Mining Law Canada 

Everyone is talking about blockchain. The concepts may be fuzzy, but the consensus is that the technology will revolutionize the way we do just about everything. The mining industry is no exception and it is clear that blockchain and its cousin, the smart contract, show great promise as an addition to a mining company’s toolkit.  My colleague, Tracy Molino, and I co-authored this piece in Canadian Mining Magazine about use cases for blockchain in the mining industry, so check it out here and reach out if you have any questions.

For a third consecutive year, Dentons is proud to support the Mining & Investment Latin America Summit (MILA), the largest mining and investment event in Latin America, which was incepted in 2014. This year’s summit will host an audience of more than 650 attendees, including miners, investors and financiers.

For a preview of the discussion to take place on mining mergers and acquisitions, read “Mining M&A and Consolidation: Are We There Yet?”, originally published in the Mining & Investment Latin America Special Report 2016.

Taking place on October 24-25, MILA will give attendees an overview of the key opportunities that exist in the Latin American mining industry. Mining group partners, Brian Abraham and Catherine Wade of the Firm’s Vancouver office, James Valdiri of the Bogotá office and Christopher Manderville of the Calgary office, will be joining attendees for two days of business matching, knowledge sharing and deal-making.

An Alberta court has held that provisions of the Bankruptcy and Insolvency Act allowing a trustee or receiver to disclaim real property without assuming environmental  liabilities in relation thereto renders inoperable provincial legislation that would otherwise seek to impose such liability on the trustee or receiver. The Court further held that a provincial regulatory body could not use its regulatory powers to block the sale of assets in insolvency proceedings. Although this case dealt with provincial legislation in the energy sector, the principles of paramountcy articulated therein would apply equally in the mining space.

See our Dentons Insight.

Effective May 9, 2016, the Canadian Securities Administrators will implement new take-over bid rules that will introduce significant changes to bid mechanics, including lengthier minimum deposit periods.  For a description of the changes, see here.

A recent court decision led to the failure of an attempted acquisition of an exploration company by a listed issuer, in part due to conflicts of interest. We analyze the decision, and provide commentary on the law and practice of managing conflicts, in this Dentons Insight.

This summary was co-authored by Daniel McElroy, Knowledge Management Lawyer in Dentons’ Vancouver office.

Mining exploration activities in Canada have attracted widespread interest over the past few decades and is today considered by most as a sector in its own right. Flow-through shares financings have helped raise significant capital for mining companies.

However, when evaluating the suitability of a flow-through financing, an operating corporation must also assess the discounted value of the tax deductions and tax incentives it is intending to forgo. Discounting their value allows the corporation to better appraise their current worth and more accurately evaluate the premium it must obtain to make flow-through financing economically advantageous. See our Dentons Insight.

As noted in the September 1, 2015 posting below, recent rule changes have required senior Canadian public companies to disclose their policies and record on the appointment of women as directors and executive officers. Our recent Insight summarizes the initial results of and response to these new disclosure rules, and indicates what further changes may lie ahead. See our Dentons Insight.

Mining issuers have their qualified persons (“QPs”) and occasionally legal counsel review technical disclosure, including news releases and technical reports, to ensure they comply with National Instrument 43-101 Standards of Disclosure for Mineral Projects (“NI 43-101”). Some mining issuers might not realize that information found on their websites and other presentations, including investor relations materials, is captured by the definition of “written disclosure” in NI 43-101 and disclosure requirements apply. Common areas of non-compliant disclosure on mining issuers’ websites include investor presentations, fact sheets, media articles, failure to update material information and links to third party content.

Staff Notice 43-309

On April 9, 2015, the Canadian Securities Administrators published CSA Staff Notice 43-309 Review of Website Investor Presentations (“Staff Notice 43-309”), which highlighted findings from a review of investor presentations on mining issuers’ websites, conducted by staff of the British Columbia Securities Commission, the Ontario Securities Commission, and the Autorité des marchés financiers (collectively, the “Regulators”). This review also included a review of mining issuers’ forward looking information (“FLI”) against the requirements of Part 4A of National Instrument 51-102 Continuous Disclosure Obligations (“NI 51-102”).

