In Canada, surface rights and mineral rights came with the purchase of land until sometime in the early 1900s, depending on the jurisdiction. Since then, mineral rights have been government-owned and cannot be purchased, but only leased, by individuals or companies. As a result, the mineral rights on more than 90% of Canada's land are currently owned by governments.
Where mineral rights are privately owned, they can be sold independently of surface rights, so that surface and mineral rights on the same property can be held by different owners.
As per the Canadian Constitution, the regulation of mining activities on publicly owned mineral leases falls under provincial/territorial government jurisdiction. Thus, there is separate mining rights legislation for each of the 13 Canadian jurisdictions except Nunavut (the northern and eastern portions of the former Northwest Territories that became a separate territory on April 1, 1999).
For the time being, mining and exploration activities in Nunavut will continue to be regulated by the Aboriginal Affairs and Northern Development Canada’s office based in the Northwest Territories. However, in a land claims settlement, the mineral rights for about 10% of Nunavut have been turned over to the Inuit community. These lands comprise large blocks that scatter throughout Nunavut. The Inuit community sets the rules and regulations in those blocks that are not under federal jurisdiction.
General Mineral Tenure Rules for Exploration and Development
In the Northwest Territories, British Columbia, Manitoba, Ontario, Quebec, New Brunswick, and Nova Scotia, individuals and companies must obtain a prospector's licence before engaging in exploration for minerals. In Yukon, Alberta, Saskatchewan, Prince Edward Island, and Newfoundland and Labrador, one can conduct prospecting or exploration activities without a licence, but must have a licence to actually acquire mineral rights (or "stake claims") in order to protect what one has discovered. In some jurisdictions, a special permit is required to obtain the right to fly an airborne geophysical survey over an area not covered by a mineral claim.
Mining claim units are normally 16 to 25 square hectares with a maximum individual claim dimension normally varying from 256 to 500 hectares. But in some provinces, or in some areas of certain provinces, maximum claim dimensions can be much larger, especially where claims are registered by way of "map staking." Mining companies can circumvent maximum claim size limits for individuals by having more than one person stake claims for it. Individual prospectors then transfer ownership of the claims to the company.
"Map staking" is being developed and is gaining usage in provinces or regions of provinces where the territory is surveyed. Claims can then be recorded on a map directly at the mining recorders' office without the prospector ever having visited the location on the ground. Elsewhere, claims must actually be marked out on the ground using marked wooden corner posts and boundaries cut through the forest.
Except for oil and gas, which are subject to different laws and regulations, there is no competitive bidding for mineral exploration rights in Canada. Land locations are selected by companies or individuals according to their wants, provided the claim area is not held by somebody else or reserved for another purpose.
In cases of disputed land claims, the first person to mark a claim out on the ground by staking obtains the claim, based on the time and date of staking marked on the # 1 claim post (in most cases, the northeast corner post). There is a specified period of time within which the claim must be recorded at the mining recorder's office for the precedence of the claim title to hold.
Prospecting licence fees and recording fees are imposed at variable rates across jurisdictions. In addition, a certain amount of assessment work must be done each year to keep claims in good standing. For example, all jurisdictions require that claim holders carry out geological mapping of their mineral holdings, a specified amount of diamond drilling, or a specified value of other work. Copies of geological maps, reports, drill logs and the like must be submitted to the mining recorder. They are kept for future access by any interested party after the end of a confidentiality period that varies by province or territory.
Holders of claims in good standing must obtain a mining lease in order to proceed with the development of a property into a mine. Mining leases require that claim boundaries be surveyed by a Registered Land Surveyor. They are valid in most provinces/territories for 20 or 21 years and can be renewed. Some provinces impose certain conditions upon the renewal of mining leases (for example, the property must be the site of an active mine).
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