This article is the third part in an ongoing series about a fight over a gravel quarry in the Highlands, and its broader implications. Read the first two parts here and here. Sign up to get the rest of the series in your inbox.
In the District of Highlands, B.C., a community continues its fight for the right to determine if a gravel quarry can operate in the municipality. The Highlands, just beyond Greater Victoria’s growing urban areas, is a largely forested refuge claiming a population of about 2,500. Under current laws, it doesn’t matter that the community has said “no” to the rock quarry development. Provincial mining laws take precedence, a recent B.C. Supreme Court decision found.
But the Highlands is not alone in this fight. Advocacy groups in the province are calling for changes to the rules so municipalities and First Nations get a say in mining activities in their boundaries and territories, among other proposed reforms. B.C. is behind other jurisdictions that are already making these changes. And these reforms are essential to avoid future conflicts and fights, fought at great expense in courts on a case-by-case basis, the groups say.
“The province has already tried to promote itself as being a responsible mining jurisdiction, and we think that there’s still a gap for them to get there,” says Nikki Skuce, co-chair of the BC Mining Law Reform Network.
The Highlands enters the fray
The BC Mining Law Reform Network, founded in 2019, represents 30 local, provincial and national organizations. The network says it isn’t looking to stop mining, but wants to ensure mining practices are environmentally sound, respect community decisions and consider costs to clean up mining and waste sites.
An April, 2021 report from the Ministry of Energy, Mines and Low Carbon Innovation says one of its goals is to create a “sustainable and competitive mining sector that supports Indigenous reconciliation, reflects high environmental, social and governance standards and contributes to the transition to a low carbon economy with responsibly produced minerals and metals.”
The BC Mining Law Reform Network says that in order to meet those goals, laws — and the enforcement of those laws — need to change.
One of the 30 organizations in the network is the Environmental Law Centre at the University of Victoria. It’s a non-profit society that operates Canada’s largest public interest environmental law clinic.
Recently, the centre has represented the District of Highlands Community Association as the community fights to stop the impending rock quarry operation. It’s one of the many cases this centre has taken on to support communities to advocate for themselves through the province’s legal system.
Related Story: The Highlanders: A community unites against urban incursion
For the past few years, the Highlands community has engaged in a battle with a local paving company — O.K. Industries Ltd. — to stop a rock quarry operation at the district’s southern border. Highlands residents have voiced concerns about potential impacts on the environment, climate change, community drinking water and local watersheds and wildlife in relation to the quarry. Community members also argue that the operation doesn’t align with the Highlands Official Community Plan.
But O.K. Industries says it has followed the letter of the law as set out by the province’s Mines Act and, so far, the courts agree. It’s under that act that the province granted permission to O.K. Industries to operate a quarry in the Highlands.
Now, the Highlands community is part of the larger fight to reform mining laws in B.C., taking this issue to court on two separate fronts. The District of Highlands is appealing the Supreme Court ruling that found the municipality’s land use rules do not apply.
And The Highlands District Community Association is currently waiting to hear judgement on an appeal of the Supreme Court’s rejection of its application for a review of the quarry’s permit. The association takes the position that the permit was not legally granted because climate change was not taken into account.
A win for the community in either of these cases would set a new precedent for mining rules in the province.
Related Story: In the Highlands, a community fights for agency
What reforms are needed?
In response to mining-related issues in the province, the BC Mining Law Reform Network has provided nearly 70 recommendations to change the way mining is done. It’s not the only group working on the issue. For example, the SkeenaWild Conservation Trust has offered a similar set of guidelines for responsible mining in B.C.
The solutions involve building positive relationships with communities and First Nations, minimizing environmental harm, ensuring mine sites are sustainable after the operations have ceased and putting the onus on mining companies to pay for reclamation and cleanup costs.
“Our three main priorities are around tailings and waste water [management], making sure the polluter actually pays and then lastly — this piece which is where folks from the Highlands are having various issues — is that we have this really archaic Mineral Tenure Act,” says Skuce, with the BC Mining Law Reform Network. “You still get what’s called a free-entry certificate, which is the same thing you got in 1859, when we passed our first Gold Field Act … which was based on trying to colonize the province. It’s very much not in line with today’s values. And it’s something that we think really needs to change.”
Skuce notes that while mining laws have changed since 1859, the free mining system that was established then is still in place today. That means any person over the age of 16 can pay a nominal fee and obtain a Free Miner Certificate.
According to a report from the University of Victoria Environmental Law Club, the certificate gives the miner the right to enter and stake a claim on any un-staked area — including private property and First Nations’ territories — without consent. The process has even become easier in recent years, allowing people to stake a claim online.
Improving community consultation
SkeenaWild also notes that international agreements like the United Nations Declaration on the Rights of Indigenous Peoples — which Canada has signed — solidify Indigenous peoples’ right to control use and development of their traditional territories.
Calvin Sandborn is the legal director of the Environmental Law Centre at the University of Victoria. He says one of the major issues with current legislation is that mining can occur without respecting land use plans — whether they are municipal, Indigenous or from regional districts.
“Land use planning is supposed to be the highest and best use of the land and tries to integrate various resource uses across the landscape,” Sandborn says. “But the fact that the Mineral Tenure Act allows mining claims to be registered and it’s possible to go ahead with mining development regardless of land use plans is something that needs to be fixed.”
Sandborn points to other jurisdictions in Canada that have made efforts to respect Indigenous and local government land use plans. He says B.C. needs to catch up.
