Manoeuvring the New Mining Act
in Ontario
Global Mining and Aboriginal Law Groups Seminar
Wednesday, June 19, 2013
Michael Bourassa
Partner
+1 416 865 5455
mbourassa@fasken.com
Neal J. Smitheman
Partner
+1 416 868 3441
nsmitheman@fasken.com
Tracy A. Pratt
Partner
+1 416 865 4429
tpratt@fasken.com
Rosalind H. Cooper
Partner
+1 416 865 5127
rcooper@fasken.com
I N S T I T U T E
Fasken Martineau Seminar
Manoeuvering the New Mining Act in Ontario
Global Mining and Aboriginal Law Groups Seminar
June 19, 2013
Speakers:
Michael Bourassa, Rosalind Cooper, Tracy Pratt, Neal Smitheman
Summary of Amendments to the Mining Act
Global Mining and Aboriginal Law Groups Seminar
June 19, 2013
Michael Bourassa
mbourassa@fasken.com
1
Overview – Mining Amendment Act, 2009
• Minister Michael Gravelle introduced Bill 173 – The Mining
Amendment Act on April 30th, 2009.
• Consultation period and received Royal Assent on October 28,
2009.
• MNDM “consulted” Aboriginal communities and organizations
and stakeholder groups in development of regulations, prior to
proclaiming corresponding provisions of the Act in force.
• “Phase I” regulations (paper staking in Southern Ontario;
notification of staking on private lands) made effective in 2011.
3
Overview – Mining Amendment Act, 2009
(cont’d)
• “Phase II” regulations were enacted November 1, 2012 and
corresponding provisions were proclaimed in force
(Exploration Plans and Permits; Aboriginal consultation and
dispute resolution; sites of Aboriginal cultural significance;
revisions to Part VII Rehabilitation; Assessment Work; Claim
Staking; Bulk Sampling).
• The new Exploration Plans and Permits provisions were
voluntary but became mandatory as of April 1, 2013
4
2
2012 Mining Act Regulations
• General. O.Reg. 45/11 – Amended by O.Reg. 306/12 (Bulk
sampling, Sites of Aboriginal Cultural Significance, Mining Act
Awareness Program)
• Mine Development and Closure. O.Reg. 240/00 - Amended
by O.Reg. 307/12
• Exploration Plans and Exploration Permits. - New Regulation
O. Reg. 308/12
• Assessment Work. O.Reg. 6/96 - Amended by O.Reg. 309/12
5
2012 Mining Act Regulations (cont’d)
• Claim Staking and Recording. O.Reg. 43/11 - Amended by
O.Reg 310/12
• Permission to Test Mineral Content. Was O.Reg. 192/06 but
was revoked by O.Reg. 311/12 and is now part of General
Regulation O.Reg.45/11
6
3
Phase II Process – Exploration Plans
• Section 78.2: No person shall carry out an “activity” (now
defined in O.Reg.308/12, section 4 and schedules) on a
mining claim, lease or MLO unless that person has submitted
an “Exploration Plan” (in accordance with “requirements”,
section 10 of the Regulation refers to Provincial Standards for
Early Exploration posted at MNDM’s web site) including any
Aboriginal consultation.
• All activities described in the Exploration Plan shall be carried
out in accordance with such requirements.
7
Phase II Process – Exploration Plans
(cont’d)
• Exploration Plans will be required to be submitted prior to
undertaking low impact activities (such as low intensity line
cutting).
• The Exploration Plan must include information on the type of
work, who will be doing it, timing and location. The regulated
approach is that a Plan:
• Can proceed 30 calendar days after the “circulation date”
(the date the Plan is sent to the Aboriginal community)
• Will be up to 2 years in duration.
8
4
Phase II Process – Exploration Plans
(cont’d)
• There is a regulation power making section (s.176(1)(17.4))
in the Act which contemplates objections to Exploration Plans,
but no regulation has been made.
• There is no dispute resolution mechanism in O.Reg. 308/12
relating to Exploration Plans.
9
Phase II Process – Exploration Permits
• No person shall carry out higher impact activities (“activity” is
defined in O.Reg 308/12) on a mining claim, lease or MLO
unless that person has applied for and been issued an
“Exploration Permit” (s.78.3).
• The “Director of Exploration” (new appointment – s.78) shall
consider various matters including Aboriginal consultation (to
be discussed in other presentations).
• All activities described in the Exploration Permit shall be
carried out in accordance with the terms of the Permit.
10
5
Phase II Process – Cease Activity Orders
• Contravention of Exploration Plans and Permits (s.78.5(1)).
An inspector or Director of Exploration may issue a “cease
activity” order for Plans or Permits or, in the case of an
Exploration Permit, simply cancel it. There does not appear to
be any right of appeal from a decision of the Director of
Exploration.
• Huge penalties for failure to comply with a “cease activity”
order -- $2,500 per day (s.78.5(3)).
• Transferee of mining claim, lease or MLO liable for
rehabilitation obligations under an Exploration Plan or Permit
(s.78.6).
11
Phase II – Sites of Aboriginal Cultural
Significance
• Land Withdrawal: the Minister can order lands to be
withdrawn from staking and may consider whether the order is
consistent with any land use designation set out in regulations
with respect to the Far North Act or whether the lands meet
criteria (defined in O.Reg 45/11 as amended by O.Reg.
306/12) as a site of Aboriginal cultural significance (s.35(2) of
the Act).
• In determining whether a site of Aboriginal cultural significance
should be the subject of a withdrawal order or an order to
restrict the right to the use of portions of the surface rights of a
mining claim, the Minister may consider whether other
mechanisms are available and appropriate to protect the site.
(O.Reg 45/11, section 9.10(2)).
