1995 Legislative Session: 4th Session, 35th Parliament
HANSARD

The following electronic version is for informational purposes only.
The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

TUESDAY, JULY 4, 1995

Afternoon Sitting (Part 2)

Volume 21, Number 20

[ Page 16573 ]

The House resumed at 7:36 p.m.

[D. Lovick in the chair.]

Hon. G. Clark: I first remind the House that the House will be sitting tomorrow, which is a Wednesday, an optional sitting day.

With that, I call committee on Bill 13.

MINERAL TENURE AMENDMENT ACT, 1995
(continued)

The House in committee on Bill 13; D. Lovick in the chair.

On section 12.

D. Jarvis: I'm rather surprised that this bill is being brought back in. But nevertheless, the minister insists on further diminishment of rights. So, especially in the dog days of this session, to bring back the bill....

In any event, I would like to say to the minister that there are really some concerns out there with regard to the ministerial power given in this bill -- the right to restrict interest in minerals and placer. So I was wondering if the minister could explain perhaps what this ability to.... It appears that it restricts, let's say, their ability on subsurfaces -- to restrict subsurface mining. If she could explain why that was put into this bill....

Hon. A. Edwards: This section is basically a minor modification of an existing provision. It will certainly not amount to an expropriation of rights at all. It is to deal with the constraint of what can go on.

Really, when you look at the rights that a miner has, this section actually strengthens their rights, because it restores an appeal provision that had previously been taken away a couple of years ago. You may or may not know that at one time there was an appeal of these rulings to cabinet. Our cabinet decided that those appeals would not continue, but we have made it possible for the proponent -- the actual miner -- to now appeal to the Supreme Court.

In order to understand just exactly what's happening, I would like to lay out a few things again. In other words, the rights of a mineral holder are a chattel interest in minerals which lie underneath the ground. They bring with them a non-exclusive right to the use of the surface in order to carry out exploration activities. The rights of a mineral claim holder include the right to convert a claim to a lease for the purpose of mining those minerals, and when that happens, that lease provides an interest in land. So you have to look at the difference in kind in what we're talking about when we're talking about the rights that a claim holder has to the minerals under the ground and to the surface, and about what rights they would have to the surface under a different tenure.

The right to use a surface is a non-exclusive right. That means it does not give the recorded holder the right to pre-empt other surface users. They have a right to use the land, but other people also have a right to use the land. It's not an exclusive right. The fact that these rights are non-exclusive is a real benefit to the prospectors -- to people who want to establish mines -- because if they had to have an exclusive right to the surface, there are many areas in the province that would be denied them. They could not have a mineral claim -- a chattel right to the minerals underneath the ground -- if they also needed to have an exclusive right to the surface, because on the surface there could be a forest tenure, a grazing tenure, a hunting tenure or any number of things, and if they had to have an exclusive right, there would be significant limitations.

These mineral tenures do co-exist with placer tenures, coal tenures, oil and gas tenures, forestry tenures, grazing tenures, guide-outfitter licence areas and so on and so forth. You know that claims can be staked over private land as well, but that does not give the mineral claim holder an exclusive right to the surface on private land where there are rights to the owner. This is really what you're getting with a mineral tenure.

This kind of stuff normally works very well. People come to an agreement on what happens with their various tenures and on how they can behave, so that they can make the best for each one of these land users. The conflicts are normally resolved through the Mineral Tenure Act, and there are parts of the act that deal with specific situations. Section 10 of the act deals with conflicts about minerals, placer minerals and Land Act minerals. Section 14 deals with priorities vis-a-vis Land Act tenures. Section 16 deals with the access to and use of private land, and many other types of conflicts are dealt with administratively.

This now will be section 15. It will deal with conflicts that are not covered in other ways. What it says is that section 15 provides for a restriction on a claim holder's use of the surface to accommodate another use which the minister deems to be in the public interest. There have been extremely few examples of this happening in the past, although this has been possible under the Mineral Tenure Act before. All we're doing is revising and amending; we are not adding something new.

It might be helpful if I talk about the most recent example, which happened in the late 1980s before this government came to office. It involved B.C. Tel's light-guide system, which is the fibre optics cable system. B.C. Tel needed a ten-metre-wide right-of-way to establish this system, and it crossed numerous mineral claims. In most cases, B.C. Tel came to an agreement with the mineral claimholders, but in some cases they did not, and B.C. Lands came to us on behalf of B.C. Tel to ask us to use section 15 to deal with that other use of the surface.

[7:45]

We took the position that B.C. Tel should be allowed to construct the line using the most economic route. We also advised B.C. Tel that we reserved the right to require it to relocate the line in future, at its expense, if that was necessary to avoid interference with any subsequent mine development.

In most cases, as in this one, the very fact that we laid out what we wanted encouraged a number of people to come to agreements. They didn't all come to voluntary agreements, and the ones that were left over were settled by the ministry, but that is the kind of thing that we're talking about in this section. The minister would have to determine that there is a public interest that will allow a constraint on that chattel interest which carries with it a non-exclusive right to the surface.

[ Page 16574 ]

If the minister constrained the use of the mineral and the surface to such an extent that it could be argued that the claimholder's right of access to the minerals had been denied, we feel quite strongly that that could be argued in a court of law and considered as an expropriation. We're not talking about expropriation; what we're defining here is a constraint that could be there when the minister deems it in the public interest to do so. I have no intention, and I don't think any minister would have the intention, of going beyond that. As I say, what we're talking about is the ability to restrict what happens.

It could involve the Heritage Conservation Act, and it can be used to control access to a site where heritage values are being assessed and curated to protect parts of a claim that have a very high heritage value, whether or not that's necessary for mining. As I say, we did put in the ability to appeal. Again, that gives a greater extension of rights.

I might say that there is another way that we could have done this, and we contemplated this when we worded this section of the act. We could deem certain types of rock and so on not to be minerals. That would bring you into a definition of how much gold has to be in a piece of rock before it's not an ore, not a mineral. Those are the kinds of problems that we talked about previously.

If you want me to discuss the option we saw, I could talk in more detail about it. But it is very difficult, because you would have to have definitions of minerals again, and you would have to exclude some and have a reason for not excluding others. It could interfere with the other mineral tenure sections, where a company comes in to turn a claim they have into a lease and that kind of thing. So when we consulted with the industry, the industry said no. In fact, through our advisory committee, they advised that we use the present language for this section. So that's the intended use of this section, and I hope that's much clearer. This is not something that can turn into an expropriation. This is a restriction on surface use which is non-exclusive in the first place.

D. Jarvis: I feel a bit confused with regard to what is restricted here. Why can't the act just state what this would be used for? It's still open and broad. You've got the ability to restrict subsurfaces. I'm not sure exactly what you mean. I notice that the only thing you list down here is: "...contains a cultural heritage resource...." That's the only thing you describe. Also, could you tell me who was on the advisory panel?

Hon. A. Edwards: It is a restriction of the surface rights where, if you'll note, the actual surface rights are not needed for the development of a mine. We're not dealing with the mineral rights themselves; we're restricting what goes on on the surface to the extent that may be necessary for the public interest but would not interfere with the development or the rights that accrue to the actual chattel right to the minerals.

It's not just the Heritage Conservation Act that would be involved. In fact, you could be dealing with other situations where you would have to determine that.... We went through the whole definition of minerals. If you had to determine that certain pieces of rock were minerals and certain ones were not, that could confuse the issue. So this deals with the wording that was proposed by the committee, which includes Jack Patterson, executive officer of the B.C. and Yukon Chamber of Mines, and Brian Abraham, Harlan Meade, Walter Selmer and Don Gunning. As you know, these are all people who work in the industry on a regular basis and who are certainly going to know what they're talking about. This was their recommendation for the wording of this section.

D. Jarvis: I'd like to say to the minister that the section is worded too broadly, as far as I'm concerned. I believe they already knew that there was compensation payable. I assume that most miners feel that there always were circumstances where the government could take back a right, but this section is worded very broadly. I don't think it's acceptable, but nevertheless we shall proceed.

G. Wilson: I wonder if the minister might review the language under subsection 12(a)(1) that says: "...restrict the right to or interest in...." It says: "Despite this or any other Act," -- so this is fairly broad in terms of its power -- "the minister may, by order, restrict the use of surface rights, or restrict the right to or interest in...." I am particularly interested in what the minister means by the term "interest in."

Hon. A. Edwards: I did say that it was more surface.... There is the possibility that we'll be talking about interest in minerals. This extension will not expand the operation of the act in any real way. It's really a logical extension that was necessitated by the change in the definition of mineral, as I said. The surface or near-surface rock that might be needed for infrastructure on or adjacent to a claim.... We've said, for example, that riprap from embankments or crushed rock for roadways, if it's needed for the mine development, could, under the new definition of mineral, be considered a mineral resource rather than a surface resource -- as it used to be. If you had this surface resource -- now known as a mineral resource -- previously, we would then....

Well, I'll go to another example before I talk about the problem. You could have that kind of rock defined as a mineral. We've had tenure holders who claim that rock that contains trace quantities of copper or some other mineral element is in fact a mineral, or that sand and gravel that might contain trace quantities of gold is a placer mineral. If you were to deal with that, you would have to define again what is a mineral. You could, as I say, have a process where these materials would be determined or ruled not to be minerals if they didn't have commercial mining potential, but then you're stuck with a situation where you have to make that kind of decision on a presumed right.

In other words, if the minerals were deemed not to be minerals, the tenure holder has no right in the first place. So you've got a contradiction that doesn't make sense, and you would also be in the difficult situation of deciding what is a mineable ore, and asking if that is a mineral or is it not. If you rule that this crushed rock needed for a road -- which has now been defined as a mineral so that the claimholder has a right to it to develop the mine -- isn't a mineral, then does he have a right to it?

These problems were so great that the advisory committee decided that the government should not be applying economic tests to the definition of mineral. They recognized the need for a provision governing the use of surface materials for infrastructure. They chose the language that's here, so that we don't have to get into that redefinition of mineral in order to deal with a situation where what we really want to do is make a minor change in what can be done in the public interest.

[ Page 16575 ]

As I say, about twice in living memory has this section been used. We anticipate that it would be used for situations such as the B.C. Tel situation that I talked about. A line could cover a number of mineral claims. Under section 15 a government could designate that this is of public good, and therefore the line would be able to cross the mineral claims as the best use that B.C. Tel could put to it -- in other words, it's the most efficient use, with some constraints on their use as well. If that interfered with the development of a mine, they would have to move it at their expense. Right now there would be a restriction on the surface over these claims. That's the kind of situation that section 15 will deal with.

It can't deal with significant taking at all, because that would be an expropriation, not just a restriction. It would deal with something that the minister deems to be the public good. So it has to be something that has a broad, general public use or public good to it. It allows the minister to deal with these situations as these other sections allow us to deal with other conflicts in the rights that come with a mineral claim.

G. Wilson: I think I've got that. I understand it with respect to the provision where the purposes would be for something other than mining activity. It seems to me to be a particularly cumbersome way of trying to deal with this question of defining what is a mineral or not a mineral and looking at almost a case-by-case analysis of what's been developed on the surface. Let's just leave that for the moment.

Where I'm particularly interested is where the minister has these rights to restrict the interest in minerals or placer minerals -- and I understand the distinction -- if the area is or contains a cultural heritage resource. Going back to the questions by the member for North Vancouver-Seymour, I haven't heard the minister explain yet what exactly is meant by that. In the B.C. Tel example, if this is deemed to be something other than a mining activity, then I can understand why you wouldn't want to have disruption of that public asset. That makes some sense to me. The difficulty is when you get into a distinction with respect to a cultural heritage resource. We clearly have to look to the Heritage Act for that definition, I would assume, unless the minister suggests there is a separate definition within the Mining Act. The Heritage Conservation Statutes Amendment Act talks about the definitions with respect to matters around heritage value and how that heritage value is determined. It also talks about restrictions that that act will provide with respect to alteration of those values. If the minister could just define how that works here, we might be able to move on.

[8:00]

Hon. A. Edwards: As I say, this is really a minor modification of a consequential amendment to the heritage resources act of 1994. We needed the tool to do what was required under the Heritage Conservation Act. What it does, what we can do, and what we have to be able to do in order to meet the requirements of the Heritage Conservation Act is control access to a site while assessments are being made of heritage values, or protect parts of a claim, for example, that have high heritage values if they aren't needed for the mining activity. That's one act where it's specific that we have to be able to do that. This is consequential to that act, but it also allows for other situations, such as the one I outlined with B.C. Tel. What I'm saying is that my description of defining minerals differently and getting exemptions to them as being defined.... It would have been extremely cumbersome, and we avoided it by using this wording.

G. Wilson: If the minister says so. It still seems pretty cumbersome to me. I'm assuming, then, that this consequential amendment provides empowerment to the minister in order to fulfil the obligations under section 3.1(1) added by the Heritage Conservation Statutes Amendment Act, 1994, which reads: "The Province may enter into a formal agreement with a first nation with respect to the conservation and protection of heritage sites and heritage objects that represent the cultural heritage of the aboriginal people who are represented by that first nation." Then it goes on to give a further definition to that. The minister is saying, then, that this provides an opportunity for the minister to restrict surface rights by order in those areas where there may in fact be some form of registered cultural heritage claim. That's the provision of this section of the act. Is that correct?

Hon. A. Edwards: It could be a time-limited restriction -- probably would be a time-limited restriction -- if it was discovered that there is a heritage value that should be ongoing, and you come to an agreement as to how that restriction could work so that there is, again, no exclusive right to the surface...neither hold an exclusive right. We have to deal with those situations, and this allows us to do that.

G. Wilson: The minister said a few minutes ago that this does not constitute expropriation, that this is just a question of restriction. I'm assuming, then, if there is already a mining interest involved, and if that mining interest has not done actual excavation or development of a mine site, that given a first nation claim, this section of the act would not provide for the minister to extinguish that interest. It could only be used, essentially, to prohibit the taking of action to activate that mine until such time as this cultural heritage issue is resolved. Is that right?

Hon. A. Edwards: Essentially, that's correct. This is a restriction for something that's in the public good. Expropriation simply couldn't occur under this section, because it doesn't allow for expropriation. There is appeal in a number of areas, but certainly there is an appeal on any of these decisions to the Supreme Court. We feel quite strongly that if such a restriction meant you couldn't mine, that that might be considered an expropriation.

G. Wilson: The difficulty we have with this section, though, notwithstanding the fact that there is a right of appeal to the courts, is that that is going to be extremely difficult to be heard. First of all, there's no provision in the heritage act for such appeal. Presumably, there's going to have to be an appeal on the basis of this act. It would have to be dealt with, I guess, through some expropriation process. I can't see how a restriction to act is going to be appealable in court, because the government hasn't terminated the interest. They've simply limited or restricted the interest at that given time.

