Who Owns the Land? Land Tenure, Indigenous Rights and Economic Reconciliation

Opening question

If a company finds gold under a lake in northern Ontario, who decides whether it can be mined? The company? The province? The federal government? The First Nation whose ancestors have lived, hunted and fished there for thousands of years?

The answer is: several of them, depending on how the land is held. This lesson is about land tenure: the rules about who owns or controls land and resources. These rules shape every resource decision in Canada.

This topic connects to colonization and its effects, which are painful for many people. Approach it with care, listen to different perspectives, and use the respectful terms in this lesson.

Forms of land tenure

Private land. People and companies can own land outright (fee simple). Most private land is in southern Canada, where farms, towns and cities are. Even on private land, mineral rights are often held by the Crown, not the landowner. Surface rights and subsurface rights can be separate.

Crown land. Most of Canada's land is Crown land, owned by the federal or a provincial government. In Ontario, most of the north is provincial Crown land. Companies do not buy it. Instead, they get licences, leases or permits, such as a Sustainable Forest Licence to harvest trees or a mining claim to explore for minerals. In the territories, much land was held by the federal government, and control over land and resources has been transferred to the Yukon (2003) and the Northwest Territories (2014) through devolution agreements.

Reserve land. Under the Indian Act (the legal name of this federal law), reserves are lands set aside for the use and benefit of a First Nation. Legal title is held by the Crown. Reserves are usually a small part of a nation's traditional territory.

Treaty and settlement lands. Historic treaties, such as the Robinson Treaties (1850) and the Numbered Treaties (1871-1921), including Treaty 9 in northern Ontario (1905-1906), cover much of Canada. First Nations understand these treaties as agreements to share the land, while the Crown often interpreted them as land surrenders; this difference is still debated. Modern treaties (comprehensive land claim agreements), beginning with the James Bay and Northern Quebec Agreement (1975), give Indigenous nations ownership of specific lands (sometimes including mineral rights), rights to wildlife, a share of resource revenues and often self-government. The Nunavut Land Claims Agreement (1993) led to the creation of the territory of Nunavut in 1999.

Métis land. Alberta has eight Métis Settlements, a protected Métis land base. Métis rights to harvest are also recognized in law, for example in the Supreme Court's Powley decision (2003), which involved Métis hunting near Sault Ste. Marie, Ontario.

Rights, claims and the courts

The Royal Proclamation of 1763, issued by the British Crown, recognized that Indigenous nations held rights to lands they had not given up, and said that only the Crown could acquire those lands, by agreement. This is one reason treaties were made.

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal and treaty rights of First Nations, Inuit and Métis peoples. Court decisions have explained what that means:

• Calder (1973): the Supreme Court recognized that Aboriginal title existed in Canadian law. This led the federal government to create a land claims process.
• Haida Nation (2004): the Crown has a duty to consult, and where appropriate accommodate, Indigenous peoples before making decisions that could affect their rights, even before a claim is settled.
• Tsilhqot'in Nation (2014): the first court declaration of Aboriginal title to a specific territory, in British Columbia. Aboriginal title includes the right to decide how the land is used and to benefit from it.

Land claims: comprehensive claims deal with areas where Aboriginal rights were never addressed by treaty, and usually end in modern treaties. Specific claims deal with past failures by the Crown to meet its obligations, such as reserve land taken or sold without proper process; they are often settled with money or land.

UNDRIP: Canada's United Nations Declaration on the Rights of Indigenous Peoples Act became law in 2021. It commits the federal government to align its laws with the Declaration, including the principle of free, prior and informed consent.

How land rights affect resources

Most resource extraction in Canada happens on Crown land that is also the traditional territory or treaty land of Indigenous nations. So:

• Access: governments must consult nations before issuing permits for mines, forestry, pipelines or dams. Projects that ignore this can be delayed or stopped by courts.
• Extraction: nations may negotiate how a project is done: where roads go, how water is protected, and which areas are off limits (such as burial or sacred sites).
• Use and benefits: many companies sign impact and benefit agreements (IBAs) with nations, covering jobs, training, contracts for local businesses, environmental monitoring and revenue sharing. Some nations go further and become owners or co-owners of projects, such as the 24 First Nations that own 51% of Wataynikaneyap Power.

Economic reconciliation means building a fair economic relationship: Indigenous peoples having ownership, decision-making power and a fair share of benefits from their lands. The Truth and Reconciliation Commission's Call to Action 92 asks businesses to adopt UNDRIP, consult meaningfully and build respectful relationships before projects, and make sure Indigenous peoples have fair access to jobs, training and education opportunities.

Perspectives are diverse. Indigenous nations are not all the same, and members of one nation may disagree. Some nations seek resource development for jobs and revenue on their own terms; others oppose particular projects to protect land, water and ways of life; many do both depending on the project. Respecting each nation's own decision-making is central.