The Consequences

Of the 130 mining issuers reviewed, the Regulators sent letters to 49 mining issuers requiring them to amend their investor presentations and correct the non-compliant disclosure, resulting in outcomes from mining issuers confirming future compliance with the requirements, to issuing a corrective news release, to filing or refiling a technical report. The majority of the corrective news releases and technical report filings or refilings resulted from non-compliant disclosure of economic studies, preliminary economic assessments (“PEAs”), mineral resources, mineral reserves, exploration targets, historical estimates, or overly promotional language.

Practical Tips to Avoid Trouble

The take away for mining issuers is to ensure all written disclosure on their website complies with NI 43 101. Fortunately, Staff Notice 43-309 included the following practical advice to assist mining issuers in designing investor presentations and websites that meet their disclosure obligations:

A. Areas where there is a high level of non-compliance

1. Naming the QP: An issuer must include the name of the QP and their relationship to the issuer for all documents containing scientific or technical disclosure, including websites and investor relations materials. All technical information must either be approved by a qualified person or based upon information prepared by or under the supervision of a qualified person. In the latter case, an issuer must ensure that the technical information is consistent with the information provided by the QP. An issuer should consider having the QP review disclosure that summarizes or restates a technical report or technical advice or opinion to ensure that the disclosure is accurate.

2. PEA cautionary statements: Disclosure of the results of a PEA must provide appropriate cautionary statements to ensure the public understands the limitations of the results of the PEA. The following cautionary language, stated with equal prominence, must be included in disclosure of a PEA that includes inferred mineral resources:

“The preliminary economic assessment is preliminary in nature, it includes inferred mineral resources that are considered too speculative geologically to have the economic considerations applied to them that would enable them to be categorized as mineral reserves, and there is no certainty that the preliminary economic assessment will be realized.”

3. Mineral resources and mineral reserves:

a. Caution that mineral resources are not mineral reserves: The disclosure of results of an economic analysis of mineral resources must include an equally prominent statement that “mineral resources that are not mineral reserves do not have demonstrated economic viability”.

b. Inclusion or exclusion of mineral reserves in mineral resources: When reporting both mineral resources and mineral reserves, an issuer must include a clear statement whether mineral resources include or exclude mineral reserves. While practices on this matter vary, the CIM Estimation Best Practice Committee from 2003 recommends that mineral resources should be reported separately and exclusive of mineral reserves.

4. Exploration targets: If an issuer discloses an exploration target, both the potential quantity and grade of the exploration target must be expressed as ranges and be accompanied by an equally prominent statement that “the potential quantity and grade is conceptual in nature, there has been insufficient exploration to define a mineral resource” and that “it is uncertain if further exploration will result in the target being delineated as a mineral resource”.

5. Historical estimates: Each time an issuer discloses historical estimates, the issuer must include information about the source, date, reliability, key assumptions and other factors, and the following, equally prominent statements: “a qualified person has not done sufficient work to classify the historical estimate as current mineral resources or mineral reserves” and “the issuer is not treating the historical estimate as current mineral resources or mineral reserves”.

B. Areas for Additional Improvement

1. Taxes in economic studies: Financial results and the cash flow model for an “advanced property” (which includes results of a PEA, pre-feasibility or feasibility study) must include assumptions that have an economic impact such as taxes, royalties, and other government levies. In respect of such tax matters relevant to a technical report, we note that a QP may rely on a report, opinion or statement of another expert who is not a QP, or on information provided by the issuer, and may include a limited disclaimer of responsibility, provided the QP discloses: (i) the source of the information relied upon, including the date, title, and author of any report, opinion, or statement; (ii) the extent of reliance; and (iii) the portions of the technical report to which the disclaimer applies.

2. Metal price assumptions: When reporting mineral resources and mineral reserves, an issuer must ensure the assumed metal or commodity price, and the cut-off grade, are clearly stated, as well as the effective date of the reported estimate. For investor presentations, this information could be provided in an appendix.