Of course, the difficulty with this heritage act and the conservation sections of it is that it talks about the areas that in particular will qualify -- spiritual, ceremonial or other cultural values to the aboriginal people -- and that is so broad. We've already run into that in a number of instances, where the 

[ Page 16576 ]

interests have prohibited certain developments, such as road excavation. In the interior of the province, there are a number of cases before this government now with respect to those restrictions.

There is no avenue for appeal if the process is ongoing, because no court is going to hear it until there has been a determination that those rights are extinguished on either side. You can't appeal the minister's right to suspend, because this section of this act quite clearly provides the right to restrict. Do you see what I'm saying? You could have somebody tie it up, waiting to act on what they believe is their legal right to mine, for a long period of time. There's nothing in here that says this applies for one year, six months, two years or 18 months. Under the Heritage Conservation Statutes Amendment Act, 1994, there is no provision for appeal directly on the determination process. Once it's determined, it's determined. The minister, in his colourful way, says you can't argue with bones. The difficulty is that the miners would say: "Well, you can't argue with minerals." Only now, we've got a section where the minister can say: "Notwithstanding your legal right to claim, we can tie you up in red tape for months -- years."

Hon. A. Edwards: You're certainly correct that if the person appealed, they would appeal under this act against the minister's decision that the provision was in the public good. A decision would have to be for the public good. You have to put the two together. Basically, the court would have to determine that the minister had made a decision that was unreasonable under the circumstances. The circumstance, of course, that would have to be considered is whether there is a public good that would outweigh the interest -- which is longstanding, and certainly a very clear legal definition in the courts under common law -- of a mineral claim.

So, as I say, it seems to me that there is a clear right for people to appeal a decision that they felt was too restrictive, and that there would be a fairly clear sense of whether that's appropriate or not.

G. Wilson: I hear what the minister is saying. I recognize that in this section, under subsection (4), it says: "A person aggrieved of an order of the minister under subsection (1) may, within 30 days after service of notice of the order," -- which could be longer than the actual period -- "appeal the order to a judge of the Supreme Court." So there is clearly a provision for Court of Appeal 30 days after the decision of the minister.

But on what grounds can the court hear this appeal? That is my problem. Subsection (1) says: "...the minister may, by order, restrict the use of surface rights...in all or part of a mineral title if the minister considers that all or part of the surface area is or contains a cultural heritage resource...." What are you going to appeal: the minister's consideration? What is a judge going to look at with respect to what grounds that appeal may hold in a court of law? Is he going to have to get the minister up there to say: "In my consideration, the following facts apply"? There's absolutely no means test provided for here.

The difficulty is that if you go back to the Heritage Conservation Statutes Amendment Act, 1994, the minister could say exactly that: on the basis of some cultural value to an aboriginal people. If a first nation, for example, wants to claim mineral resources, and they find that they can simply stake claim to it within their comprehensive claim and go the minister and block a licensed miner from going in there and accessing that resource, there's nothing that can be done to change that. No court is going to be able to make a judgment on that if there's no means test provided for in the act.

What you can do is have the minister arbitrarily lock somebody out for years and years, or until there's a comprehensive claims settlement -- which could be a long time in some first nations; others may be faster -- on the basis of this section of the act. It provides empowerment for the minister to really tie somebody up to the point that they just can't do business. No court of appeal is going to be able to rule. I don't know -- and maybe the minister can enlighten me -- what a judge can consider in the case of that appeal.

Hon. A. Edwards: I take your question seriously. Despite the fact that I can tell you that that's not what the intention is, law is law, and it has to suit any circumstances and any minister. I understand what you're saying in that sense.

But there is, as you know, a clear case.... If the minister exceeded authority to the point of it being an expropriation, I think there is a clear precedent in law to determine that that would be considered a de facto expropriation. That would be one possible cause for deciding that that ruling was inappropriate.

To get back to probably a more basic point, under the statutes appeals act -- and this is legislation here in British Columbia -- the common ground for the appeal of this kind of decision by a minister is that the minister did not take all of the facts into consideration before making such a decision. In other words, you would look at whether or not all the facts were appropriately considered, or you would look at whether or not the process was appropriate. Those would be the grounds, and I think they would be determined by the law under the statutes appeals act.

G. Wilson: Just let me take one more shot at this, and then I will yield to another member for a minute while I collect my thoughts. The difficulty we have with this is that there is no process; that's the whole problem here. The section makes it clear. If you blend it in with the existing act, you can see that notwithstanding what is in this act or what is in any other act, this empowers the minister of the day to act unilaterally with respect to the consideration of whether part or all of the surface area contains a cultural heritage resource. The only place that the court is going to be able to find out what that's all about is in the Heritage Conservation Statutes Amendment Act, 1994, and that provides for such a broad definition that I don't understand how anybody is going to have some kind of empirical evidence to present in front of a court.

I'm not even sure how a judge is going to effectively hear that unless they can prove that expropriation has occurred. The only way that you can prove that expropriation has occurred is in the event that the individual has had a very longstanding alienation from that claim, at which point the person is probably broke or mining somewhere else and has given up, if you see my point. The difficulty we have with this section is that there is no process or definitive section that says that given the four following criteria -- if the criteria exist -- the minister may act to restrict the use of surface rights and so on. There's nothing in there that gives that kind of definition. This is purely a discretionary power to the minister, and I don't know how a judge can deny that.

[ Page 16577 ]

Hon. A. Edwards: First of all, as far as the expropriation is concerned, as I say, I think that's relatively clear. There is jurisprudence on these issues. The Tener v. the Queen case, for example, established that if you deny access, that could be deemed an expropriation. I don't think you're going to have to prove that it has happened; I think it's very clear that you could prove that if a minister made a decision that would deny access, there could be a decision that that was an expropriation, not just a simple constraint on the use. That should be fairly clear in the law, as we understand it.

[8:15]

As to process, it is not written anywhere in our whole legislative or administrative system, but to make a decision like this, a minister is expected to do due diligence and, of course, to respect natural justice. You know that natural justice is not defined anywhere, but you also know that it operates in a lot of the legal and paralegal activities that we have.

Those are the two principles underlying what the minister would have to do in order to make an order under section 15 that would stand appeal or review by the Supreme Court and, under certain circumstances, by the appeal court as well.

G. Wilson: I just wonder if the minister might give me the full description of the Tener case and what year it was, so that I can maybe have my researcher look it up for me so I can look at it. I'm not familiar with that.

Hon. A. Edwards: It was a 1976 case. Wells Gray Park was declared a park right over this claim, the Tener claim. Mr. Tener went to court to say that because he had been denied access to his claim, he had been expropriated. It's one of the cases that would certainly be considered if there were a reason for a judicial appeal.

R. Neufeld: First off, I have to say that appealing to the Supreme Court or the appeal court seems to be a little onerous for a smaller operator who may just give up in disgust because they don't have the time or the resources to even try taking it that far. Obviously, the only ones who would ever be able to use this would be the larger companies, so it more or less cuts out the smaller ones from the appeal process, because going to the Supreme Court or the appeal court is not a simple process.

The minister talked about the premise of this change and about B.C. Tel on an underground cable. Would that also apply to pipelines and above-ground hydro lines?

Hon. A. Edwards: We haven't used it for that. Under normal circumstances, people come to agreements, and companies that are putting through lines on a regular basis probably have a lot more experience at it. I suppose B.C. Tel should have too, but in this particular case there were certain holders of claims who simply weren't able to come to an agreement.

When the minister at that time made the decision that they would allow B.C. Tel to go through, except.... If a claim was developed and the line would interfere with that development, the company would have to relocate the line at its own expense. That was clearly laid out, and most of the holders then came to an agreement with B.C. Tel.

It saves a lot of administrative work; it saves a lot of not knowing what to do by the people who are trying to deal with this. The option for an appeal is there -- and I recognize what you're saying. Everybody can't always afford to appeal, but it is a good idea to have that option there, I believe. As I say, the intent of this section is to deal with that kind of situation. The simple judgment of the minister is going to have to be used, and I wouldn't deny that it will have to be used. There are certain circumstances where, I believe, this is a very necessary option for working through the situation: where the right to the surface or sometimes to the minerals -- but it is much more likely to be the surface right -- is non-exclusive, and the minister will deem how it's going to be worked out.

R. Neufeld: I appreciate what the minister says. There could be a simplification, I believe. Specifically, the minister is aware of what happens in my constituency of Peace River South with pipelines. There is, I believe, an appointed board that looks after those issues -- being able to drill on private property or to place pipelines across Crown land and private property -- and its decision is final and binding; that's where it ends. When the property owner and the proponent cannot come to some kind of agreement, this organization -- I'm just missing the name of it right now -- will step in, set up the compensation, and everybody has to go away happy. It's a simple process, I think, and has worked well for many years in the north. Maybe it would be a simple process to use here without having to use the courts, especially with the expensive court time that we have.

Hon. A. Edwards: The member refers to the Mediation and Arbitration Board, and certainly we use that board under section 16 of the Mineral Tenure Act. If it were possible, there is no reason that the ministry wouldn't make sure that section 16 were used; that would be with private land. Sometimes there are situations with Crown land that are different. Section 15, as I say, deals with the residual left over after sections 10, 14 and 16.... If they can't deal with it, then the minister may make a deemed decision.

R. Neufeld: Just one quick question. The minister says, then, that the Mediation and Arbitration Board could be used in this situation instead of the Supreme Court or the Court of Appeal. Is there some way that that should be inserted in here, so that people would know that? Is it common that the minister would make that designation on his or her own decision, or should it be put in here somehow?

Hon. A. Edwards: If it is a private land situation, it will be dealt with under section 16 of the Mineral Tenure Act. If you look at section 16, it refers to the Mediation and Arbitration Board. That is where it would be dealt with.

D. Jarvis: There are a few things I'd like to ask the minister with regard to a strange feeling that's going on here with this aspect of "cultural heritage." I imagine the member for Powell River-Sunshine Coast will go into it further. There is a concern about that two-word phrase, in that there are widely swinging aboriginal issues coming out now. There is a concern that this could be used for an aboriginal settlement or for a park or whatever it may be. Nothing is really designed or specifically stated here. This section of the act gives you the ability to restrict subsurface rights. Why isn't that just stated in the act, for example? Why does it have to be put into the regulations? If it were stated in the act, then you could remove the ability to restrict subsurfaces. There's nothing we see here 

[ Page 16578 ]

about the fact that there is expropriation...but compensation. That's what worries most of the people out there. Everything here seems to be geared to.... We're hearing today that all these class A public parks in British Columbia could be used for aboriginal treaty negotiations. There's a feeling out there that.... And you keep saying: "You've got to trust me under normal circumstances." Yet we know that the Guntonization of British Columbia is coming about. We can see it coming. We've talked about this so many times. The Deputy Minister of Environment in this province has written this, and basically he says: "We don't want private, free enterprise people handling the resources in this province. The government can do a better job." This is a theory, not necessarily the way things are.

I was wondering if the minister can say who designed this section, for example? When you say it's in the public interest, were there specific things that have come about that couldn't be done prior to this? Will this relieve the situation, in the public's interest? Who is the public in this case? Is the public aboriginal? Is the public the NDP philosophy?

Hon. A. Edwards: Section 15, whatever it's numbered, has been in the Mineral Tenure Act since the beginning of time in wording similar to what the current act says: "Notwithstanding this or any other act, the Minister may, by order, restrict the use of surface rights comprised in a claim...." That's the old wording.

Our new wording now involves what was brought in to deal with the Heritage Conservation Act, and now we are bringing in the further amendment to deal with the definition of minerals. Our agreement with Lands is that we will deal with certain rock as a mineral, whereas they will deal with those types of rock -- maybe from a similar quarry -- simply as building materials. We need to have that in this section of the act for us to continue to do what has been in the Mineral Tenure Act from the beginning. The minister has been given this discretion since the time that we've had a Mines minister, and as you know, that has been since the beginning of British Columbia.

D. Jarvis: But what does it mean by "cultural heritage" in this? Why has that suddenly been brought into it? You're now putting subsurfaces and cultural heritage in there, and as I said, there are widely swinging aboriginal issues out there. This is where the concern is: that you can ostensibly take away the rights. It has given you broader rights than the act ever did before.

Hon. A. Edwards: I repeat again that we had a consequential amendment to the Heritage Conservation Act in 1994, and that's when that came in. The amendment we are adding deals with the right to, or interest in, the minerals or placer minerals. Our amendment is still trying to deal with this business of industrial minerals, which is important and which has quite a number of people writing to me, even now, saying: "Be sure you get that through, because we need these changes to how we deal with industrial minerals." The Heritage Conservation Act amendment went in last year. You may not see it in this version of the act, but it was in the amendments.

D. Jarvis: I have one question before I turn it over to the other members here in the House. You say that it's in the public interest, and I asked you before what the public interest is. Can you give me any specific examples of why it is necessary to define it? Why is this in here? What made you make this decision to put it into the bill?

[8:30]

Hon. A. Edwards: It's here because there are sometimes circumstances where the decision is given to the minister, not someone else, to deem that there is a public interest that needs to be recognized for someone who holds a limited right to chattel interest in the minerals and a non-exclusive use of or access to the surface. If, in fact, there is a necessity that cannot be dealt with under sections 10, 14 or 16, then section 15 gives the minister the ability to deem it in the public interest and to follow the normal procedures under the appeal process. If the minister doesn't do it correctly, there is an appeal of that.

As I said, the section has been there in its essential form for a long time. It was amended last year to bring in the cultural significance that may be there, and the restriction would nearly always be time-limited. In order for us to get through the changes in the way we deal with industrial minerals, we have to be able to have a restriction that will deal with industrial minerals and to allow that to be part of what the minister may deem to be a situation where there is a public interest that requires some sort of restriction on use.

D. Jarvis: I was asking the minister, Mr. Chairman, a question: were there specific situations that were not deemed to be in the public interest that caused this act to be changed? Or is it something in the government's philosophy that is coming down the line? I want to know if there were specific situations that were deemed not to be in the public interest, as the minister keeps saying: "That's why it's in the bill."

[G. Brewin in the chair.]

Hon. A. Edwards: Suppose that surface or near-surface rock might be needed for infrastructure on an adjacent claim. Under the new definition of "mineral," this could be considered a mineral resource as opposed to a surface resource. So in this situation, we would be able to use section 15.

I have given in fairly great detail the example of the last time it was used, which was the second time it was used in the memory of the people on the advisory committee. That was the case of B.C. Tel.

