CANADA Law and Practice Contributed by: Darrell Podowski, Brian Dominique, Joel Matson and Christa Alvernaz, Cassels Brock & Blackwell LLP
• the use of explosives; • navigable waters; and • perhaps most importantly, the protection and conservation of the environment where it intersects federal 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, Northwest Territories and Nunavut) are within the federal government’s jurisdiction and are governed by territorial governments created by federal stat - utes. A statutory devolution process of legisla - tive authority from the federal government to these territorial governments is almost complete, and provides each territory with additional self- governing power. Nunavut is the final territory to complete this process. Administrative responsi - bility for natural resources and public lands will shift to the territorial government pursuant to the Nunavut Lands and Resources Devolution Agreement (2024). The transfer of these respon - sibilities 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 min - erals are generally severed in Canada, largely as a function of early-settlement disposition proce - dures 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 consisting of only surface rights, of both surface rights and mineral rights, or solely of mineral rights could be cre - ated 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 legislation across Canada now provides that minerals are reserved from Crown land dispositions and that grants of min - eral rights be of leasehold estate. Section 109 of the Constitution Act, 1867 vests ownership of Crown minerals to the provincial Crown of the province where such minerals are situated. As a result, each province and terri - tory’s respective discrete system of mineral ten - ure 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 largest holder of minerals in Canada (but open to pri - vate tenure and development), both as fee sim - ple owner of Crown lands and through mineral reservations from historic Crown grants. Title to minerals located in Canada’s three ter - ritories, the territorial sea, continental shelves and federal lands (national parks, harbours, First Nation reserves) vests in the federal Crown, and is governed as discussed in 1.2 Legal System and Sources of Mining Law . Crown title to all Crown lands is subject to limita - tions pursuant to Aboriginal treaty rights, claims for Aboriginal title or other Aboriginal rights, and the provisions of any applicable land claim set - tlement agreement – in each case as enshrined and protected by the Constitution of Canada. 1.4 Role of the State in Mining Law and Regulations The federal and provincial governments serve as both grantors of right and regulators of min - ing activity within their respective jurisdictions. The federal government, ten provinces and three territories each have their own ministries, agen -
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