Potential City of Kamloops Regulatory Powers over the Proposed Ajax Mine

Posted by Stop Ajax Mine on October 31st, 2011 2:34pm

A lot has been said about the mine not being entirely in the City of Kamloops boundaries, and such the City of Kamloops has no say, in the end, about whether the mine will go through or not. We strongly believe this is not the case, and after consulting with a lawyer, we received the following:

Download a PDF of this Summary

Summary of Potential City of Kamloops Regulatory Powers over the Proposed Ajax Mine

Prepared by Jay Nelson, LLB, Woodward & Co.

Role and Authority of the City of Kamloops 

To date, the City of Kamloops appears to have taken the position that it is simply a stake-holder (albeit an important one) and that the real decisions about the Project ultimately rest with the provincial and federal governments. This view may understate the potential role and authority of the City of Kamloops. The City of Kamloops may have the authority to exercise its bylaw and land-use planning powers in a manner that compels the Proponent to comply with the City’s standards and requirements, failing which the Project cannot proceed. 

The scope of municipal powers to regulate mining raises complex legal issues. Further research is required to reach a comprehensive opinion. At this stage, my preliminary review of the law suggests that the City may have some authority as a local government to challenge or regulate the operation of the Project or components thereof. 

A. Bylaw Powers 

The Community Charter sets out the powers of municipalities. City Council has the power by bylaw to regulate, prohibit and impose requirements on various matters, including: (a) the protection and enhancement of the well-being of its community in relation to nuisances, disturbances and other objectionable situations; (b) public health; (c) protection of the natural environment; (d) removal of soil and deposit of soil and other materials; and (e) explosives.

Bylaws enacted with respect to the above-mentioned matters could impact the operations of the Project that are within the municipal boundaries.  There are some limits. The power of a municipality to enact bylaws with respect to (b), (c) and (d) are subject to approval by a Provincial minister and certain regulations under the Community Charter. Also, a provision of a bylaw has no effect if it is inconsistent with a Provincial statute or regulation. However, a municipal bylaw is not inconsistent with another enactment if a person who complies with the bylaw does not, by this, contravene the other enactment – (i.e. there is only inconsistency if it is impossible to comply with both requirements). 

Thus, for example, a municipal bylaw with respect to noise, dust, vibration, or illumination could be enacted that is in addition to or adds certain requirements or conditions to the provincial permit process or the EA certificate. A bylaw can also provide for a system of licences, permits and approvals including the provision of security. These are all potentially valuable tools in regulating or prohibiting certain aspects of Project operation. 

B. Municipal Planning and Land Use Management 

The Local Government Act governs municipal planning, zoning and land use management.

The definition of “land” in the Community Charter which is incorporated into the Local Government Act does not include “mines or minerals belonging to the Crown, or mines or minerals for which title in fee simple has been registered in the land title office”. 

Whether a municipality can regulate land use or zoning with respect to mining has been considered by the British Columbia Court of Appeal in Squamish (District) v. Great Pacific Pumice Inc. The Court of Appeal interpreted the words “mines or minerals” to mean substances in the ground or under the ground capable of severance from the ownership of the surface as a separate tenement; the word, “mines” is confined in meaning to an excavation or substances on or under the surface. Therefore, a municipality cannot use its land use or zoning powers to prevent a mineral title holder from exercising its right regarding excavation of the minerals.

However, the Court concluded that the Legislature did not intend to broaden the meaning of “mines” so as to include all mining activities on the surface of the land. Thus, a municipality may regulate or prohibit storage or processing activities through its land use or zoning bylaws. The purpose of Provincial legislation with respect to mining is not to permit mining activity without regard to local needs or wishes; a municipal bylaw is one more regulation with which a mineral title holder must comply. The Court held that such a zoning bylaw is not inconsistent with the Provincial mining enactments because the mineral title holder can comply with both the municipal bylaw and the Provincial enactment.

Accordingly, it appears the City of Kamloops may have the authority to regulate or prohibit certain storage and processing activities in those areas of the Project that fall within municipal boundaries. This could prove significant, given that the current proposal would situate the TSF, a waste rock management facility, a processing facility, fuel storage area and part of a process water pond all within city boundaries. 

Again, there are potential limits to the City’s authority. For example, if the Minister under the Local Government Act believes that that all or part of a bylaw is contrary to the public interest of British Columbia with respect to the Official Community Plan (“OCP”), zoning or other developmental regulation, the Minister may alter the bylaw. Thus, the Minister could potentially alter the existing OCP and zoning of the City of Kamloops if they are in conflict with the operation of the Project in this location. 

Nonetheless, existing OCP, zoning and municipal land use concerns are clearly important factors for a statutory-decision maker to consider in deciding whether to authorize a mine to proceed under the EA process. And municipal bylaws provide a third level of regulation with which the Proponent must comply.

Accordingly, the City of Kamloops may have more authority than it presently contemplates to ensure that the environmental assessment process and its outcome are in the best interests of the people of Kamloops.  


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