Mining and the common good

It is far from unusual in this business to meet someone convinced he is the owner of fabulous mineral riches. In many cases, of course, the riches are fabulous in the narrow sense of the word — a fable. But in other cases, the conviction rests on a misunderstanding of the law.

Such is the difficulty that surrounds negotiating with a landowner for access to mineral rights. Many landowners are certain they have a deed whose provisions and entitlements extend all the way to the earth’s core. And this is the cause of much misunderstanding.

Such seems to be the case in the British Columbia interior, where landowners north of Kamloops have sought to stop a small bentonite miner, Western Industrial Clay Products, from mining claims on their property.

The landowners, Warren and Carolyn Bepple, are decent and hard-working people (you have to be to live in a rural area these days), and their desire to keep the land is understandable, and no doubt genuine — they lived on the land once (though they now live about 15 km away), and they still use it for pasture.

But from here, the fight over the land looks nasty. Western Industrial Clay approached the couple nine years ago and offered to buy the land. The Bepples refused to sell, not because the offer wasn’t fair, but because they didn’t want it to be mined.

They subsequently took their case to the provincial Mediation and Arbitration Board, which said, not unreasonably, that the law was the law and a claim-holder had the right to mine. If a claim-holder doesn’t have that right, what exactly does a mining claim mean?

The board allowed an application by the landowners to extract an additional $32,000 over the amount that had been agreed as fair value. That decision was overturned by the British Columbia Supreme Court in January.

Now the nasty part: the Bepples have been funded by West Coast Environmental Law, a group that funds and provides legal advice for court and regulatory challenges to mining projects. Once again, the roadblock-erectors have jumped into the approvals process to stall or stop a legitimate project.

Their rationale is straight from the misunderstanding of the law we mentioned at the outset: property holders — the holders of surface rights — should have a veto over resources they don’t own. West Coast Environmental Law has been quite explicit about their stand that if cottagers and farmers think they own subsurface resources, then the law should treat them that way.

We won’t say, as others in other times might have said, that you can’t stop progress. You can, and sometimes you should. What we will say is that arbitrarily deciding whether a claim-holder with legal rights to mine can or cannot do so is not within anybody’s rights.

Society exists because people recognize that they cannot always have their own way about common resources and common interests. That is where law comes from; it is where government comes from; and it is where the approvals process comes from.

And free entry is as much a part of the law as any statute, and far more a part of the law than the ideology that underpins advocacy groups. The B.C. Supreme Court was right in matching the judgment to the case at hand, and not penalizing Western Industrial Clay at the whim of the landowner.

Bepple told the National Post that development on his land is “legal, but it’s not fair and it’s not just.” Wrong, Mr. Bepple. The law is, on occasion, an ass. But much of the time it is the only measure we have of what is fair and just. Free entry has survived as a principle of resources law not because it serves the miner but because it serves all of society.