3. Technical report triggers: An issuer must ensure that PEA disclosure on its website is supported by an existing technical report. Disclosing economic projections in investor presentations, fact sheets, posted or linked third party reports[1], or any statements on the issuer’s website may trigger the filing of a technical report to support the disclosure. Such PEA disclosure can include forecast mine production rates that might contain capital costs to develop and sustain the mining operation, operating costs, and projected cash flows.

4. FLI compliance: An issuer should ensure that FLI disclosure in investor presentations provides the material factors and assumptions used to develop the FLI. Examples of FLI include metal price assumptions, cash flow forecasts, projected capital and operating costs, metal or mineral recoveries, mine life and production rates, and other assumptions used in preliminary economic assessments, pre-feasibility studies, and feasibility studies.

5. Overly promotional terms and potentially misleading information. An issuer should avoid terms and statements that may be overly promotional or misleading. Terms which may be used inappropriately in certain circumstances include, “world-class”, “spectacular and exceptional results”, “production ready”, “ore” in relation to mineral resources, and “management estimates”.

6. Ability to rely on previous disclosure: An issuer must include in any written disclosure the following information, but may be able to comply with these requirements by including a reference to the title and date of a document previously filed on SEDAR that contains this information:

a. Exploration information about quality assurance/quality control and naming the laboratory.

b. Data verification – data verification is the process of confirming that the data underlying the written disclosure has been properly generated, was accurately transcribed, and is suitable for the purpose that the data is used.

c. Information about the nature and context of drilling results such as true width and higher grade intersections. In some cases, investor presentations may be able to include representative drill sections or other figures showing mineralized intervals to assist in providing the necessary information.

d. Metal price assumptions. However, if the assumed metal or commodity price is significantly below or above current prices, an issuer should clearly state the key assumptions to ensure the disclosure is not misleading.

Ultimately, if an issuer is in doubt about whether disclosure on its website or in its investor presentations complies with NI 43 101, the issuer can have a QP or legal counsel review the applicable disclosure.

[1] We also recommend that an issuer’s website does not include links to third party content, such as analysts’ reports.  National Policy 51-201 Disclosure Standards (“NP 51-201”) provides that if an issuer elects to post to its website or otherwise publish the names of analysts who cover the issuer and/or their recommendations, the names and/or recommendations of all analysts who cover the issuer should be similarly posted or published.  This applies whether the analysts’ coverage of the issuer is positive or negative.  NP 51-201 also provides that an issuer that redistributes an analyst’s report risks being seen as endorsing that report.  This may trigger a requirement for the issuer to file a technical report, depending on the content of the analyst’s report.

On Sunday March 1, 2015, the Honourable Joe Oliver, Federal Minister of Finance addressed the Prospectors & Developers Association of Canada (“PDAC”) at the annual PDAC Convention in Toronto and announced certain proposals aimed at bolstering Canada’s junior mining industry. First, the Government has announced that it intends to extend the 15% Mineral Exploration Tax Credit (“METC”) for flow-through share investors for an additional year. The METC was scheduled to expire on March 31, 2015. The METC was first introduced in 2000 as a temporary measure which expired in 2003. Since 2003, the Department of Finance has extended the METC annually, one year at a time.

The Government has also modified its previous position with respect to the types of expenses that will qualify as Canadian exploration expenses (“CEE”). Expenses which qualify for CEE treatment are 100% deductible in the year they are incurred. Additionally, certain types of CEE may be renounced to investors pursuant to flow-through share agreements which enable junior mining companies to raise capital and fund exploration programs. In a letter to PDAC dated September 19, 2007, the Canada Revenue Agency (“CRA”) provided certain guidelines in determining whether certain expenses incurred at the exploration stage qualified as CEE. In that 2007 letter, the CRA took the position that environmental assessments and community consultations undertaken to meet a legal requirement to obtain a permit would not be eligible for CEE treatment as these costs are not incurred for the purpose of determining the existence, location, extent or quality of a mineral resource in Canada.

