Answers To Some Questions That I Have Been Asked Recently And That Are Of Interest To Investors In Canada. Part #2

Answers To Some Questions That I Have Been Asked Recently And That Are Of Interest To Investors In Canada. Part #2

Describe any other sources of law affecting the mining industry.

The areas of contract law and tort law are generally regulated by the provinces pursuant to their “property and civil rights” powers delineated under the Constitution Act, 1867. These bodies of law are mostly “common law” (i.e., “judge-made” law, rather than law created under legislation by Parliament or legislatures). Common law can be superseded or modified by subsequent legislation. Recently, in the context of liability for human rights violations on international projects, Canadian courts have recognised that absent any conflicting domestic legislation, customary international law may form part of Canadian common law.

Québec, unlike the other provinces, is governed by civil law. Civil law is a codified law that is written into statutes (e.g., the Civil Code of Québec) which are then strictly interpreted by the courts.

Are there any recent political developments affecting the mining industry?

In 2021, legislation introduced by the Government of Canada to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) received Royal Assent. The legislation obligates the federal government to take all measures necessary to ensure that the laws of Canada are consistent with UNDRIP, and requires the federal government to prepare, by June 2023, an action plan to achieve the objectives of UNDRIP. The legislation, on its own, will not change federal laws or decision-making processes, but will establish a framework for the further implementation of UNDRIP into federal law – the legislation would not apply to matters within provincial or territorial jurisdiction.

In 2019, British Columbia (BC) became the sole province to pass legislation incorporating UNDRIP into provincial law under the Declaration on the Rights of Indigenous Peoples Act (DRIPA). In 2021, BC amended the Interpretation Act to require that provincial laws be construed in a manner consistent with UNDRIP. In 2022, BC released an action plan outlining the actions that it intends to undertake to implement DRIPA through to 2027, which includes various UNDRIP compliance matters including new frameworks for resource revenue sharing and for policies and programs relating to the stewardship of the environment, land and resources. Since DRIPA came into effect, BC has entered into a consent-based decision-making agreement with an Indigenous group in relation to economic projects within that group’s territory. Further consent-based decision-making agreements are expected with other Indigenous groups.

In 2020, the Mineral Development Strategy Panel in the Yukon released a report which made recommendations for mining reform in the Yukon, including changes to royalty rates and the modernisation of the Yukon’s existing mineral management scheme to, amongst other things, acknowledge UNDRIP and the principles of “free, prior and informed consent”. Other provinces have generally resisted implementing UNDRIP principles into provincial legislation.

For public companies in Canada, environmental, social and governance (ESG) factors, including the cooperation and involvement of Indigenous peoples in mineral projects, are becoming increasingly relevant. In line with the demands of institutional investors, public companies are increasingly likely to view ESG-related risks as “material” and disclose such risks as part of their continuous disclosure obligations. Consideration and mitigation of ESG-related risks is also becoming increasingly relevant for project operations and for the evaluation of prospective transaction in the M&A space.

The Government of Canada released the Canadian Minerals and Metals Plan (CMMP) in 2019. The CMMP is a forward-looking framework, jointly authored by mining ministers across the country. The CMMP aims to address systematic challenges and issues in the mining industry, with a focus on: competitiveness; the participation of Indigenous peoples; community benefits; respect for the environment; scientific and technological innovation; and global leadership. The most recent CCMP Action Plan, intended to operationalise the CMMP, was published in 2022. The Action Plan proposes strategising approaches and programmes and initiatives to enhance the Canadian mining industry’s economic development and competitiveness, advance the participation of Indigenous peoples in the mining industry, protect the environment, encourage scientific and technological innovation, deliver benefits for communities located near mining activities, and strengthen Canada’s position as a world leader in the industry. Updated CMMP Action Plans are targeted for release every three years, enabling Canada to adjust its approach and respond to future opportunities.

A recent trend in many Canadian jurisdictions (including British Columbia, Ontario, Saskatchewan, New Brunswick and Nunavut) has been the replacement of traditional ground-staking regimes with electronic mineral tenure registries. This development has had the effect of reducing the cost of staking mineral claims, which may indicate a willingness to allow for more speculative staking of claims. In the Northwest Territories, mining legislation amendments have been proposed to allow for the introduction of online mining rights administration systems.

( To be Continue)

Answers To Some Questions That I Have Been Asked Recently And That Are Of Interest To Investors In Canada. Part #2
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