G. Wilson: I think we can shed some light on where the concerns are with section 15(1) in relation to the "cultural heritage resource" reference by going back for a moment and looking at the debate in Hansard on the Heritage Conservation Statutes Amendment Act, 1994, in the third session of this thirty-fifth parliament. The minister of the day said that the intent of the bill was to enable "government-to-government agreements with first nations in the province with regard to conservation of cultural heritage resources." I think that's fairly plain. In my questioning, I asked how this related to the Mineral Tenure Act. I wondered why those sections on both the cultural heritage resource and protected heritage property should be included in that particular act, and why they wouldn't have looked at putting them in the overall definitions section which came later. He went on to say: "This simply means that those resources should be considered 

[ Page 16579 ]

under the Mineral Tenure Act." I think this is where we have some difficulty with this. We're now seeing a consequential amendment that comes out of, I assume, the passage of the Heritage Conservation Statutes Amendment Act, 1994.

As I questioned the minister at that time, it couldn't be done without this amendment. He went on to say: "This section provides definitions for cultural heritage resources and protected heritage property as stated in the Mineral Tenure Act. I don't know whether that would refer to all of the buildings" -- and we're talking about Perry Creek -- "but this is simply to protect possible heritage resources under the Mineral Tenure Act, hence we've got this section here."

Where we run into some difficulty is with the examples that the minister gives. I can't do it in his colourful way, and I don't intend to go through the whole thing. For example, he makes reference to the Delgamuukw 2 legal ruling and says that as a result of that there's going to have to be consideration with respect to minerals and mineral tenure, and the notion of surface minerals and the powers given to the minister would require an amendment of this act. That was pretty much the basis of his comment. I asked for examples, and he said:

"Right in the desert country in the south Similkameen there's a huge rock that has a pictograph on it. It's called Standing Rock. This would not impact anyone. It would probably be designated. Therefore, if there is access resource, that would be designated. Go up the valley a little bit, you come to another huge stone that's right by the side of the highway. A pictograph is on that stone; that would probably be designated."

He goes on to say:

"Go further up the valley and you come to the Rain Stone. That would designated as well. So you have to consider all of these things."

Then he suggests:

"First nations may have a claim that a certain area requires protection, but under the agreements with the Crown" -- that is, with the province of British Columbia -- "the mechanism ultimately passes that power on to cabinet."

Then he goes on to say:

"For instance, there may be scattered flint chips in a certain area. First nations may state this is a traditional area. We may disagree, and if we disagree, essentially that decision has to be made by cabinet."

Here we have consequential amendments to that bill which provide to the minister the kinds of powers it would assume for the restriction "of surface rights, or...the right to or interest in minerals or placer minerals, comprised in all or part of a mineral title if the minister considers that all or part of the surface area is or contains a cultural heritage resource...." Our concern is that with the examples cited by the minister at the passage of the Heritage Conservation Statutes Amendment Act, 1994, it seems to provide enormous latitude to the minister with respect to what will constitute that cultural heritage resource. Therefore the designations being given by the minister over those surface rights could very seriously impact on the ability of a tenure holder to be able to mine.

We need something from the minister to alleviate that concern: to say that I'm wrong; that that's not what it's about. All the evidence we have in front of us suggests that is what it's about. If it is, then we have to have some satisfaction that there is going to be a workable appeals process that doesn't mean somebody has to pay a lot of money to go to the Supreme Court.

Hon. A. Edwards: I continue this debate with some reservation, because this is not the amendment to this act. This is not new; this was done last year. The amendment is on the placer minerals and is dealing with industrial, but I will try to clarify. The Heritage Conservation Act requires that in certain situations -- and they're laid out very specifically.... It says fossils, burial sites, old buildings, sacred sites and heritage sites. So there are a number of very specific things that need to be assessed and valuated before other activities go ahead. You're saying that that would happen under the Mineral Tenure Act, and I'm saying that it would as far as mines are concerned.

I found that series of examples you gave interesting. One of them may be on top of a mine, in which case the Minister of Mines would be making a decision; one of them may be beside a highway, and the Minister of Transportation and Highways would be making a decision under their act; the other one might be in a forest, and the Minister of Forests would make that decision. Under any of those acts.... The consequential amendments were there, because in order to carry out the Heritage Conservation Act, it has to be done under other acts, which are the administrative bodies that do it. That's why they were there. In fact, if you're looking at Delgamuukw infringements, that would really be considered at the lease level, where you might.... If somebody who has a claim wants to have it converted to a lease, then you would deal with Delgamuukw in a more serious fashion.

All I can say is that this is not the new amendment. The amendment that we are dealing with today is the amendment to deal with placer minerals or industrial minerals. That's the change. The amendments to deal with cultural heritage were made last year.

G. Wilson: We're in agreement, and that's where we wanted to get to. We agree with what we're talking about, at least. I understand that that's not the amendment and that we're dealing with the placer mineral amendment, and I understand that that provision is there and spelled out with respect to the explanation that's provided on the adjacent part of the page.

The reason I raised it now is that it's important to recognize that there is going to be a much greater likelihood for the minister to act with respect to those surface rights given the climate that we're in with respect to the provisions in the consequential amendments that came with the Heritage Conservation Statutes Amendment Act last year. It's a far more likely proposition now, given the new definition of "mineral," than it may have been before.

The last question I have on this is on the drafting of this particular amendment, which presumably came from the minister's staff. Was consideration given to some form of internal mediation or arbitration process in appeals, prior to forcing an aggrieved party to have to go to the Supreme Court? That's an expensive proposition.

Hon. A. Edwards: No, I would say again that we'd rely on the principles of natural justice and due diligence by the minister.

[ Page 16580 ]

D. Jarvis: Could the minister give me a definition of due diligence? We are looking at the Premier's statement of a quick and fair settlement in, for example, the Windy Craggy, which is now over two years old, and nothing has happened.

Hon. A. Edwards: The Windy Craggy was a taking; I don't think there's any question about that. This has nothing to do with expropriations; this has to do with trying to administer situations. In fact, you can't deal with it under section 10, section 14 or section 16, but there is a very clear public interest that the minister has to have the ability to deal with.

The principle of due diligence is not something that anyone defines under common law, I don't think. Perhaps people have tried, but there would be a hundred definitions of it. Something that is argued and dealt with consistently in the courts is due diligence and natural justice. Anytime a minister makes a decision like that, the minister has a sense of responsibility to the public. That's the basis on which such a decision would have to be made. The decision to deal with a situation would be made by a minister where they deem that the public interest would require that there be a restriction on the use of the surface by the holder of a chattel interest in a mineral.

D. Jarvis: I would like to say to the minister that perhaps we'll bring that last question up in the next section, where it does deal with confiscation without compensation. The minister keeps saying "in the public interest" all the time now, but when I asked her for a definition of public interest, all she could quote was one sort of nebulous thing where B.C. Telephone had to put a line over a piece of land. I keep asking the minister to give me a prime example of what it is. Let us hear what the concern was about the public interest, not just an example that came out of her office or a telephone line over a piece of property.

[8:45]

Hon. A. Edwards: The member wasn't listening, I guess. B.C. Tel's line was a fibre optics line. There are certain very delicate requirements for taking care of a fibre optics line. As well, we have had situations where claim holders have claimed that what they have -- which might be crushed rock or gravel of some kind -- is actually a mineral, where it's needed for perhaps riprap for protecting a creek or something like that. There are situations where we need to act, and the minister needs to have some latitude to do so. I would be delighted, I suppose, if our society could define public good and all these terms, but your adviser behind you knows as well as I do that in legal terms, those definitions aren't there. They come from arguments back and forth.

Interjection.

Hon. A. Edwards: Yes.

D. Jarvis: I'd just like to clarify for the record, Madam Chair, that I do not have an adviser behind me. I'm not as fortunate as the minister to have a staff of 500. I have a staff of one-third of one man.

Hon. A. Edwards: I just want to clarify: we have less than 400 people.

Section 12 approved on the following division:

On section 13.

D. Jarvis: I'm concerned about the first paragraph of section 13, section 15.1, which states that on the "protection of a protected heritage property, the chief gold commissioner may...." I'd like to ask the minister if she feels that it is in any way confiscation without compensation. I believe Bill 21 was the cultural heritage act, and coupled with that, the protected heritage property.... It's my opinion that in this section, all hope of tenure will be eliminated. Perhaps the minister could respond to that.

Hon. A. Edwards: This section is the enforcement section, no question about it. It expands the reason for being able to cancel a licence or to require that the claim holder comply with the act. It extends that from complying with simply the Mineral Tenure Act to complying with any of the acts that are required for the mineral claim holder. There are a number of acts that the claim holder has to comply with, which is again a reason that we said that a free miner should know what he's getting into and what he has to do before he gets a free-miner's licence. He knows he has to comply with all of these acts, and now this is the enforcement provision that goes beyond simply complying with the Mineral Tenure Act to having to comply with other acts.

D. Jarvis: We know what the aspect of the cancellation of the free-miner's licence is. As we said before, a free-miner licensee must be a lawyer to be able to know all the things that are required. I won't go into that detail, because we went into that for an hour or so about two weeks ago. Is there any compensation for this confiscation?

Hon. A. Edwards: This is strictly enforcing rules that are there. There is no compensation. There would be no compensation due to someone who doesn't comply with the act.

J. Tyabji: I have found the debate very interesting. This is the first time I'm actually getting into the committee stage debate tonight. This section of the act is problematic, I think, when we come at it from the same perspective that we used in 

[ Page 16581 ]

the.... We've debated this in committee stage now, I think, for the second or third night -- it's all a blur. When we debated it on the previous night, we talked about the fact that the minister has been writing in a different role for the chief gold commissioner. When we talked about him before, notwithstanding the fact that the chief gold commissioner is currently the chief gold commissioner in place, we have to always look at legislation from the point of view of the future.

[9:00]

The minister has said that the reason she has written the bill the way she has is for expediency. In this section we see a high degree of power in a civil servant. There's a high degree of lack of accountability, which we talked about in previous sections. Here again, I think if there's one section that talks about a high degree of power resting in one person, where the minister is not the person holding this power, it's in this section: "Suspension of operations or cancellation of claim." Few sections in this bill can be more directly relevant to somebody who is actually the holder of a claim. Why did the minister draft this section of the bill so that the power would be resting with the chief gold commissioner and then give that person some sub-judicial powers? Obviously, we're going to get into this as the bill proceeds. This is where we start to get into some pretty detailed accounting for a lot of power. When I say accounting -- a detailed explanation, if you will, of where the gold commissioner is going to have a lot of power.... He's a civil servant, and the minister is nowhere to be seen in this section.

I guess the other question, too.... You know, I am actually one of the people who is upset that this bill has come back -- at least that it's come back without any amendments. I thought that it was going for reconsideration, because we spent quite a bit of time on previous sections. If it is going to come back, I find it ironic that the minister....

This is the first and, I would assume, the only piece of legislation that this government is bringing in in her ministry. In four years, this is the first time we've seen a bill from Energy, Mines and Petroleum Resources, which should be one of the most powerful ministries. I would have assumed -- if the government had a vision for the province that took primary wealth creation and development of a healthy mining industry into account -- that this section would have at least allowed the minister, who is supposed to be an advocate for that industry at the cabinet table, to have a role to play.

I guess there are two questions. First of all, why is this section written the way it is, with all of this power in a civil servant? Secondly, why has the minister chosen in her one piece of legislation, and particularly in this section, to write herself out of the bill if she's supposed to be the number one advocate for the mining industry at the cabinet table?

Hon. A. Edwards: If we weren't trying to work through this as quickly as possible this evening, I could perhaps go into the other pieces of legislation that have gone through during this session. This is certainly not the first piece of legislation.

This is an enforcement section. It requires no decision-making, except to decide whether or not someone has complied with the law. Enforcement officers and conservation officers do that under other laws. It is the chief inspector of mines who is doing it here. It's a simple matter of dealing with the enforcement provisions in the most efficient way -- and I use the term "efficient"; I believe that's the term I have used consistently -- that is fair and, as I say, that deals as appropriately as possible under the act.

J. Tyabji: The minister says that this section deals only with non-compliance. It actually talks about contravention of the Heritage Conservation Act. Section 15.1(1) -- the new section that has been added -- says:

"If the recorded holder or other person conducting operations in respect of a mineral title does not comply" -- that's a first -- "with the provision of this Act or the regulations or a provision of any other enactment with respect to a mining activity, or contravenes the protection of a protected heritage property, the chief gold commissioner may...."

The question I have is: when we talk about contravention of protection of a protected heritage property, who decides that? Is the chief gold commissioner now well versed in the Heritage Conservation Act? Or does there have to be a document provided that there has been a specific contravention of the Heritage Conservation Act? If there is, then who is that from?

Hon. A. Edwards: The Heritage Conservation Act, as I understand it, requires designation for it to be a heritage site, so there has to have been a designation of it as a heritage site.

J. Tyabji: Actually, the Heritage Conservation Act, which was the subject of quite a lot of debate last year in this House, doesn't require designation. There "may" be designation. If there is designation, then obviously a lot of things apply. However, there's a high degree of interpretation in the Heritage Conservation Act that this government brought in, and an item doesn't even have to be a piece of property; it could be a rock. I think the Alliance leader brought into debate some of the comments of the Minister of Small Business, Tourism and Culture, where he stated quite clearly that it doesn't have to be anything specific. If someone has contravened the intent of the Heritage Conservation Act -- and that's very subjective -- then they could be in contravention of protection of a protected heritage property. I don't even know why it's worded that way, because when it says "contravenes the protection...." I don't know if my colleague wants to talk about that. But if you're talking about protection, are you talking about a prescribed plan of protection? If so, it doesn't say a "designated site." The Heritage Conservation Act is quite specific that it's talking about designated sites.

Let me just read into the record that in the changes this government brought in about heritage sites, it says: "...'heritage site' means, whether designated or not, land, including land covered by water, that has heritage value to British Columbia, a community or an aboriginal people." And then, when we look at heritage value, it says: "...'heritage value' means the historical, cultural, aesthetic, scientific or educational worth or usefulness of a site or object."

Clearly, nobody is expecting that the gold commissioner is going to know all the details of the Heritage Conservation Act. I'm actually less concerned with the gold commissioner's knowledge of the Heritage Conservation Act than I am with the concern of a miner or someone who has interest in land about ending up, under section 15.1(1), unknowingly contravening protection of a protected heritage property. They could be somehow violating the integrity of a site, which is not a designated heritage site but has some cultural value to someone. If that's the case, how is this process even going to 

[ Page 16582 ]

evolve? Who's going to decide when a protected heritage property has not been protected? Who decides that? Is there going to be some dialogue with the Minister of Small Business, Tourism and Culture, or with the minister's staff?