In his speech, Minister Oliver announced the government’s intention to modify the definition of CEE contained in the Income Tax Act (Canada) to provide that effective March 1, 2015, the costs associated with undertaking environmental studies and community consultations as a pre-condition to obtaining a licence or permit to explore will qualify as CEE.

These proposed tax measures are welcome particularly since many mining companies are facing challenges in securing capital.

Only going to one mining investment show? Make it this one. PDAC International Convention, Trade Show & Investors Exchange is the world’s leading Convention for people, companies and organizations in, or connected with, mineral exploration.

The four-day annual Convention held in Toronto, Canada, has grown in size, stature and influence since it began in 1932 and today is the event of choice for the world’s mineral industry. In addition to meeting over 1,000 exhibitors, 25,122 attendees from over 100 countries, it allows you the opportunity to attend technical sessions, short courses as well as social and networking events.

For more information on PDAC, or to register, please visit the PDAC website.

Dentons Sponsored Events:

Your place ore mine?

Join Dentons for our annual cocktail reception during PDAC.

Come catch up with fellow stakeholders in the mining industry over an enjoyable evening of Hors d’oeuvre, drinks and networking.

We look forward to seeing you!

Date & Time
March 2, 2015
4:00 PM – 7:00 PM

Location
InterContinental Toronto Centre
Sapphire/Turquoise Room
225 Front Street West
Toronto
(Connected to the Metro Toronto Convention Centre)

Dentons is proud to support the Women in Mining – International Networking Reception

Take advantage of a global networking opportunity at the 8th annual Women in Mining International Reception hosted by Women in Mining Canada, designed to bring together industry leaders, academia, employers, students and job seekers from around the world. Here, you can connect with the people and personalities who comprise this dynamic industry and celebrate the global contributions that women have made to this vibrant industry – this reception is full of the energy that will fuel your PDAC experience. Afternoon appetizers and refreshments will be served.

Visit Women in Mining (WIM) Canada on the Trade Show floor at Booth 913, pre-and post-reception.

Become a member, learn how to become involved through volunteering or participating on committees, catch up with old friends and grow your network.

WIM Canada is a national not-for-profit organization formed in 2009 and focused on advancing the interests of women in the minerals exploration and mining sector.

For more details please contact: info@wimcanada.org

Date & Time
March 3, 2015
3:00 PM – 5:00 PM

Location
Metro Toronto Convention Centre
Room 105, North Building
Toronto

For more information on Dentons’ involvement at PDAC or to attend an event, please contact Kylie Panciuk.

The Northern Plan will focus on the integrated and coherent development of the area covered by the Northern Plan which includes all of Québec located north of the 49th degree of north latitude and north of the St. Lawrence River and the Gulf of St. Lawrence. There are several mining exploration projects and major mining projects at various stages of development in the north, some of which require significant access to infrastructures. The Government of Quebec intends to take steps to facilitate the implementation of mining and other projects in the area. With confirmation by the Government of Québec of its intention to relaunch the Northern Plan by introducing Bill 11, An Act respecting the Société du Plan Nord, on September 30, 2014, the implementation of the Northern Plan continues. Bill 11 reiterates the majority of the elements included in the former Bill 27, An Act respecting the Société du Plan Nord, introduced in 2011, which was examined by a parliamentary committee. However, Bill 11 contains new elements and incorporates differences when compared to the previous version as outlined in Relaunching the Northern Plan: Introduction of the Bill to establish the Société du Plan Nord. Mr. Couillard’s government seems determined to proceed with the implementation of all mechanisms required for the orderly deployment of the Northern Plan while the mining sector and international business community continue to demonstrate interest in this major plan.

Dentons is proud to be a Silver Sponsor of Mining & Investment Latin America Summit, the largest mining and investment event in Latin America.

Mining & Investment Latin America Summit is the only event that focuses on mining investment and efficiency strategies in Latin America, bringing together mining companies; companies with mining assets in Latin America; local, regional and international investors and financial service providers.

