Medieval Conception of "Free Mining"

– Pierre Soublière –

Ugo Lapointe, in an article entitled "The legacy of the principle of free mining in Quebec and Canada" (Recherches amérindiennes au Québec, January 2010), addresses at length the topic of free mining. He describes how almost unlimited access granted to mining companies is based on the principle of free mining, which can best be described as the right of free access to land ownership and to the exploitation of resources. 

Free access itself has two key components inherited from British law: the separation of surface rights (land law) and sub-surface rights (subsoil) and ownership over mineral resources, namely, ownership of resources belonging to the State, or to the Crown. According to the concept of separation, the mining industry can have access to minerals which are beneath the surface of a lot, since the notion of ownership does not include what is below the surface of the earth.

Researchers have established that there are similarities between these laws and customary laws which prevailed in certain parts of Medieval Europe, notably in mining districts such as Cornwall, Devon and Derbyshire, in England. Mining contractors there introduced rules which would later be recognized and institutionalized in 13th century Royal Charters, notably, the right of free access to land and resources, irrespective of whether that land is private or belongs to the Crown. Recognition of rights associated with free mining in the Royal Charters was considered at the time as a political victory for mining contractors at the expense of landowners. Siding with mining contractors was also politically and economically advantageous for the Crown, which consolidated its own control over lands as well as the resources beneath their surface.

The principle of free mining began to take hold in contemporary mining systems at the time of the great gold rushes in the Western hemisphere in the 19th century. During the 1849 California gold rush, for example, free access to land and unilateral appropriation (without State intervention) of resources via the claim system, according to the first discoverer principle, became the rule. 

These principles and rights based on free mining still today define most mining operations in Canada and Quebec. The passing of the first mining legislation in British Columbia and Quebec -- particularly in the Beauce region -- resonates to this day and is the enactment, as it were, of the free mining principle in Canada, which is in non-compliance with Indigenous Peoples' ancestral and land rights and curtails the discretionary powers of the State. 

The fact that no municipal or regional authority can adopt motions which would hinder mining activity is a vivid illustration of the power and autonomy granted to mining contractors under the free mining principle in Quebec. The free mining principle, says the author, allows the perpetuation of an asymmetrical power structure which is clearly favourable to the rights and interests of the mining industry as opposed to those of citizens, collectives and other land users.

Free mining runs directly counter to the people's modern right to decide their living and working conditions. Demands such as a moratorium on mining claims, the creation of protected areas, respect for Indigenous rights, and empowering collectives so they can better humanize their social and natural environments are all part of the ongoing process of democratic renewal. The situation demands that notions of terra nullius inherent in constitutional laws such as free mining, that have been inherited from Canada's colonial past, be revoked and that the people empower themselves so that they can fully take up their social responsibilities and their commitments to Mother Earth and the world's people.

This article was published in
Volume 53 Number 2 - February 2023

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