{"id":604,"date":"2023-05-06T21:38:05","date_gmt":"2023-05-07T01:38:05","guid":{"rendered":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/chapter\/__unknown__\/"},"modified":"2025-02-07T22:59:32","modified_gmt":"2025-02-08T03:59:32","slug":"natural_resources_case-kemess","status":"publish","type":"chapter","link":"https:\/\/pressbooks.bccampus.ca\/landuseplanninginbc\/chapter\/natural_resources_case-kemess\/","title":{"raw":"Case. Kemess North: Rights, Title, and Subsurface Resources","rendered":"Case. Kemess North: Rights, Title, and Subsurface Resources"},"content":{"raw":"
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Learning Objectives<\/strong><\/h2>\r\n<\/header>\r\n
The environmental assessment of the Kemess North gold and copper mine is unique for many reasons.\u00a0 From a natural resource land use planning perspective, the assessment process offers important insights about how conflicts among private rights to subsurface minerals, provincial strategic land use planning, and title and rights of Indigenous Nations are addressed.\u00a0 In particular, the Kemess North case highlights the efforts of the Tse Keh Nay, a tripartite coalition of Indigenous Nations in northern British Columbia, to oppose the development of this mine within their traditional territories.\u00a0 This case includes a review of mineral tenure law in BC, for which rights to subsurface resources centre on \"free entry\" of mining proponents.\u00a0 This review is followed by a history of the Kemess North development proposal, and the corresponding environmental assessment in relation to Tse Keh Nay rights and title.\u00a0 Students are encouraged to consider strengths and weaknesses of regional land use planning, including consultation protocols in British Columbia.<\/div>\r\n<\/div>\r\n

\u00a0<\/strong><\/p>\r\n\r\n

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Unceded traditional territor<\/strong>ies<\/strong><\/h2>\r\n<\/header>\r\n
This case describes places and activities on the unceded lands of several Indigenous Nations of the Dakelh and Sekani language groups of Athabaskan ancestry.\u00a0 The Fort Connelly First Nation, Gitxsan House of Nii Kyap, Kwadacha First Nation, Takla Lake First Nation[footnote]In 1959, the North Takla Band and the Fort Connelly Band amalgamated to form Takla Lake First Nation.[\/footnote], and Tsay Keh Dene First Nation were at the forefront of the Kemess North mining development.<\/div>\r\n<\/div>\r\n
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\r\n\r\nBritish Columbia (BC) boasts considerable subsurface resources, including coal, gold, copper, industrial minerals (sulphur, silica, etc.), and construction aggregates (gravel, sand, limestone, etc.).\u00a0 Consequently, there are major mines operating throughout the provincial land base, with hundreds of smaller aggregate and seasonal mines.\u00a0 According to the Mining Association of British Columbia<\/a>, the mining sector employs directly and indirectly more than 35,000 people and contributes $18 billion to the provincial economy.\u00a0 Offsetting the benefits of economic development, the exploration and extraction of these mineral resources has had profound influences on the province.\r\n\r\nThe Province of British Columbia, like other provinces, owns all subsurface rights, including the rights to access to minerals, natural gas, and petroleum resources.\u00a0 Rights to access these resources are referred to as subsurface property rights.\u00a0 Various laws and regulations govern how the province may dispose these rights to others.\r\n

When Northgate Minerals Corporation proposed to develop the Kemess North copper\/gold mine in 2003, everyone expected that this project would be approved.\u00a0 The first sign that the outcome might be different appeared when a joint Federal-Provincial panel review was announced in 2004.\u00a0 At the time, these joint reviews were the most comprehensive assessment procedures practised and, prior to Kemess North, had never been used when conducting a mine assessment in BC.\u00a0 As it turned out, the panel\u2019s recommendation was also unprecedented in BC:\u00a0 the project was not approved as proposed.<\/p>\r\nWhile Kemess North is a milestone case for recognising Indigenous interests through an assessment process and an inspirational tale of environmental justice, the case also highlights fundamental shortcomings involved in asserting Indigenous title and rights to subsurface resources on a project level.\u00a0 It is critically important to acknowledge that natural resource developments occur not only on Crown land\u2014but on the traditional territories of Indigenous Nations, as evident in the following map (Figure 1).\r\n\r\n<\/div>\r\nFigure 1.\u00a0 Location of mineral claims in relation to Indigenous lands across Canada\r\n\r\n[caption id=\"attachment_1158\" align=\"alignnone\" width=\"801\"]\"Map_mining_Indigenous Used with permission by The Pew Charitable Trusts.[\/caption]\r\n\r\n