Please join us on Day 1 at 9:40 a.m. for a government and mining company panel discussion regarding optimizing the relationship between both parties to ensure long term growth and development. The distinguished panelists include Dr. Beatriz Uribe, President of Mineros; Patricia Fortier, Ambassador, Embassy of Canada, Peru; and Brian Abraham, Partner, Mining, Dentons Canada LLP.

Dentons Canada mining partner Jaime McVicar will also attend the Summit.

Brian and Jaime look forward to getting together with you for two days of business matching, knowledge sharing and deal-making.

The Province of British Columbia approved an Order in Council dated April 11, 2014 to establish environmental assessment fees in British Columbia for the review of environmental assessment applications, orders and enforcement fees.

The fee structure became effective on April 14, 2014.

There are three categories of fees: 1. pre-certificate fees; 2. transitional assessment fees; and 3. post-certificate fees.

Pre-certificate Fees

There is an exemption fee of $10,000 payable when a party seeks an exemption from the requirement for an environmental assessment certificate. The first installment for an assessment fee ranges from “simple” at $25,000 to “typical” at $75,000 and the assessment fee for the second installment ranges from $25,000 to $75,000.

Transitional Assessment Fees

Transitional assessment fees range from “simple” at $37,500 to “complex” at $112,500.

Post-certificate Fees

Post certificate fees for an extension range from $2,000 to $10,000 and an amendment fee ranges from $2,000 to $50,000. In addition, there are inspection fees imposed and the timelines for the payment of the fees are as set out in the regulations. There are a number of factors that are used to determine the fees and these are set out in the materials available on the government website at http://www.eao.gov.bc.ca/fees.html.

On February 7, 2014, BCAMTA opened its office in Terrace to guide and support aboriginal people towards gaining employment in the mining and exploration industry. There are a number of mines planned in the Terrace area and the need for employees, particularly those who have local connections would assist the mining sector for employing local people.

Additional information is available here.

The mineral exploration tax credit has been extended for a further one-year period.  This provides a 15% tax credit for flow-through share investors. Other items which would impact the mining industry include amendments to the Hazardous Products Act, an allotment of $40 million for the Norther Economic Development Program over a two-year period and a number of Human Resource initiatives, principally with respect to training.

The government has also proposed changes with respect to corporate transparency, particularly in the area of access to information and corporate beneficial ownership.

Julie Gelfand has been appointed environment commissioner effective March 24, 2014. She was most recently the Chief Advisor and Rio Tinto Canada and Vice President of Environmental and Social Responsibility at the Rio Tinto Iron Ore Company of Canada. She was also formerly the vice-president of the sustainable development at the Mining Association of Canada.

The commissioner is responsible for determining whether federal government departments are meeting their sustainable development goals and for overseeing the environmental petitions process and reports to Parliament on behalf of the Auditor General.

Additional information is available here.

In a speech to the Association for Mineral Exploration of British Columbia, Premier Christy Clark advised that the environment minister, Mary Polak, has been given the task of reviewing The Environmental Assessment Office to make it as effective and efficient as possible.

The Premier indicated that the current process has become less certain, less predictable and probably not efficient.  Premier Clark insisted that the process would remain rigorous, clear and that it would be timely.

It will be interesting to see the result of the review, particularly in light of the recent Pacific Booker decision in the British Columbia Supreme Court where the Court was ordered the Environmental Assessment Office to reconsider its earlier rejection of Pacific Booker’s application to develop the Morrison deposit in British Columbia.  The government has decided not to appeal that decision.

The Yukon government has increased its Yukon mineral exploration program by $630,000 for the coming field season. Premier Darrell Pasloski said in Vancouver in late January at the Mineral Exploration Roundup of the Association for Mineral Exploration for B.C. annual meeting the program provides a portion of the exploration expenditures to assist mineral exploration in the territory and in 2013 some 55 Yukon exploration projects received funding through the program. The program is merit based and provides partial funding for those projects most likely to succeed.

Additional information is available here.