12
6
Phase II – Sites of Aboriginal Cultural
Significance
• Impose Restrictions: with respect to existing claims the
Minister may by order impose restrictions on the use of the
surface if a portion of the claim is on lands that meet criteria
(as defined in the regulation) as a site of Aboriginal cultural
significance (s.51(4)).
• An opportunity will be provided to the claimholder to make
representations to the Minister within 30 days of getting a
notice (s.51(5)), and the Minister’s final order is not appealable
(s.51(6)).
13
Phase II – Sites of Aboriginal Cultural
Significance
• Criteria for designation of Site of Aboriginal Cultural
Significance: (as defined in section 9.10 of O.Reg. 45/11 as
amended by O.Reg 306/12):
• Land, with a surface area of 25 hectares or less, may be
considered if the following criteria are met:
• strongly associated with an Aboriginal community for social,
cultural, sacred or ceremonial reasons, including because of its
traditional use by that community, according to Aboriginal
traditions, observances, customs or beliefs.
• in a fixed location, subject to clear geographic description or
delineation on a map.
• identification is supported by the community, as evidenced by
appropriate documentation.
14
7
Other “New” Mining Act Regulations
Voluntary Rehabilitation and Closure Plans
• O.Reg. 240/00 as amended by O.Reg. 307/12
Mining Act Awareness Program
• O.Reg. 45/11 as amended by O.Reg. 306/12
Bulk Sampling
• O.Reg. 311/12 was revoked special regulation 192/06. Instead,
General O.Reg. 45/11 has been amended by O.Reg.306/12.
Rosalind Cooper to discuss in following presentation
15
Other “New” Mining Act Regulations
(cont’d)
Claim Staking
• When ground staking a mining claim in unsurveyed territory,
Global Positioning System (GPS) georeferencing data must
be included on the application to record the claim.
• O.Reg. 43/11 as amended by O.Reg. 310/12
16
8
Other “New” Mining Act Regulations
(cont’d)
Assessment Work Credits
• Aboriginal consultation costs and the cost of providing GPS
data for existing claims is eligible for assessment credit (with
certain restrictions: after the first unit of work, the expenses
may only be submitted for credit if geoscience work has also
been performed and reported; the expenses cannot be
credited towards assessment work required to apply for a
lease).
• Monetary payments in lieu of assessment work will be
accepted under certain conditions. (but they cannot be:
banked; used in the first year; done two years in a row; or
used for lease application).
• O.Reg. 6/96 as amended by O.Reg. 309/12
17
Michael Bourassa
+1 416 865 5455
mbourassa@fasken.com
18
9
Mining Awareness, Voluntary Rehabilitation
and Closure Plan Amendments
Global Mining and Aboriginal Law Groups Seminar
June 19, 2013
Rosalind H. Cooper
rcooper@fasken.com
Mining Act Awareness Program
On-line program ensures that prospectors and
exploration proponents are informed before they
engage in prospecting and exploration activity
2
1
Mining Act Awareness Program
Must complete the MAAP if:
• Applying for or renewing an existing prospector's
licence
• Effective November 1, 2012, anyone applying for a
new prospector’s licence must have completed the
MAAP within 60 days before they apply for the
licence
• A licensee must apply for a renewal and must
successfully complete the MAAP within 60 days
before the expiry of their licence
3
Mining Act Awareness Program
• Holders of a lifetime licence: Anyone who has
held a licence for 25 years will qualify for a lifetime
renewal upon successfully completing the MAAP
within 60 days before the renewal
• All licensees: As part of the transition to the new
rules, every person holding a prospector’s licence,
including a lifetime licence, will be required to
successfully complete the MAAP no later than
November 1, 2014
4
2
Mining Act Awareness Program
• Qualified supervisors of an early exploration
project: Anyone applying for an exploration plan or
exploration permit must identify a “qualified
supervisor” who is an individual who has
successfully completed the MAAP and provides
advice to the early exploration proponent
5
Mining Act Awareness Program
May also want to take the MAAP if:
• Are a private land owner or a member or
representative of an Aboriginal Community that may
engage or work with prospectors and the mineral
exploration industry
• Are interested in the mining sequence or the Mining
Act
6
3
Mining Act Awareness Program
• Program provides basic information on:
• The purpose of the Mining Act and its regulations,
including the operational policies that outline how
early exploration activities are to be carried out in
Ontario
• Aboriginal or treaty rights
• Rights of private land owners, and other users of
the land when planning for staking or early
exploration activities
7
Mining Act Awareness Program
• Requirements for carrying out early exploration
activities
• Resources available to assist in preparing for claim
staking and early exploration activities
• Requirements at the various stages of the process,
with an emphasis on the changes that have been
made to the regulations
8
4
Mining Act Awareness Program
• Free of charge
• Delivered online
• Takes about 45 minutes to one hour to complete
• A confirmation number and certificate will be
automatically generated to verify successful
completion
9
Voluntary Rehabilitation
• Effective, November 1, 2012, a new provision
allows the rehabilitation of existing mine hazards on
a voluntary basis
• Voluntary rehabilitation is about rehabilitation of
mine hazards and the approval given is for the
rehabilitation plan for specified mine hazards
• Does not give any rights or interest in the property,
nor any right to the minerals, including their
extraction
• Not a means to avoid the closure plan requirements
in Part VII of the Act
10
5
Voluntary Rehabilitation
• Must apply to voluntarily rehabilitate an existing
mine
• Voluntary rehabilitation approval will not be given to
a person who created or materially disturbed or
worsened the mine hazard, or permitted those
things to happen
• Will not incur liability for pre-existing environmental
issues on the site
11
Voluntary Rehabiliation
• Eligible lands for voluntary rehabilitation include:
- Crown land as defined in the Mining Act;
- Land used/occupied by Crown or Ontario Ministry;
- Lands designated for public purpose; and
- Lands held by an Ontario Ministry
12
6
Voluntary Rehabilitation Process
