Podcast episode #6: Reform the Mineral Tenure Act w/ Nikki Skuce

May 24, 2024

Listen to the podcast audio:


In this episode of Beneath the Surface, we sit down with Nikki Skuce, Director of the Northern Confluence Initiative and co-chair of BC Mining Law Reform, to dive deep into the reform process for British Columbia’s Mineral Tenure Act (MTA). Nikki brings to light the historical context of the MTA, its longstanding impact on Indigenous rights and land use, and why comprehensive reform is not just necessary but urgent.

Listeners will also hear about the active role of the BC Mining Law Reform network in advocating for mineral staking reform and the specific outcomes we hope to achieve through the reform process.

Nikki provides practical ways listeners can support the reform efforts, including signing the following petition on our website:


Umair Muhammad

Welcome once again, Nikki, to the podcast.

Nikki Skuce

Thanks Umair, good to be here.

Umair Muhammad

So we’ve covered BC’s Mineral Tenure Act on the podcast on a couple of occasions in the past. We did it in on the very first episode, and we did it again when I interviewed Gavin Smith. So people can go back and listen to those if they want a detailed version of what the Mineral Tenure Act is about. But before we kick off the main discussion that we’re going to have about the reform process for the Mineral Tenure Act, it would be worthwhile, I think, to briefly outline what the MTA is. So what’s the MTA? What are its origins? What’s wrong with it?

Nikki Skuce

All right. Sounds good. So British Columbia has two legal frameworks when it comes to mining. They’ve got the Mineral Tenure Act. And that’s the thing that we’re going to be talking about today. And what the Mineral Tenure Act deals with is how the process for granting mineral rights—for how you get the mineral rights, and the work that you can do initially. You’re allowed to do a bunch of early stage exploratory work—and regulations around that. And then once you get into more advanced and invasive exploration, then that shifts into the Mines Act. So that’s when you might need permits to build a road and dig out, you know, samples, etc, etc.

And the origins of the Mineral Tenure Act come from one of British Columbia’s first laws, which was called the Gold Fields Act of 1859. And that granted free entry certificates to mineral explorers, and we still now get a free entry certificate. If you want to make a claim, you still get what’s called a free entry certificate. What this did was it set out that mining would get free and prior use of the land.

And it really was intended to do two things back in the 1850s. One is it was intended to help colonize British Columbia, so to ensure that there was settlement that was happening. And secondly, it was to also have a little bit of parameters around the gold rushes that were happening in different waves—as a means of requiring some kind of administration, and some kind of fee to be able to be given this free minor certificate. And interestingly, you know, British Columbia’s history is really intertwined with mining and the whole mineral exploration regime and free entry regime. Because, you know, Joseph Trutch was with—the Cariboo Gold Rush was happening there, there was about 90% of the indigenous population that was impacted by smallpox.

And so he just figured that we didn’t need any treaties. And so that is part of the reason why British Columbia has so few treaties with indigenous peoples—because it was sort of assumed that they would just die off and go away as the mining exploration was happening. So that’s a bit of a history.

So what’s wrong with it? Well, what’s wrong with it is that it’s still—today in 2024—if you have this free entry certificate, you get free prior use of the land, and it was made easier in 2008. So you no longer had to actually physically go out to the land and check it out and put a stake in the ground. You know, that was sort of why they call it “mineral staking.” But now you can just go online. You pay your $25 for a free minor certificate. And then you can go online and you could stake claims—and over a 76% of the province is open to mining.

So that is basically everywhere except national parks, some archaeological sites, some urban areas like Vancouver, and then also you need to be 75 metres away from a dwelling. So only about 5% of British Columbia is private land. And this would only impact maybe half of that. You would be able to stake on private property. And so, for $1.75/hectare, you got to click and then you get the mineral rights.

And the problem is, is that then you only need to do a little bit of more administrative detail and then you get a mining lease, the province does not have the ability to say “no.” They’re required to accept that application. And that mining lease lasts for at least 30 years. So basically, it’s just really out of step with today’s value. There’s an inability—you know, when land-use planning happens—there’s an inability to impact mining claims, because of this ongoing legacy of mineral rights getting free prior use of the land.

Umair Muhammad

Yeah, and thanks for distinguishing between the Mineral Tenure Act and the Mines Act, because I suspect that most people, when they hear about mines and mining—they don’t hear about the Mines Act but they encounter that phase of the mineral exploration and development process. When there’s an environmental assessment and consultation, for instance. That’s sort of what we see on the news, whereas we don’t really hear about the Mineral Tenure Act or what it entails.

Nikki Skuce

And I think people find it really egregious once they do learn about it. Because I think it is really out of step with today’s values. The fact that you can literally, you know—it sort of ignores private property, ignores biodiversity, it ignores indigenous rights, municipal drinking water systems, like all of it. The fact that anyone over the age of 18, can go online and just click and get the mineral rights and have the ability to then poke around without needing to ask permission or come into any kind of agreement is pretty egregious in today’s day and age.

