Twenty years ago, an NDP government triggered a flight of investment from mineral exploration and mining in B.C. that lasted more than a decade when, in 1993, it ring-fenced the massive undeveloped copper-cobalt Windy Craggy deposit with a new provincial park.
Windy Craggy, still a sore point for miners and prospectors in B.C., was invoked last week at the Association of Mineral Exploration (AME) Roundup conference during a technical panel discussion on the new rules coming for claim staking.
The changes have raised fears that another NDP government could usher in another “lost decade,” in which investment in mineral exploration flees to other provinces and countries.
“With only a few months left, it is critical that we get things right, or see the investment and exploration flee the province,” AME CEO Keerit Jutla said. “Something like this also occurred in the 1990s with Windy Craggy, and it took almost 15, 20 years for investment to come back to B.C.”
As of March 26, prospectors will no longer be able to automatically register a mineral claim in B.C. A new online process will place the claim pending a First Nations referral, consultation and accommodation process.
In cases where First Nations don’t respond to the referral, the claim will be granted, and the prospector will be free to conduct early-stage, “non-invasive” exploration under a free miner certificate. In some cases, however, a claim application may be rejected, which raises the concern that no-go zones may be created in B.C.’s geological map where mineral exploration will no longer be allowed.
Though it’s not happy with the new rules, the AME appears resigned to them and is working to mitigate their impact. The new process will also add costs and bureaucracy for First Nations, which will now have thousands more governments referrals to deal with.
Over a 10-year period from 2011 to 2022, 5,000 to 6,000 mineral claims were filed in B.C. each year. In some regions, First Nations could be deluged with hundreds of claim referrals, and there are concerns they may not have the technical or financial resources to manage them all.
“We know there is going to be significant capacity requirements for this,” acknowledged Justin Schroff, a director with the Ministry of Mining and Critical Minerals.
Some claims may trigger more in-depth consultation, and in some cases, several First Nations will need to be consulted for a single claim.
“We have heard that overlapping territories is a huge challenge, and we acknowledge that,” Schroff said. “There can be dozens of First Nations that may overlap certain claim areas in the province, so that is complicated.”
The new claim staking process was mandated by the courts, following a legal challenge to B.C.’s Mineral Tenure Act and “free entry” claim process by the Gitxaala and Ehattesaht First Nations.
In 2023, B.C. Supreme Court ruled the province had a duty to consult First Nations with respect to the filing of mineral claims, and gave the province 18 months to amend its claim administration process.
Sharon Singh, a lawyer specializing in resource, environmental and Indigenous law at McMillan LLP, noted that the duty to consult is not a provincial policy, but a law embedded in the Canadian Constitution.
Claim staking is the very first stage in the multi-stage, multi-decade long process of taking a mine from discovery to production.
A geologist or prospector with a hunch that there may be a copper porphyry or gold vein buried under a mountain somewhere can stake a claim and receive a free miner certificate (FMC), giving them the exclusive right to conduct minimally invasive exploration activities, like soil sampling.
A mineral claim does not grant any land ownership or mineral rights—it simply grants exclusive rights to do early-stage exploration in the area claimed.
“When they get a claim, they have certain rights, at the exclusion of others, and that means also at the exclusion of First Nations,” Singh said. “The sheer act of holding a claim does deprive … a First Nation from the use of that land.
“When you have a claim, you can take that to the bank, hopefully, and raise some money,” she added. “The First Nation cannot, because the FMC holder has a right.”
A considerable amount of work on the part of prospectors and junior miners can go into identifying a claim area, which is why mineral claims are considered a form of intellectual property to be guarded. There are concerns that the new claim registration process will make exploration intellectual property public.
“We have heard this feedback from our members that the staking process … should not be used to provide arbitrage opportunities to any party,” Jutla said.
In other words, prospectors and junior miners shouldn’t have to disclose confidential information, only to have their claims rejected and that information used by another entity to advance the claim.
Schroff said government has heard those concerns.
“We have heard that operators are concerned about their IP, and they are concerned about fairness, about how they are treated during the consultation process and by government, and we are working on this to respond to that,” Schroff said.
The new claim filing process will be more bureaucratic and time consuming for all involved—government, junior miners and First Nations.
When a new claim is filed through Mineral Titles Online, instead of being automatically registered, it will now be placed on hold, pending referrals to relevant First Nations.
First Nations will receive an engagement package with the claim applicant’s name, the area to be staked and an outline of activities to be conducted. First Nations will have 30 days to respond but can ask for extensions. If they don’t respond, the claim will be registered. If they do, the clock starts on a consultation and accommodation process, which is estimated to take 90 to 100 days, on average.
But there will be claims that take much longer to process, as they will require more in-depth consultation, Schroff said. Some claims could be rejected outright.
Many First Nations already struggle with government referrals on a range of resource activities. They can now expect to be inundated with hundreds of new referrals that they never had to deal with before.
AME members are concerned that First Nations will not have the financial expertise or resources to cope with this increase in government referrals.
Schroff said government is looking into capacity funding.
Underlying the recent changes to claim staking and other reconciliation efforts is the Declaration on the Rights of Indigenous Peoples Act (DRIPA), which aims to recognize and respect inherent Aboriginal rights and title, and give First Nations more say over what happens in their claimed territories.
In a talk Thursday at Roundup, Premier David Eby said there are examples of the new approach to reconciliation working “really, really well” in establishing First Nation partnerships in resource development, and “some pretty terrible examples, too.”
One of those terrible examples is in the Prince George region, he said, where inability to get consent from First Nations on logging has resulted in no BC Timber Sales activity for more than a year. He suggested his government is open to tweaking its policies when they are not working.
“Our commitment to you is we’ll move quickly to fix it and get it so that it works properly,” Eby said.