• Anyone wishing to undertake rehabilitation work
must complete a voluntary rehabilitation application
form
• No fees associated with applying to perform
voluntary rehabilitation
• A copy of the complete application must be sent to
those whose property is within the area they wish to
rehabilitate
13
Voluntary Rehabilitation Process
• After the Director receives a Voluntary
Rehabilitation application, the Director will identify
which Aboriginal communities, if any, should be
consulted, and will direct the applicant as to the
scope of consultation, if any, that is required
• In determining the scope of consultation required,
the Director takes into account all the
circumstances, including the fact that the project is
to rehabilitate a site with an existing mine hazard
14
7
Voluntary Rehabiliation Process
• Voluntary rehabilitation applicants are encouraged
to consult aboriginal communities as identified by
MNDM earlier in the process
• Before doing so, the applicant must request that the
Director identify the Aboriginal communities to be
notified of the proposed project
• If this occurs before the application is submitted, an
aboriginal consultation report should be included
with the application
15
Voluntary Rehabilitation Process
• Applications are sent to Director of Mine
Rehabilitation for review and, if approved, Director
may set conditions that must be met by the
applicant
• Mine Rehabilitation Code of Ontario standards
apply to rehabilitation in accordance with approved
rehabilitation plan
16
8
Bulk Samples
• Effective November 1, 2012, the process for
obtaining permission to test mineral content has
changed and thresholds have been set for the
amount of material that will be considered a bulk
sample
• Both a bulk sample permit and an exploration
permit will be required to extract a sample and test
mineral content on a mining claim
17
Revisions to Closure Plan
Requirements
• A Closure Plan must now include the items and
information set out in Schedule 2 of Regulation
240/00 in the order in which the Schedule sets out
the items and information
18
9
When is a Closure Plan Required
• A mining company must prepare a Closure Plan
before starting (or re-starting) advanced exploration
or starting (or re-starting) mine production
• A closure plan describes measures including
proactive measures that the mining company takes
during the entire life of the mine to rehabilitate the
mine
19
Closure Plan
• These rehabilitation measures aim to restore the
site to its former use or condition or to make the
site suitable for a use that the Director of Mine
Rehabilitation determines
• The Closure Plan includes a requirement that the
company post a financial assurance to cover the
costs of rehabilitation to protect the taxpayer in the
event of a corporate default
20
10
Certified Closure Plans
• The Chief Financial Officer and one other senior
officer of the proponent (mining company) must
sign a standard certificate (included in the
Regulation), that includes statements that the
Closure Plan complies will all aspects of the Mining
Act and that the financial assurance will cover the
costs of rehabilitation
21
Aboriginal Consultation – Closure Plans
• Aboriginal consultation is required prior to the
submission of a certified closure plan or closure
plan amendment for advanced exploration and
mine production stage projects
• Changes require that Aboriginal consultation be
conducted prior to submitting a certified closure
plan or certified closure plan amendment
• There are provisions for facilitation (if required) to
assist with the process
• Financial assurance must also be submitted to the
Financial Assurance Coordinator at this time
22
11
Rosalind H. Cooper
+1 416 865 5127
rcooper@fasken.com
23
12
Aboriginal Consultation Under the New
Mining Act
Global Mining and Aboriginal Law Groups Seminar
June 19, 2013
Tracy A. Pratt
tpratt@fasken.com
Exploration Permits
• Mandatory as of April 1, 2013 (no grandfathering)
• Mining Act amendments and regulations
• MNDM Policies
• Permit when usually a plan would suffice
• Directors of Exploration
2
1
Notification of Aboriginal Communities
• A proponent can notify Aboriginal communities of their intent to
submit an application but must first request that the Director
identify the communities to be notified
• If the proponent notifies the identified Aboriginal communities
then the permit application must include a consultation report
• The proponent can leave notification of Aboriginal
communities to the Director
• In either case, the Director will send a copy of the permit
application to applicable Aboriginal communities
3
Consultation
• Notified Aboriginal communities may provide written comments
regarding any adverse effects the activities proposed in the
application may have on their existing or asserted Aboriginal or
treaty rights
• The proponent must consult with Aboriginal communities pursuant
to the Director’s direction
• The Director may require the proponent to file a consultation
report including information respecting any “arrangement”
reached with an Aboriginal community or the efforts made to
reach such an arrangement
4
2
Consultation
• Publication on Environmental Registry
• Contact of identified Aboriginal communities by MNDM after the
30 day comment period
• Reciprocal role of Aboriginal communities
5
Timing
• 50 days, subject to a temporary hold
• Temporary hold: Where there are concerns raised by an
Aboriginal community whose existing or asserted Aboriginal or
treaty rights are potentially affected by the proposed
exploration activity which in the opinion of the Director warrant
additional time to adequately consider
• Dispute resolution process
• MNDM Policy – Dispute Resolution at Early Exploration
6
3
Decision Making
• The Director must be “satisfied that appropriate Aboriginal
consultation has been carried out”
• In determining whether the Director is so satisfied, he or she
may “consider any arrangement reached with an Aboriginal
community or the efforts made to reach such an arrangement”
• MNDM policy - Consultation and Arrangements with Aboriginal
Communities at Early Exploration
• Effective for not more than 3 years
• Terms and conditions?
7
Permit Applications
• Pre-application
• Aboriginal Consultation Report
• Facilitation of the permit process
• Consultation in the closure plan context
8
4
Tracy A. Pratt
+1 416 865 4429
tpratt@fasken.com
9
5
Behn v. Moulton Contracting Ltd.
