Canada
Answer ... Canada is a federal state, with one federal, 10 provincial and three territorial governments. As set out in Canada’s Constitution Act, 1867, and its division of powers, Canada’s mining industry is governed by both the provincial and federal government. The provincial government has primary jurisdiction over most areas that affect a mining project, for two reasons. First, Canada’s provinces largely own their respective public lands; and second, the provinces have legislative jurisdiction on most matters related to natural resources. However, certain areas may share jurisdiction with the federal government, such as environmental regulation, over which neither level of government has overarching authority. Certain areas may also fall wholly within the federal government’s jurisdiction. The federal government has exclusive jurisdiction over areas such as international relations, explosives regulations and nuclear energy. An exception is mineral uranium, where exploration is a provincial matter, but mining, milling, processing, transportation and exportation are federal matters.
The specific provisions governing mining often depend on the province or territory. For the most part, all 10 provinces, the Yukon, and the Northwest Territories, with some exceptions, have their own mining legislation. These provinces and territories have jurisdiction over the exploration, development, and extraction of mineral resources, and the construction, management, reclamation and closure of mine sites. These provinces and territories additionally own the majority of the mineral rights in Canada; however, mineral rights may also be held by private entities, Indigenous groups or the federal government. In Nunavut and certain areas of the Northwest Territories, the federal government governs and administers public lands and natural resources. In Nunavut, mineral rights are owned by private entities, Indigenous groups or the federal government.
Canada
Answer ... There have been several updates to the mining legislation in recent years. In March 2019, a plan to drive Canadian mining to the forefront of the industry – the Canadian Minerals and Metals Plan (CMMP) – was announced. In March 2020, the first CMMP action plan was released, with action plans to be released in 2021 and 2022, and subsequent action plans following every three years thereafter. Additional initiatives and refinements to the Action Plan 2020 are expected to be released at the Energy and Mines Ministers’ Conference in 2020.
In June 2019, the Canadian Environmental Assessment Act, 2012, was replaced by the Impact Assessment Act (IIA). The IIA outlines the process for assessing major projects and projects carried out on federal lands or outside of Canada. The assessment includes the positive and negative environmental, economic, health and social effects, and the impact on Indigenous groups and the rights of Indigenous people.
Recently, Canadian jurisdictions have also modernised their ground-staking regimes and implemented electronic mineral tenure registries. Electronic registration regimes can be found in British Columbia, Ontario, Saskatchewan and New Brunswick; and online mining rights administration systems have been proposed in Nunavut and the Northwest Territories.
Canada
Answer ... Most of the discussion of the division of powers relates only to the federal and provincial governments. In the past, the three territories have effectively been departments of the federal government. However, in recent years, there has been a devolution of resource ownership and legislative powers in the territories. In Nunavut, devolution has started, but is minimal. In the Northwest Territories, devolution was implemented recently and is complex because of the relationship between territorial governance and modern treaties. In the Yukon, devolution has granted the territory both resource ownership and legislative powers. The set of legislative powers for the Yukon are similar to those held by provincial governments. The devolution in the Yukon indicates that while territories may not formally attain provincial status, they may be granted powers that make them as close to a province as possible.
Indigenous rights are another dimension to Canada’s division of powers. Indigenous issues have an impact on mining in two ways. First, Section 35 of the Constitution Act, 1982 protects Indigenous and treaty rights. Indigenous lands are statutorily recognised and held by the federal government for the use and benefit of Indigenous peoples. While many provincial laws apply on reserve, regulation of resource development is within federal jurisdiction. Second, there is a duty to consult and accommodate the concerns of Indigenous groups whose constitutionally protected rights may be affected by governmental decisions, such as approval for a proposed mine. Overall, it is important to consider potential Aboriginal title claims and how they may affect mining operations.
Canada
Answer ... Mining parties must be cognisant of the treaty rights in their jurisdiction and their relationship with Indigenous peoples. The federal government and the courts recognise approximately 70 treaties between the Crown and Indigenous peoples. These treaties are held as solemn agreements that set out promises, obligations and benefits for both parties, and are affirmed in Section 35 of the Constitution Act, 1982. When conducting mineral exploration and development activities, Indigenous rights and treaty rights must be considered and, if appropriate, accommodated. If a proposed mineral development project will have a potentially large impact on Indigenous and treaty rights, there may be a required duty to consult the respective Indigenous group. Typically, the Crown is responsible for consultation and accommodation. However, responsibilities may be delegated to mining parties as part of the environmental assessment process.
In addition, the differences in common and civil law should be taken into account. In Canada, the federal government, nine of 10 provinces and the three territories have adopted a common law legal system similar to the United Kingdom, the United States and Australia. Common law can be superseded or changed by subsequent legislation. Unlike the other provinces, Quebec has adopted a civil law-based legal system similar to Europe, Asia and South America. Civil law is a codified law that is written into statutes, which are then strictly interpreted by the courts. The civil law system in Quebec results in some differences in pertinent legal concepts compared to elsewhere in Canada.
Canada
Answer ... Each province has principal jurisdiction over its boundaries. Regulatory responsibility is often spread among departments, subject to the issue. It is typical to have ministries for mining, petroleum, environmental regulation, employment standards, workplace health and safety, and fisheries, to name a few.
Although most mining takes place in unorganised territory, there are also local or municipal governments to consider. Municipalities are created under provincial laws and can administer bylaws dealing with local matters, such as land use planning and the issue of construction, water and waste management permits.
Finally, the federal government exercises its authority within its jurisdiction. A few areas over which the federal government has authority are fisheries, interprovincial projects, environmental assessment and protection for larger mines.
Canada
Answer ... The specific approaches taken vary in each jurisdiction. In general, issues regarding sustainability and environmental protection, economic benefit and the adequacy of financial assurance for project reclamation are considered when regulating the mining sector.
In particular for sustainability, individuals and companies may be required to obtain regulatory approvals and licences to ensure they are meeting environmental requirements. Common federal regulatory approvals include:
- the Fisheries Act, from Fisheries and Oceans Canada;
- the Explosives Act, from Natural Resources Canada; and
- the Navigation Protection Act, from Transport Canada.
Common provincial and territorial licences include Mines Act permits, Environmental Management Act permits, water licences and mining licences.