By: Jim Taylor

Gravel pit controversies reveal historic blinders


Let’s rewind the world for a few minutes. Scroll back to August 2, 1858 – 149 years ago, this Thursday.

        On that day, British Columbia became a British colony.

        Before August 2, 1858, the area had simply been a patch of wild forests and wilder rivers called New Caledonia, administered by the Hudson’s Bay Company as its private fur-trading preserve.

        After August 2, 1858, the territory was still administered by HBC’s chief factor, Sir James Douglas, based in Victoria. But he was now governor of a British territory, empowered to enact laws.

        And just in time. Because a flood of often lawless people was surging up the Fraser River in search of gold.

        The Gold Rush of 1858 had begun.

        So the first significant legislation signed by the new governor was the “Gold Fields Act” of 1859.

        Essentially, it made a law of an informal code of ethics that had evolved during the California gold rush of 1849. The California miners had arrived in a legal vacuum. There were no laws applicable, and no authority to enforce them if there were. Out of the chaos emerged a more-or-less agreed protocol for staking and owning mineral claims.

        The Gold Fields Act presumed that the interior of British Columbia was an empty space. A prospector could stake a claim anywhere without affecting property rights, because there was no private property to affect. Some historians estimate that as few as 150 Europeans lived in the interior of B.C. at the time.


150-year-old mentality persists

Now fast forward to 2007. Provincial mining legislation still makes the same presumption. Mining rights still take precedence over all other rights – property, health, education, even municipal.

        That’s because every other piece of legislation in the province came later. Later laws had to accommodate the existing mining mindset.

        You might be surprised to know that municipal governments do not exist in Canada. The Constitution Act of 1982, successor to the British North America Act of 1867 which created Canada, acknowledges only two levels of government – federal and provincial. Municipal governments are a creature of – and therefore subject to – the provinces.

        And B.C. has kept them subordinate to its original mining legislation.

        Here in Lake Country, for example, our elected representatives cannot regulate gravel pits. If the provincial ministry grants a mining permit for gravel extraction, the best a municipality can do is tax the truck traffic using its roads.

        The ministry of mines does not consult either the public or local governments before issuing mining permits.

        In fact, an applicant doesn’t even have to meet with ministry personnel. You can now file a claim entirely by Internet. You don’t even have to have set foot on the site you’re claiming.


Miners’ rights

Although the Gold Fields Act of 1859 and the General Mining Act of 1872 have been updated regularly, the 1996 Mines Act and Mineral Tenure Act maintain the original mindset.

        The Mines Act deals mostly with the authority of the Chief Inspector of Mines, or his delegate. The Mineral Tenure Act specifically permits a miner or a mining company to stake a claim anywhere they believe minerals will be found. Including under a residential lot.

        In B.C., homeowners own no subsurface rights. Indeed, if someone chooses to extract minerals from your lot, you’ll find you have no surface rights either.

        By my count, there are at least ten gravel pits already operating within the boundaries of Lake Country. Most of the valley is a deep deposit of gravel. Homes, farms, parks – all could disappear if someone chose to claim the mineral rights under them.

        Three such pits operate side by side in a spreading scar above Kalamalka Lake. A few years ago, National Geographic called Kalamalka Lake one of the ten most beautiful lakes in the world. Gravel pits do not enhance its beauty.

        Recently, those three pits asked for permission to remove another two million cubic meters of gravel. The province has already granted permission. Armed with that permission, the three pits’ operator is blackmailing the municipality by withholding payment of municipal fees until the municipality agrees to negotiate a better deal.

        Mining regulations also require minimal reclamation. All over the Kootenays, the ore dumps of abandoned lead/zinc mines leach toxic trickles into local streams.

        One of the pits above Kalamalka Lake first received provincial approval in the 1970s. As gravel was removed, the site was supposed to be landscaped into a recreational-vehicle campsite. After 30 years, nothing has happened.

        And nothing will, if it’s left to the Ministry of Mines.


Tying a municipality’s hands

        When a mining operation conflicts with local regulations, the provincial act always trumps local bylaws. Within Lake Country, all developers – residential, commercial, industrial, agricultural – require special permission for work on slopes exceeding 30 per cent. Except mines. Because when municipal requirements disagree with mining legislation, the provincial law takes precedence.

        Mining operations can, and do, thumb their nose at local government.

        Municipalities all over the province have protested. But the Ministry of Mines wears 149-year-old blinders.

        The first paragraph of the 1996 Act that created the current Ministry of Energy and Mines specifies, “There is to be a ministry of the public service…”

        Public service is the least of this ministry’s concerns. Typically represented by former executives of mining companies; it sees its job solely as protecting the miners’ right to mine.

        The ministry cares so little about the public that the provincial government listings in telephone books mention neither Energy nor Mines. Check it for yourself!

        In my view, 149 years is already too long for a government ministry to maintain a high-handed, authoritarian, single-minded, and unresponsive attitude to public concerns.

        It’s time for the provincial government to re-define its priorities – to instruct the ministry of mines that B.C. is no longer an unpopulated wilderness, and that its job is to serve the people of B.C., not just mining operations.

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Copyright © 2007 by Jim Taylor. Non-profit use in congregations and study groups permitted; all other rights reserved.
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