CANADA Law and Practice Contributed by: Darrell Podowski, Jennifer Poirier, Joel Matson and Simi Fagbongbe, Cassels Brock & Blackwell LLP
The Right of Entry on Crown or Private Lands Containing Crown Minerals Holders of mineral claims (referred to as a mining claim in certain Canadian jurisdictions) have the right to enter upon, use, occupy and let down such part(s) of the surface rights of the claim as necessary for prospecting and efficient exploration of, and prospec - tive development and operation of, mines, minerals and mining rights therein. In all Canadian jurisdictions, compensation will be owed to existing surface rights owners for such use. Priority Over Other Miners Recording or registering a mineral claim gives prior - ity over other miners, so long as the claim remains in good standing. Where disputes arise between pros - pectors with respect to the recording, registration or priority of claims, inspections of the claims may be requested by a recorder or similar government offi - cial, and the recording of challenged claims may be appealed to a quasi-judicial officer or board in the applicable jurisdiction. The Right to a Lease and to Enter Into Production A mineral claim holder is entitled, and has the exclu - sive right, to apply for a mining lease over the area of the claim, following the prescribed periods of assess - ment work. A mining lease grants the right to enter into production from a mineral deposit and, upon pro - duction, to take title to the minerals and to process and dispose of them for valuable consideration. 1.6 Granting of Mineral Rights The granting of mineral rights will depend on the loca - tion of the minerals. Most mineral rights are granted by statute of the provincial government of jurisdiction. The provinces of British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Ontario and Quebec, along with the three territories, have adopt - ed some form of modified free-entry system, which allows individuals and corporations to obtain mineral rights by recording and/or registering (in the case of Ontario) mineral claims on their own initiative on min - eral lands deemed open for recording. The free-entry system relates only to the limited acqui - sition of mineral rights or temporary limited tenure by
mineral claim. The acquired rights do not necessarily extend to actual permission for the industrial activi - ties of exploration, development or mining, which remain subject to land use, environmental and other principles and laws and regulations. If a mineral claim holder wishes to develop a mineral deposit on the land subject to the claim, they must usually apply for and obtain a mining lease. Alberta, Nova Scotia and Prince Edward Island have adopted the Crown discretion mining system, under which the provincial government, as owner of the min - eral resources, has the discretion to decide whether and on what terms a person may prospect for miner - als. Governmental approval of a prospector’s activities generally takes the form of a licence or permit. If a per - mit holder wishes to develop a mineral deposit, it must usually apply for and obtain a Crown mining lease. Saskatchewan’s system is a hybrid model, adopting features of both the free-entry and Crown discretion mining systems. Once recorded, mineral claims allow an explorer to claim a demarcated portion of available Crown lands as their exclusive area, solely for exploration for a specified period. Many jurisdictions in Canada have moved away from the physical staking of mineral claims (placement of visible markers on the ground to indicate the claimed area). Instead, mineral claims are acquired by selecting blocks of claims using an online mapping system, known as “map selection” or “map staking”. Finally, applications to record a mineral claim must be filed with the applicable ministry or agency within the timeframe prescribed by the relevant provincial legis - lation. The recording is designed to give public notice of the area held by the recorder/claimant. The holder of a mineral claim generally has the right to transfer or sell an interest in that claim freely with - out Crown consent (unlike leasehold tenures, which require Crown consent). 1.7 Mining: Security of Tenure Security of rights under a mineral claim is gener - ally maintained through satisfying prescribed work requirements or making payment in lieu thereof. The
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