Article

Time to End Archaic Free Entry Mining Laws in Yukon

The free entry system of granting mineral tenure was developed back in the Gold Rush days of the 1850s when governments were trying to encourage people to develop and “tame” the wilderness. The underlying philosophy of this frontier mentality was that mining was the best use of Crown land. Public attitudes and mining technologies have changed, yet the archaic law remains.

What is Free Entry Mining?

Free entry mining is the dominant way that mineral tenures are granted in Canada, including in the Yukon. Under this system, a miner stakes a claim and pays a minimal annual fee to obtain unlimited access to explore for minerals on the land. In the Yukon a miner does not require a license to prospect in order to stake a claim. Any person over the age of 18 has the right under the Yukon Quartz Mining Act (QMA) to enter and access private or public lands that may contain minerals and stake a claim, except:

• Private lands where the mineral rights are not owned by the Crown. For instance, First Nations’ Category A Settlement Lands are off-limits as the First Nation owns the subsurface mineral rights on these lands. However, Category B Settlement Lands are not off limits, nor are most private properties in the Yukon. Generally property owners hold title to the property but the Crown retains subsurface rights, as residents in Spruce Hill, a rural country residential subdivision of Whitehorse, found out a few years ago when their backyards were staked.

• The following specific lands, outlined in the Quartz Mining Act, Section 14(1): land occupied by buildings, land within the immediate area of a dwelling-house, land valuable for water-power purposes, land under cultivation, churches and cemeteries, and land already lawfully occupied for mining purposes.

• Areas where subsurface rights have been legally withdrawn by ministerial order (e.g. for park creation).

A staked quartz claim is a rectangular parcel of land no larger than 1,500 ft x 1,500 ft (457 m x 457 m) granted for mining. Staking a claim in the Yukon involves placing two posts and identifying on these posts how much of the claim lies on either side of a straight line between the two posts. The miner then registers the claim at a Mining Recorder’s Office for a fee of $10 per claim and in doing so obtains the right to enter the area claimed and to explore for minerals. They can maintain this right indefinitely as long as they do $100 worth of “representation” work annually. The Quartz Mining Act does not specify the work to be performed, except in dollar terms. The Department of Energy, Mines and Resources has outlined in a Schedule to the Act the rates they use for determining the value of specific work. Work listed in this Schedule includes excavating, digging shafts and adits, diamond drilling, rotary drilling, reverse circulation and auger drilling, and geological, geochemical and geophysical surveys and studies. At the discretion of the Mining Recorder, road and airstrip construction, road maintenance, mobilization and reclamation work may also count towards the annual representation work requirements. For further information see the Schedule of Representation Work (Acrobat [PDF] file). If the miner does not complete representation work in any one year, they have the option of paying a fee of $100 annually to maintain their right to the claim indefinitely.

All exploration activities have to adhere to the standard operating conditions outlined in the Quartz Mining Land Use Regulations. These regulations categorize exploration activities into 4 classes, according to the activity’s potential to cause adverse environmental impacts. Class 1 programs are defined as “grassroots” exploration with low potential to cause adverse environmental effects and which are completed within a year. Among the activities allowed under a Class 1 program are excavating trenches of up to 400m³ per claim, storage of up to 5000L of fuel, surface area clearing of up to 200m² (except for helicopter pads and camps which can have clearings up to 500 m²), and construction of underground structures where no more than 500 tonne of rock is moved to the surface. Class 1 programs do not require government approval as long as they adhere to the operating conditions outlined in the Quartz Mining Land Use Regulations.

Exploration programs that are categorized as Class 2, 3 or 4 (as outlined in the Regulations) are assessed under the Yukon Environmental & Socio-economic Assessment Act (YESAA). In these cases, the YESAA Designated Office (YESAA DO) conducts an assessment of a project proposal by seeking input from Yukon, federal, and First Nation governments, interested parties, and the public and then produces an assessment report with recommendations on whether the project should proceed as is, proceed with terms and conditions, or not proceed. The Yukon Government Decision Body for mineral exploration projects, the Department of Energy, Mines and Resources’ Mineral Resources Branch, then issues a Decision Document accepting, varying or rejecting the YESAA DO’s recommendations. Click here for more information on the Quartz Mining Land Use Regulations and the different classes of exploration programs.