New Remedies for Old Problems
Global Mining and Aboriginal Law Groups Seminar
June 19, 2013
Neal J. Smitheman
nsmitheman@fasken.com
Facts
• Fort Nelson First Nation are signatories to Treaty 8
• The Behn family are individual First Nations with asserted
rights on their traditional family territory, namely, the right to
the use of certain trap lines
• The B.C. MOF proposed to amend its forest development plan
to allow for the issuance of logging licenses in the FN
traditional territory. Despite notification, there was only limited
consultation.
• The amendment was authorized and two logging licenses
were sold to Moulton
• The Behns’ supporters responded with a blockade
• Moulton brought an action in tort
• Behns’ defence: invalid license because of failure to consult
2
1
Issues: Abuse of Process and Standing
1. Abuse of process
• SCC held:
“To allow the Behns to raise their defence based on treaty
rights on a breach of the duty to consult at this point would
be tantamount to condoning self-help remedies and would
bring the administration of justice into disrepute…The
doctrine of abuse of process applies, and the appellants
cannot raise a breach of their treaty rights and of the duty
to consult as a defence [to Moulton’s tort action].”
• Confusion: Collateral attack or self-help remedy?
3
Issues: Abuse of Process and Standing
(cont’d.)
2. Standing
• Collective treaty rights
• The Behns asserted that they had “a greater interest in the
protection of hunting and trapping rights on their traditional
family territory than did other members of the FNFN”.
• SCC, in obiter, held:
“It will suffice to acknowledge that, despite the critical
importance of the collective aspect of Aboriginal and Treaty
Rights, rights may sometimes be assigned to or exercised
by individual members of Aboriginal communities and
entitlements may sometimes be created in their favour. In a
broad sense, it could be said that these rights might belong
to them or that they have an individual aspect regardless of
their collective nature. Nothing more need be said at this
time.”
4
2
Issues: Abuse of Process and Standing
(cont’d.)
• More mud in the floodgates water
• Impact on mining in Ontario
5
Neal J. Smitheman
+1 416 868 3441
nsmitheman@fasken.com
6
3
Join the “Aboriginal Law” LinkedIn Group
Where members share developments in Aboriginal and indigenous
law in Canada, Latin America, Africa, and other regions around the
globe.
Top Law Firm - Mining & Aboriginal
Leading Law Firm - Environmental
Aboriginal Law Firm of the
Year, 2013
7
4
REFERENCE MATERIALS
VANCOUVER
CALGARY
TORONTO
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
FACT SHEET
Global Mining Group
Mining
FACTS
Winner of Who’s Who Legal’s
Mining Lawyer of the Year for
2010, 2011 and 2012
Winner of Who’s Who Legal’s
Global Mining Law Firm of the
Year award in 2005, 2006, 2007,
2008, 2009 and 2011
Canadian Legal Lexpert
Directory (2012) recognizes
Fasken Martineau for its mining
expertise and has nominated five
partners as leading practitioners
Chambers Global (2012) ranks
the firm’s Mining practice in
Canada, South Africa and Latin
America and profiles five
members of the group
Best Lawyers in Canada (2011)
lists three members of the group
for expertise in Natural Resources
Law
Ranked among the top 10 law
firms for placements and listings
on both the Alternative
Investment Market of the
London Stock Exchange and
the Toronto Stock Exchange,
two of the world’s leading sources
for raising capital for mining
companies
Mining transactions involve coordinating people, property and capital across different jurisdictions and
time zones. Whether you are at the exploration, development or mining phase, need to secure financing,
or plan to acquire other companies, success depends on solid legal advice and experience. Fasken
Martineau’s Global Mining Group has an unparalleled international reputation in the industry. We are
consistently recognized as having more mining and mining finance experts than any other law firm. With
more than 150 years of mining industry experience, we structure transactions to promote cross-border
efficiencies, reduce exposure to political and regulatory risk, and facilitate financing.
Our Clients
We represent exploration and mining companies, banks and brokers, investors, and industry service
providers. We also work with governments on mining related matters, including advising more than 50
developing countries. Clients choose our award-winning team because we offer:
x
Industry expertise – We combine our knowledge of global equity, debt and M&A (private and
public) transactions with our extensive understanding of mine permitting, mining agreements
(including off-take, hedging, royalty, option and joint venture contracts), investment stabilization
agreements, and mine closure and rehabilitation arrangements.
x
Mining contacts – Leading mining producers retain us regularly for M&A and mining transactions,
giving us a keen understanding of their long-term commodity outlooks, views on the developing
countries, and other business insights. Our most active client base – investors, junior mineral
exploration companies, developers and junior/mid-sized producers – gives us insight into the
challenges of raising capital, exploring and drilling for new discoveries, permitting/building/expanding
mine operations, negotiating off-take arrangements, and developing/implementing closure plans.
x
Access to financing – Our ability to make introductions to brokers and investment banks has
proven invaluable to our clients. We have acted for most of the world’s leading banks and brokers in
Canada, Europe and Africa. We are the only law firm to rank among the top ten law firms for
financings and new listings on both the TSX and the AIM Market. Our strong execution teams in
Johannesburg and Paris also facilitate transactions involving the JSE and NYSE Euronext.
x
Global reach – As the only law firm with offices in each of the world’s key mining finance centres –
Toronto, Vancouver, London and Johannesburg – we can address the international dimensions that
characterize many mining industry transactions today. Our Paris office has extensive experience in
franco-Africa.
Our Expertise
Our core areas of mining expertise include:
x
x
x
x
Capital market transactions, including IPOs
Debt and equity finance, including project finance
Mergers, acquisitions and dispositions
Mining agreements, including option and joint venture agreements.