Hon. A. Edwards: I think the member probably knows that if there is going to be some kind of protection for either a site or an object, that has to be done under the Heritage Conservation Act -- not by this ministry but by somebody else -- and there is a specific process and a specific protection there. If there is a request, and certainly this happens sometimes, that there be an investigation -- in other words, an assessment by an archaeologist -- to determine whether there is cultural value there, that has to be directed by someone in the cultural heritage branch: the archivist or somebody else. So these are protections that are very, very concrete in that sense. It is not up to the chief gold commissioner to determine whether that happens; it is up to the chief gold commissioner to determine whether there has been a specific protection and whether that has been contravened.

G. Wilson: I wonder if I could just take a slightly different approach to the same issue. On this side we are well aware of how the Heritage Conservation Statutes Amendment Act, 1994, introduced those kinds of protections. We understand how the licence to mine may have with it a certain set of caveats that would require that the following procedures have to be done, and so on. We're not questioning that. We are concerned.... It says: "If the recorded holder or other person conducting operations in respect of a mineral title does not comply with a provision of this Act" -- that's very specific, because we know what the provisions of the act are -- "or the regulations" -- the regulations presumably are going to be amended to take into account the following things, so we'll wait for those -- "or a provision of any other enactment with respect to a mining activity...." That's a little bit vague, because if it's with respect to, "any other enactment with respect to a mining activity," that doesn't necessarily have to be levied under the Mineral Act. It might in fact come under the Heritage Conservation Act or it may be under some other provision. Who knows? The question is: are those kinds of provisions going to reside with the gold commissioner? Is the gold commissioner going to have powers of inspection and enforcement with respect to them?

It goes on to say: "...or contravenes the protection of a protected heritage property...." It "contravenes the protection." That's very specific wording, and it's very cumbersome wording, so we have to assume that it's written specifically for this particular section. That means there has to be a prescribed plan of action set down with that licence in terms of the miner's operation being able to proceed. Presumably, that will require inspection, enforcement and penalty. The penalty, we see, is here, because if it's not being complied with, the gold commissioner can require certain remedies within a prescribed period of time. But the first two items are not clearly spelled out here.

There are two things we have to be careful of in this legislation: (1) that the individual who is actively involved in the pursuit of this mining activity fully understands what their rights are, what is expected of them and where their provisions are; and (2) that whatever they think they are obligated to do is consistent with what's registered with the gold commissioner, who is empowered to act if it isn't done. So that's what we're trying to get clarified in this particular section. Perhaps you could explain that.

Hon. A. Edwards: There was some discussion in our previous debates about whether a free miner needed to know what he was going to have to comply with before he got a free miner's licence, and we said that a free miner needs to know what he's going to have to comply with, because there are requirements under the Mines Act, the Forest Act, the Water Act, the Environmental Assessment Act, the Heritage Conservation Act and, you could say, the Waste Management Act. There are a number of acts that a free miner has to recognize, and he has to know that he has to be within the context of those acts.

As I said, the big difference with this amendment is that it moves the requirement for compliance beyond the Mineral Tenure Act to all of the acts that a claimholder must recognize and comply with. So part of the business of getting a free-miner's certificate now is to know what acts you have to comply with and what those requirements are -- or certainly where to look and how to find that out. Then, if there is non-compliance, the gold commissioner may do the things in section 15.1(1).

G. Wilson: I think that the minister would also understand -- and perhaps this question was asked by my colleague or the member for North Vancouver-Seymour before I came back into the chamber -- that this puts an enormous amount of power into the hands of a civil servant, and I don't mean that in any derogatory way. I see the gold commissioner sitting here, smiling and saying: "Yes, it does." The question is: why? And why would we not put in place a broader provision or set of requirements with respect to the procedures in order to provide some protection, from both the gold commissioner's point of view -- to make sure that there is an ongoing adequate review and enforcement process that does not give such statutory powers to a senior civil servant -- and the miner's, given that it has now become a very complicated procedure to try to mine in this province? As the minister has correctly read out, there are all kinds of restrictions in all kinds of acts that this individual is going to have to try to comply with. That becomes extremely cumbersome if you're trying to make a profit at what is often not a very profitable business.

[9:15]

Hon. A. Edwards: I say again that I don't think that the business of having the enforcement of compliance go to a senior civil servant is unusual. We believe -- and I think this is a generally accepted understanding -- that those.... Most miners obey the laws; they comply with the laws. Those who don't comply must be dealt with quickly, and they should be dealt with at the local level. Part of what happens with this change to the act is that it allows the chief commissioner to see that the enforcement is prompt, direct and local. That is part of the requirements that the miner will know about through the process of permitting. He had to get his permit; there were requirements in there, and he knows what the requirements are.

This is the enforcement section. It certainly requires a person of some basic common sense and knowledge, but it is not a policy situation; it is not something that is going to be changed. Here are the laws: is the miner complying or not complying? If the person is not complying, the gold commissioner may do such and such. If the person does not comply with the order, then the gold commissioner may, by order, do this and this. The gold commissioner may delegate powers to 

[ Page 16583 ]

the local level, so that things can be dealt with there, and they may cancel the claim of a recorded holder. After, if there is a cancellation, then there must be notice served.

What we're trying to do is deal with the very few people who do not comply with orders, and have that done by an enforcement officer under the terms of the legislation.

G. Wilson: I would go back to.... It is true that it's not unusual; I just don't think that it's a great trend. I guess that is a philosophical difference that takes us back to second reading debate, which I'm sure we don't want to revisit, especially not at this time of night. But I don't think it is a good idea to have senior civil servants given that kind of broad power. I've raised this matter before in this chamber with respect to the superintendent of motor vehicles and the kind of fully discretionary power that is given to them with respect to suspension of licences, which, in that jurisdiction, has a limited -- or no -- appeal process.

The difficulty I have here.... For example, it says under section 15.1(4): "The chief gold commissioner may cancel the claim of a recorded holder who deliberately fails to comply with...." Now, the implication of the words "deliberately fails to comply" is that there's a burden of proof on the part of the gold commissioner that there has been some deliberate non-compliance. How does the chief gold commissioner determine whether that's deliberate or not?

Then you go on and say: "...comply with (a) an order of the chief gold commissioner or other person under this section..." -- that may be reasonably easy to determine, because it's a question of notice and follow-through -- "(b) this Act or the regulations...." Well, that becomes a little more complex. Then it goes on to say: "...(c) the Mines Act or the Health, Safety and Reclamation Code for Mines in British Columbia, (d) the protection of a protected heritage property under the Heritage Conservation Act...." There it is again.

What does "deliberately fails to comply with...the protection of a protected heritage property" mean? If you're dealing with an area that may be subjected to erosion or some kind of problem as a result of mining activity, is that deliberate non-protection? Who determines that? Do you see what I'm saying?

It seems to me that the implication of that is that there has to be an onus of proof. If we still believe that in this country -- and I hope we do -- a person is innocent until proven guilty, then it makes the gold commissioner effectively the investigator and law enforcement agent as well as the judge. I just think those are huge powers to give an unelected, albeit certainly intelligent, well-placed civil servant -- but nevertheless, a civil servant, just the same.

Hon. A. Edwards: It might be useful to talk about.... I asked the chief gold commissioner while you were.... I'm sorry I wasn't listening to everything you said, but I asked how often this would come up. What are dealing with here? Maybe once a year you have someone who, you may determine, made a deliberate move to contravene. It's very rare. Out of how many situations that you might investigate would you find that one? Well, three or four a year.

Most people obey the law. Most people, when they're told they're not complying, will comply. Under normal circumstances that's how it happens. So if there's someone who is deliberately not doing what they should do, they will likely change their way when they're confronted with -- what shall I say? -- a claim or charge that they are not doing what they should do. They'll probably change their ways. If you actually get down to an investigation, which is what happens when something like this comes up, and the facts are canvassed -- a thorough canvass of all the facts that can be brought together, first of all, and certainly there's the ability for everyone who has been asked to make a change to have their say to the gold commissioner -- then this kind of enforcement would go into place.

G. Wilson: You know, my guess is that every bona fide, law-abiding miner is going to say: "We want to nail those people who aren't doing things according to the law." I don't think anybody is suggesting that we should draft legislation so loosely that we would permit those people who are less than honest to get away with things they shouldn't be getting away with. It's in the interests of all the members of the mining industry that there be a certain amount of regulation and self-policing to keep people honest. That would be my guess, anyway.

The difficulty I have with language in a bill is that we have to look to what the language provides in terms of powers, duties and obligations, and how those are going to be enforced. So I see, for example, that it talks about the suspension powers of the gold commissioner under section 15.1(2), where the commissioner may -- I take the advice of the minister that it's "may," a discretionary power; but that can also have some problems, because it has to be fairly applied -- "(a) suspend any exploration and development or production of minerals or placer minerals carried out by the recorded holder..." and so on. It then goes on to say that there may be the cancellation of a claim -- again, additional powers -- if there has been deliberate failure to comply. It goes on to say that a recorded holder, aggrieved by cancellation, may within 30 days -- exactly the same kinds of procedures and provisions we saw before -- go to a judge of the Supreme Court.

Well, at this point we've got a situation where somebody who may legitimately believe that they're aggrieved. A bona fide person who has for whatever reason breached one of those provisions has the gold commissioner act in a manner that is final. There's no appeal process prior to going into court -- at least, there's none that I see in this particular section of the bill, and I don't know that there is any other provision. They then find themselves in a situation where they simply have no recourse or avenue for a mediation or arbitration process; rather, they are forced into a very expensive litigation process for restitution. That's a concern, and I'd like to hear from the minister how those concerns could be alleviated.

Hon. A. Edwards: I think it's very clear that a number of actions will have been taken by the chief gold commissioner by such time as they might decide that this is deliberate. And in most circumstances, the commissioner would have notified the holder of the provision that he thinks is not being complied with. You can go down subsection (1), subsection (2) and subsection (4). Before you get to the cancellation of a claim, you have all these other notifications. Believe me, the gold commissioner is kept under a very close watch by the members of the mining community as far as determining that someone would do something deliberately. He will have to have investigated all of the facts and will have to have given the person whom he has said is not complying with the law 

[ Page 16584 ]

the opportunity to make the case. He will have to hear everyone around that before such time as he would decide that there is a deliberate evasion of the law or non-compliance with the law.

It would be very rare that you got to section 15.1(4), I would say. In normal circumstances it would be section 15.1(1) and section 15.1(2), and some of this would be carried out by those delegated by the chief gold commissioner so that it can be local. I've said that. The persons who are working in the field will be doing some of the inspections and some of the notification of people who may not be complying with some of the provisions. Only if it gets to the chief gold commissioner, would there be a full process where he knows he can be reviewed judicially. He can be reviewed by the courts, not just judicially. The whole thing can be reviewed by the courts, and he is doing the enforcement.

The process allows the enforcement to be done by those who are closest to what's happening so that they know what's happening. They will follow in general this outline. They will have steps that are laid out in subsection 15.1(1) and subsection 15.1(2). It would be very rare that they would get to section 15.1(4).

G. Wilson: But what I'm trying to get across to the minister is, for example, in the farm protection act. It is a piece of legislation that has passed already, so I think we can talk about it briefly. In that act there was a very clear procedure, a very clear process, whereby an individual could have a hearing. That hearing could be public, and there could be interveners, information provided, evidence supported or not supported, and so on. None of that is in this act.

Effectively, this act puts in the hands of the chief gold commissioner powers to be able to provide notification. It says he can "notify the recorded holder or other person of the provision that the chief gold commissioner considers is not being complied with." It doesn't even say that the chief gold commissioner has to notify in writing. It just says they have to notify them. According to this bill, because it doesn't even say in writing, it could be a phone call. They could phone up and say: "Listen, this is wrong. I want you to have this complied with within 30 days."

The correction of it in 30 days may be completely outside of the financial abilities of the person who is operating the business, so they find that they simply can't meet that time. If they can't meet that time, and it says that if they don't comply with the order under subsection (1), the chief gold commissioner may, by order, then move to suspend any exploration or development, or production of minerals or placer minerals and so on, and then specify the conditions under which the suspension will be lifted.

There's nothing here that says there's going to be a public hearing, whether there is going to be any proof or that the burden of proof is on the chief gold commissioner. In practice we hope it isn't going to be this way, but if we just take what we read here, on the basis of a phone call registered by a complaint from somebody who's in a competing industry.... Someone could phone up and say that this or that person is a competing miner and has done these dastardly deeds, which we don't like. The chief gold commissioner looks at it and says that, absolutely, in his opinion this is wrong. The commissioner phones up and says that within 30 days it has to be corrected, but they can't correct it because they don't have the resources to correct it. He turns around then and suspends the exploration licence, which is going to put them in a further financial bind, which means that the mining operation may not be able to proceed. At that point, the chief gold commissioner will escalate the process until such time as a full suspension is in place or there is a cancellation of claim under this process.

Nowhere in here is there a proposition for mediation that says, okay, we're going to sit down and sort out what went wrong. We're going to give an opportunity to both sides to be heard on this question and give reasonable time for the person who's operating this claim to start to rectify the process. Now, it may be that we've got an extremely benevolent gold commissioner in British Columbia, and I don't doubt his intentions, his sincerity or his honesty, but he may not always be the gold commissioner.

Who knows who follows? Who knows what government may sit in those benches and have a different set of parameters and decisions? There's nothing in here that allows for a fair process to take place. It puts all that discretion in the hands of one gold commissioner, and the minister would have to convince me that the act doesn't provide that wide latitude to one single individual and that there really is a fair process in place.

Hon. A. Edwards: When somebody comes in and tells the district manager in the local mining office that there is acid leaking from a site and it's going into a creek, or that there's been a cat in there that has eroded a bank and is destroying a fishing creek, or some other sort of damage, the chief gold commissioner's delegate needs to be able to deal with it. Those delegated people need to be able to enforce this right away, without a process of mediation and without a process of going through public hearings. They have to be able to say: "Cut out the acid leakage. You can't mine anymore until you fix it."

This is the kind of thing that is dealt with in this section. If you've got disputes between people over mine titles and so on, that's another section. This is where the gold commissioner needs to have the ability to say to people that they are not obeying the law, and unless the circumstance is fixed, he or she has to have the ability to say that unless the circumstance is fixed, they cannot continue what they have been allowed to do under your act. In other words, they could cancel your mining permit. So there are circumstances where the chief gold commissioner has to be able to do this to enforce this act and other acts.

[D. Lovick in the chair.]

G. Wilson: If you're talking about a leachate problem, I understand that you've got to deal with it. I don't want to delve into the Waste Management Act, because it seems to me that this takes precedence over that. I'm trying to go by memory, but there are certainly other provisions whereby charges can be laid.

