Before any mining outfit can swing a geologist’s hammer, it needs to understand how Indigenous rights will shape their work. And the rules are different across the territories. That’s just the way it is, so it helps to get a little guidance on the fundamentals.

To understand mineral tenure in the North—especially as it relates to Indigenous rights—one should start with the Constitution Act, 1982. It sets out the division of power between the federal, provincial and territorial governments, as well as the Indigenous and treaty rights of the Indigenous peoples of Canada. So, let’s begin with basics.

Canada is a federation with legislative powers divided between the federal Parliament and the provincial legislatures. Under the Constitution Act, 1982, the exclusive power to legislate a particular class of subjects is given to the federal Parliament in some areas, in others to provincial legislatures; and in still others, Parliament and the legislatures have concurrent jurisdiction.

Thus, there is a clear distinction between provinces and territories. While provinces enjoy constitutional powers in their own right, the territories exercise delegated powers under the authority of the Parliament of Canada. Historically, this authority has meant that the Yukon, NWT and Nunavut were primarily governed by federal officers. However, major changes have happened over the past several years, with Yukon and Northwest Territories having devolved authority over land, water and mineral tenure and environmental protections. Nunavut is in the early stages of devolution.

Indigenous rights are not strictly defined in the Constitution Act, 1982. Specifically, Indigenous title arises from the prior use and occupation of lands by Indigenous people. It is a form of common-law right to the land. In its 2014 Tsillhqot’in Nation v. British Columbia decision, the Supreme Court confirmed, for the first time, Indigenous title over certain land and provided guidance for the type of evidence to establish such title.

Indigenous title is recognized across Canada, but how the concept is treated as it relates to mining varies between provinces and territories. At the core of these differences is recognizing the Indigenous interest in mineral tenure and obtaining consent. Businesses operating mines located on Indigenous land must obtain leases and licenses to use the land for surface and subsurface rights. Many of the environmental, water and surface tribunals, which grant the licenses to use these resources, are led by Indigenous nations. Another key component to mining in the territories on Indigenous land is the requirement to enter into impact benefit agreements or participation agreements with Indigenous nations. These are private agreements negotiated between industry and each of the Indigenous nations.

In Nunavut, the Nunavut Land Claim Agreement (the “Nunavut Agreement”) set the foundation for establishing the new territory of Nunavut. In exchange for ceding, releasing and surrendering to the federal government all Indigenous claims, rights, title and interest in and to the lands and waters anywhere in Canada, the Nunavut Agreement provides the Inuit of Nunavut with certain constitutionally protected rights and benefits, including:

• Fee simple title to some 356,000 square kilometres of land within Nunavut;
• Representation with government on joint boards to manage wildlife, conduct environmental assessment and land use planning, and regulate water use impacting mining rights;
• The right to harvest wildlife on lands and waters throughout Nunavut;
• A share of government royalties from mineral development on Crown lands; and
• Opportunities to participate in economic development in Nunavut, including first refusal and a right to commercial non-renewable resource development on wholly or partly owned Inuit lands.

In Yukon, the Yukon First Nations Umbrella Final Agreement is a framework for each of the 14 Yukon First Nations to settle their own final agreements. The final agreements must be tailored to each First Nation regarding land selection and protection of certain areas while including specific provisions of the Umbrella Final Agreement. Each individual agreement must address different categories of lands, including surface rights, fee simple title in mines, mineral rights, ownership of surface and specified substances, and fee simple lands.

The Northwest Territories has a number of Indigenous land claims at various stages. There is no one overarching framework for the land claim agreements. Some have been dealt with by past treaties or other legal means, and some are self-governments. Each was settled uniquely and may have its own internal processes regarding the use of land and water.

Each of the territories has individual means of dealing with mineral tenure on Indigenous title to land. There are important commonalities including consent, sovereignty over land, water and other natural resources and economic and other benefits for Indigenous nations.

This article was originally published in Up Here Business - Issue 4 2021.