In brief: mining rights and title in Canada

Mining rights and title

To what extent does the state control mining rights in your jurisdiction? Can those rights be granted to private parties and to what extent will they have title to minerals in the ground? Are there large areas where the mining rights are held privately or which belong to the owner of the surface rights? Is there a separate legal regime or process for third parties to obtain mining rights in those areas?

The Crown is the largest holder of minerals in Canada, both as fee simple owner of Crown lands and due to mineral reservations from historic Crown grants. However, Crown title to all Crown lands is subject to aboriginal treaty rights, claims for aboriginal title or traditional use rights, and the provisions of any applicable modern treaty (land claim) agreement. Each Canadian province and territory has their own system of mineral tenure and associated legislation and their own procedures under which mineral interests may be granted by the Crown and acquired by private legal persons. The Constitution vests ownership of Crown minerals in a province to the provincial Crown and the regulation of mineral tenure, exploration, development, mine operation and environmental remediation in the provinces is predominantly a matter of provincial jurisdiction.

Mineral rights in Canada are a property right with three distinct associated rights, namely:

• the right of entry on Crown or private lands containing Crown minerals: the right of mineral rights holders to enter upon, use, occupy and let down such part of the surface rights of the claim as necessary for prospecting and efficient exploration, development and operation of the mines, minerals and mining rights therein. In all jurisdictions, compensation will be owed to existing surface rights owners;
• priority over other miners: once recorded or registered, a mineral claim has priority over other miners, so long as the claim remains in good standing. Disputes with respect to the record, registration or priority of claims may be appealed to a quasi-judicial officer or board; and
• the right to a lease and to enter into production: holders of mineral rights have the exclusive right to apply for a mining lease over the area of the claim. A mining lease grants the right to enter into production and, upon production, to take title to the minerals and to process and dispose of them for valuable consideration.

What information and data are publicly available to private parties that wish to engage in exploration and other mining activities? Is there an agency, or securities commission regulating public companies, which collects mineral assessment reports from private parties? Must private parties file mineral assessment reports? Does the agency or the government conduct geoscience surveys, which become part of the database? Is the database available online?

Information and data publicly available regarding exploration and other mining activities in Canada are available through:

• provincial and territorial mining recorders’ offices: provide services related to staking, ownership and mining claim maintenance, including receiving ‘assessment work’ reports and filings of exploration activities;
• provincial geological surveys: gather geological information and may conduct broad ground or aerial surveys and publish maps, reports and digital data on geology and other technical information;
• provincial and territorial land title and registry offices: provide information about the title of leasehold and freehold property (including minerals). Such information is accessible online for a fee;
• Natural Resources Canada: publishes commodity reviews (www.nrcan.gc.ca/mining-materials/publications/18733) and maintains a detailed listing of Canada’s operating mines and mineral processing facilities (www.nrcan.gc.ca/mining-materials); and
• System for Electronic Document Analysis and Retrieval: the mandatory document filing and retrieval system for most reporting issuers in Canada (https://www.sedar.com/).

What mining rights may private parties acquire? How are these acquired? What obligations does the rights holder have? If exploration or reconnaissance licences are granted, does such tenure give the holder an automatic or preferential right to acquire a mining licence or more senior tenure? What are the requirements to convert to a mining licence?

Most mineral rights are granted by statute by the government of jurisdiction. The provinces of British Columbia, Manitoba, New Brunswick, Newfoundland and Labrador, Ontario and Quebec, along with the three territories, Northwest Territories, Nunavut and Yukon, have adopted some form of modified free-entry system that allows individuals and corporations to obtain mineral rights by recording or registering (in the case of Ontario) mining claims on their own initiative on public mineral lands deemed open for recording. The free-entry system relates only to the limited acquisition of mining rights or temporary limited tenure by mining claim. The acquired rights do not include the right to commercial production. If a mining claim holder wishes to develop a mineral deposit on the land subject to the claim, they must usually apply for and obtain a Crown mining lease.

Alberta, Nova Scotia, Prince Edward Island and Saskatchewan have adopted the Crown discretion mining system, under which the provincial government, as owner of the mineral resources, has the discretion to decide whether and on what terms a person may prospect for minerals usually in the form of a licence or permit. If a permit-holder wishes to develop a mineral deposit, it must usually apply for and obtain a Crown mining lease.

Finally, applications to record a mining claim must be filed within a specified time with the applicable ministry or agency. The recording is designed to give public notice of the area held by the recorder or claimant. The holder of a mining claim or licence or permit generally has the right to conduct exploration work and to transfer or sell an interest in that claim freely without Crown consent (but not a Crown mining lease, where Crown consent is required to sell or transfer a Crown mining lease).

What is the regime for the renewal and transfer of mineral licences?