[9:30]

I see that nowhere in here are charges laid -- nowhere. There's no due process of law. To take the minister's example, let's talk about somebody driving a cat through a streambed to do work on the side of an operation. If there are two or three different operators in an area, as may be the case, par-

[ Page 16585 ]

ticularly in some placer operations, you will find a situation where a person will say: "That cat went through the creek, and there is every evidence of where it is. Joe up the road owns a D-9, so it was probably Joe." So you go up and you say to Joe: "Well, we're going to take action against you."

Where's the burden of proof on this question? There has to be some process of law. If somebody is in violation of the act, they have to be charged with being in violation of the act, and if they need to act immediately to suspend something, then due process of law has to be provided. You can't simply say that we're going to put in the hands of the chief gold commissioner -- as nice a guy as he is -- that kind of power, unless there is a provision where a person can be charged and the due process of law followed. This act puts all that discretionary power in the hands of a government official to the point that the commissioner can revoke or remove the licence, which is pretty drastic. We could be talking about a lot of money going down the tube.

Hon. A. Edwards: Under normal circumstances, non-compliance will be dealt with under the act that is not being complied with, such as the Waste Management Act or the Forest Act. But if that is consistently ignored and there is, in fact, an obvious and deliberate attempt to evade, then it is possible for the gold commissioner to cancel the licence.

G. Wilson: But it doesn't have to be deliberate. Sure, subsection (4) says "holder who deliberately fails to comply..." but there's no reference to anything deliberate in subsections (1) through (3). Subsection (1) simply says that if a person conducting a mineral operation "does not comply with a provision of this Act or the regulations or a provision of any other enactment with respect to a mining activity...." This could be somebody who believes they're doing everything according to Edmond Hoyle, and then finds that they're not. I'm not a great card player, so maybe we've got a different set of rules now that everybody abides by, but anyway, you know what I'm saying.

If it looks like a person is in violation of an act, whether they did it deliberately or not, the power rests with the chief gold commissioner to take action. Nowhere is that person given written notification or a time period to answer that notification. In fact, the first time they hear about it they can be given a 30-day period or less. That's not even prescribed. It just says that within a period of time specified in the notice. It can be 24 hours, 12 hours...

An Hon. Member: Or two hours.

G. Wilson: ...or two hours if it's really bad. The difficulty is that if the person then fails to comply, the chief gold commissioner again is empowered to take action.

The question of whether it's deliberate or not is another matter entirely. It seems to me that there has to be some provision somewhere in this act for a person to be able to defend themselves against a charge they feel they are not guilty of. There's nothing in here where they can do that, except an appeal at the end to the Supreme Court. By that time, they're broke.

Hon. A. Edwards: You'll note that under section 15.1(1), all that happens here is that the commissioner would notify. Now, notify means to tell in writing, so you don't need to say notify in writing. If the commissioner chooses to notify and order the person to comply, then you could proceed to section 15.1(2). If there is non-compliance with that order, then there is a suspension and a specification of conditions under which the suspension would be lifted. Only if you get to subsection (4), where there is a deliberate failure to comply, may the commissioner cancel a claim. So subsections (1) and (2) are not ones that allow cancellation. It's only subsection (4) that allows the cancellation of a claim.

J. Tyabji: I note that different language is used. The minister just said that "notify" means in writing. However, subsection (1) says the chief gold commissioner "may notify" and "may order," and then you look at subsection (5), where it says: "Notice of cancellation of a claim...must be served on the recorded holder." What I think is interesting is that cancellation has to be served, and that has a legal interpretation. Under subsection (1), the chief gold commissioner "may notify." If the chief gold commissioner notifies this person that there may be something that's not complied with, how is that done? Is a message left on an answering machine? There's no provision here for serving, and I think the leader of the Alliance said quite clearly that there is a difference between your legal rights of service and "may notify." Why is there a difference in language? Why is it loose when it comes to notification and the rights of the person, but when it comes to cancellation, when they're finally served with that -- which, given the life of some miners and people who work out in the woods, could be the first time they actually are physically given a document.... They could be up in the bush for a couple of months, which happens frequently, or out of the country, on an exploration mission or whatever. I mean, they're not exactly the most physically stable people sometimes.

Hon. A. Edwards: I'll ignore whether or not a miner is a stable person. If you look at the order in which these things come, you will note that subsection 15.1(1) says that the commissioner "may notify." You will note that subsection 15.1(2) very clearly depends on the notification that would happen in subsection 15.1(1). You will notice in subsection 15.1(4) that if the chief commissioner decides to cancel, it depends again on that notification and order that the gold commissioner himself or herself has given, or on other acts. There would be requirements under the other acts, as I have said, and then notification is required. Again, notification means putting it in writing. Subsection 15.1(5) says that there must be notification of any action of cancellation under subsection 15.1(4). If you want to proceed with subsection 15.1(2), you have to have made a notification in subsection 15.1(1), and if you want to cancel based on a notification, it has to be the notification that would have happened under subsection 15.1(1).

G. Wilson: The point we're trying to make here is that if the minister says that it has to be in writing, okay; we'll accept it has to be in writing, although it doesn't say that it does. The question is: how do you serve that on the individual? Do you write them a letter? Do you write them a registered letter? Do you write them a letter which is then hand-delivered by a process server? How do you get that document into the hands of the individual so that we have some certainty, given the urgency of what may be occurring and the imminent action to be taken by the gold commissioner, that that person is served? 

[ Page 16586 ]

There is nothing in here that suggests that the onus of service is on the gold commissioner. In fact, everything in here implies that the onus of defence is on the miner. That's our concern.

Hon. A. Edwards: Nearly always, such notification is in writing. What the commissioner or the commissioner's delegate wants to say is put in writing. That will nearly always be served on the claimholder by an inspector, because they will be at the site serving it. If that is impossible, they would deliver it by registered mail to the last known address of the claimholder. One of the requirements of holding a claim is that you give the address where you expect to receive notification. So that's one of the requirements.

Now, if you didn't receive that notification, the commissioner would have a hard time trying to say that it was a deliberate failure to comply. The commissioner has to ensure that there is a deliberation to this failure to comply before they can make an order under subsection 15.1(4) and it will hold. If you're suggesting that the commissioner would be loose, light and irresponsible over this.... That is not what I think you're trying to claim, so therefore I would say that it's relatively clear here, and I think it would be relatively effective.

G. Wilson: I don't want to sort of hammer this to death except that.... Let's take a look at the case of Steve Fulbrook of Armstrong, who wanted to make a few bucks panning gold in the Cariboo. You talk about notice; here's a person who has been fined, almost to absurdity, through failure to provide effective notice or to provide effective service. I'm not going to go through the whole case. I'm sure the minister and her staff are familiar with this, because this is in Monday's Vernon Daily News. It's hot off the press. This is just an incredibly ridiculous story. Granted, it's under the Mineral Tax Act, but it's the same kind of problem. This is a classic example, where Mr. Fulbrook, in fact, didn't receive adequate notice -- he absolutely didn't. And now this person is being pursued....

Interjection.

G. Wilson: Yes, persecuted is a good word. It's just....

Interjection.

G. Wilson: Yes, almost bankrupt.

You see, our concern is that there's nothing in the act that spells it out. What's interesting is that under the other acts.... For example, under the Health, Safety and Reclamation Code for mines in British Columbia, there is provision, if there is a violation of this code, for notice in writing, and it has to be served. Similarly, it's interesting that under the Heritage Conservation Act there is a provision that there has to be a written service. We debated at length whether or not that was going to be the case with that bill. Under the environmental review act this ministry brought in, we argued at length that there had to be some kind of a written service. When it came back in amended form, after being pulled away from the House, you had put it in. So we wonder why it isn't here. If the explanation of the minister is that it isn't here because it's implied that it's here, then we question why it's under subsection 15.1(5), where you're about ready to cancel and you do require service. It just doesn't seem to be consistent drafting with other legislation that's in the province.

Hon. A. Edwards: I just went through it, and I would ask you to review the Blues. It requires notification, which is notification in writing. You don't need to say "in writing," because notification means that you are notified. If you're notified, you have to be served with a written description of what the non-compliance is. We would follow the rules for the other acts. But without extending it, it is required throughout this section.

[9:45]

The Chair: Before I recognize the member for Okanagan East, may I just advise members that we have spent roughly an hour on one small section. I would think there comes a point at which we ought to move on.

J. Tyabji: I understand that we have spent a lot of time on this. I just want to point out to the minister that one reason we bring this up.... When we look at people like Mr. Fulbrook in Armstrong, who is under this minister's jurisdiction, in the same case where he.... Because it was written notice and it was sent to an address he wasn't physically at, by the time he was served, it was too late. All the time limits that were built into the act -- the 30 days and the 30 days -- had already expired. I've had the same problem with workers' compensation and with labour standards. Over and over again, we see what we call the drafting.... Maybe it's not intentionally sloppy, but the drafting is done so that the language is quite specific -- you can get written notice of all kinds of things, but at the point where the government comes to hammer you, they finally serve you with something. That's sometimes the first time people ever understand that there's a problem, and by then all their rights under these acts have already expired.

The reason we're making this point is that it's so important for this minister to understand that we're talking about people's lives. You're talking about the cancellation of claims. The reason we think it's so important is that if you're going to take that step, make sure the person is aware that there's this other process going on, because there are many, many examples where they don't, and then we end up having to chase the minister around the hallway to ask: "Could you please deal with this one issue, because this person is being bankrupted and the only asset they have is being seized by Workers' Compensation, the minister or a branch of the B.C. Assessment Authority?"

Interjection.

J. Tyabji: It may be boring to the back benches of the NDP, but when you've had to deal with the people on the other end of the phone who are almost hysterical because their rights have expired under these acts, then it's not that funny. It may be tedious at 9:45 p.m. -- I'd rather be doing something else -- but this is an important point. I see that the gold commissioner is here, and I'm sure he's had the point fairly hammered into his head that even if it's not in the legislation, he'll make sure that the people are directly contacted -- I would hope. And if not, we'll be pulling this Hansard and mailing it frantically to the minister every couple of months when these examples come up.

D. Jarvis: I want to make a few comments, and that will be it for this section as far as I'm concerned. I'll ask a couple of questions of the minister. I wish the member from the resource backwoods area would keep quiet. All he's doing is getting himself in trouble by supporting the government in this bill when it comes to election time.

[ Page 16587 ]

This section of suspension or cancellation versus confiscation without compensation is the elimination of tenure, and it's a very repugnant thing to the people out there. Could the minister tell me if the violations of code apply to the government itself? You refer to situations where you have been put on notice many times about the problems with Mount Washington and the acid that's leaking out of there. You have never done anything about it, and they're still talking about it. In most cases where we're going to run into problems it is going to be the small prospector or operator, and under subsections 15.1(6) and (7), I would like to know if any consideration has been given to a less expensive appeal mechanism.

Hon. A. Edwards: I missed the question. I thought I was getting there and then I missed what the question was. It wasn't a question.

D. Jarvis: Just answer the question.

Hon. A. Edwards: What was it?

D. Jarvis: I didn't know that the minister wasn't listening. Because most of these problems would be with the small prospectors and operators, under subsections (6) and (7) is there any consideration given to a less expensive appeal mechanism than what was in the bill? In other words, going to the Supreme Court is very costly for the small operator.

Hon. A. Edwards: As I say, we brought this back so that there would be an appeal mechanism. But we wouldn't get here unless there was a flagrant example of non-compliance. That, of course, would have some significant number of people involved, and it would have been dealt with on a very detailed level.

R. Neufeld: I listened very carefully to the debate about the delivery of notice, and I want to put in that there should be delivery by hand rather than just to a mailing address, if we're dealing with some of the smaller operators. Larger ones like Royal Oak Mines Inc. or Geddes Resources Ltd. obviously have main offices that the notice could go to. A small operator like the fellow from Vernon who does gold panning may not be home for months on end and may not receive the notice. I have a problem with the minister not wanting to amend that a little bit, because the inspector, who has the powers of the gold commissioner, must have gone to the site in order to see something going wrong. Do they just have a look, go home and mail something? Wouldn't the inspector give notice to the person at the time something is being done wrong that they had to comply? Why would you leave it, go home and mail it? It just doesn't make sense.

Hon. A. Edwards: I think the member will realize that sometimes a miner has worked on a property and they may not be there when something contravenes an act -- you can't find them, they're off working another property or they're home visiting their second cousin. There has to be a possibility of sending by mail, and that's part of it. It may well be that the inspector is there but the miner isn't.

J. Tyabji: A quick question. I note that even though subsection (5) says that notice must be served, it doesn't say when the cancellation would be effective. In subsection (6), for example, it says that they may appeal to the Supreme Court, and then subsection (7) says an appeal lies to the Court of Appeal with leave. But it doesn't say, for example, that at the point where cancellation is served, it is effective. Or is it not effective until the outcome of the appeal to the court? When does it kick in?

Hon. A. Edwards: The cancellation is effective immediately when the notice is served, but the 30 days is 30 days after that, because that's what they're appealing.

J. Tyabji: If the cancellation is effective immediately, I would be curious to find out where there would be any provision for compensation if, for example, it turned out that the person affected by the cancellation had then gone through the courts, let's say, a year or two years later. They end up going to a judge of the Supreme Court or the Court of Appeal. Whatever it is, the person is finally successful and ends up with a decision of the court that overturns the ruling of -- in this case -- the gold commissioner. Would there be a provision for compensation?

Hon. A. Edwards: If they overturned the decision, it would be up to the judge's discretion as to whether or not some kind of compensation would be available. That would be up to a judge. This subsection (4), by the way, is an important part to this amendment. It is what the amendment is. It's to allow the gold commissioner to deal with people who are deliberately contravening, and it's a very important part of it.

Section 13 approved on division.

On section 14.

G. Wilson: I just want to point out the inherent contradiction here. Having suggested that there is no requirement of the government to give notice to the miner where service has to occur, we find in this section that:

"A person must not commence a mining activity by a method using mechanical equipment that disturbs the surface unless the recorded holder

(a) first serves written notice on the owner of every surface area on which the recorded holder intends to work or intends to utilize a right of entry for that purpose, and

(b) provides..." a 30-day notice period.

Clearly what's being asked of the miner is more than the government is prepared to do itself.

An Hon. Member: Did a lawyer write this?

Hon. A. Edwards: Yes, they always do; lawyers always write legislation.

The change here is not only that the person must have an agreement with the surface owner but that they must also serve notice with the gold commissioner and with the district inspector appointed under the Mines Act. That's the difference.

G. Wilson: I realize that; I know what the difference is. I'm trying to point out the inherent contradiction where the minister isn't prepared to give written notice to the miner but requires the miner to serve written notice to every single surface land holder who is likely to be within the utilized region. I just wonder why the inherent contradiction.