\r\n\r\n \r\n\r\nIn the past, natural resource planning was considered a matter of land use planning for Crown lands.\u00a0 Indigenous Nations were considered only as stakeholders, as opposed to a government.\u00a0 Yet much has changed over the past few decades as Indigenous title and rights have been recognised incrementally and increasingly through Canada case law decisions.\u00a0 Moving forward, natural resource planning can only be viewed as a joint planning process between the Federal or Provincial governments and Indigenous Nations.\u00a0 That is, natural resource planning must be viewed as government-to-government land use planning.\r\n\r\nThis lack of recognition of Indigenous rights is embedded in the \u201cfree entry\u201d system that is the foundation of BC\u2019s subsurface property rights regime.\u00a0 The \u201cfree entry\u201d system is the term used to describe the process to obtain rights from the province to subsurface minerals.\u00a0 This system, under the Mineral Tenure Act<\/em><\/a> ([RSBC 1996] Chapter 292), enables almost any person to apply for a mineral claim almost anywhere in BC.\u00a0 All one has to do is apply for Free Miner Certificate, pay the fee, and register their claim on line<\/a> through the BC Mineral Titles Branch.\u00a0 A claim can then be issued without either the claim owner or the government contacting the owner of private land or an Indigenous Nation of unceded traditional territory.\u00a0 No consultation or consent is required.\r\n\r\nIn 2021, the Gitxaala Nation sued the Province of British Columbia over the free entry system (Box 1).\u00a0 In September, 2023, the BC Supreme Court ruled that the province's mining permit system is not in compliance with the government's duty to consult Indigenous groups.\u00a0 The province was given 18 months (until March, 2025) to introduce a new system.\r\n\r\n \r\n
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Box <\/strong>1<\/strong>.\u00a0 \u2018Free entry\u2019 system challenged in court by Indigenous Nations<\/strong><\/strong><\/h2>\r\n<\/header>\r\n
The Gitxaa\u0142a Nation and Ehattesaht First Nation took their case against free entry to the Supreme Court of British Columbia (SCBC).\u00a0 Their primary arguments were that BC\u2019s mineral tenure regime violates Indigenous rights to land, fails the constitutional duty to consult, and contravenes the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).\u00a0 Jessica Clogg a lawyer for the Gitxaa\u0142a First Nation, argued, \u201cThe reality is that the Mineral Tenure Act<\/em> regime results in Indigenous Peoples being dispossessed of critical aspects of their title and rights to resources without any consultation or consent, which is clearly contrary to the articles of UNDRIP.\u201d[footnote]Charlebois, B. (April 3, 2023). \u201cGitxaa\u0142a First Nation slams B.C.'s 'outdated' mineral rights system in court challenge over consent<\/a>,\u201d The Canadian Press.[\/footnote]\u00a0 In September, 2023, the SCBC ruled that the province owes a duty to consult and this duty is triggered when a mineral claim is issued.\u00a0 [footnote]Gitxaala v. British Columbia (Chief Gold Commissioner)<\/em>, 2023 BCSC 1680<\/a>.[\/footnote]Justice Alan Ross ordered the province, within 18 months, to amend the current free entry regime to allow for consultation with Indigenous nations.\u00a0 While this ruling was praised by Indigenous Nations, Justice Ross also reached conclusions about BC\u2019s Declaration on the Rights of Indigenous Peoples Act <\/em>(S.B.C. 2019, c. 44) (DRIPA) that are of concern to Indigenous Nations.\u00a0 Justice Ross ruled that DRIPA is not enshrined in BC law and, therefore, can only guide court decisions as an interpretive aid.<\/div>\r\n<\/div>\r\n \r\n\r\nAmid these questions and concerns about rights to subsurface resources, the lack of formally recognised regional land use plans that accommodate multiple interests has implications for all parties.\u00a0 In particular, regional land use planning, if done well, is widely considered as a potentially important, if not essential, mechanism for recognising and asserting Indigenous title and rights over traditional territories.[footnote]Clogg, Jessica (2007). Land Use Planning: Law Reform. West Coast Environmental Law, p. 1.[\/footnote]\u00a0 In the absence of joint land use plans between the Province and Indigenous Nations, the joint environmental assessment panel decision applies only to the project as proposed to the panel, so the potential exists for similarly controversial development proposals\u2014and the need to start a new review process.\r\n\r\n \r\n

The <\/strong>Kemess<\/strong> North Copper-Gold Mine Project<\/strong><\/h2>\r\n

Between 1998 and 2011, Northgate operated the Kemess South Mine (mineral lease # 354991).\u00a0 In 2001, exploration activities revealed substantial mineral deposits in an area approximately five <\/span>k<\/span>ilometres<\/span> north of the existing mine site.[footnote]Gray, J H., R J. Morris, A Arik, and F C. Edmunds (2005). \"Technical Report \u2013 Revised Mineral Reserve and Resource: Kemess North Project.\" GR Technical Services, p. 4.[\/footnote]<\/span>\u00a0 The bid to develop these deposits would eventually become known as the <\/span>Kemess<\/span> North Project.<\/span><\/p>\r\n\r\n<\/div>\r\n \r\n

