B.C. judge rules in favour of mining company that argued jade boulder it found is a 'placer mineral'

Jade mining in British Columbia has become a controversial practice these days, especially with Indigenous groups wanting miners in the area to leave, but a recent court case ruling shows how contentious even defining a jade deposit can be.

Madam Justice Lisa Warren of the Supreme Court of British Columbia recently dismissed an appeal made by Cassiar Jade Contracting Inc. to overturn a ruling that a jade boulder found in August 2019 by Canada Tsinghua International Jade Investment Group Corp. is a “placer mineral” rather than a mineral.

The Mining Tenure Act defines a mineral as an “ore of metal, or a natural substance that can be mined, that is in the place or position in which it was originally formed or deposited.” It includes rock and other materials from mine tailings, dumps, and previously mined deposits of minerals. A mineral can also be “talus rock” — rock that occurs in fragments or particles lying on or above or adjacent to the place or position in which it was originally formed or deposited.

A placer mineral is defined as an ore of metal and every natural substance that can be mined, and that is either loose or found in fragmentary or broken rock that is not talus rock. It occurs in loose earth, gravel and sand, and includes rock or other materials from placer mine tailings, dumps and previously mined deposits of placer minerals.

The distinction, in this case, is essential. Cassiar’s mineral claim overlaps with a placer claim held by Tsinghua. If the jade boulder found by Tsinghua is a “placer mineral” as defined by the MTA, its claim prevails. If the boulder is a “mineral” set out by the MTA, it belongs to Cassiar.

Cassiar argued the commissioner erred in concluding that boulder was a placer mineral. Specifically, Cassiar says the commissioner made an error in applying the relevant definitions in the MTA and made a “palpable and overriding error” concerning the location of soil samples that formed the basis of some of Cassiar’s evidence and failed to consider all of the evidence before him properly.

Tsinghua’s position was that the commissioner did not err in concluding the boulder was a placer mineral and that the relevant statutory definitions were applied correctly. Counsel for the commissioner took no position on the merits of the appeal, and its submissions were appropriately directed at explaining the record, the statutory scheme, and the standard of review.

In September 2019, the commissioner visited the boulder site with Travis Ferbey, a geologist employed by the Ministry of Energy, Mines and Petroleum Resources and representatives of Cassiar and Tsinghua. Ferbey specializes in quaternary geology, which focuses on the most recent geological period and movements of ice sheets and glaciers during and after periods of glaciation.

Ferbey concluded that the material exposed to the site was “subglacial till,” which he explained “is deposited under an actively moving glacier.” He noted that photos taken of the Boulder and submitted to the commissioner “demonstrate that the [Boulder] was contained within the subglacial till before excavation and vegetation was growing over top of it.”

The geologist’s opinion was that the subglacial till exposed in the excavation pit wall “was moved to its current location, down-ice of its source, at or near the base of a glacier” and, because the boulder was embedded in it, the Boulder “shares the same transport and depositional history.” He concluded these clues made the jade boulder a placer mineral.

In response to Ferbey’s report, Cassiar commissioned its own geological consultant to prepare a report. This report expressed the opinion that a post-glacial landslide had dislodged the boulder from its original outcropping hard rock location on the mountain flanks above. It rejected Ferbey’s central conclusion that the boulder had been transported by subglacial movement.

The Cassiar report was not based upon a site visit to the location of the boulder or soil samples. Instead, it was based on photographs, a British Columbia Geological Survey report, and a site visit to Cassiar’s jade inventory yard. Cassiar’s report distinguished two classes of jade boulders based on their morphological characteristics. It concluded that rounded jade boulders are “placer mining derived” and angular jade fragments are “hard rock mining derived or are recovered talus fragments.”

Based on the photographs, the report concluded the material in which the boulder had been embedded was “not necessarily sub-glacial, but rather they present till-like characteristics that may equally be indicative of post-glacial processes.”

After Cassiar commissioned more reports, the Gold Commission determined in October 2020 that he found Ferbey’s evidence that the boulder was embedded in subglacial till to be the most convincing and compelling. He did not find the analysis and comparison of jade rocks in Cassiar’s yard relevant, as the “origin locations of these boulders relative to the location of the subject boulder is unknown.”

The commissioner also was not persuaded by an alternative hypothesis that the boulder broke off from an in-situ jade deposit located upslope from the excavation pit and rolled down to its present location via a landslide.

In appealing the commissioner’s ruling to the Supreme Court, Cassiar says the commissioner erred by not considering if the boulder was talus rock. Cassiar reasoned that if the boulder was talus rock, it follows from the definition of “mineral” that the jade contained within the boulder is a mineral.

But Justice Warren wrote that she disagreed with this argument. “The Commissioner’s task was not to determine whether the boulder was talus rock, but rather whether the boulder was a mineral or a placer mineral,” she wrote.

“Leaving aside the proper construction of the definition of ‘talus rock,’ it could not have been an error for the Commissioner to fail to consider whether the boulder had been deposited in its current location when he applied the definition of talus rock because he was not deciding whether the boulder was talus rock.”

Justice Warren noted Ferbey’s determination that the boulder was a placer mineral and not a mineral “was based on his characterization of the material in which it was embedded.”

She also wrote there was no dispute before the commissioner that the boulder had been transported away from its original source. Cassiar hypothesized that it broke off the bedrock above and rolled down the slope. The alternative theory, advanced by Tsinghua and provincial geologist Ferbey, was that the boulder was transported to its current location on the bottom of a moving glacier.

Brian Marshall, who runs the website BC Placer, says that the case “comes down to whether [the boulder] fell from above, or whether it has been moved by water (liquid or solid).” If the latter, it is a placer mineral, but if it fell from above, “there should be more of it up there.”

He added that usually the question of placer versus hard rock isn't a problem, but in this case “no one has proven it has fallen from above.”

Jade mining has become contentious in B.C., with the controversy leading to the cancellation of the popular Discover Reality TV series Jade Fever earlier this year.

The show, which first aired in 201, had followed the Bunce family, a family of jade miners working in the Cassiar Mountains in the Tahltan First Nation’s territory in northwest B.C.

In May, the Talhtan Central Government — the political arm of the Tahltan — had called for placer jade mining to be halted and the “extremely problematic” show Jade Fever to be taken off the air.

At the time, Chad Norman Day, president of TCG, accused the show of “sensationalizing, encouraging and promoting” an activity that, according to him, was “illegal and unethical and causing all kinds of environmental degradation” on Tahltan territory.

The demand to take the show off the air came in after the TCG had slapped several miners with eviction notices, including the Bunce family, citing environmental degradation and danger to its wildlife’s health.

According to B.C. law, the current system of free entry allows prospectors to stake claims online. Once done, it provides rights to access the subsurface trump most other land rights.

But many of these same miners are coming on to unceded Tahltan Nation territory without contact or consultation with the First Nation. B.C. recently proposed some mining reforms. However, they only apply to the Mines Act and not the Mineral Tenure Act, which allows the free-entry system.