Umair Muhammad

Yeah. And it’s taken a long time to get to a place where we’re finally getting what hopefully is a comprehensive reform. And that’s the result of a court ruling. People can hear more about that in the episode with Gavin Smith. And that court ruling found that the Act didn’t conform to legal requirements for free, prior, and informed consent. So the province was tasked with reviewing and reforming the Mineral Tenure Act. Could you give us a sense of what’s happening there? What the timeline is?

Nikki Skuce

Yeah, sure. So the government has started with pre-engagement sessions to outline how they were moving forward the different timelines and tables that they had set up. So for example, they’re working with the First Nations Technical Advisory Committee, they’ve got agreements with the First Nations Leadership Council. And then how they engage with the Mining Association and Mineral Exploration Association, as well as other stakeholders.

So then there was a desire and feedback from people to have meaningful engagement. So focus groups is probably the next phase of what’s going to happen in terms of—potentially half day sessions and ability to raise issues. And we are in an election year, the BC election is in October. So there’s a period of time there where very little can happen unless there’s the political directive that happens beforehand.

And so that’s likely to happen before the end of June—of what direction the staff can keep working on. Given that there’s a court order to ensure that there’s consultation that happens between indigenous peoples before mineral claims become legal—the legal rights to those mineral claims are granted—by March of 2025. So we’re sort of working backwards from that day, to hopefully have new legislation or at least have that piece change and a new Act by the sometime in the spring of next year.

Umair Muhammad

And there may be a change in government before that.

Nikki Skuce

Yeah, there could very well be. Definitely there’s the Supreme Court mandate so regardless, the province needs to change the Act. If they don’t by March of 2025, then that means every single mineral claim that happens after that can be subject to a legal court challenge.

Umair Muhammad

I guess let’s see what happens. Exciting times! And the BC Mining Law Reform network—that’s us— we have an interest in reforming the Mineral Tenure Act. That’s one of the reasons why this organization was created. So we’re one of the stakeholders, I guess, in this process. Could you talk about the contributions that we’ve made and what our objectives are? What sorts of outcomes are we advocating for and hoping to see as a result of the reform process?

Nikki Skuce

So the BC Mining Law Reform network has long advocated for reforms the Mineral Tenure Act. We have, often through the years, gotten calls or appeals for assistance—whether it’s a community like Kamloops that’s facing challenges because of a mine that’s within their municipality and counter to the sort of plans that the municipality had for increasing housing to, you know, a couple who were having a glass of wine at their farm and then all of a sudden somebody came in with the mineral rights and started digging around, and they had no recourse.

So we’ve long heard of different stories and challenges. And definitely, in terms of indigenous peoples, there’s a lot of claim staking that’s happened—whether their drinking water stores or just too close to their reserves or inappropriately in salmon watersheds. So we’ve long advocated and had this as a priority, the need for reform, also given just the legacy that it has from, you know, it’s over 160 years old.

So there’s a real need to update it and have it in line with today’s values. And so we done a lot of government advocacy and other things to try to educate people about this and try to push for reforms. And then we participated as interveners in the Gitxaała court case in support of reforming, and also just did some comparative analysis looking at what other regimes are out there—like what other jurisdictions have updated and what those look like. And so the BC Mining Law Reform network are in full support of the need for free, prior, and informed consent of Indigenous peoples, and to align the Mineral Tenure Act with the UN Declaration on the Rights of Indigenous Peoples.

At the same time, we don’t feel like we need to dictate what that looks like. That is something that’s being solved. And our solutions are being drafted by Indigenous teams of people working on it. And we highly respect that and will support the work that they’re doing. Other issues that we would like to see are that, you know, we need to get rid of the automatic—the free miners automatic entitlement to mineral tenure rights.

There’s really an inability for the province to deny these 30 year mineral leases, regardless of what other land values and designations are being considered in that area. So we think that that needs to change. We also—as mentioned, there’s not very much in British Columbia—that’s private land, there’s about 5%. And again, I would say, something around half of that is already off limits. So we think it’s a very low bar to add that into the need for reforming and getting farmers and ranchers and rural dwellers supporting the mineral tenure reforms and the need to have to grant permission.

And so people will give permission for mineral staking and exploration to happen on their property. But I think it’s just one of those values of private—you should be able to defend your private land that you have and permission should be needed from those staking claims. And then we also think that there needs to be fair and proper consultation with all land tenure holders. So this includes some of those tourism operators who get various permits and tenures, like guiding territory certificates under the Wildlife Act, for example.

Right now, there’s no need for consultation with those tenure holders. And so some kind of robust process needs to be in place. We really think that mineral exploration needs to respect and conform to Indigenous, local, and regional land use plans. So again, this is getting rid of that to that two-tier system. It’s section 14-5 of the Mineral Tenure Act, which really does give priority for mineral tenures over other land use designations and objectives.

