Mining rights and titleState control over mining rights
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?
All lands and minerals that have not been granted to private persons are owned by the Crown (which in Canada refers to either the federal or provincial government in the name of Her Majesty the Queen), in the case of lands and minerals within the territory of a province, vested to it by the Canadian Constitution. The federal government owns minerals underlying federally owned lands, including, for example, reservations set up for many of Canada’s First Nations, federal national parks, public harbours, and in the Northwest Territories, Nunavut and underlying Canada’s territorial waters and continental shelf.
Generally, minerals underlying lands within the territory of a province (privately owned or Crown lands) belong to the Crown in right of such province. Mineral rights are obtained and maintained through mining laws (see question 6); typically, for exploration activities (in Quebec, other than surface mineral substances), by staking or map-designation of mining claims, performing prescribed exploration or assessment work and then obtaining leases or similar forms of tenure to conduct mining operations. The provincial governments (and in some cases the federal government) set out operating terms and conditions on leased mineral lands and may impose taxes and royalties. The contractual capacity of the Crown as owner provides a means by which governments supplement their authority as legislators.
Once private parties obtain the right to mine Crown minerals through the legislated leasing process, such minerals are held by the private party for the tenure of the lease. In Quebec, the right to extract minerals belongs to the holder of a lease but the minerals remain the property of the Crown until extraction. Subject to compliance with general laws and, in some provinces, obtaining government consents, the leases can be encumbered for security purposes in financings, transferred and renewed.
There are some areas in certain Canadian provinces where minerals or mining rights are privately held, either because of land grants made in the 1800s and early 1900s (or in the case of Quebec, as early as the 1600s) when minerals, in whole or in part, or the right to mine, were attached to surface right or land grants, or as a result of earlier mining legislation that provided for grants of ‘freehold’ tenure or outright ownership of mineral rights or substances. In those instances, if a company is interested in acquiring rights to explore or develop such privately held minerals or mining rights, it is a matter of private negotiation with the owner. Mining activities on those lands are, nevertheless, subject to the same environmental, labour and other laws as those applicable to mining activities involving Crown minerals.Publicly available information and data
What information and data are publicly available to private parties that wish to engage in exploration and other mining activities? Is there an agency 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 related to exploration and mining activities in Canada are available through the following:
- provincial and territorial mining recorders’ offices - these provide services related to staking, ownership and mining claim maintenance, including receiving ‘assessment work’ reports and filings of exploration activities;
- provincial geological surveys - most provinces gather geological information and may conduct broad ground or aerial surveys and publish maps, reports and digital data on geology and other technical information (eg, www.geologyontario.mndm.gov.on.ca);
- provincial and territorial land title and registry offices - these record information about the title of leasehold and freehold property (including minerals). This information is available (usually online) for a fee; and
- 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).
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? What are the requirements to convert to a mining licence?
Prospectors can explore ‘open’ Crown lands (or in Quebec, lands that are privately owned), with a prospecting permit, and can ‘stake’ the mineral rights if the land has not already been located and recorded by another party. These rights are acquired on a first come, first served basis. Land can be located on the ground through traditional staking methods (namely, cutting claim posts and blazing claim lines or, in Quebec, using government-issued tags), but most provinces have now adopted ‘map designation’ in lieu of ground staking, where claims are delineated online using a grid system based on global positioning system technology (in either instance, claims that are ‘ground staked’ or ‘map designated’ are referred to as being ‘located’).
Mining claims that are located and recorded are generally referred to as ‘unpatented’ mining claims (in Quebec, merely ‘mining claims’) and are subject to certain payments and prescribed exploration or assessment work obligations. Failure to meet such requirements within time periods set by law or regulations can result in automatic forfeiture of the claim and the subject area will become open for staking by others (a use-it-or-lose-it type regime). Many provinces now allow for payments in lieu of meeting applicable prescribed exploration or assessment work requirements in order to renew mining claims. The conversion of a mining claim to a lease varies by province, but generally can be done after a specified assessment work requirement has been met (the need for a discovery prior to lease conversion is no longer required in most provinces). In Quebec, the conditions that a claim holder must meet in order to obtain a mining lease include having to establish the existence of indicators of the presence of a workable deposit. No other party can acquire a mining lease over the particular area other than the claim holder. Leases are usually for 21 years or longer with an opportunity to renew if mining activity is occurring or if it can be shown that the lessee is committed to developing the mineral potential on the leased area (in Quebec, the first term of a mining lease is 20 years, renewable for 10 years but not more than three times, except at the discretion of the minister for additional terms of five years each).Renewal and transfer of mineral licences
What is the regime for the renewal and transfer of mineral licences?