We also offer deep, tactical knowledge of the mining industry on other related matters including:
x
x
x
x
x
x
x
x
x
x
x
VANCOUVER
[20Jun12]
CALGARY
TORONTO
Corporate social responsibility (Aboriginal and community consultation)
Project development
Government negotiations and strategy
Mine permitting
Royalty creation and sale agreements
Environmental compliance and closure
Hedging and forward sales contracts
Resource taxation
Stabilization agreements
Litigation and alternate dispute resolution
Intellectual property.
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
FACT SHEET
Selected Experience
Exploration
We act on behalf of major, intermediate and junior mining
companies on exploration agreements, options, earn-ins, farmouts, joint ventures and strategic alliances on properties
worldwide.
Project Development
We have extensive experience advising on all aspects of
development of mining projects, including delivery structures,
formulation of tenders and procurement. We advised BHP Billiton
on the negotiation of a multibillion EPCM contract and a US$400
million shaft sinking contract, both in respect of its Janzen Potash
Project in Saskatchewan; Alexco Resource on the construction of
its Bellekeno silver mine, Yukon; and Eldorado Gold on its
Efemcukuru gold project in Turkey.
Permitting and Closure
We have extensive experience with mine permitting and closure
plans, including acting for BHP Billiton in relation to its Ekati
Diamond Mine in NWT and Alexco Resource in relation to its
remediation and redevelopment plan of its Yukon, Keno Hill silver
district and Capstone in licensing its Yukon, Minto mine.
Aboriginal and Community Consultation
We have been closely involved in the evolution of the law in
Canada pertaining to the duty to consult with First Nations and
have acted for a number of mining companies negotiating
accommodation with First Nation groups to allow their projects to
proceed. We advised Goldcorp in the negotiation of a landmark
mining agreement with the Crees of Northern Quebec. We
negotiated agreements on behalf of Hard Creek Nickel for its
Turnagain project and Selkirk Metals for its Catface copper
project, both in British Columbia.
Project Finance
We acted for Augusta Resource Corporation in the negotiation
of a US$176 million agreement with a South Korean consortium to
help fund the Rosemont copper molybdenum project in Arizona;
Orezone Resources in agreements with Bayerische Hypo- und
Vereinsbank AG and The Standard Bank of Africa to increase
Essakane Project debt facility to US$330 million; and BNP
Paribas in respect of project financing facilities for various
Canadian-based mining companies.
Lending
We acted for The Bank of Nova Scotia and international
lending syndicates on an unsecured US$680 million credit facility
for Yamana Gold, an unsecured US$450 million credit facility for
Kinross Gold, and a restructured US$225 million credit facility for
Lundin Mining.
Operations
We regularly advise clients on the full range of issues that arise in
mine operations.
VANCOUVER
[20Jun12]
CALGARY
TORONTO
OTTAWA
MONTRÉAL
Capital Markets Transactions
We act on behalf of issuers and underwriters in respect of
sourcing and supplying equity financing to mining companies on
the TSX, TSXV, Amex and AIM exchanges, including GMP
Securities and Citigroup Global Markets on $202 million private
placement of subscription receipts by Pacific Coal Resources;
Pretium Resources on $265 million IPO; RBC Capital Markets
and Investec Bank on US$385 million equity and debenture
offering; Uranium One on $260 million bought deal offering of
convertible unsecured subordinated debentures; and De Beers on
$1 billion rights issue.
Mergers and Acquisitions
We act for Vale S.A. in its proposed $1.1 billion acquisition of
Metorex and for IAMGOLD in the sale of a minority stake in gold
mines in Ghana to Gold Fields for US$667 million. We acted for
Gammon Gold in US$420 million acquisition of Capital Gold;
Uranium One in US$1.5 billion transaction with Russian-based
ARMZ; International Royalty Corporation in its $700 million
acquisition by Royal Gold; and Eldorado in its $2 billion
acquisition of Sino Gold by way of Australian arrangement.
Royalty Transactions
We have extensive experience in negotiating and documenting
mineral royalties, including advising companies in the business of
acquiring and creating royalties.
Litigation and Alternate Dispute Resolution
We advise and act in respect of corporate and commercial matters
in domestic and international courts, tribunals and alternate
dispute resolution venues. We act for First Quantum Minerals in
proceedings against the Democratic Republic of Congo before the
International Chamber of Commerce and the International Centre
for Settlement of Investment Disputes. We represented Gold
Reserve before the Ontario Superior Court of Justice in
successfully restraining Rusoro Mining from proceeding with a
hostile takeover bid for the company because of alleged conflicts
of interest and confidentiality violations.
Governmental
We assisted the governments of Burkina Faso, Burundi, Gabon,
Djibouti and Mali in reviewing and drafting their mining codes; and
Guinea and DRC in negotiations of mining conventions with
private operators. We acted as secretary to a multinational joint
venture company for the development of a major iron ore project in
Guinea. We acted as a special advisor to Omnis (the national
mining and petroleum entity in Madagascar), to a government joint
venture in Algeria for power generation agreements associated
with a major mining project, and to Mali in connection with the
privatization of a gold mine.
Intellectual Property
We are patent counsel to companies and individual inventors
developing new mining technologies, including providing advice on
obtaining patent protection worldwide and on commercialization
strategies.
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
FACT SHEET
Aboriginal Law Group
Aboriginal Law
FACTS
Chambers Global (2012) ranks
Fasken Martineau top in Canada
for Aboriginal Law and
recognizes our lawyers in this
area of practice
Canadian Legal Lexpert
Directory (2012) recognizes our
lawyers in the area of Aboriginal
Law
Best Lawyers in Canada (2012)
ranks our lawyers in the area of
Aboriginal Law
The origins of Canada’s Aboriginal law are older than the country itself, yet it continues to change and
evolve in dramatic ways. The obligation of government to consult with aboriginal people and industry’s
participation in the consultation are important considerations in any resource or land development in
Canada. This has given rise to opportunities for aboriginal participation in resource and land
development and also to disputes where the terms of such participation cannot be resolved. We help
clients resolve Aboriginal legal issues to facilitate business and resource development in Canada.
