Mining Law

Introduction to Mining Fundamentals

This opening session will provide delegates with a sound understanding of the fundamentals of mining, including geology, resource calculations, mining exploration methods and valuations as well as the terminology used within the industry.

• Mining life cycle
• Geology
• Exploration methods and technology
• Economic overview of orebody modeling, reserves and resources
• Mining methods (surface and underground)
• Mineral processing methods and technologies
• Reclamation issues
• Mineral prices and metal revenue
• Studies and evaluations

Framework for Understanding Mineral Rights

• Constitutional frameworks
  • Proprietary rights and regulatory jurisdiction
  • Indigenous rights
  • Common law and civil law
• Mineral Property Ownership and Regulation
• Surface vs. Mineral Tenure/Surface access
• Leasehold & other operating interests from Mineral Owner
  • Mining claims
  • Mineral leases
  • Profit à prendre
  • Foreign Ownership Restrictions

Environmental Permitting

• Regulatory framework/legislation
• Process
• Relevant issues and considerations
• Typical grounds for legal challenge

Unique Human Resources Issues in Mining Operations

• International hiring and placements, multiple jurisdictions
• Community Economic Benefits
• Camp Issues: including scheduling, capacity planning, gender differences, and keeping employees engaged
• Critical policies: including substance abuse, testing, harassment, bullying
• Managing diversity and inclusion in hiring, promoting and retaining employees
• Navigating complex health and safety issues, including drug testing, etc

Preliminary Agreements and Acquisition Agreements

• Common forms
• Requirements for binding agreements
• Drafting considerations
• Sale and purchase agreements

Corporate M&A in Mining

• Opportunity for public M&A in the mining sector
• Legal framework and how corporate M&A deals are initiated
• Nature of the transaction: hostile vs. friendly
• Process and stages of M&A transactions
• Transaction structures: plans of arrangement, take-over bids and amalgamations
• Negotiating the deal and the typical agreements
• Consents and approvals, and public disclosure & filings
• Key considerations in the mining context

Investment Canada and Critical Minerals Issues

• Investment Canada
• Critical mineral issues
• Competition

Development, Construction, Operating, and Service Agreements: Procurement and Contracting Issues

• Construction Agreements and Other Mining Agreements
• Procurement and Negotiating Agreements
• EPCM Arrangements: Challenges and Solutions
• Mining Infrastructure Challenges

Financing Mining Projects

• Types and sources of financing overview: strategic partners; corporate finance
• Risk management
• Hedging: (e.g. metals, currency, electricity)
  • What is it?
  • Pros and cons
• Project financing – secured financing of mining projects
  • Security required over the assets
  • Integration into operations

Smelting, Refining, Product Sales and Off-Take Agreements

• Understanding different agreements in the mining sector
  • Smelting
  • Refining
  • Product sales
  • Off-take
• Key issues and practical considerations, with distinctions by type of agreement

Mining Taxation

• Overview of Canadian mining tax regime
• Capital gains and utilization of losses
• Deductions, allowances and credits
• Structuring businesses and investments
• Provincial taxes
• International issues
• Flow-through financings

Mining Project Joint Venture and Shareholder Agreements

• Different types of joint venture related agreements and considerations when choosing a structure
• Understanding core issues when forming a joint venture
• Regional trends

Royalty Agreements and Streaming Transactions

• Overview of royalty and streaming transactions
• Key considerations for purchasers and sellers
• Troubleshooting tips

Standards of Disclosure for Mineral Projects

• Canadian regulatory landscape and the role of NI 43-101
  • Canada’s principal regulators for mining issuers
  • Disclosure and NI 43-101 – and the linkage with CIM
  • Qualified person, examples of discipline cases
• QP liability considerations
  • Securities Act liability
  • Other liability sources
  • Risk management tips and best practices
• Basics of technical reports o Some statistics, technical reports and misconceptions
  • Triggers for technical reports
  • Form 43-101F1
  • Independence requirements
  • Fatal flaw checklist
  • Tips for qualified persons
• Listings, compliance, and disclosure – Useful guidance for TSX & TSXV issuers
  • 2024 Year in Mining
  • TSX/TSXV Listings
  • TSX/TSXV Compliance and Disclosure
• Disclosure reviews and common pitfalls
  • Types of disclosure reviews
  • Review process – sample comment letter o Disclosure reviews – Issuer perspective
  • Top 5 observed disclosure deficiencies
  • What happens if the issuer doesn’t comply
  • Tips on dealing with the regulator

Introduction to Aboriginal and Indigenous Law

• How Canadian law developed from colonialism
• Expected developments in Canadian law in an era of decolonialization
• How legal developments of decolonialization are likely to impact industry
• Merger of indigenous rights and climate change fight
• UNDRIP (FPIC) and what it means for the mining sector
• Consultation and the assessment of impacts on Indigenous rights (Yahey decision)
• Exploration agreements and IBAs: key developments

Impact and Benefit Agreements (IBAs) and Indigenous Consultation

Gain insights and practical guidance on navigating Impact Benefit Agreements and the critical importance of proper Indigenous Consultation, from the mining company perspective, and the perspective of Indigenous communities.

• Review of IBA, what it covers, structures and legal issues
• Duty to consult or obligation to conclude an IBA (unceded land vs. provincial/federal treaties)
• Practical considerations in negotiations with Indigenous peoples
• Importance of building relationships

Domestic and Foreign Legal Exposure to Alleged Violations of International Human Rights

• How Canadian companies can be exposed to liabilities outside of Canada
• Sources of customary international law of human rights incorporated into Canadian law
• Application of international law in Canadian domestic courts
• International human rights and class action litigation
• Case law updates
• Case study – Nevsun – domestic liability for foreign operations

Sustainability

• Defining Sustainability
• Social license for permitting and operations; importance of respectful community relations and addressing socio-economic issues to offset negative impacts with benefits to community; integrating into planning from outset
• Managing climate risks
• Environmental and social responsibility considerations
• Sustainability and risk management considerations
• Climate-related disclosures
• Physical challenges on operations

Corporate Governance in Mining

• How mining companies use policies and controls to inform business decisions, comply with the law, and meet obligations to stakeholders
• Risk of reputational harm and loss of trust
• Greenwashing and disclosure issues

Tailings Management – Compliance and Risk

• What are tailings and tailings storage facilities?
• Regulatory and design guidance
• Risks of tailings incidents

Anti-Corruption Legislation and Policies

• Anti–corruption legislation and policies, and the far reach of governments in enforcement
• Corruption of Foreign Public Officials Act (Canada); Foreign Corrupt Practices Act (U.S.); U.K. Bribery Act
• Maintaining high ethical standards
• Case studies

Resource Revenue Transparency Legislation

• Genesis of the Extractive Sector Transparency Measures Act (ESTMA)
• ESTMA overview
  • scope of the Act and determining if it applies to you
  • payment categories and payees
  • substitution/equivalency
  • compliance and enforcement
• Reporting
  • process and timelines
  • format
  • attestation
• Payments to Indigenous entities
• Comparison to other jurisdictions
• Use of the data by NGOs and others