Most provinces provide for the transfer of mining claims through filing a simple transfer form and paying a fee to the government (in most jurisdictions this is done online). Once filed, the transfer and new owner is noted on the abstract or register for the mining claim. For lease transfers, there may be a requirement for government consent from the particular mining department (eg, in Ontario, section 81(14) of the Mining Act restricts the transfer of a lease until the consent of the Minister of Northern Development and Mines or such other member of the Executive Council to whom responsibility for the administration of the provisions may be assigned or transferred under the Executive Council Act is obtained).

What is the typical duration of mining rights? Is there a requirement to relinquish a portion of the mining rights to the government after a certain number of years?

Security of tenure of a mineral claim is generally maintained through satisfying prescribed assessment work requirements or payment in lieu thereof. The term of a mineral claim will vary across provinces ranging from one to 10 years (including extensions). Mining leases are granted for terms ranging from 10 to 30 years.

Mineral title may be unilaterally terminated by the Crown due to failure by the holder to comply with the applicable legislation or the conditions of the mining interest itself. For example, a mineral claim may be terminated if prescribed work has not been performed, or if reports have not been filed within the prescribed time. Termination, however, is not automatic.

While the federal and provincial Crown have the discretionary power to designate lands as withdrawn or not open for mining activity, and to withdraw land for the creation of parks, existing mineral claims or mining leases have typically not been subject to withdrawals unless compensation has been paid.

In Canada, there is no requirement to relinquish a portion of the mineral rights back to the government after a certain number of years.

Is there any distinction in law or practice between the mining rights that may be acquired by domestic parties and those that may be acquired by foreign parties?

In Canada, there is no defined distinction between the acquisition of mining rights by domestic and foreign parties. However, registration requirements of general application under applicable mining legislation still apply and foreign parties may be required to have an address for service within the province where they are operating, or may be required to be either:

1. a natural person age 18 or over and ordinarily resident or authorised to work in Canada;
2. a Canadian corporation; or
3. a partnership consisting of partners that qualify under (1) or (2) (as is required in British Columbia).

How are mining rights protected? Are foreign arbitration awards in respect of domestic mining disputes freely enforceable in your jurisdiction?

Mining rights are protected by independent administrative tribunals. Appeals against these tribunals’ decisions lie with the Canadian courts. The exercise of governmental discretion over mining rights and disputes is subject to the rules of Canadian administrative law and due process.

The provinces have broad jurisdiction over most international arbitrations and have passed legislation governing the conduct and enforcement of international arbitral proceedings. Canada’s federal Commercial Arbitration Act applies to arbitrations involving the federal Crown. In 1986, Canada adopted the United Nations Commission on International Trade Law Model Law on International Commercial Arbitration and the United Nations Foreign Arbitral Awards Convention Act. Canada implemented the Convention on the Settlement of Investment Disputes between States and Nationals of Other States by assenting to the Settlement of International Investment Disputes Act on 13 March 2008.

What types of surface rights may mining rights holders request and acquire? How are these rights acquired? Can surface rights holders oppose these requests or does the holder of the mineral tenure have priority over surface rights use?

In most parts of Canada, the Crown lands available through the claim-staking and leasing process consist only of the mining rights because the surface rights are owned privately by another party or retained by the Crown. The owner of the mining rights is nevertheless entitled to conduct exploration and even mining activities on the leasehold interest, subject to compensation (and in some cases, advance notice) to the surface rights owner. Disputes arising in these situations can be settled through special tribunals (eg, the Ontario Lands Tribunal) or the courts. A mining rights holder is best advised to negotiate the acquisition of the surface rights.

Does the government or do state agencies have the right to participate in mining projects? Is there a local listing requirement for the project company?

In Canada, governments do not participate in mining projects, and their role is limited to regulation. In Quebec, however, certain government entities invest and sometimes retain ownership interests in such projects and, indeed, have even sometimes acted as proponents of such projects (eg, Ressources Quebec, a wholly owned subsidiary of Investissement Quebec).

Are there provisions in law dealing with government expropriation of licences? What are the compensation provisions?

There are general statutes dealing with expropriation in Canada for public purposes, which provide for market value-based compensation. Mining tenure cannot be expropriated or cancelled unilaterally by governments. Instances of expropriation might include land needed for transportation corridors (road and rail), transmission lines and national or provincial parks.

Are any areas designated as protected areas within your jurisdiction and which are off-limits to mineral exploration or mining, or specially regulated?

Cultivated lands, parklands, railway lands, public roadways, environmentally sensitive lands (eg, conservation areas and bird sanctuaries), heritage lands, airport lands, town sites and other such developed areas are typically not open for mining activity, nor are lands in which a claim, mining exploration licence, mining concession or mining lease has already been granted.

Responsibility for environmental protection, including setting aside areas such as parks and other forms of protection from development, is shared by the federal and provincial or territorial governments. Local governments can also protect certain areas from development by creating parks or specifically protected areas, or by limiting development through the enactment of by-laws and official community plans. Development is restricted according to the level of protection assigned to a protected area.