Court says Local Governments Cannot Regulate within the Province’s Exclusive Jurisdiction over Mining

In the recent decision of O.K. Industries Ltd. v District of Highlands, 2021 BCSC 81, the BC Supreme Court reaffirmed that the Province has exclusive jurisdiction over “mines” and “mining activities” as each are defined in the Mines Act, RSBC 1996, c. 293.

This decision is important for local governments as it confirms that in relation to mines, mining activities, and other associated and integral activities, including reclamation, a local government cannot exercise its authority over things such as land use, certain buildings, soil deposit and removal, trees, and blasting.

This limit on local government authority applies even where the local government bylaws do not conflict with the provincial laws relating to mines. However, the limitation on a municipality’s jurisdiction to regulate the use of land is re-engaged once the subject activities on the land and under a given mines permit are complete.

Facts of the case

In this case, O.K. Industries held a permit to operate a quarry on the subject property (the “Property”) which was issued by the Province pursuant to the Mines Act (the “Quarry Permit”). The Quarry Permit authorized drilling, blasting, excavation, hauling, crushing, screening, stockpiling, load-out and reclamation activities. It also prescribed requirements in relation to vegetation removal at the Property including a schedule for logging and vegetation buffers.

After O.K. Industries began removing trees from the Property, the District of Highlands issued a stop work order under its Tree Management Bylaw and notified O.K. Industries that it may need to take out permits in relation to the proposed mining work as applicable under certain of the District’s other bylaws, such as zoning and building.

Ultimately, O.K. Industries turned to the court, seeking a declaration that none of the subject bylaws applied to its activities and that it would not be required to take out permits as suggested by the District. In the result, the court declared that the following bylaws of the District did not apply to its quarry operation:

  • Official Community Plan;
  • Zoning Bylaw;
  • Soil Deposit and Removal Bylaw;
  • Blasting Bylaw;
  • Tree Management Bylaw; and
  • Building Bylaw.

The Court’s Reasoning

In its reasons for confirming the exclusive jurisdiction of the Province over mines and mining activities, the court considered previous case law related to potential conflicts in the jurisdiction of a municipality and the Province and, more specifically, in relation to the jurisdiction over mining activities.

O.K. Industries relied on the BC Court of Appeal’s decision in Cowichan Valley (Regional District) v. Cobble Hill Holdings Ltd., 2016 BCCA 432 (“Cobble Hill”) where the court stated that it was clear that the Province has exclusive jurisdiction over the regulation of quarries/mines and their related site reclamation activities.

The District of Highlands argued that despite the statements in Cobble Hill, the applicable test to define the jurisdiction of the District was determined by the “express contradiction test” which recognizes that the existence of provincial legislation in a given field does not preclude the ability of a local government to also regulate the subject matter. Provided that the two regimes do not conflict, the “express contradiction test” recognizes that local governments may pass bylaws that have the effect of regulating in an area also regulated by the Province.

The Court rejected the District’s argument and agreed with O.K. Industries that the Court of Appeal in Cobble Hill had implicitly rejected the “express contradiction” approach in relation to activities integral to mines and mining activities. The court drew attention to the fact that in Cobble Hill the Court only applied the “express contradiction test” to determine if the bylaws applied to activities the court had deemed not integral to mining activities – an on-site soil treatment and storage facility which were separate from the mine at issue.

The Court also noted that the definition of “land” in the Community Charter expressly excludes mines and minerals. This operates to restrict a local government’s authority to regulate the “use of land” under the Local Government Act from including mines and mining activities. This observation, along with the confirmation that the Province has exclusive jurisdiction over mines and mining activities, lead the Court to conclude that the District’s zoning bylaw and development permit requirements did not apply to O.K. Industries’ activities and would only be reengaged once the quarrying activities were complete.

Further, as the onsite blasting activities and tree removal were considered integral to the mining activities covered by the Quarry Permit, the Blasting and Tree Management bylaws were not applicable to those activities. Lastly, the Soil Removal bylaw was also held inapplicable to the soil removal activities on the site.

Final take-aways

  • Local governments and municipalities should be alive to this express confirmation of the Province’s exclusive jurisdiction over mining and mining activities; and
  • In considering whether certain bylaws are applicable to activities of a holder of mining permit that is issued pursuant to the Mines Act, a municipality or Local Government should consider whether the activity the bylaw purports to regulate falls under the definition of “mines”, “mining activity”, or an integral extension of those activities.