We think that there is—this undermines a bunch of carefully thought out planning and priorities and that’s something that needs to change. And then the other thing that we’d like to see is that, you know, we’re in a biodiversity crisis, and there’s been some commitments to protect 30 percent of land and water by 2030. And so we think that there’s a real need to have the Mineral Tenure Act align with these conservation mandates to nearly double BC’s protected areas. So that means, you know, some more, no-go zones to mining, but probably also more security for the industry, where there are openings for mineral staking.

And lastly, we think that as part of the mineral tenure—the Mineral Tenure Act also deals with mineral compensation. Like what do you do when you actually expropriate or get rid of these mineral claims for conservation or other public interest purposes. We think that there’s a need to reform that regime so that it’s fair, and doesn’t cost taxpayers a lot of money.

So it’s not just storytelling and making out that just because you’ve paid $1.75 a hectare, that you should get $30 million—because you would have made it rich off some big massive gold mine. You know, there’s been a lot of payouts like that, and we think that there’s some strong arguments and examples of places where we can minimize those compensation costs. So that not all of the money and work that’s been put into conservation will go to just buying out these mineral claims.

Umair Muhammad

So what you’re talking about there at the end is: if the government wants to designate an area, you know, a protected area or conservation zone, and it’s already been staked, then they need to buy out those claims. So how do they figure out how much someone is owed?

Nikki Skuce

We did do a report on this in partnership with the Environmental Law Center. The BC government uses a market value approach to mineral compensation. So they award compensation equal to the expropriated claims value on the open market. This is why, you know—and it’s problematic, and it’s unfair. Basically, at the end of the day, BC is paying out on average—like $6-$800 a hectare, versus the $1.75 that the company has staked.

And that’s irregardless of whether there’s even a valuable deposit or even if it would go anywhere, or whether, you know, how much work has been done. So there it is problematic. And we think that’s something that needs to change. In particular, when it’s for a public interest purpose, like protecting biodiversity and moving forward with some Indigenous Protected and Conserved Areas.

Umair Muhammad

Yeah, so it seems to me that that would incentivize people to just buy up a whole bunch of claims in the hopes that the government can buy them back at a really inflated price.

Nikki Skuce

Well, there’s sort of two things with that, because they do have provisions to not allow for nuisance claims. So, technically, if a protected area was called, but a process needed to happen around land use planning, or some broader public engagement needed to happen to figure out the final boundaries, and what’s the management structure that’s going to happen? If then a bunch of claims could have happened in there, you could probably get rid of them by just calling them nuisance claims, and they’re just get paid out what they paid in.

At the same time, there isn’t always the freezing of the footprint that needs to happen in the case. And so you do get some of that—it’s a little bit like what’s happened in British Columbia with the old growth management. You know, they declare that there’s going to be movements towards old growth, but then the province first had to engage with First Nations as opposed to just freezing that old growth. What happened was then logging companies just went in and tried to get as much of it as possible while these negotiations are happening.

So there’s a little bit of that in the mining sector, but there is at least a bit of a provision to stop some of these nuisance claims or call them out.

Umair Muhammad

And then one of the things you mentioned is that we’d like to see an end to automatic entitlement. So you know, replacing the free entry system. And I’m just wondering, practically speaking, what could a new system look like? Because now, you just go online, you register the claim, and you have it. So what would be the added step that you’d like to see?

Nikki Skuce

Yeah, so I think there’s definitely calls from the industry also that they need to have some kind of discretion as to—you know, they can’t just say that they have an interest in a claim area, because they feel like that could just get served by somebody else. But I think there are ways of having—first of all, areas that are off limits to staking, and so there’s gonna be less conflict and controversy and an easier path forward to protecting some biodiversity.

At the same time, I think then that what needs to happen is that you do not get the legal rights of that claim until you’ve satisfied—and this is, again, where we’re trusting both the government with Indigenous peoples to come up with the right system of what that looks like, and aligning it with, with some of these industry values of ensuring that they’re not going to get scooped. So it’s just more of a—not getting free prior use of the land, having some kind of consultation and consent requirement built in there. And some sort of engagement.

So you can still, you know, hold that claim, but you don’t get the legal rights to it until after a number of steps have happened. So that’s the key ask.

Umair Muhammad

And then finally, what can listeners do to support the reform efforts we’re pushing for?

Nikki Skuce

Yeah, that’s a great question. We have a petition that—BC Mining Law Reform network has a petition and it’d be great—we’d love to be able to send that by the end of June with a lot of signatures on it just to show broad support for reform. To make sure that the scope is broadened in looking at what, you know, the changes that need to happen. And then we will be definitely sharing opportunities for when there is comment periods or other engagement opportunities that present themselves around us. And some key points for people to raise so they can join—so people can join, making sure that they get our newsletter or just follow us online.

Umair Muhammad

Awesome. Okay. Thanks again, Nikki. This was great.

Nikki Skuce

Alright. Thanks, Umair.