Our Clients
We work with natural resource and energy companies, large and small businesses, all industry sectors,
all levels of government, First Nations communities and band councils, and individuals. Our goal is to
successfully complete business transactions with First Nations and resolve issues related to Aboriginal
rights and title, regulatory matters, and issues related to business, employment and governance.
x
Experience with landmark cases – With a team of more than 30 lawyers, Fasken Martineau has
one of Canada’s largest practices specializing in Aboriginal law. Recognized as leaders in their field,
the group has continually changed the landscape of Canadian Aboriginal law. With shared resources
from coast to coast, we have represented clients in landmark cases and business transactions that
have redefined the law to reflect modern circumstances and have fostered successful business
relationships with First Nations.
x
Up-to-date insight – As old and new Acts and Treaties are written and challenged, and new cases
make new law, we deliver timely comments and developments to our clients, keeping them apprised
and assuring them that their business operations remain compliant and effective.
x
Focus on results – We understand our clients’ goals. And we know how to navigate the sometimes
complex landscape of Aboriginal law to help accomplish your goals. This unique combination
enables us to offer you minimal risk and cost with maximum efficiency and expediency. Our goal is
to provide you with exceptional, yet practical, results.
Benchmark Canada (2012)
ranks our lawyers as Aboriginal
Law Stars (National)
Our Expertise
We are committed to understanding the business of our clients and finding appropriate solutions,
including:
x
x
x
x
x
x
x
x
VANCOUVER
[01Aug12]
CALGARY
TORONTO
Advice on doing business with First Nations communities
Band Council and reserve land issues
Consultation and accommodation assistance
Consultation protocols
Commercial Agreements including Impact and Benefit Agreements
Internal policy development
Litigation on behalf of industry and other rights holders in connection with Aboriginal rights, title and
treaty issues
Regulatory matters
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
FACT SHEET
Selected Experience
Represented the Government of Canada as Chief Federal
Negotiator in negotiations with the Crees of Northern Québec and
reached an historic agreement that settles outstanding litigation
between the parties, improves implementation of the 1975 James
Bay and Northern Québec Treaty Agreement and provides a Cree
regional governance framework.
Represented BC Hydro in their application to the British Columbia
Utilities Commission (“BCUC”) for a CPCN for a 240 km 500 kV
transmission line (“ILM”).
Represented BC Hydro in an application by First Nations to quash
an Environmental Assessment Certificate for an alleged failure by
the Crown to consult in relation to ILM.
Represented Teck Metals in the one-third interest acquisition by
British Columbia Hydro and Power Authority of the Waneta
hydroelectric dam in Southeastern British Columbia.
Represented Goldcorp Inc. in three years of negotiations with the
Crees of Northern Québec resulting in the signing of a landmark
Collaboration Agreement regarding the development and
operation of Goldcorp's Éléonore Gold Project .
Represented the City of Brantford in
Aboriginal blockades and work stoppages
the Ontario Superior Court granted our
injunction prohibiting any interference
development projects in the City.
a dispute respecting
within the city in which
client an interlocutory
or obstruction with
Advised Adanac Molybdenum Corporation in relation to an
Impact Benefit Agreement with the Taku River Tlingit First Nation
for the Ruby Creek Project in northwest British Columbia.
Advised electrical generation and transmission companies
regarding agreements with First Nations relating to electrical
power and transmission projects in British Columbia.
Advised project lenders and investors in relation to Aboriginal
due diligence regarding major mining and energy projects.
Represented Platinex, a junior mineral exploration company, in a
dispute with a First Nation respecting proposed exploratory drilling
on Aboriginal traditional territory. This is a civil action, including
injunction and contempt motions and an appeal, and raises
various Aboriginal law and constitutional issues. More recently,
this matter involves a civil action against Ontario for its role in the
dispute.
Represented Frontenac Ventures Corporation, a junior mineral
exploration company, in connection with injunctions and contempt
proceedings arising from a First Nation occupation and blockades.
Also represented Frontenac in a mediation, consultation and the
successful negotiation of Memoranda of Understanding.
Represented business and industry intervenors in leading
Supreme Court of Canada cases such as Delgamuukw, Haida,
Taku, Kitkatla and Kapp.
Represented FortisBC Energy (Vancouver Island) Inc. in an
application to the BC Utilities Commission that would provide the
Chemainus First Nation and Cowichan Tribes with the opportunity
to invest in the newly constructed liquid natural gas storage facility
on Vancouver Island, British Columbia.
Represented Penn West Petroleum Limited before the Alberta
Court of Appeal where Dene Tha' First Nation appealed a decision
of the Alberta Energy and Utilities Board refusing the Dene Tha'
standing to object to a number of well and pipeline applications by
Penn West. The appeal was dismissed.
Advised Polaris Minerals Corporation in relation to creation and
operation of joint ventures with the Namgis First Nation (the Orca
Project) and the Hupacasath and Ucluelet First Nations (the Eagle
Rock Project) on Vancouver Island in British Columbia.
Represented Canadian Zinc Corporation in regard to an
Aboriginal challenge to the land use permit sought by Canadian
Zinc to use a winter access road to Prairie Creek Mine. The
Supreme Court of the Northwest Territories ruled that Canadian
Zinc's permit application is exempt from environmental
assessment.
Advised Terasen Gas in relation to completing Impact Benefit
Agreements with the Lil’wat First Nation and the Squamish First
Nation regarding a gas pipeline project in southern British
Columbia.
Advised Selkirk Metals Corp. in relation to completing a
Memorandum of Understanding with the Ahousaht First Nation
concerning the Catface Copper Project near Tofino, British
Columbia.