[ Page 16588 ]

Hon. A. Edwards: I thought we had canvassed this very clearly under section 13, subsections 15.1 (1) to (7). There is a notification required, and action under section 15.1(2) requires that the notice is given under section 15.1(1), and you cannot act under section 15.1(4) unless you have given notice under section 15.1(1) and followed it up with section 15.1(2), and so on. Then notification is required in subsection 15.1(4). Notification is required consistently. In order to help the commissioner deal, however, with what's going on, he has to have notice of what the miner is trying to do.

R. Neufeld: In section 16(1)(a), the first four words are: "...first serves written notice...." Would the minister explain, then...? We're having a tough time getting across what we're.... To get an answer to the question, would the minister just define for us what "first serves written notice" actually means?

Hon. A. Edwards: First of all, before any work begins, he has to do it: that's what "first" means. And "serves written notice" means he has to put in writing what he intends to do and serve that notice on the landowner. That could be done, I believe, by either hand delivery or registered mail to the right address.

J. Tyabji: The minister said in her previous answer that we've canvassed fairly thoroughly subsections 15.1(1) to (7) and how there has to be written notice.

We're trying to point out in this new section 16 that there seems to be a double standard in terms of the government's responsibility to the miner as opposed to the miner's responsibility to the other people, especially the representatives of the government. Because the language is obviously deliberately chosen so that there's a service provision for the person but not for the government, there does seem to be a double standard, where there are more responsibilities on the miner than there are with the government. Usually, the government holds most of the cards with respect to the power to cancel and the power to litigate without running into an empty pocket when they try to hire a lawyer.

Hon. A. Edwards: The owner of private land needs to have his or her rights protected. This requires that there be notice. In order for the gold commissioner to know whether that's happened, he has to have a copy of that notice.

[10:00]

Section 14 approved.

On section 15.

D. Jarvis: I don't think there's really a necessity for this section even to be in here, because it already exists in the current act. So it's redundant, in that sense. But the wording is so broad that a grazing permit could be viewed as an activity and used against the miner. Can the minister give me some thoughts that she has on whether we should get rid of this section completely, because it's already in the act and the wording is so broad that it is detrimental to the miner?

Hon. A. Edwards: This just requires that you have some agreement with the surface owner before any activity takes place. Once you have an agreement, then of course you have to meet the terms of the agreement. If you're talking about a grazing permit, that would be on Crown land, so that's a different situation.

J. Tyabji: I don't understand the minister's response. The way it reads is: "A free miner or recorded holder must not obstruct or interfere with an operation or activity, or the construction or maintenance of a building, structure, improvement or work, on private land." The member for North Vancouver-Seymour was trying to ask why this section had to be added. I don't understand the minister's response to that, because she started to talk about what I thought we were covering in the previous section.

But maybe she could elaborate on her answer. Why would this have to be here, given that usually when we're dealing with private land -- unless a person has some rights to do something on that private land -- this would be implied anyway?

Hon. A. Edwards: A free miner has certain rights on private land. You may know that a free miner can explore for minerals except within the curtilage of the buildings, the residence. This is just to clarify very clearly that although they are allowed to carry out exploration activities, they are not allowed to obstruct or interfere with an operation or activity. "The right of entry...does not extend to (a) land occupied by a building...." This is all under section 9 of the act, and there is a list of seven things there. I don't want to extend this, but that is just to try to clarify what the rights of a free miner are.

Section 15 approved.

R. Neufeld: Noticing the hour of the evening.... I believe 10 o'clock was the time designated to finish the debate tonight. I move we rise, report progress and ask leave to sit again.

Interjections.

The Chair: Shall section 16 pass?

G. Wilson: On a point of order, we canvassed with the Government House Leader earlier on what time we would rise, and the time was 10 o'clock. I think that....

The Chair: I'm sorry, member, but the Chair has absolutely no concern whatsoever with whatever arrangements might have been made between the respective caucuses. I am merely responding to what I hear in the House.

G. Wilson: Which is the reason that I called for a division.

The Chair: I'm sorry, member. I did not hear you call for a division. I heard some debate going back and forth with you and others on that side of the House.

Motion negatived on the following division:

[ Page 16589 ]

On section 16.

J. Tyabji: Why are these amendments being added? What is the purpose of them, basically, and what are the implications of these amendments for the Mineral Tenure Act?

[10:15]

Hon. A. Edwards: As you know, the tenure system requires that you maintain your title once you have it by doing a certain amount of work. There's a set amount of work, and there's a specific time limit. In some areas it may be preferable to change that set amount -- in other words, you might relax or adjust the requirements to respond to special conditions. Again, you need that kind of flexibility, so this allows you to give that kind of flexibility to the holders of claims rather than to require that they stick to specific requirements.

Maybe I could give you an example. If a person owns a set of claims, a number of units, and wants to do some work, and in order to make the whole set work, it would make much more sense to put....

J. Tyabji: What are the implications of this section for the changes that we saw to the mineral reserve earlier in this bill, and how is that going to affect mining?

Hon. A. Edwards: There were no changes to the mineral reserve.

J. Tyabji: It's been a while since we debated it, but my understanding was that earlier in the debate there were changes to the minister's powers with respect to the mineral reserve. Without looking at it specifically, is the minister saying that there are no changes that this section has any impact on?

Hon. A. Edwards: This is a stand-alone section.

Sections 16 and 17 approved.

On section 18.

J. Tyabji: Why was this section changed to specify the 30 days? How does that improve the situation of the free miners?

Hon. A. Edwards: The amendment makes it much clearer; it's 30 days instead of simply forthwith. It's specific.

Section 18 approved.

On section 19.

J. Tyabji: I know we're not on section 22 yet, but this makes a specific reference to section 22 of this bill in the explanatory notes. This amendment of the ten-year maximum referred to in that section is being changed to a limitation on the allowable number of years under that section. What is the difference there? Why is that being specified? Is the allowable number of years going to come in by regulation, or is that going to be specified later on? I don't see that.

Hon. A. Edwards: I think it would make more sense, if the member agrees, if we could debate this under sections 21 and 22.

Interjection.

Hon. A. Edwards: Okay. I think it would be easier to do it under sections 21 and 22, but if you want to do part of that, we can. This is consequential to the amendments that are made under sections 21 and 22.

J. Tyabji: I don't mind if we take section 19 to sections 21 and 22, provided we'll be able to come back and ask questions about the change that's been made in section 19 when we get there, because otherwise we'll get called to order.

Hon. A. Edwards: Hon. Chair, could we please stand this aside until we do sections 21 and 22?

On section 20.

G. Wilson: I'll ask just a quick question, and then I'll yield to my friend and colleague from....

J. Tyabji: Friend?

G. Wilson: Yes, he's a friend.

J. Tyabji: He's a friend?

G. Wilson: Yes, from North Vancouver-Seymour.

J. Tyabji: I thought he was still with the Liberal caucus.

G. Wilson: Section 20, section 23(3.1) says: "...the gold commissioner may refuse to record a claim until (a) the free miner confirms to the satisfaction of the gold commissioner that there exists open-ground...for the claim under application...." There are two things that I have questions on here. One, it talks about the satisfaction of the gold commissioner, and once again this provides authority to the gold commissioner that is not clear with respect to what those provisions should be. The second is about what I think is a fairly classic 

[ Page 16590 ]

explanation of open ground, and I want to make sure that this open-ground provision is as it would normally be applied under the Mineral Tenure Act. Or is there some other meaning associated with that in terms of its regulation?

Hon. A. Edwards: It might be most useful to use an example. When Eskay Creek was discovered and the companies were trying to establish who owned it, there were layers and layers of claims over the ground. There were seven years of litigation before it was determined just exactly whose claim was where. This is a courtesy to the industry so that they will have some rules so the gold commissioner can keep this straight and we can avoid, I would think, a significant amount of litigation by making this amendment.

D. Jarvis: Present people being excluded -- referring to the chief gold commissioner -- would the minister not agree, though, that an unreasonable person or a political appointee could cause havoc in the industry? What is there in this section to preclude that unreasonable person taking advantage of a situation like this?

Hon. A. Edwards: This basically says that you will deal with one dispute at a time, and that clarifies things and makes it easier. It makes it much simpler and faster to get to a conclusion on issues of claim.

D. Jarvis: Under section 20, section 23(8) says: "A decision of the gold commissioner under this section may be appealed to the chief gold commissioner." Shouldn't that deal with the nature of the appeal? It doesn't say what happens after the chief gold commissioner acts.

Hon. A. Edwards: What it really says is that you can't take the gold commissioner to court. I mean, this is an administrative action that the gold commissioner is going to make, and the gold commissioner cannot then have an action brought against him or her for doing their administrative duty.

J. Tyabji: I'm just wondering what the provisions are. It says here that the gold commissioner may refuse to record a claim until the free miner confirms to the satisfaction of the gold commissioner that open ground exists. What is the process for that? I'm not sure to what extent we've covered that so far, because it's late in the evening. We've talked about the gold commissioner having a lot of authority and powers here. Is there going to be something prescribed by regulation?

Hon. A. Edwards: It certainly would require a land survey; it could require a legal survey; it should involve a search of title.

Interjection.

Hon. A. Edwards: Land survey, legal survey, search of title: all of these things would be involved.

J. Tyabji: Will there be something prescribed by regulation or will some sort of guidelines be set out in writing, so that the free miner will have an idea about what the free miner has to do in order to provide the gold commissioner with evidence that open ground is available?

Hon. A. Edwards: There's no way this would come into play unless the gold commissioner had reason to believe that the land had been staked. If the gold commissioner has reason to believe that it is staked, the person who wants to stake another claim has to prove that it is not staked, that it is open ground.

J. Tyabji: It says that the decision of the gold commissioner under this section may be appealed to the chief gold commissioner. What is the process of that appeal? How does that work? In the event of it going to the chief gold commissioner and the free miner not feeling that justice has been addressed, what happens then?

Hon. A. Edwards: There is an immediate level for appeal. The gold commissioner would be making that decision, and the person who feels aggrieved could take that to the chief gold commissioner for appeal. The chief gold commissioner would have to determine that he is satisfied with the facts and with the process and would be willing to hear what had been put forward to the gold commissioner.

J. Tyabji: So basically you have a duplicate process. There's a gold commissioner -- who's a civil servant -- who sets the standards through which he or she is going to be deciding whether or not the free miner's claim will be accepted. If the free miner's claim is not accepted, they move to the chief gold commissioner, who has the same freedom to set the standards by which a claim will be accepted or refused. It seems to me that it's a fairly closed system. Maybe the minister could shed some light on that. It looks like the free miner could end up getting frustrated twice and still have no avenue for a proper hearing if they feel that they haven't received one.

Hon. A. Edwards: This is an attempt to determine whether the ground is open. There are seven gold commissioners. Their decisions can all be appealed to the chief gold commissioner, which will require.... Because that is there, there will be a certain degree of consistency across the province and a way to determine whether the ground is open. There are requirements for filing claims, and those requirements will have to have been met if there isn't open ground. If there is open ground, then those requirements will not have been met.

J. Tyabji: What is the definition of open ground, and which other ministries are involved in that definition?

Hon. A. Edwards: Open ground is where there is no claim. The claim would be made to the gold commissioner.

G. Wilson: I just have two questions around that issue. Subsection (3.1)(b) says: "...the free miner makes a complaint under section 35 as permitted by section 20 (2.1)." Section 35 of the act deals with complaints as to title, and it also deals with the performance of exploration and of development. Section 20(2.1) says: "Notwithstanding subsection (2), a free miner may commence a location over ground that is encumbered by a previous mineral title where he intends forthwith to make a complaint under section 35." What we've got here is that the free miner confirms to the satisfaction of the gold 

[ Page 16591 ]

commissioner that there exists open ground, or the free miner may make a complaint under section 35 or, as I read section 20(2.1), simply has to notify their intentions to make a complaint in order for commencement to occur.

[10:30]

Now, there are two questions of concern. First of all, under this act a free miner no longer has to be Canadian. This free miner can now be a non-citizen who can come into this country and serve notice under our regulation of complaint as to title and performance. This free miner can then seek to commence work under section 20(2.1), where there is an intention to forthwith make a complaint under section 35, and if the gold commissioner is satisfied with that, they will allow that action to take place over a prior claim. That's as I read this act, and if I'm mistaken, maybe the minister could show me where.

Hon. A. Edwards: First of all, a free miner would have to have established residence -- we went through this in very great detail -- and have a permit to work here. This section says that if a free miner wants to make a claim, the gold commissioner cannot accept a claim if it's already filed, unless that person has said they're going to file a complaint under section 35. That would mean that they believe the first claim is illegal for some reason, and therefore the gold commissioner can then allow them to file a claim. They are going to make a complaint; it is going to be determined. If they said that the first claim is illegal, and they want to claim and stake that land, they can stake it and make the claim. Then there will be a determination of who has the claim. Unless they are going to make that claim, they can't simply overstake it and just sit there.

G. Wilson: We recognize that there is a provision within this act that suggests, under an earlier section which we've debated at length.... I don't want to go back through it except to draw reference to it. It talks about a valid mineral title over Crown land that is an a priori claim over Crown land. Therefore if a free miner who is non-Canadian -- I don't care if he's a resident here or not; he's not a citizen of this country -- comes in here, establishes through some acknowledged prior claim -- and let's use a first nations treaty claim -- that a complaint is going to be a permitted under section 35, as permitted under section 20(2.1), they can therefore move to have access to that mineral, if indeed that claim may be deemed by the courts to be valid. What that says is that somebody who has a valid claim can have their claim overridden by a non-resident who can come into the country and who, on the basis of a prior claim through the comprehensive claim process -- and we'll use the Nisga'a as an example, where they have rights to the minerals above and below the ground -- can now access minerals that are previously unclaimed, as I read this act.

Hon. A. Edwards: As I said before, this section is here to see that we deal with one dispute at a time. Any free miner can overstake a claim if they are going to file a complaint under section 35. Then that dispute as to who has the claim will be determined, but if the original claim is legal, then the person who has filed the claim -- overstaked, in other words, and filed the complaint -- will lose that claim. But they will have been allowed to stake it and file it because they are going to make a complaint. But all it says is that if you want to go into a discussion about the legality of the staking of this claim, we will let you stake a claim -- but only one at a time. The gold commissioner has the right to say: "All right, if you're going to make a complaint and we're going to deal with a dispute here, you can stake that claim now, because otherwise you might not be able to stake it. Then we'll determine it, and then one of the two will have the claim at the end of the determination."