If a vein or lode is discovered on a claim the miner (usually a company) can apply to lease the subsurface of their claim(s). Quartz leases are issued for 21 years and can be renewed for another 21 years. To obtain the lease they must perform $500 worth of work or provide payment in lieu of work. Once the miner has a lease they do not have to do annual work on the claim anymore. The fee for obtaining a lease includes a $10.00 application fee, a $50 rental fee (for 21 year term) for 51.65 acres (20.9 ha) or less and $20.00 rental fee for each acre over 51.65. Any exploration work performed on a lease falls under the standard operating conditions of the Quartz Mining Land Use Regulations and so may require assessment under YESAA depending on the type of work performed. Any mining project moving to development and/or production will also require a YESAA review as well as various regulatory approvals, including a Water License and a Quartz Mining License.

A major hard rock mining project in the Yukon moving to development and/or production requires a detailed environmental and socio-economic assessment and various regulatory approvals, including but not limited to a Type A or B Water License and a Quartz Mining License.

For further information on the process of staking a claim and on obtaining mineral leases see the Yukon Government’s Guide to Hard Rock Prospecting, Exploration and Mining in Yukon - Mineral Tenure on Commissioner's Land.

What’s Wrong With This System?

The basic premise of the free entry system of mining is that mining is the first and best use of public lands. It does not enable a consideration of what other values that land holds, including conservation, traditional use, subsistence harvest, tourism, wildlife, and recreation before it is allocated to mineral exploration.

The free entry system provides rights in a way that is not possible under other systems for granting resource tenure. To receive rights to commercial timber or oil and gas, for example, governments decide whether and where tenures are granted before issuing rights.

Once miners obtain the initial exploration rights and if they discover a potential deposit, they are given further rights to mineral leases, simply by paying the required fee. Although the YESAA process enables assessment and mitigation of the environmental impacts of some exploration activities, the critically important question of whether mining is the best use of the land, given the full range of other values, is not addressed before the free entry system provides rights to the land for mining. The initial rights obtained can lead to more extensive mineral exploration, and eventually to a mine, without the critical questions of whether mining is the best use of that area, or where mining should occur on the landscape even being addressed. Even if a mine is never developed, the Quartz Mining Act ensures reasonable access to the claims, which can lead to airstrips, winter roads and permanent roads in areas where conservation values may be more important.

Once a claim is staked, resource management and land use planning must work around existing mining claims, which are considered to be existing third party interests. Having these claims staked limits the other land use and economic development options that can be considered for that area, thus thwarting what communities, governments and the public may wish to see in a land use plan.

The free entry system encourages companies to stake claims over as much territory as possible. The system asserts that miners need access to the entire land base because finding a good deposit is like searching for a needle in a haystack. However, the land base is not just one big mineral deposit waiting to be explored. Some would argue there are critical wildlife, recreational, spiritual, and First Nation values that are rooted to a particular place and should not be disrupted, which are equally if not more important to our social and economic well being. At the very least, these values should be considered on an even footing alongside mineral values, rather than having to be considered only after the landscape has been claimed for mineral exploration.

Mining roads in the Yukon
Photo by Rob McClure

In the Yukon, roughly 375,900 km² of land (79% of the Yukon) is available for mineral exploration by anyone at any time at a very low cost. The other 21% of the Yukon falls within protected areas or First Nation settlement lands where the First Nation has subsurface rights. As of January 18, 2008 13,614 km² or 4% of the Yukon is currently claimed for quartz mineral exploration (69,205 individual claim parcels).