Advised Alexco Resource Corp. regarding completion of a
Negotiation Agreement followed by a Cooperation and Benefits
Agreement with the First Nation of the Na-Cho Nyak Dun relating
to the United Keno Hill Project near Mayo in Yukon.
Represented Selwyn Chihong, a mineral exploration company in
the process of moving the Selwyn Project in the Yukon forward to
advanced exploration, in a dispute with a First Nation regarding
the environmental assessment of the advanced exploration
project. This is a judicial review of a decision by the responsible
Yukon Minister to accept the recommendations of the Yukon
Environmental and Socio-Economic Assessment Board that the
project should proceed with certain conditions.
Advised Katabatic Power Corporation regarding various Impact
Benefit, Protocol and Commercial agreements with Gitxaala First
Nation, Metlakatla First Nation, Gitga’at First Nation and Kitkatla
First Nation relating to wind energy projects near Prince Rupert
and Kitimat, both in British Columbia.
VANCOUVER
[01Aug12]
CALGARY
TORONTO
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
FACT SHEET
Environmental Law
Environmental Law
FACTS
Chambers Global is quoted as
saying “Fasken Martineau has
done excellent work in this area
and we are excited to work with
them going forward.”
The Canadian Environmental
Law Guide is a reference tool
for anyone conducting business
in Canada where environmental
laws and regulations apply.
Fasken Martineau’s lawyers
have been updating this
publication quarterly since 1996.
Environmental issues increasingly dominate the global social, political and business agendas,
demanding close attention from business and governments. Fasken Martineau’s Environmental Law
group can help you successfully navigate the shifting environmental regulatory landscape. Whether you
are developing a resource project, selling or acquiring a business or property, developing land,
managing an operation, dealing with contaminated property, or facing allegations of regulatory noncompliance, our multidisciplinary team is well equipped to represent your interests with sound, strategic
advice.
We offer extensive experience working with governments, businesses and industry groups to influence
environmental policy development within Canada and elsewhere. Our team has a solid reputation for
having developed strong relationships with environmental regulators, regulatory agencies and
adjudicative bodies, which we draw on frequently to help our clients achieve their goals.
Our Clients
We advise businesses, business executives and board directors, governments, communities and
individuals including employees and estate administrators, beneficiaries, and bankruptcy receivers and
monitors on environmental regulations and compliance, commercial transactions and litigation. Our
clients include real estate developers, energy companies, mining and other natural resource companies,
landlords, tenants, business associations, industry groups, and government agencies.
Our Expertise
We are committed to understanding the business of our clients and finding appropriate solutions,
including:
VANCOUVER
[01Aug12]
CALGARY
TORONTO
x
Contaminated Sites including project approvals
x
Environmental Assessment & Permitting - contaminated land remediation, brownfield redevelopment
and contaminated sites litigation
x
Waste Management & Regulation
x
Climate change: carbon regulation and trading
x
Regulatory compliance and enforcement
x
Environmental risk management
x
Sustainability management and advancement beyond compliance
x
Resource and environmental policy development and implementation
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
FACT SHEET
Selected Experience
Advised Intact Financial Corporation in its acquisition of JEVCO
Insurance Company for $530 million from The Westaim
Corporation.
Advised Cerberus Capital's NewPage in its acquisition of the
(including two paper mills in Point Tupper, Nova Scotia) from
Finnish-Swedish papermaker Stora Enso Oyj.
Advising IAMGOLD Corporation in its acquisition, through a plan
of arrangement, all of the issued and outstanding common shares
of Trelawney Mining and Exploration Inc.
Advised United Group Limited in its acquisition of UNICCO
Service Company.
Counsel to the shareholders of Quik X Transportation in the sale
of its trucking business to TransForce Inc.
Advised International Power in the acquisition of Canadian wind
farm developer AIM PowerGen.
Advised Roper Industries, Inc. on the Canadian aspects of its
acquisition of Northern Digital, Inc.
Advised Goldcorp Inc. in the negotiation of a Collaboration
Agreement with the Cree Nation of Wemindji, the Grand Council of
the Crees and the Cree Regional Authority regarding the
development and operation of Goldcorp's Éléonore Gold Project in
northern Québec.
Advised ERA Ecosystem Restoration Associates Inc. in a
forest carbon transaction, protecting 750 hectares of ecologically
sensitive lands on Denman Islands, BC.
Advised Polaris Minerals Corporation in its closing of a $62.1
million offering of 6.9 million common shares of the company.
Advised The Goodyear Tire & Rubber Company in the sale of its
Engineered Products Division to The Carlyle Group.
Advised Vision Capital Limited, an independent investment firm
headquartered in London, England, on the Canadian aspects of its
acquisition of a portfolio of four businesses from AEA Technology
plc.
Advised Kennametal Ltd. in its acquisition of Camco Cutting
Tools and Advanced Powder Fusion (Camco Group) of Kelowna,
British Columbia.
Advised Cedar Fair, L.P. of Sandusky, Ohio in its acquisition of
Paramount Parks Inc. from CBS Corporation.
Advised Barrick Gold Inc. in the acquisition of the Golden Giant
Mine Properties at the Hemlo Camp in northern Ontario from
Newmont Mining Corp.
Advised Open Link Financial, Inc. in its acquisition of dbc
SMARTsoftware, Inc.
Acted for Cominco Ltd. in relation to project and environmental
approvals for the Waneta Dam Upgrade Project, including
negotiating and documenting mitigation agreements with
provincial and federal officials.
Advised Societe générale de financement du Québec in the $75
million financing agreement with Osisko Mining Corporation.
Advised Logistec Corporation in its acquisition, through its
wholly-owned subsidiary, Logistec Stevedoring Inc., of 100% of
the issued and outstanding shares of Les Terminaux Rideau Bulk
Terminals Inc.