In most provinces, mining claims can be transferred by filing a simple transfer form and paying a fee to the government. The transfer and new owner would then be noted on the abstract or register for the mining claim. For lease transfers, government consent may be required from the particular mining department (eg, in Ontario, section 81(14) of the Mining Act restricts transfer of a lease until the consent of the Minister of Energy, Northern Development and Mines is obtained). In Quebec, there is no fee or consent required for a transfer of interests in mining rights such as those granted by a mining claim or a mining lease. However, in order to have effect against the government (the Crown in right of the Province of Quebec), evidence of the transfer must be filed at the public register.Duration of mining rights
What is the typical duration of mining rights?
The duration of mining claims and leases is summarised in questions 8, 10 and 11. Generally, the ability to extend or renew a mining claim or lease is in the control of the holder. Governments possess no ability to revoke or cancel mining claims except in the case of fraud or misrepresentation. Mining claims will forfeit automatically (with no act required on the part of the government) for failure to complete exploration or assessment expenditures within the prescribed period of time. Regarding leases, the provincial mining ministry will normally have the authority to cancel or revoke rights where the lessee fails to comply with the terms of the lease or fails to pay annual rent, taxes or royalties, or both.Acquisition by domestic parties versus acquisition by foreign parties
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?
There is no distinction in Canada between the acquisition of mining rights by domestic and foreign parties (foreign parties may be required to have an address for service within the province where they are operating).Protection of mining rights
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. Mineral tenures are generally granted by Canada’s free-entry mining system, which limits the government’s involvement in disputes over mining rights. In all other situations, the exercise of governmental discretion over mining rights and disputes is subject to the rules of Canadian administrative law.
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 and Crown-owned corporations as well as to maritime and admiralty matters. In 1986, Canada adopted the UNCITRAL Model Law on International Commercial Arbitration and signed the United Nations (UN) Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Canada signed the International Convention on the Settlement of Investment Disputes (ICSID Convention) in December 2006. After a seven-year delay, Canada ratified the ICSID Convention on 1 November 2013, coming into force on 1 December 2013.Surface rights
What types of surface rights may mining rights holders request and acquire? How are these rights acquired? Can surface rights holders oppose these requests?
In all but some very remote 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. 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 Mining and Lands Tribunal in Ontario) or through the courts. However, a mining rights lessee would be well advised to negotiate the acquisition of the surface rights privately.Participation of government and state agencies
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?
Governments do not participate in mining projects in Canada and limit their role to one of regulation. However, in Quebec, there are government entities that do invest and sometimes retain ownership interests in such projects and, indeed, have even sometimes acted as proponents of such projects (eg, Ressources Québec, a wholly owned subsidiary of Investissement Québec).Government expropriation of licences
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, which provide for 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 parkland.Protected areas
Are any areas designated as protected areas within your jurisdiction and which are off-limits or specially regulated?
Responsibility for environmental protection, including setting aside areas 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.
As at the end of 2017:
- 10.5 per cent (approximately 1.05 million km2) of Canada’s terrestrial area was protected; and
- 7.7 per cent of Canada’s maritime territory was conserved, including 2.9 per cent in protected areas.
Larger protected areas are typically located in northern Canada. During the past 20 years, the total area protected has increased by approximately 64 per cent, and in the past five years it has increased by approximately 6 per cent. Protected areas are lands and waters where development and use is restricted by legal, or other means, for the conservation of nature. The conserved maritime area has increased by a factor of more than 18 in the past 20 years, and by more than five times in the past five years. Protection does not always isolate areas from use and development, including limited amounts of industrial activity and the harvesting of biological resources (Environment and Climate Change Canada).