Lowering the Cost of Conservation: Page 9 of 53 A Call to Reform Mineral Tenure Compensation in BC for a taking.”30 To supplant this common law right, clear statutory language must31 show that the intention of the Act is to change or remove the common law presumption that the Crown will pay compensation for taking one’s property.32 In sum, the BC government has the power to displace the common law. [...] The Ministry of Energy is primarily responsible for these intended reforms.64 In February 2023, the Ministry conveyed that it is working with the FNLC to plan the next steps in the modernization process.65 Similarly, in April 2023, the Minister of Indigenous Relations and Reconciliation informed the provincial legislature that the Province is committed and on target to modernize the “whole” MTA.66. [...] Under the Mining Rights Compensation Regulation, the minister or the mineral titleholder can request that a single arbitrator determine the quantum of compensation.84 The regulation further provides that the arbitrator must select either the minister’s final offer or the mineral titleholder’s final offer.85 The arbitrator does not have the discretion to negotiate or moderate between the two propos. [...] purpose …if the Minister is of opinion that the cessation of the work must be maintained, he shall terminate the claim and pay compensation equal to the amounts spent for all the work performed, on the filing of the reports on that work.” South Mining Act Minister can excise Section 30AB(1): “If, in the opinion of the Australia 1971 (South land from an Minister, any land comprised in an Australia). [...] public purpose from the total area comprised in the licence…” Section 20AB(2): “…the tenement holder may apply to the appropriate court for an order that the Minister pay compensation…for the money expended by the tenement holder in prospecting for minerals in the area excised from the total area comprised in the exploration licence.” Lowering the Cost of Conservation: Page 33 of 53 A Call to Refo.
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- Published in
- Canada
Table of Contents
- 1. Introduction 4
- 2. The Legal Framework for Mineral Tenure Compensation in BC 7
- 2.1 BC’s Statutory Mineral Tenure System 7
- 2.2 Common Law Rules that Establish Mineral Tenure Compensation 9
- 2.3 The Mineral Tenure Compensation Statutory Regime 10
- 3. Key Policy Commitments at Stake 12
- 3.1 “30 by 30”: BC and Canada’s Promise to Conserve 30% of Land by 2030 12
- 3.2 Declaration on the Rights of Indigenous Peoples Act: BC’s Commitment to Reconciliation with Indigenous Nations 13
- 3.3 BC’s Promise to Reform the MTA 14
- 3.4 BC’s Commitment to Modernize Land Use Planning 15
- 4. The Problems with BC’s Market Value Approach to Mineral Tenure Compensation 17
- 4.1 Market Valuations Can Make Conservation Unfeasible 17
- 4.2 Market Valuations are Unpredictable 18
- 4.3 Market Valuations are Unfair because Mineral Claims are Inherently Speculative 21
- 5. Cross-Jurisdictional Review: Statutory Approaches to Removing or Limiting Compensation for Constructive Takings 25
- 5.1 Review of Statutes that Remove Compensation 26
- 5.2 Review of Statutes that Limit Compensation to Certain Expenses 31
- 6. General Principles to Guide Reform 35
- 6.1 Enabling Biological Diversity Commitments 35
- 6.2 Enabling Commitments to Pursue Reconciliation with Indigenous Nations 36
- 6.3 Ensuring Predictability and Fiscal Feasibility 37
- 6.4 Prohibiting the use of public funds to compensate for losses that are derived from an inherently speculative investment activity 38
- 7. Conclusion and Recommendations 40
- Appendix 1: Jurisdictions & Statutes that Remove Compensation Rights 42
- ALBERTA 42
- Metis Settlements Act127F 42
- BRITISH COLUMBIA 42
- Vancouver Charter131F 42
- Great Bear Rainforest (Forest Management) Act135F 43
- Agricultural Land Commission Act138F 44
- Forest Act141F 44
- Coalbed Gas Act145F 45
- ONTARIO 45
- Mining Act148F 45
- Far North Act, 2010155F 46
- Ontario Heritage Act167F 48
- YUKON 49
- Oil and Gas Act174F 49
- NEW SOUTH WALES (AUSTRALIA) 49
- Coal Acquisition Act 1981178F 49
- VICTORIA (AUSTRALIA) 50
- Land Acquisition and Compensation Act 1986181F 50
- QUEENSLAND (AUSTRALIA) 50
- Mineral Resources Act 1989185F 50
- Appendix 2: Jurisdictions & Statutes that Limit Compensation Rights 51
- QUEBEC 51
- Mining Act 51
- NEW SOUTH WALES (AUSTRALIA) 51
- Mining Act 1992 51
- SOUTH AUSTRALIA 52
- Mining Act 1971194F 52
- TASMANIA (AUSTRALIA) 52
- Crown Lands Act 1976199F 52
- CAYMAN ISLANDS 53
- Mining Law202F 53