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Perspective<\/strong>:\u00a0 <\/strong>Kemess<\/strong> North Participant<\/strong><\/h2>\r\n<\/header>\r\n
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The Kemess South mine was controversial for the communities.\u00a0 Blockades went up.\u00a0 But the lack of public support behind their opposition resulted in very cornered communities.\u00a0 Ultimately the mine went through.<\/p>\r\n

Source: A<\/span>nonymous (personal communication, June 20, 2010).<\/p>\r\n\r\n<\/div>\r\n<\/div>\r\n \r\n

\r\n\r\nThe Kemess North mine site is part of an area owned by Kemess Mines Ltd., a subsidiary of Northgate Minerals Corporation.[footnote]Refer to the case Updates for recent developments at this mine site.[\/footnote]\u00a0 The Kemess property, shown in Maps 1 and 2, covers roughly 34,000 ha in north-central BC, approximately 430 km northwest of Prince George.\u00a0 Large portions of the Kemess property were given to Northgate as compensation for the expropriation of the Windy Craggy mineral rights during the creation of <\/span>Tatshenshini<\/span>-Alsek Provincial Park.\u00a0 <\/span>Northgate owns surface rights to the entirety of the property, as well as to two inactive mineral leases (#410732, #410741).\u00a0 It also <\/span>has registered 206 mineral claims.\r\n\r\n \r\n

Map 1.\u00a0 Kemess Property Location in BC<\/p>\r\n\r\n\r\n[caption id=\"attachment_1161\" align=\"alignnone\" width=\"752\"]\"Kemess Source: base map from iMapBC<\/a>.\u00a0 Licensed under the Open Government Licence \u2013 British Columbia.<\/a>[\/caption]\r\n\r\n \r\n

The Kemess Property and its associated mineral tenures overlap with the traditional territories of the Fort Connelly First Nation, Gitxsan House of Nii Kyap, Kwadacha First Nation, Takla Lake First Nation, and Tsay Keh Dene First Nation (hereafter the \u2018Five Nations\u2019)[footnote]The names of these Indigenous groups are the names used in formal submissions<\/a> during the environmental assessment process.[\/footnote].<\/p>\r\n \r\n

Map 2.\u00a0 Kemess North and South Mine Locations<\/p>\r\n\r\n\r\n[caption id=\"attachment_1162\" align=\"alignnone\" width=\"752\"]\"Kemess Source: base map from iMapBC<\/a>.\u00a0 Licensed under the Open Government Licence \u2013 British Columbia.<\/a>[\/caption]\r\n\r\n<\/div>\r\n

\u00a0<\/span><\/p>\r\n\r\n

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Mackenzie Land and Resource Management Plan<\/strong><\/h2>\r\n

As part of province-wide regional planning (Box 2), t<\/span>he <\/span>Mackenzie Land and Resource Management Plan (Mackenzie LRMP)[footnote]Integrated Land Management Bureau [ILMB] (2001). Mackenzie Land and Resource Management Plan.<\/a> Province of British Columbia.[\/footnote] was initiated in 1996 and ratified in 2000, a seemingly ideal timeframe to anticipate and resolve potential land use conflicts associated with the <\/span>Kemess<\/span> North mine. <\/span>The Kemess Property is contained entirely within the Mackenzie LRMP<\/span>. However, both the Mining Association of British Columbia and (most) <\/span>Indigenous groups<\/span> were notably absent from the <\/span>Mackenzie LRMP process. <\/span><\/p>\r\n\r\n<\/div>\r\n \r\n

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Box 2. \u00a0 Regional land use planning in BC<\/strong><\/h2>\r\n<\/header>\r\n
Regional land use planning was first introduced in British Columbia in the early 1990s as a mechanism for reducing conflict among resource users and incorporating principles of public participation into the management of public lands.\u00a0 While land use plans have evolved over time, resulting in the creation of plans at several different spatial scales, the regional Land and Resource Management Plans (LRMPs) are the most significant land use planning efforts for public lands in the province.\u00a0 Ninety-four percent of BC is comprised of provincial public land and existing land use plans cover over 90% of this land base.\u00a0 An LRMP provides general management direction for the entirety of a planning area.\u00a0 The land area is further divided into specialised Resource Management Zones (RMZs) with specific objectives and strategies for each zone.\u00a0 At the sub-regional or watershed level, LRMPs are supported by Sustainable Resource Management Plans (SRMPs), which include areas designated as Special Management Zones (SMZs).<\/div>\r\n<\/div>\r\n \r\n
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Learning Module\r\n<\/strong><\/h2>\r\n<\/header>\r\n
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