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

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 and other operating interests from mineral owner

Occupational Health and Safety Legal Issues in Mining

Overview of essential laws and issues in Occupational Health and Safety in mining operations and risk management

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

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 & amalgamations
• Negotiating the deal and the typical agreements
• Consents & approvals & public disclosure & filings
• Key considerations in the mining context

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

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

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

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, including key considerations for purchasers and sellers

Smelting, Refining, Product Sales and Off-Take Agreements

Understanding different agreements in the mining sector and practical considerations

Standard of Disclosure for Mineral Projects

• Canadian regulatory landscape
• NI 43-101 – Basics
  • Misconceptions
  • Qualified person
• TMX – Mining disclosure
  • Disclosure framework
  • NI 51-201 and TSX Company Manual
  • Common disclosure issues
  • News releases
• CIM Definition Standards
• CIM Best Practice Guidelines
  • Exploration
  • Estimation of mineral resources and mineral reserves
• NI 43-101 – Disclosure pitfalls and case studies
• Forward looking information
• Website disclosure
• Technical reports – basics, disclosure pitfalls and case studies
• Corporate governance – technical oversight

Environmental Permitting

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

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
• 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

The Role of Impact and Benefit Agreements

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

Working with Indigenous Communities: Law and Best Practices

• Legal aspects of dealing with Indigenous groups
• Scope of the Crown’s duty to consult
• Indigenous concerns in exploration activities and the value of consultation and cooperation
• What is the role of the private sector in entering into private arrangements with Indigenous groups?
• Drafting and negotiating engagement and preliminary deal agreements
• Exploration Agreements under the Ontario Mining Act and Far North Planning Act
• Rights of Indigenous people under the United Nations Declaration – “Free Prior Informed Consent”

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
• 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