G. Wilson: That seems to me to be a pretty tricky proposition here, especially when it says that a decision of the gold commissioner under this section is appealed to the chief gold commissioner. There isn't even an opportunity for adequate appeal and hearing on this process, other than simply going from one civil servant to a senior civil servant. This seems to be an extremely tricky proposition, because it suggests that if we're going to make a claim under section 20(2.1) -- i.e., that you serve notice that under section 35.... There's a whole host of reasons under section 35 why an interested person can make claim that essentially the title or performance of exploration is there. It seems to me that there can be stacked claims all over the province of British Columbia. What particularly concerns me about it is the fact that there is uncertainty with respect to this bill as to the jurisdiction that will be applied under the Treaty Commission process with respect to mineral rights. That's something where we are now finding disputes starting to come forward within the laws of Canada. We've got a situation here where there can be a provision for non-Canadian miners to come into this country and stack claims on the basis of joint stewardship agreements that could be negotiated with first nations people. In that event, that has to be a pretty scary proposition for anybody involved in the mineral industry. I think the minister would agree.

Hon. A. Edwards: I probably should have clarified earlier that this act has nothing to do with aboriginal land claims; this deals with mining claims and mineral claims.

G. Wilson: That just simply doesn't wash. This act deals with mineral tenure, and minerals are up for negotiation. The rights and jurisdiction over that is equal to that of any Crown land that's up for negotiation. We already discussed that under the definition section. The scenario I've just painted can take place, and it's my guess that it likely will. What better way is there to get an a priori claim over existing land claims than to have a stacked set of processes that go to an arbitration that is largely going to be heard by the chief gold commissioner? There isn't even an adequate appeal process in this bill.

Hon. A. Edwards: This has everything to do with mineral claims. It is very clear who owns mineral rights in the province: they're held by Crown provincial, Crown federal or they're privately owned; and if they are, then they're recorded. This is simply a matter of determining mineral claims. If you stake a claim, is it open ground? There's only one case in which you can stake a claim that isn't open ground. You can't prove that it's open ground to stake that claim if you're going to make a complaint about somebody else having filed previously. This can keep it to one complaint at a time, instead of stacking up seven people overstaking the same piece of ground. This is not a question of aboriginal land claims; this is a question of mineral claims.

G. Wilson: Maybe I wasn't being clear to the minister. I'm not suggesting that this is about aboriginal land claims per 

[ Page 16592 ]

se. What I'm saying is that this is about mineral tenure, and Crown lands containing minerals above and below the ground are up for negotiation. We know that, because we've seen that with the Nisga'a. We've now amended the definition of a free miner to no longer require Canadian citizenship. Whether they have to live here or not, they don't have to be citizens of Canada. We've now said that if you come in and file under section 35, which is a notice that you intend to complain, then you can, under subsection 20(2.1).... It says: "...a free miner may commence a location over ground that is encumbered by a previous mineral title where he intends forthwith to make a complaint under section 35." That's what it says. So what that means is that we can.... We can't stack seven high, but we can stack one high, and that application can be made by a non-Canadian citizen over those minerals that are currently Canadian-tenured; let me use that word. I think the minister has to agree that that's a fact.

J. Tyabji: I have to admit, maybe given the late hour, that I hadn't picked up on the implications of this section until the Alliance leader pointed it out in debate. But what seems pretty obvious in this is that when we take the accumulation of the sections -- obviously section 4 of the bill being the most contentious, because now we don't have to worry about directors of companies or free miners being Canadian citizens.... But with respect to the fact that the gold commissioner may refuse to record a claim if they choose to until the free miner makes a complaint under section 35 of the act -- and we know that in section 35(7) the chief gold commissioner may order the cancellation of the record of the claim effective as of the date it was recorded.... Obviously we'll get to that more when we get to that section.

Section 23 gives a lot of power to a gold commissioner. When we get to section 35 of the act, we're dealing with the chief gold commissioner. So how is it possible that section 23(8) says: "A decision of the gold commissioner under this section may be appealed to the chief gold commissioner"? This section of the bill includes subsection 23(3.1)(b), which refers to section 35 of the act, which deals exclusively with the chief gold commissioner.

G. Wilson: You're appealing to yourself.

J. Tyabji: Exactly. That's right. This appeal process is to the same person, effectively. How is this a fair process for someone, when the free miner affected could be actually a Canadian citizen -- someone with a long history -- and the person coming in to stake this claim could be coming from somewhere else?

Hon. A. Edwards: Section 20 of the bill, which deals with section 23 of the act, deals with whether or not the ground is open. When you move further, if an appeal were made under section 35.... It deals with the way an appeal can be made. It is not the whole.... I mean, the connection is simply not one that gives grounds for fear for the citizenship of all of us here. What we need to deal with here is that a gold commissioner has to be assured the ground is open. If they are not assured that the ground is open, they have to be assured that an appeal will be made saying the ground is not open. It is only on the basis of whether or not the ground is open for staking that this section applies.

The Chair: I think the minister's answer to the last question focuses rather effectively on what this section is about, and it seems to me that our debate has gone rather beyond the parameters of that section. I would offer that caution to members.

G. Wilson: I appreciate the caution. Let me come at this in a much more specific way so that we don't range beyond. Subsection 3.1(b) says: "...the free miner makes a complaint under section 35 as permitted by section 20 (2.1)." Who hears the complaint under section 35? The chief gold commissioner. Then it says under subsection (8): "A decision of the gold commissioner under this section may be appealed to the chief gold commissioner." How does the minister account for the fact that if a complaint under section 35 is to be heard by the chief gold commissioner, a decision of the gold commissioner is going to be appealed to the very individual who's going to make that decision?

Hon. A. Edwards: Under subsection (3.1)(a), it says the gold commissioner has to be assured that the ground is open. That decision -- whether the ground is open -- can be appealed to the gold commissioner, and the gold commissioner can say yes or no. Or the free miner may make a complaint under section 35, and the gold commissioner allows him or her to stake. I presume the only reason that there would be an appeal to the chief gold commissioner is if the free miner were denied the ability to stake, and the gold commissioner would decide right then that the ground was not open. It would not go to appeal unless the gold commissioner decided then that it should have been given and that it will go to appeal, and then the gold commissioner will decide on the other issue. But I don't see that this is a conflict in any way. This section deals only with whether or not the ground is open, and with whether or not they are allowed to file a claim.

G. Wilson: With all due respect, section 35(1) of the act says: "An interested person, or an employee of the ministry charged with the administration of this Act, may make a complaint to the chief gold commissioner" -- not the gold commissioner, the chief gold commissioner -- "that (a) a claim has been located or recorded contrary to this Act...." Then it lists a whole series of things that can be the basis of that complaint.

[10:45]

Section 20(2.1) of the existing act says: "Notwithstanding subsection (2), a free miner may commence a location over ground that is encumbered by a previous mineral title where he intends forthwith to make a complaint under section 35" -- i.e., a complaint to the chief gold commissioner. Then it says that a decision of the gold commissioner -- which may in fact be a secondary process under section 23(3.1)(a) of the bill, because it uses the conjunctive "or" -- or any decision that may be taken with respect to the satisfaction of that gold commissioner, which may in fact be challenged under section 23(3.1)(b) by a free miner, is going to be appealed to the very person who will hear the complaint under section 35.

So our concern that there would be no opportunity for appeal if you have a stacked claim stands. The minister has not clearly demonstrated to our satisfaction that there is going to be any process other than the chief gold commissioner to hear that.

Hon. A. Edwards: If the chief gold commissioner agrees that a free miner is going to make a complaint and is allowed 

[ Page 16593 ]

to complain, it will go to section 35, where the chief gold commissioner is going to make that decision. All the chief gold commissioner has to do in this case is ensure that the complaint has been made.

J. Tyabji: The minister has said repeatedly that section 20 of this bill -- which is section 23 of the act -- deals specifically with the open ground available. Could she tell me how section 23(3.1)(b) -- because section 23(3.1)(a) says "or" -- deals exclusively with open ground?

Hon. A. Edwards: How it deals with open ground is that the free miner who says that he or she is going to make a complaint is obviously making the claim that the ground is open, because the previous claim was not legal.

J. Tyabji: So the minister would agree that if there is some other process in place, whether it's the Treaty Commission or it's someone from an outside source where there is a joint stewardship arrangement or whatever it might be....

Interjection.

J. Tyabji: The minister is saying no. Could the minister tell me, then, how it's possible that this minister could say that land that is currently under negotiation for rights above and below ground is open ground for the purposes of this act and wouldn't fall under subsection (b)? How is that possible? Can we mail out the Hansard to all the people involved in that negotiation process so they don't bother with it?

Hon. A. Edwards: The member may know that there are aboriginal claims over all of British Columbia. That does not stop the operation of the Mineral Tenure Act, and it does not change the definition of open ground.

J. Tyabji: Notwithstanding that there may be overlapping claims, not all of those claims are sitting at the treaty negotiation table right now, and not all of them are going to be in the position that the Nisga'a are in, where they're going to have -- or they assume to have -- some sort of letter of intent with respect to mineral rights. Even though there might be other bands that are making comprehensive claims, they haven't sat down with duly appointed government representatives and negotiated rights to the minerals. If that happens, is the minister saying that she would not recognize those negotiated rights as open ground, and that they wouldn't fall under subsection (b)?

Hon. A. Edwards: The province owns most of the mineral rights in British Columbia, and this is how the province deals with the mineral rights that it owns.

Section 20 approved on division.

On section 21.

D. Jarvis: We're making remarkable progress. I would like to ask this. A claim can be held for one year after the date of record. Why is it just one year? Didn't it used to be ten years? Why could it not be ten years?

Hon. A. Edwards: It has always been one year.

D. Jarvis: I wasn't too sure on that. I don't have my act with me right at the moment; I've got notes that I started several weeks ago, and I'm trying to catch up on my own notes.

I have a question that I would like to ask the minister. It's on the question of cash, in the first paragraph, where it says: "...the recorded holder pays a prescribed recording fee and does one of the following..." -- dollars, cash in lieu of work, or whatever it might be. I understand that they used to be able to do work in lieu of cash or.... Is this another government tax grab?

Interjection.

D. Jarvis: That's okay.

Mr. Chair, I wanted to tell the minister that there is some opposition to the fact that they have to pay cash in lieu of a recording fee, where previously they could do work equal to cash. Why is that changed?

Hon. A. Edwards: It may be useful again to give you a bit of background on sections 21 and 22, which are connected. If the Chair will allow, we'll sort of push a bit. The opposition's concern, I believe, is that cash in lieu would now be set at the government's discretion within a certain range rather than being tied to the annual work requirement -- in other words, a concern that we would abuse our discretion to harm the competitive position of the industry. But that's not the case at all. The costs of acquiring and maintaining mineral claims in British Columbia are among the lowest in Canada, and we want to remain competitive.

Part of the rationale for this proposal is that we have to look at tenure maintenance and decide that it is on a rational basis. A mineral claim can be acquired by staking open ground. As I say, you have to do a specified minimum value of exploration work on the claim in order to maintain it. The work requirements aren't onerous. Again, the only required cash payments to government for claim maintenance are a $10 per unit fee for the initial recording of the claim and a $10 per unit fee for recording annual assessment work against the claim. If the work is not performed, you have an additional charge, and the cash in lieu is set exactly equal to the value of the required assessment work. In other words, you would pay $100 per unit for the first three years and $200 per unit for any subsequent year.

The incentive that we're trying is so that companies will perform exploration work. The money that they spend on exploration not only benefits them -- the company -- it also benefits society generally, in a way that money just paid to government doesn't give us a benefit. What we want is for companies to do the work; that is what the incentive is for. It's not designed to be a generator for government; it's designed to stimulate exploration work so that we can all benefit from that activity.

There are several issues that this raises. We want to make sure that the work that does go on is good work, not just make-work or inefficient work that is wasteful. You can't always do that with the one-size-fits-all system. You might have some unintended effects if you just make it a standard cookie-cutter approach. The intent of the amendment is to give us flexibility in setting the cash-in-lieu rate so that we can achieve a good balance.

[ Page 16594 ]

Obviously, we want to enact a regulation that maintains the status quo. We're not trying to make it go significantly differently. We will not introduce any changes to this until after we've consulted extensively with the industry, and in my mind there are as many good reasons to lower the cash-in-lieu rate as there are to raise it. Although the industry is concerned about the limit of 200 percent, the fact is that whether it's greater or lesser depends largely on other features of the system.

I'm going to give you an example so that it becomes clear, I hope. First of all, if you have a high cash-in-lieu rate, it encourages claimholders to apply for time extension orders in order to get the work done, or in order to get it done so that they don't have to pay the cash in lieu. That takes a lot of time off the staff, adjudicating cases and so on, so that would militate against a high level. We don't want to create a whole bunch of administrative nothing-work. Where there is an exploration that has confirmed a potential mine but where market conditions are unfavourable right now for developing that mine, it might make very little sense to require a company to carry out further work. Therefore you wouldn't want high cash-in-lieu rates there; there would be a reason to make them lower. On the other hand, if someone is holding a property for speculative purposes and therefore not doing the work -- in other words, they're sitting and waiting for somebody at the property next door to do the work, and they aren't doing theirs -- you may want to charge a higher rate. We need that kind of flexibility under section 21 to ensure that we can answer the situation as it exists, rather than a situation that doesn't exist -- in other words, something that's the same in every case.

D. Jarvis: It appears that 200 percent is an inordinately high amount. You may figure that it's only $10 here and there and all the rest of it, but it starts adding up. It is just another tax grab as far as the small free miner goes.

The aspect about, as I was saying.... You have it here for only one year, and this is at a time when most of the mining community is striving for some type of.... Well, there's a lack of certainty out there that ten years would.... If you were right in your original statement that you felt that you were in favour of the mining business and all the rest of it, you would think that you would want to give them a period of time that gives them some certainty. Why not ten years?

It's typical of what's happening out there. There's a distrust of the government and their motives for putting these minimum periods of time in the regulations and then a maximum at the dollar end of it. It appears that way all the way through this bill.

At this time I'll just turn it.... I'm finished with that aspect of the section.

Section 21 approved.

On section 22.

J. Tyabji: I'm trying to understand this. I understand that this is obviously linked to the section that we stood down; I think that was section 19. We were talking about prescribing the number of years. Perhaps it's minister would like to tie the sections together and tell us why there has been a change. Perhaps that's just a practical change. Further, when we're talking under section 26 about the excess that's used on the claim "to cover exploration and development requirements...." Where does that money come from? Is that the fee that has been paid in section 25?

[11:00]

Hon. A. Edwards: There are a number of reasons why one property would be developed at a different rate than another property, and why you would want to be able to respond to somebody's plans over a ten-year period. We expect that ten years will be in the regulations, but in fact it doesn't necessarily have to be in the legislation. As I say, we feel that we need flexibility that balances the intent. We want to encourage exploration, but we want to avoid incentives for wasteful work or for making people do work in a year when it may be wiser that they don't do work.

