All modern treaties provide for surface and/or subsurface rights within certain areas. Let’s define them:

• Surface rights: Rights to the exterior or upper boundary of the land, water and other substances. Surface rights do not include the air above the land or the minerals below the surface.
• Subsurface rights: Rights to the water and other substances below the surface of land, such as minerals.

If a modern treaty signatory plans to develop their land with logging, real estate, or mining projects, for example, they must first determine whether they hold the appropriate rights in the areas they wish to develop. For example, if a modern treaty holder such as Tsawwassen First Nation near Vancouver intends to lease their land for a shopping mall development, they require surface rights to that land.

Let’s look at more examples of how surface and subsurface rights apply in modern treaties.