Canada: Mineral Tenure In British Columbia

British Columbia mineral tenure is governed by the provincial Crown administering the provisions of the British Columbia Mineral Tenure Act (Mineral Tenure Act). Mineral rights may also be obtained through a grant from the provincial Crown under the British Columbia Land Act (Land Act). Mineral tenure does not include rights to oil and gas, which is governed by the British Columbia Petroleum and Natural Gas Act, or coal, which is governed by the British Columbia Coal Act.

This article gives a brief overview of the process to obtain mineral tenure in British Columbia, excluding oil, natural gas and coal.

Obtaining Mineral Tenure

Mineral tenure in British Columbia can be broken down into two categories:

1. Crown Granted Undersurface Rights

Undersurface rights granted by the provincial Crown (Crown Grants) generally arise from historical grants from the Crown of fee simple land where the ownership of minerals was not reserved to the Crown by specific grants of mineral rights by the Crown (as it typically is now under the Land Act). Crown Grants are registered in the land title office against title to the fee simple lands. The fee simple may be owned by a separate entity and, in such a case, the owner of the undersurface mineral rights would be required to enter into a surface agreement with the fee simple owner in order to access the undersurface for development. It is important to examine what minerals are granted pursuant to the Crown Grant in order to determine whether some specific mineral was reserved out of the general definition of minerals in the Crown Grant. In order to develop Crown Grants, the requirements of the British Columbia Mines Act (Mines Act) must be complied with. Crown Grants are rare and have not often been granted in the last several decades.

2. Mineral/Placer Claims and Mineral Leases

Mineral claims and placer claims are titles to minerals with rights to explore and develop in a specific area or located claim. Claims give rights only to minerals defined in the Mineral Tenure Act or minerals not previously alienated by the Crown through a prior grant or mineral reservation.

Traditionally, claims were physically staked and then recorded with the Provincial Gold Commissioner. However, as of January 12, 2005, all administrative functions related to mineral claims are accomplished online through Mineral Titles Online (MTO) and no physical staking is permitted. MTO now uses one single map of British Columbia and divides the province into 8,000,000 "cells". Cells may be of varying size depending on their latitude, and each cell has a unique identification number. Claims are acquired by selecting cells on the MTO system. Historical claims that existed prior to MTO, known as legacy claims, continue to exist if they are maintained. Legacy claims may be converted to cell claims and, provided they are maintained, take precedence over new cell claims which overlap the same area. If an overlapping legacy claim terminates, the area automatically accrues to the cell claim overlying that area registered in MTO.

The first step to obtain a claim is for an individual or company to obtain a free miner certificate from the Provincial Gold Commissioner which entitles the holder of the certificate to search for minerals on defined mineral lands and hold mineral claims. Free miners are permitted to explore on Crown lands and some private lands with restrictions. The free miner must then acquire a British Columbia electronic Identification (BCeID) to access MTO, and can then locate a claim by identifying cells (up to 25 adjacent cells) on the electronic map maintained at MTO. Claims must be renewed on a yearly basis by either filing a statement of exploration and development work or making a cash payment made in lieu of such work at a cost of C$1.75 per hectare for mineral claims and C$5 per hectare for placer claims.

Extraction of minerals from a claim is limited to amounts set by regulation. Where a free miner wishes to increase production from a claim, the claim must be converted to a lease, which leases are generally granted for terms of up to 30 years. Typically, a lease requires that a survey of the land comprising the area of the claim be submitted to the Provincial Gold Commissioner. In order to develop the leased lands to commercial production, a permit under the Mines Act is required, which will include a requirement for detailed environmental reclamation plans.

Transferring and Granting Security

Transferring claims and leases is done online through MTO and can only be accomplished by free miner certificate holders. The registration of security interests in claims and other encumbrances may also be done on MTO, either by a free miner certificate holder or an agent authorized to register documents in the MTO. Security typically takes the form of a debenture charging the claim or lease, but may also involve the registration of a joint venture agreement or other encumbrance.

The transfer of Crown Grants is accomplished through the land title office by registering a statutorily prescribed form of transfer. Crown Grants may also be mortgaged by the registration of a mortgage or debenture in the land title office.

There is no requirement for any encumbrance to be registered against any mineral title and, therefore, it is possible that security interests or other encumbrances may exist against a claim or a lease but not be registered in MTO. For this reason, care should be exercised in relying on the encumbrances listed in the MTO.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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