The carry-forward period is part of the equation. It allows exploration expenditures above the required minimum to be applied to meet the work requirement in future years. In other words, if you go up to more than you would have to in a single year, then you can carry that forward that into another year. That allows people the ability to shape their work to suit their particular pattern. For example, over an area of several units, it may make sense to put a whole lot of the work into two of those units this year and none into the others, and then move in another year to a different place. So it allows you to shape it in the sense of where you put the work and into which units. It allows you to shape how much work you put into a unit over a ten-year period. With that, you should get the most efficient way of dealing with the work that happens on a property, and you should be able to respond to the free miners' preference as to how they do the development work, how they put their money into this part of it or that part of it, or how they make the decisions on part of it before they go into developing another part of that same claim.

We think this flexibility adds a significant efficiency to it. We think that in many cases, it will as often require less work or less cash in lieu as it will more work or more cash in lieu. There is a limit to the amount over the current requirement, which has not changed. So there is certainly a limit, and the goal is to be flexible and to respond to sensible proposals.

J. Tyabji: I appreciate the detailed response from the minister. I'm still not clear, though. Does that mean that the gold commissioner will now be prescribing the time limits and that those time limits will be specific to each project? Or will they be specific to each category of project?

Hon. A. Edwards: In fact, if there is a requirement that applies to everyone, it will be in the regulations. The regulations will be made so that the flexibility is there, but there will be regulations that say that a certain amount of work is done or can be done, so that you can meet the template, if you like. If you are going to do so much work now, as long as you do this much work over a ten-year period, that will be allowed.

But it will give you a lot more flexibility if it can be done under regulations and not in the legislation. For example, there will be rules on such things as whether the physical work involved in site-clearing and site access would have the same carry-forward credit as geological work, where the geological work will be establishing the mineral potential. Those kinds of things will have to be decided. Those are the 

[ Page 16595 ]

kinds of things that we will be talking about with people in the industry and people who are interested before we bring the regulations into place.

J. Tyabji: I'm not sure if I got an answer. The minister is saying that there will be templates prescribing the time limit for each category of project. Is that correct? If so, who will draw them up? When will they be done, and what will the process be before they are completed?

Hon. A. Edwards: The Advisory Council on Mining will be central to this consultation process, to deciding what we put into the regulations so that we have the flexibility inside the regulations to deal with, as I say, a structure -- but a structure that has flexibility. I don't know what the time frame is. We certainly want to ensure that people are satisfied with it.

D. Jarvis: I just wanted to ask the minister: what is going to preclude changes from one or two years at the whim of the minister? There doesn't seem to be any protection for mineral tenure.

Hon. A. Edwards: This is for work on the property maintenance of claim, and it will be regulated under the regulations.

Section 19 approved.

Sections 22 to 25 inclusive approved.

On section 26.

G. Wilson: I just wonder if the minister might provide some explanation with respect to this expanded forfeiture-for-non-compliance provision, because it seems a little bit complicated. It refers forward to section 27, which we're going to get to in a minute. In looking at the existing act, it tends to break down the requirements for a mineral reserve and claim maintenance provisions, which, I think, are not covered now. I just wonder exactly what the distinction is, because it expands those requirements. Clearly it's not covered under the existing act, and I just wonder what the reason was for that inclusion.

Hon. A. Edwards: It's just that section 18 of the Mineral Tenure Act has a different schedule than section 25; they're separate activities.

G. Wilson: I'm sorry, I didn't quite hear that response. It expands that activity, you say, under section 25. Is that what you said?

Hon. A. Edwards: The intent is the same as what exists. But work requirements are now dealt with under sections 18 and 25, and they're different sections.

G. Wilson: Well, maybe I'm reading more into this than is there. The minister can explain that. But it seems to me that there is a forfeiture for non-compliance with respect to section 26 of this act, but it also now includes the claim maintenance requirements. That seems to me, under this section, to be an addition. Is that not correct?

Hon. A. Edwards: There has always been forfeiture for non-performance, but now the work can be performed under two sections: 18 and 25.

G. Wilson: Non-performance with respect to claim maintenance is now being covered under those two sections. Is that correct? Therefore section 27 becomes relevant with respect to the provisions of how that's applied.

Hon. A. Edwards: That's completely separate from section 27 of the bill.

Section 26 approved.

On section 27.

G. Wilson: The minister says that it's completely separate from section 27; however, if I can just read the explanation of sections 26 and 27 -- I believe this is relevant to section 27 -- the second portion of that says: "...a title will forfeit if the title holder does not perform claim maintenance requirements for a mineral reserve established under section 18 of the Mineral Tenure Act, and repeals a provision now covered by section 27 of this Bill." Section 27 clearly does apply.

According to the explanatory note, it says that this extends the existing inclusion provision applicable to the forfeiture of a claim to allow for an inclusion if there is an abandonment or -- and I think this is where this becomes relevant -- reduction in the size of a claim. We need to have that explained quite clearly. This is an addition to section 31.1 of the existing Mineral Tenure Act, which is already fairly specific with respect to how forfeiture will work.

Hon. A. Edwards: This section was requested by the ministry. It's a mechanical thing. It deals with such situations as a forfeiture of part of a claim where the balance of the claim can be absorbed into their other claims. They own a claim here and a claim there, and if there's a forfeiture of part of claim A, the balance of claim A can then be incorporated into claim B. It's what some of the owners wanted in order to better deal with the situation as to claim ownership. It's a mechanical thing. It shouldn't change what happens, but it does change how the companies can deal with what they have left if they have a forfeiture.

G. Wilson: I think I understand it. We're talking about contiguous claims now, and we're dealing with a situation where somebody may, through forfeiture, basically consolidate two into one to allow for that to be a.... That makes some sense. Okay.

Sections 27 and 28 approved.

On section 29.

G. Wilson: Section 29 deals with the substitution of section 35 of the act, which is repealed. This section provides some pretty wide-ranging powers to the gold commissioner. We have to note that. We notice that the amendments almost exclusively expand those powers of reporting and review, and the opportunity by which the gold commissioner can take a complaint.

I wonder if I might just draw the minister's attention, first of all, to section 35(7). With respect to these provisions, the chief gold commissioner may: "...(a) dismiss the complaint, (b) order the cancellation of the record of the claim effective as of the date it was recorded...or (c) make any other order that 

[ Page 16596 ]

he or she considers appropriate...." Again, we need to look at the matters with respect to provisions for appeal and litigation, and to what kind of compensation may be deemed for a person who may be affected by such cancellation if, through final litigation, that has proven to be a wrong decision.

[11:15]

Hon. A. Edwards: That particular section did not change from the previous act. It was section 9, I believe, in the act, but it's now section 35(7). But what would happen is that if the gold commissioner had caused a claim to forfeit, and the appeal said it should not have been forfeited, then the claim would go back to the claimholder.

G. Wilson: I have just one more question with respect to that. In changing those numbers around, essentially the powers that are provided to the gold commissioner are whether or not that complaint will proceed or whether it's rejected. So it provides discretionary powers to the gold commissioner, whereas before that complaint had to be heard. Is that correct?

Hon. A. Edwards: That's correct.

D. Jarvis: I wonder if the minister could define an "interested person" under section 35(1), because in my opinion that could create a lot of problems.

[G. Brewin in the chair.]

Hon. A. Edwards: It's not defined here, but an "interested person" is defined in law as a person who has an interest; therefore it is someone whose interest would be affected. That would be defined by who was hearing the case, but it would basically be someone who might have overstaked a claim, for example, or someone who feels that their claim has been overstaked, or an employee of the ministry.

D. Jarvis: Section 35(4)(b) it says that the chief gold commissioner must "accept the complaint for consideration or reject the complaint...." Should there not be some kind of appeal provision in the event that the complaint is rejected?

Hon. A. Edwards: Yes, the appeal provisions include that.

D. Jarvis: Under section 35(6), I wonder if the provisions to require parties to provide copies of all the material and filings to the other side are vice versa, as well.

Hon. A. Edwards: Yes.

G. Wilson: I just wonder what powers of subpoena the gold commissioner is provided, given that this section of the act provides an opportunity for the gold commissioner to actually summon witnesses, and if there is in fact a power of subpoena that would be provided, and if the evidence that's provided is covered by a separate act.

Hon. A. Edwards: All of those things are outlined under the Inquiry Act. As you see under subsection 35(10), "the chief gold commissioner has the powers, privileges and protection of a commissioner under sections 12, 15 and 16 of the Inquiry Act."

Sections 29 and 30 approved.

On section 31.

D. Jarvis: Whoa! We're rushing this bill too fast.

I'd like to ask the minister about section 31, section 37.1. I'm confused about the need for this section, and I want to know what the mine development assessment program or the Environmental Assessment Act will do for the small miner.

Hon. A. Edwards: We would require that a mine have.... You can't get a lease without getting a mine development assessed under the MDA or the Environmental Assessment Act. I offer no defence for that. You simply can't do a mine unless you have environmental assessment approval.

G. Wilson: It's interesting to read the existing act and note what is being substituted here. The little definition suggests that this "clarifies the process for the issue of a mineral lease over a mineral claim, vests the power to issue mining leases in the chief gold commissioner, and allows for one or more extensions of a mining lease." Throughout this entire bill we have seen expanded powers offered to the gold commissioner and the chief gold commissioner. This is one more area in which that occurs.

Under section 37(3), we see that such discretionary power is again provided: "If the gold commissioner is satisfied that the recorded holder has met all of the requirements of subsection (2), the gold commissioner must refer the matter to the chief gold commissioner along with any recommendations...." Then subsection (5) says: "If the lessee complies with this Act, the regulations and any conditions of the mining lease issued under subsection (4), the lessee is entitled to a renewal of the mining lease for one or more further terms not exceeding 20 years...."

It seems that what the minister is doing is providing a civil servant -- the gold commissioner -- with a tremendous amount of power with respect to the initial provision of a licence.

Interjection.

G. Wilson: For the purpose of the Minister of Energy, Mines and Petroleum Resources, he is sitting right behind you -- an enormously powerful person; a great deal of dollars. This provides an enormous amount of power. I wonder whether or not there is a provision for review. My guess is that you're likely to find that the chief gold commissioner and the gold commissioner may change. It's not that I'm suggesting for a minute that this gentleman is going to be out of a job, but they will change. If there is a tenure that is considered to be in any way contentious, there should be a review process. That's the standard procedure under most Crown grants and licences; yet that doesn't seem to be here. I wonder why.

Hon. A. Edwards: This process in which the gold commissioner simply sees that the survey is in order -- those 

[ Page 16597 ]

kinds of technical issues -- can proceed concurrently with the process of an application for an environmental assessment under the Environmental Assessment Act for a mine certificate. This is part of the permitting that goes along with the.... It's actually the giving of the lease; I guess it's improper to call it permitting. There are other permits that go along.... These things can happen concurrently, but the proponent has to take this through an environmental assessment process. The chief gold commissioner can deal with this at the same time that that's going ahead, so the lease would be issued as the environmental assessment certificate is issued.

Section 31 approved.

On section 32.

G. Wilson: I just wonder if we could get a brief explanation as to why section 38 of the Mineral Tenure Act is being repealed.

Hon. A. Edwards: I think that the short phrase is certainly that it is a "spent provision." We simply no longer need this because it's dealt with otherwise.

G. Wilson: That's not really a very convincing argument. Section 38 is the "Conversion of existing mineral leases to mining leases." That's what this section deals with, and we just repealed it. Basically, it talks about obligations of payments of rental under section 45. It talks about rights attaching to mineral leases under the act, and so on. Section 38(2) also says: "No compensation is payable as a result of the operation of subsection (1)" -- effectively the "existing leases of minerals of whatever description issued under the former Acts are converted to mining leases...." I wonder what the significance is of getting rid of that.

Hon. A. Edwards: Since the time that this Mineral Tenure Act came into place, all the mining leases have been converted and there's no longer any need for it.

Sections 32 to 38 inclusive approved.

On section 39.

D. Jarvis: One quick question to the minister: why?

Hon. A. Edwards: That was a hard one, but we got it. In the definitions section it is now defined that it can be himself or his agents. We don't need to put "himself or his agent" in the act now.

Section 39 approved.

On section 40.

G. Wilson: I wonder if the minister might just give us a brief explanation specifically of section 60(1) -- paragraphs (g.1) and (g.3), which are additional paragraphs.

Hon. A. Edwards: These two paragraphs try to deal with the flexibility that we are going to be able to achieve through the regulations. As I say, you're going to have calculate the amounts for maintenance of claims in lieu of exploration and development. If you have that flexibility, then you have to be able to deal with it by regulation. This allows that to happen under paragraph (g.1).

Under paragraph (g.3), again we talk about bulk samples. We are going to allow more flexibility there so that people are not stuck with a certain number of tonnes, which would be a bulk sample for a certain kind of ore but not appropriate for another. In order to do that, under regulation you're going to be able to prescribe what a bulk sample is and how it will be treated, the time for it, and whether it's different for a placer mine or another mine. Basically these are allowing the regulation to be put in place to give the flexibility that we said would result from this amendment.

G. Wilson: Is there a provision within the act for some formula with respect to calculation under section 60(1)(g.1), or is that simply done by regulation?

[11:30]

Hon. A. Edwards: There is no formula in the act for this. It will be set in regulations, and those regulations, as I said, will be discussed and then put in place.

G. Wilson: Clearly they're not going to be discussed with members of the Legislature. I wonder why the formula wouldn't be included within the act. It would seem to me that that would provide some provision for some standardization.

Hon. A. Edwards: We just debated all that in sections 21 and 22.

G. Wilson: Well, I'll yield to the minister if she says that we debated it under those two sections. I'm not sure that we did, but.... Is there a provision for the publication of those regulations on an annual basis? I would assume that there is some provision for some discussion with respect to consultation on those formulas and rates.

Hon. A. Edwards: We've promised extensive consultation. As I said, it would be centred on the Advisory Council on Mining, first of all, and those consultations will go forward. Of course, before you do regulations, you gazette them.

Sections 40 to 42 inclusive approved.

On section 43.

G. Wilson: Just a really quick question to the minister, which the Minister of Employment and Investment might actually want to answer. Does the building of railway beds include those beds before or after the off-loading of the cost of railway taxation to the municipalities?

Hon. A. Edwards: I simply want to say that I appreciate the question, and I know that the answer will be pleasing when we get it.

Sections 43 to 48 inclusive approved.

Title approved.

[ Page 16598 ]

Hon. A. Edwards: I move the committee rise and report the bill complete with amendment.

Motion approved on the following division:

The House resumed; the Speaker in the chair.

Bill 13, Mineral Tenure Amendment Act, 1995, reported complete with amendment to be considered at the next sitting of the House after today.

Hon. G. Clark moved adjournment of the House.

Motion approved.

The House adjourned at 11:39 p.m.

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