Advised Calvi Holding Srl of Italy in its acquisition of Lift
Technologies Inc.
Advised Parker Hannifin Corporation in its acquisition of Vansco
Electronics from numerous selling shareholders, including Perseis
Private Equity and Kilmer Capital Partners.
Advised Southfield Capital Advisors, LLC in its investment in
Reinforced Plastic Systems.
VANCOUVER
[01Aug12]
CALGARY
TORONTO
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
BIOGRAPHIES
VANCOUVER
CALGARY
TORONTO
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG
Biographies
Fasken Martineau Panelists
Michael J. Bourassa
Partner
+1 416 865 5455
mbourassa@fasken.com
Michael Bourassa is a member of the Global Mining Group and was its co-ordinator from
2004 to 2012. He was named in the 2005-2012 editions of the International Who's Who of
Mining Lawyers which also named Fasken Martineau in 2011 as the number one firm in
the world for mining legal expertise for the 6th time. Michael was also named by Who's
Who Legal as "Mining Lawyer of the Year" in 2010, 2011 and 2012. He has extensive
experience with international mining due diligence issues concerning title, technical
matters and environmental risks. He has negotiated and drafted, and advised clients on
issues in connection with, public financings, commercial mining agreements (joint venture,
option, purchase and sale, royalty, and other mining-related agreements) and litigation
support. He has also written articles on corporate social responsibility trends in the mining
industry and is a member of the firm's CSR Practice group. Michael joined Fasken
Martineau in 2003.
Michael is a Director of the Prospectors and Developers Association of Canada, an
Executive Member of the Mining Law Section of the International Bar Association and a
former Trustee of the Rocky Mountain Mineral Law Foundation.
Neal Smitheman practises both civil and criminal litigation. Neal is often called upon to
appear on short notice on matters ranging from corporate oppression to derivative actions
to commercial injunctions.
Neal is the chair of the Ontario aboriginal law practice group. In this area of litigation, his
clients include companies in several sectors including resource development, oil and gas,
forestry, energy and commercial and residential land development and various
municipalities. He has represented industry and municipalities in several high profile
injunctions in Ontario. Neal also has extensive experience before the Mining and Lands
Commissioner and before the courts on mining-related issues.
Neal J. Smitheman
Partner
+1 416 868 3441
nsmitheman@fasken.com
Fasken Martineau recently was named the “Aboriginal Law Firm of the Year” by
Benchmark Canada. It also was designated “Top Law Firm” in Mining and Aboriginal Law
by Chambers & Partners. Neal was ranked a “Litigation Star” for Aboriginal law by
Benchmark in 2012 and 2013 and received a Chambers Global 2013 award for Aboriginal
law.
Tracy Pratt has significant experience and expertise in the area of aboriginal law. As a
member of the Ontario aboriginal law practice group, she regularly advises clients in the
mining, oil and gas, energy and forestry industries, land developers and municipalities
respecting aboriginal and treaty rights and the legal and practical requirements of the duty
to consult.
Tracy A. Pratt
Partner
+1 416 865 4429
tpratt@fasken.com
Tracy has represented clients in injunction proceedings and at consultation tables,
mediations and negotiations among industry, First Nations and government. She has
drafted numerous exploration, impact and benefits and similar agreements and advises
clients on the implementation of such agreements. Tracy also has extensive experience
in CSR matters and in mining and securities related litigation.
Fasken Martineau recently was named the “Aboriginal Law Firm of the Year” by
Benchmark Canada. It also was designated “Top Law Firm” in Mining and Aboriginal Law
by Chambers & Partners.
Rosalind is a partner with Fasken Martineau and has been named in Lexpert's The 2013
Guide to the 500 Leading Lawyers in Canada. Rosalind is also listed in the 2013 Best
Lawyers in Canada publication for environmental law, in Lexpert as most frequently
recommended in the area of environmental law, in 2013 Who's Who Legal in
environmental law and in the PLC Cross-Border Environment Handbook. Rosalind is also
on the roster of mediators/arbitrators of the Canadian Centre for Environmental Arbitration
and Mediation and is certified by the Law Society of Upper Canada as a specialist in
environmental law.
Rosalind H. Cooper
Partner
+1 416 865 5127
rcooper@fasken.com
Rosalind has extensive experience advising on all environmental regulatory issues
including
exposure
to
environmental
liability,
brownfields
redevelopment,
decommissioning and remediation of contaminated lands, certificates of approval,
reporting requirements, various aspects of due diligence, and director and officer liability.
Rosalind defends environmental charges, litigates contaminated land disputes and other
environmental matters, and is involved in appeals and environmental assessment
proceedings before the Environmental Review Tribunal. Rosalind also provides
environmental advice in relation to business transactions such as mergers and
acquisitions, the purchase and sale of real estate and secured lending transactions.
In the occupational health and safety area, Rosalind has been involved in defending
charges, dealing with work refusals, appeals of orders issued by the Ministry of Labour
and reprisal complaints. She has extensive experience in advising on reporting
requirements, the various roles and responsibilities of workplace parties, director and
officer liability for health and safety infractions, various aspects of due diligence, and
health and safety audits and assessments.
Rosalind has written numerous articles on a wide range of environmental and health and
safety issues. She is on the Editorial Board of and a regular contributor to Solid Waste &
Recycling Magazine since 2009. She has also spoken on various environmental and
health and safety issues at numerous conferences and has lectured at Canadian
universities, including the University of Toronto, Osgoode Hall Law School and the
University of Western Ontario.
I N S T I T U T E
VANCOUVER
CALGARY
TORONTO
OTTAWA
MONTRÉAL
QUÉBEC CITY
LONDON
PARIS
JOHANNESBURG