Over a decade ago, Ontario began modernizing its mining legislation to include and focus on the rights of Indigenous people and private landowners. In 2019, Quebec released an “Aboriginal Consultation Policy’‘ for the mining sector to adhere to. The policy cites an obligation to consult Indigenous communities.
An independent panel in the Yukon released a new Mineral Development Strategy and Recommendations report in April, 2021 after consulting with the community. The report has been submitted to the Yukon government and First Nations for review and consideration. The strategy envisions a mining future where First Nations values, constitutional rights and treaties are respected; mineral development projects contribute to the well-being of Yukoners and the mining industry does not leave a negative impact on the environment, among other things.
In November, 2019, the B.C. government passed legislation to implement the UN Declaration on the Rights of Indigenous Peoples. The province says the Ministry of Energy, Mines and Petroleum Resources recognizes its role in the province’s new legislation but that “the implementation of the act will be a gradual, incremental process that will support long-term reconciliation.” The province says the ministry does not anticipate significant changes to the regulatory framework in the short term.
One of the requirements in the UN declaration is that governments obtain free, prior and informed consent before doing anything that affects Indigenous people and territories. But the BC Mining Law Reform Network argues that free, prior and informed consent can’t happen when people can stake claims on land with the click of a mouse.
In April, 2021, the Ministry of Energy, Mines and Low Carbon Innovation released a service plan for the next few years detailing its priorities, which include Indigenous reconciliation and producing minerals and metals in a responsible way. It also identifies improving oversight of mining as an objective. The ministry says it has plans to continue to review legislation to enhance environmental, climate, health and safety standards. It also plans to implement a new audit function to evaluate the effectiveness of its regulatory framework.
Making the polluter pay
It’s not just that the rules need to change, the mining reform groups say. Existing rules need better enforcement, too.
A 2016 report from the Auditor General of British Columbia took a look at compliance and enforcement of the mining sector in B.C. In it, auditor general Carol Bellringer says the province is not enforcing its own rules on environmental protection.
“We found almost every one of our expectations for a robust compliance and enforcement program within the [Ministry of Energy and Mines] and the [Ministry of Environment] were not met,” Bellringer says in the report. “The ministries have not publicly disclosed the limitations with their compliance and enforcement programs, increasing environmental risks, and government’s ability to protect the environment.”
The report says the Ministry of Energy and Mines and Ministry of Environment were not informing the public and legislators about long-term risks from mining, the effectiveness of the agencies’ regulatory oversight and the performance of companies being regulated.
This lack of enforcement and security is costing taxpayers, too.
“We found that the [Ministry of Energy and Mines] could not provide evidence that the government is holding an adequate amount of security to cover the reclamation costs, including any ongoing management and monitoring to achieve environmental protection,” the report says. “The consequence of not collecting enough security from mining companies is that the taxpayer may be left to cover the costs, if the reclamation costs exceed the mining company’s ability to pay.”
The report points to the Britannia Mine, one of the largest metal pollution sources in North America. It says taxpayers were on the hook for $46 million for the site to be remediated, including installing a water treatment plant that has an operating cost of over $3 million per year.
Sandborn says one of the fundamental things the BC Mining Law Reform Network is pushing for is a “polluter pays” principle built into mining legislation. This would ensure mining companies pay for their pollution, rather than taxpayers.
“It’s just good policy to internalize the cost of the pollution into the cost of a product,” Sandborn says.
The province says it has plans to ensure owners of mining and exploration projects are bonded and responsible for environmental cleanup costs associated with abandoned projects as well. B.C.’s Environmental Management Act also sets out penalties under a polluter pays principle, but the BC Mining Law Reform Network says it isn’t enough.
The network says companies should be required to provide full financial security for expected cleanup costs before operations begin. That way, the government and taxpayers aren’t left covering costs that companies can’t afford to pay.
This type of stringent financial security can be seen in Quebec’s mining sector, where companies have to post full hard and timely financial assurances to the province, according to a report on responsible risk from Canada’s Ecofiscal Commission.
The province says it is currently reviewing its reclamation security policy, and has been since 2016.
A win in Jordan River
A case where a mining company was successfully held accountable for its pollution took place in Jordan River. But it wasn’t because the province intervened. The onus was put on a concerned resident, Ken Farquharson, who turned to Sandborn and the Environmental Law Centre for help.
“He said, ‘Look, we can’t support fish in the Jordan River, because there’s copper pollution there and the government’s not doing anything about it,” Sandborn says.
The Globe and Mail reports that a copper and gold mine in the watershed that closed in the mid-1970s was still leaching pollutants into the stream. Fish disappeared from the Jordan River and, since the mine had been closed for some time, it was unclear as to who was responsible for the cleanup.
“We had a student look into it and he researched and proved that Teck Resources Ltd. actually had taken over the companies that originally operated the mine that was poisoning the river,” Sandborn says. “And so then we wrote to Teck, wrote to the government and said, ‘Hey, under the contaminated sites regulation, Teck has to clean this up.’” Ultimately, Teck was ordered to pay for the remediation.
While Sandborn files this as a win, he says it shouldn’t be up to residents and lawyers to hold the province and mining companies accountable for proper enforcement and cleanup of mines.
“We can’t govern the mining of B.C.,” Sandborn says. “There’s way too many problems for our law students to deal with. You have to have a government department that actually enforces the law.”
In the next installment of this series, The Discourse will dig into the Highlands District Community Association’s fight to have climate change considered in mine permit decisions. We’ll tell you more about the case, and the implications if the association wins. Sign up to get the rest of the series in your inbox.
This Delving Into Development article is made possible in part with funding from the Real Estate Foundation of BC and Journalists for Human Rights. Their support does not imply endorsement of or influence over the content produced.