View from the West (February 24, 1992)

In future, companies that spend money on exploration should not expect compensation if they are subsequently denied permission to mine. They should never assume they will be granted mining permits because they’ve spent money on exploration. — Victoria Times Colonist, Dec. 9, 1991

Perhaps it’s time for the Canadian mineral industry to re-examine the fundamental concepts that underlie our understanding of mineral title, its acquisition, maintenance and associated rights. We have to ask ourselves whether present systems of claim staking and registry can adapt to the public demand for systems of managed land use.

From 1872 to 1972, North American mineral and energy development generated economic wealth, resulting in our high living standard today. This “age of resource development” was underpinned by legislation including the U.S. Mining Act of 1872 and Canada’s provincial and federal mining acts. This body of mining legislation reflected the will of a population whose views on the value of economic growth were positive and relatively unanimous. The year 1972 is an important benchmark, which marked the publication of The Limits of Growth. It represented the first popular expression of the thinking that culminated in the present-day movement toward no growth minimalism and resource preservation. Two decades later, much of the detailed analysis in the study has turned out to be badly flawed, including the predictions of serious shortages of non-renewable metals by 1990.

Mineral exploration and development flourished in Canada for over a century because of its natural geological endowment and its structure of laws and regulations which transferred sub-surface mineral rights from the Crown to individual and corporate investors.

In almost all provincial and territorial jurisdictions in Canada today, mineral title passes from the Crown to individuals or corporations by way of a staking licence which in British Columbia we call the “Free Miner Certificate.” Its holder is allowed to acquire rights to Crown land via the staking procedure. The recorded owner of a mineral claim is entitled by law to a chattel interest in minerals lying on and under that claim and is also entitled to use of the surface for the purpose of mineral exploration, development and mining. With minor variations, citizens of the U.S. have enjoyed similar rights under the U.S. federal Mining Act of 1872. In British Columbia, the current system of mineral title is an orderly process, and is relatively inexpensive. Nevertheless, the province’s Free Miner system is being challenged because of the way it affects land use. Similar concerns underlie the current lobby movement in Congress and the Senate to reform the U.S. federal Mining Act of 1872. The proposed change is one to shift from a claim registry system to a land management system. This system would be given broad discretion to question appropriate use of land. Already, the Free Miner’s right to mine under the Mining Act has been increasingly impaired by overriding environmental and land-use regulation. Challenges to current staking systems flow from the recognition by environmental protectionists that the Free Miner system does in fact imply a right to extract minerals and that this right is imparted, not by the action of government approval, but by the action a Canadian citizen takes in initiating the staking and recording of a mineral claim.

Only after such a right has been established, can environmental protectionists seek to derail a project via land-use regulations, the Mine Development Review Process, federal Environmental Assessment Review Process (EARP) and ultimately the court system. Environmental assessments are not really what extremist critics are after. They want the projects stopped. The question is: how much uncertainty can the mineral tenure system tolerate before resulting in a massive flight of investment capital? On the other hand, how much randomly unpredictable staking can a comprehensive land-use management strategy tolerate?