In addition to the rights established, the exploration activity itself has potential environmental impacts. The roads built to access and explore claims fragments wildlife habitat and leads to increased hunting pressures and poaching activities. Furthermore, the environmental impacts as a result of this disturbance are unnecessary if the mineral deposits are found to be not economic, an outcome which is true for the vast majority of claims staked. Since government has no discretion over the allocation of mineral tenure at the staking stage, they cannot choose amongst preferred applicants to assess alternative means of conducting exploration activities that might have fewer environmental impacts.

Nowhere in the current free entry staking system is there a point where the public can question whether we want exploration in a specific region or whether future mining for a radioactive substance such as uranium is desirable. During the recent Yukon Environmental and Socioeconomic Assessment Act (YESAA) review of the proposed winter road along the Wind River many people expressed concerns over the fact that the road was to support exploration for uranium mining. The Yukon has no forum for discussion on whether uranium mining is publicly acceptable. Several other jurisdictions in Canada, including some First Nations in the Northwest Territories, and in the province of Nova Scotia, have placed a moratorium on uranium mining. The YESAA Designated Office response to these concerns was that they fell outside the scope of the Wind River road and airstrip project. YESAA isn’t able to address the broader context of these projects. However, the question of what are acceptable uses of the landscape can be brought to the Peel Planning forum for a full public discussion of the appropriate balance of social, ecological and economic values of the land.

What Can You Do?

The Yukon Government is currently conducting a review of the Yukon Quartz Mining Act (QMA). The review focuses on amendments to the administration of mining claims and collection of mineral royalties. It covers issues such as the size of posts required for staking, the time allowed to register a claim, and removing requirements for duplicate forms. In short, it appears government wants to make it easier for miners to stake claims. While the discussion paper associated with the review specifically states that this review will not affect the basic tenants of the free entry system of mineral tenure that is currently provided for in the QMA, it is nevertheless an opportunity to state your opinion on the matter. We encourage you to check out the review process here and submit your thoughts on the free entry system (as well as any comments you might have on the administrative amendments). There are several ways to do this:

• In person at the Mining Recorder’/s offices (the one in Whitehorse is on the main floor in the Elijah Smith Building)
• By e-mail mining@gov.yk.ca
• By fax (867) 456-3899
• By postal mail to Mineral Resources Branch (K-9), Quartz Claim Administrative Review, Box 2703, Whitehorse, Yukon, Y1A 2C6

Public open houses are planned for Whitehorse in February as well. Watch the papers for dates, times and locations.

In addition to participating in the Quartz Mining Act review process, consider sending a letter stating your concerns with the free entry system to our Premier, Dennis Fentie (dennis.fentie@gov.yk.ca), the Minister responsible for mining in the Yukon, Archie Lang (archie.lang@gov.yk.ca), and your MLA (see www.legassembly.gov.yk.ca/mlas/members.html for contact information). The mailing address for all is Box 2703, Whitehorse, Yukon, Y1A 2C6.

Also, watch for opportunities to participate in the public consultation as part of the Peel Watershed Planning. This process is a chance to make known your views about the balance between access to mineral resources in the watershed and conservation of the watershed’s wildlife, recreational, tourism, spiritual, and other values. Or make your views known directly to the Peel Watershed Planning Commission. The Commission can be reached the following ways:

• In person or by mail: 307 Jarvis Street, suite 201, Whitehorse, YT Y1A 2H3
• By e-mail: info@planyukon.ca
• By phone: (867) 667-2374 or toll-free at 1-866-353-2374

CPAWS-Yukon would love to hear what you have to say. If you wish, please send us a copy of your correspondence or your thoughts regarding this issue. Thank you!

Note: The information presented in this article is taken from the Yukon Government’s Department of Energy, Mines and Resources website and from a West Coast Environmental Law publication entitled “Undermining Our Future: How Mining’s Privileged Access to Land Harms People and the Environment” (January 2004) (Acrobat [PDF] file)