Mining 2026

CANADA Law and Practice Contributed by: Darrell Podowski, Jennifer Poirier, Joel Matson and Simi Fagbongbe, Cassels Brock & Blackwell LLP

• exports and imports of minerals and metals; • nuclear energy and minerals related thereto; • inter-provincial transport of dangerous goods; • use of explosives; • navigable waters; and • perhaps most importantly, protection and conser - vation of the environment where it intersects fed - eral jurisdiction, which includes Indigenous rights, fisheries and oceans, inter-provincial infrastructure and shared natural resources, migratory birds and at-risk species and habitats. Canada’s three territories (Yukon, the Northwest Ter - ritories and Nunavut) are within the federal govern - ment’s jurisdiction and are governed by territorial governments created by federal statutes. A statutory devolution process of legislative authority from the federal government to these territorial governments is almost complete, and provides each territory with additional self-governing power. Yukon and the North - west Territories completed the devolution process in 2003 and 2014, respectively. In Nunavut, administra - tive responsibility for natural resources and public lands will shift to the territorial government pursuant to the Nunavut Lands and Resources Devolution Agree - ment signed in January 2024. The transfer of these responsibilities is currently underway and scheduled for completion in 2027, at which point Nunavut will implement its own mining legislation. 1.3 Ownership of Mineral Resources Property interests in surface and subsurface minerals are generally severed in Canada, largely as a function of early-settlement disposition procedures for land in what would ultimately become Canada. Generally, all lands were considered to be owned by the Crown until title was granted to settlers or municipalities via Crown (government) grant. A separate fee estate con - sisting of only surface rights, of both surface rights and mineral rights, or solely of mineral rights could be created by Crown grant of the fee simple estate, with or without reservation by the Crown of the mineral rights. Near the end of the 19th century, the Crown adopted a practice of reserving the minerals from fee simple grants, and modern federal and provincial leg - islation across Canada now provides that minerals are reserved from Crown land dispositions and that grants of mineral rights be of leasehold estate.

Section 109 of the Constitution Act, 1867 vests own - ership of Crown minerals to the provincial Crown of the province where such minerals are situated. As a result, each province and territory’s respective discrete system of mineral tenure and legislation is accompanied by distinct procedures whereby mineral interests may be granted by the Crown and acquired by private legal persons. The Crown remains the larg - est holder of minerals in Canada (but open to private tenure and development), both as fee simple owner of Crown lands and through mineral reservations from historic Crown grants. Title to minerals located in Canada’s three territories, the territorial sea, continental shelves and federal lands (national parks, harbours, First Nation reserves) vests in the federal Crown, and is governed as dis - cussed in 1.2 Legal System and Sources of Mining Law . Crown title to all Crown lands is subject to limitations pursuant to Aboriginal treaty rights, claims for Aborigi - nal title or other Aboriginal rights, and the provisions of any applicable land claim settlement agreement – in each case as enshrined and protected by the Consti - tution of Canada. 1.4 Role of the State in Mining Law and Regulations The federal and provincial governments serve as both grantors of rights and regulators of mining activity within their respective jurisdictions. The federal gov - ernment, ten provinces and three territories each have their own ministries, agencies or other governmental bodies to oversee the mining sector. Often, multiple agencies will administer separate facets of the mining business. 1.5 Nature of Mineral Rights Mineral rights have a constitutional basis wherein the rights and powers over mineral title and extraction have been apportioned between the federal and pro - vincial governments. Mineral rights in Canada are property rights and can be broken down into three distinct categories.

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