A 15-year battle between a Kamloops-area couple and a B.C. company that plans to mine their property for a mineral used in kitty litter is headed back to court for the fifth time.
Warren and Carolyn Bepple – in a case funded by the Vancouver-based West Coast Environmental Law (WCEL) group – are scheduled to appear in B.C. Court of Appeal in September.
The couple will argue that they deserve more financial compensation for the loss of their grazing land to the open-pit mine for 10 to 30 years.
“This is just kitty litter. Why do they have to destroy our land?” Warren Bepple said in an interview.
But Western Industrial Clay Products Ltd. of Kamloops says the couple’s objections have more to do with trying to prise more compensation from the firm than with opposing the mining operation.
“They aren’t against mining,” Peter Aylen, president of Western Industrial Clay Products said. “They’re just after money.”
The Bepples and WCEL say their broader fight is against a 150-year-old piece of B.C. mining legislation, called the free entry law, that dates from the days of the gold rush.
The law essentially allows anyone who’s age 18 or older and has $25 to stake a mining claim and develop a mineral deposit on a person’s private property – even over the landowner’s objections, says Karen Campbell, a staff lawyer at WCEL.
“There are extensive problems with the law and it should be changed,” she said.
In 1989, Western Industrial used the free entry law to stake a mining claim on 16 hectares of the Bepples’ property to mine diatomaceous earth. The clay-like substance is used to make kitty litter, for which the market in the U.S. alone is about $1.2 billion a year, the company says.
In 1997, the Bepples lost a key court case when the B.C. Court of Appeal ruled that diatomaceous earth is a mineral, overturning a B.C. Supreme Court decision. The ruling meant Western Industrial had access to the substance, even though it was on the Bepples’ property.
Since then, the Bepples, who no longer have access to their land, have fought Western Industrial in and out of court over compensation.
The couple estimates they have spent about $100,000 on legal fees for four separate court cases.
The warring parties have also argued their cases on five separate occasions before B.C.’s Mediation and Arbitration Board, which is responsible for settling disputes between landowners and miners.
“There is very little a landowner can do to protect their land from mining,” Carolyn Bepple said.
But Western Industrial president Aylen said that in a letter the Bepples sent him in November 1999, they suggested the company could access their property if Western paid a yearly rental plus a fee for each cubic metre of mineral extracted.
Rather than protecting their land, “they were willing to proceed so long as they got an interest in the minerals that they did not own,” Aylen said.
The provincial Ministry of Energy and Mines, as well as a group representing B.C.’s mining industry, say the free entry mining law works well, and that this case represents a rare dispute between landowners and a mining firm.
B.C.’s minister of state for mining, Pat Bell, has reported that in the first five months of this year, 20,000 mining claims were filed in the province compared with only 12,000 last year. Most of the claims are in central and northern B.C.
Also, initial public offerings in the mining industry are on track to have their best year overall since 2000, according to a PricewaterhouseCoopers LLP survey released earlier this month.
“This case is really an anomaly and there’s some real bitterness between the parties,” says Shawn Robins, communications director for B.C. Energy and Mines.
West Coast Environmental Law is wrong to use the case as an example of how poorly free entry mining laws function in B.C. or elsewhere in Canada, Robins said, adding: “It’s a fundamental component of mineral development.”
Dan Jepsen, executive director of the 2,600-member B.C. & Yukon Chamber of Mines, says free entry laws are rarely used, especially in British Columbia where less than six per cent of the land base is in private hands.
“I think the law is fine the way it is, and it’s fair.”
But WCEL lawyer Campbell said that the problem with free entry laws is they give miners virtually unfettered access to land in B.C. and elsewhere in Canada.
“If a mining company stakes a claim on private land today, it is unlikely that the owner can stop it,” she said.
Some provinces, including Alberta, have abolished free entry mining laws and can veto mining proposals on private lands to protect social and environmental interests, she wrote in a WCEL report, Undermining Our Future: How Mining’s Privileged Access to Land Harms People and the Environment.
“Alberta changed the (law) a long time ago . . . they don’t have a system where the right to mine pre-empts everything else,” Campbell said.
But Gerald German, director of the titles branch in B.C. Energy and Mines’ resource and development division, says B.C.’s free entry mining law is essentially the same legislation used by other provinces.
Alberta legislation also gives companies access to oil and gas and minerals on private land where the sub-surface mineral rights are owned by the provincial Crown, German said.
B.C. has its Mediation and Arbitration Board to settle disputes and decide on compensation, while Alberta’s Surface Rights Board does essentially the same thing, he said.
In Alberta, however, landowners also have the right to a public hearing before the Energy and Utilities Board, which occasionally – albeit not often – rejects a company’s development application.
B.C.’s Mediation and Arbitration Board, on the other hand, “has no choice” but to allow access to a mining operation, Campbell said.
“It can only put terms and conditions on the (access) and decide on compensation.”
Campbell also pointed out that B.C.’s Liberal government two years ago scrapped a provision in the Mineral Tenure Act that barred mining companies from interfering with activities on private land, including buildings. The Bepples’ property includes a building used for storage and welding of machinery.
The government got rid of that piece of legislation about the same time the Bepples and Western Industrial were concluding one of their court battles, Campbell noted.
“This was one of the few provisions that gave landowners an opportunity to limit the actions of mining companies.”
In the appeal scheduled for September 10, the Bepples are seeking about $93,000 in compensation from Western Industrial, an amount awarded by B.C.’s Mediation and Arbitration Board.
Aylen said his company has already paid the couple $60,000, which the B.C. Supreme Court has twice determined is the fair market value – leaving a $33,000 gap between the two parties.
Western Industrial, which has 45 employees and an annual payroll of about $1.5 million, plans to start moving mining equipment onto the site this summer.
The company has provided reclamation insurance to the government, and is required to restore the land to a level better than or equal to what it had been, before returning it to the Bepples.
“This mineral deposit allows us to remain in business,” Aylen said.
“Without it, we’d have to close up.”
