognized.

The first is that although mineral exploration relies on access to a huge land area, actual economic discoveries are rare, and only a few will occur in any given decade and in widely divergent geographic areas; the resulting mines occupy a tiny fraction of the land base, currently estimated at less than 0.03%.

The other fact is that in addition to local benefits enjoyed by mine employees, suppliers, owners and communities, considerable benefits also accrue to senior government. Perhaps the chief such benefit is payroll tax revenue.

Given this background and the relatively small size of land being selected, setting up separate mineral tenure systems may not be the most desirable economic model for addressing the concerns of First Nations, or for attracting investors. On the contrary, separate mineral tenure administration for so-called “settlement lands” would be costly and would only create a new source of uncertainty. Moreover, the resulting difficulty in attracting explorers to increasingly smaller land areas would result in fewer discoveries.

As an alternative, First Nations should have the option to negotiate greater benefits, with lower administration costs, through a tax-revenue-sharing agreement from a much larger region than their settlement lands. Under this arrangement, the Crown would own and administer all mineral titles on all lands, including settlement lands, thereby providing a seamless set of mineral rules across the land. To avoid investor deterrents, it is essential that exploration and mining continue to be governed by the single set of clear and comprehensive mineral-specific legislation that exists on Crown land, rather than be adversely affected by conflicting or ambiguous arrangements on settlement lands or adjoining Crown lands.

Such an approach addresses, largely through existing mechanisms, the sovereignty, enviornmental and socio-economic issues with which First Nations are concerned. Under existing legislation, surface landowners have established rights in relationship to subsurface tenure-holders, which must be respected, with long-standing protocols in place to handle disputes. Similarly, an enhanced environmental referral and assessment mechanism, similar to that now in place, can address environmental concerns on settlement lands as if they were a form of private land. All other lands would then be held either privately or by the Crown, and subject to the normal environmental assessment process for proponents, agencies, tenure-holders and citizens, including aboriginal people. The socio-economic issues, both on and off settlement lands, likewise could be handled by current mechanisms, such as impacts-and-benefits agreements. However, we believe a more formal set of guidelines would be serve to extend the current practice.

As an option, First Nations seeking to derive economic benefits from mineral development might consider trying to negotiate a share of the senior government’s existing tax revenue derived from mining in an area much broader than their just their settlement lands — perhaps all of British Columbia. In exchange, mineral tenure ownership and related administrative roles would reside with the senior government. This is considered preferable to First Nations’ attempting to set up bureaucracies to administer mineral tenures and mine development in the hope of benefiting from mining within only their settlement lands.

The British Columbia & Yukon Chamber of Mines would not presume to define how this revenue would be allocated among First Nations. One model is for a pro rata revenue share to be allocated among individual First Nations by a negotiated combination of population and the proximity of the source of the mining-derived Crown tax revenue, to their respective settlement lands. The Chamber also believes it is important, as a matter of principle, that First Nations be able to benefit directly from a share of the tax revenue derived from nearby mines, as well as benefit from other negotiated contracts with the mines (for example, service, supply, training and employment).

One major benefit arising from this proposal is the early opportunity to remove much of the uncertainty from mineral investors, while allowing the individual surface land selection and negotiation process to continue throughout the province, unaffected by any mineral-related arrangement. On the minerals side, government could quickly set up province-wide, minerals-derived, tax share funds in a trust, to be allocated to First Nations if they opt-in to this plan. The fall-back position for those First Nations who did not opt-in would be to try, on their own, to attract investors and development in order to generate mineral resource revenue directly from their settlement lands.