The new FinCEN regulations are quite clear that the term "create" includes currencies that people "obtain by their own computing or manufacturing effort".

A final type of convertible virtual currency activity involves a de-centralized convertible virtual currency (1) that has no central repository and no single administrator, and (2) that persons may obtain by their own computing or manufacturing effort.

A person that creates units of this convertible virtual currency and uses it to purchase real or virtual goods and services is a user of the convertible virtual currency and not subject to regulation as a money transmitter. By contrast, a person that creates units of convertible virtual currency and sells those units to another person for real currency or its equivalent is engaged in transmission to another location and is a money transmitter. In addition, a person is an exchanger and a money transmitter if the person accepts such de-centralized convertible virtual currency from one person and transmits it to another person as part of the acceptance and transfer of currency, funds, or other value that substitutes for currency.

And, if by some chance you still think it's ambiguous and perhaps "mining" and "creating" aren't the same thing, it then says this:

How a person engages in "obtaining" a virtual currency may be described using any number of other terms, such as "earning," "harvesting," "mining," "creating," "auto-generating," "manufacturing," or "purchasing," depending on the details of the specific virtual currency model involved. For purposes of this guidance, the label applied to a particular process of obtaining a virtual currency is not material to the legal characterization under the BSA of the process or of the person engaging in the process.

Let me pose a related question. The Federal Reserve tells the US Mint how much money to print. Does the federal reserve create money, or does the US Mint create money? In a literal sense, the mints operate the machines that stamp the word "dollar" on a piece of paper. However, they don't choose how much to print. If one of the 3 mints were shut down, the Federal Reserve would just tell the other two to print slightly more.

Answering your question literally, I'd say the protocol created 21 million bitcoins when it was published.

But laws are evolving approximations. For example, for simplicity, the amount of sales tax and who it goes to is determined by state. Before the internet, the number of transactions that involved multiple states was so small it could simply be ignored. Eventually, lawmakers will be forced to clarify this, just as one day bitcoin won't be treated as a "precious metal" or "foreign currency."

On the flip side though, I don't think that minting a currency is illegal in the United States. All of the alternative currencies that received crackdowns had either "United States" or "Dollar" in their name, which could conceivably be confused with USD.

For most legal purposes, is it ever likely that a "miner" will be considered illegal in any country as if they are "creating" a currency"

A difficult question to answer, especially since I don't know what country you're from. If you're from the US, then I suspect lawmakers haven't decided either.