Imagine a company finds a rich deposit of nickel under a forest in northern Ontario. Who decides whether it can be mined? It is not as simple as "whoever owns the land." The forest is probably public land, the minerals may be owned separately from the surface, the area lies within a treaty signed more than a century ago, and the First Nations who live there hold rights protected by Canada's Constitution. Understanding land tenure, the rules about who can hold, use and control land, is the key to understanding almost every resource debate in Canada.
Forms of land tenure
Most of Canada is Crown land, owned by the federal or provincial governments on behalf of the public; depending on how it is counted, the figure is roughly 80 to 90 percent, and only about a tenth of Canada is privately owned. In Ontario, about 87 percent of the province is Crown land, almost all of it in the north (Government of Ontario). Crown land is not empty land: much of it is the traditional territory of First Nations, Métis and Inuit, who live on it, hunt, fish and gather on it, and hold rights there. Governments do not usually mine or log Crown land themselves: they grant licences, leases and mining claims to companies. Ownership can also be split by layer. Surface rights (the land you can build on) and mineral rights (what lies underneath) can belong to different owners, which is how a prospector can stake a claim on Crown minerals near someone's cottage.
| Type of land | Who holds it | Example |
|---|---|---|
| Private land | Individuals and companies, who can buy, sell and use it within the law | Farms, homes and factories in southern Ontario |
| Provincial Crown land | Provincial governments, which license or lease its forests, minerals and water | Most of the forests of northern Ontario |
| Federal Crown land | The Government of Canada | National parks, military bases, much of the seabed off the coasts |
| Reserve land | Legal title is held by the Crown, but the land is set apart for the use and benefit of a First Nation under the Indian Act | Six Nations of the Grand River, near Brantford, one of the most populous reserves in Canada |
| Modern treaty (settlement) land | Owned by Indigenous governments or organizations under a modern treaty, often including some mineral rights | Inuit-owned lands in Nunavut; Nisga'a Lands in BC |
| Conservation land | Governments, Indigenous governments or land trusts, protected from most development | Provincial and national parks; Indigenous Protected and Conserved Areas such as Thaidene Nëné (Unit 2) |
Treaties and land claims
Treaties are agreements between First Nations and the Crown. In Ontario, historic treaties cover almost the whole province, among them the Robinson-Superior and Robinson-Huron Treaties of 1850 and Treaty 9 (1905–1906), which covers much of the far north, including the Ring of Fire. First Nations and the Crown often understood these treaties differently: many First Nations understood them as agreements to share the land, not to give it up. Since 1982, section 35 of the Constitution has recognized and affirmed existing Aboriginal and treaty rights. Where no treaty was ever signed, or where promises were broken, First Nations, Métis and Inuit can bring land claims.
- Where Aboriginal rights and title were never dealt with by a treaty
- Negotiated agreements covering land ownership, resource rights, money and often self-government
- The first was the James Bay and Northern Quebec Agreement (1975)
- Other examples: the Nunavut Agreement (1993) and the Nisga'a Final Agreement (in effect in 2000)
- About past grievances: Canada failed to keep a treaty promise or mismanaged reserve land or money
- Example: a reserve surveyed smaller than the treaty promised, or reserve land taken without proper consent
- Usually settled with compensation, sometimes with the right to add land to a reserve
- If negotiation fails, a First Nation can take the claim to the Specific Claims Tribunal (set up by a 2008 law)
The duty to consult and benefit agreements
In Haida Nation v. British Columbia (2004), the Supreme Court of Canada ruled that governments have a duty to consult, and where appropriate accommodate, Indigenous peoples when a decision could harm their Aboriginal or treaty rights, even before those rights are proven in court. In 2014, in the Tsilhqot'in decision, the Court recognized Aboriginal title to a specific area of land for the first time. Canada passed the United Nations Declaration on the Rights of Indigenous Peoples Act in 2021, committing to align its laws with the Declaration, which includes the principle of free, prior and informed consent. In practice, many resource companies sign impact–benefit agreements (IBAs) with affected communities: contracts that set out jobs and training, business contracts, payments, environmental monitoring and how concerns will be addressed. The Voisey's Bay nickel mine in Labrador, for example, operates under agreements with the Innu Nation and the Labrador Inuit.
Economic reconciliation
- Economic reconciliation means closing the economic gaps between Indigenous and non-Indigenous people and supporting Indigenous self-determination through ownership, jobs, business and a real say in decisions. Call to Action 92 of the Truth and Reconciliation Commission asks businesses to respect Indigenous rights, consult meaningfully and make sure Indigenous people have fair access to jobs, training and benefits.
- Equity ownership: in 2017 the Fort McKay First Nation and the Mikisew Cree First Nation bought a 49 percent share of an oil sands storage terminal from Suncor; in 2022, 23 First Nations and Métis communities in northern Alberta, through Athabasca Indigenous Investments, bought a share of seven Enbridge oil sands pipelines for about 1.1 billion dollars. Owning part of a project brings steady income and a voice in decisions.
- Financing: loan guarantee programs (Alberta's Indigenous Opportunities Corporation since 2019, a federal program announced in 2024) help communities borrow the large sums needed to buy into projects.
- Clean energy: First Nations co-own wind farms, solar projects, hydro dams and batteries, such as Henvey Inlet Wind and Oneida Energy Storage (Lesson 3).
- Indigenous-owned businesses: tens of thousands of Indigenous-owned firms operate in Canada, in construction, mining services, tourism, retail and technology; the federal government aims to award at least 5 percent of the value of its contracts to Indigenous businesses.