We are pleased to bring you the newest edition of our popular book, Mining in the Courts, Year in Review.
For the second time in recent months, a British Columbian court has allowed a civil case to proceed against a resource company in British Columbia for wrongs allegedly committed outside of Canada.
On October 6, 2016, the British Columbia Supreme Court determined that a civil claim alleging human rights violations at an Eritrean mine could proceed to trial against a British Columbia mining company (see Araya v. Nevsun Resources Ltd., 2016 BCSC 1856: British Columbia Supreme Court refuses to strike civil claims alleging human rights violations at Eritrean mine).
On January 26, 2017, the British Columbia Court of Appeal determined that seven Guatemalan nationals who were allegedly shot while protesting at a mine in Guatemala can continue an action in British Columbia against a British Columbia mining company, Tahoe Resources Inc. (Garcia v. Tahoe Resources Inc., 2017 BCCA 39). In doing so, the Court of Appeal reversed the decision of the chambers’ judge, who had stayed the case on the basis that Guatemala was clearly the more appropriate forum for the action.
Garcia is significant, both for Canadian resource companies operating abroad and for foreign nationals alleging that Canadian parent companies are responsible for wrongs committed in the complainants’ home countries. Continue Reading
La version française suit / French language version follows
On January 11, 2017, the Minister of Energy and Natural Resources of Québec (“MERN“), Mr. Pierre Arcand, published new Government Policy Directions (in French only) aimed at promoting the harmonious coexistence of mining activities with other uses of the territory. On the same day, the Québec Government also issued Decree 1075-2016, which sets December 14, 2016 as the date on which section 108 of the Act to amend the Mining Act (2013, chapter 32) came into force.
As a result of these developments, which follow the 2013 reform of Quebec’s Mining Act, regional county municipalities (“RCM“) can now delimit, in their land use and development plans, any territory deemed incompatible with mining activities. These territories will be withdrawn from mining exploration and operations in the Province, subject to certain conditions. Continue Reading
The challenging commodity price environment will likely bring renewed focus on the rights and obligations that will be impacted if insolvency overtakes exploration and production companies. The British Columbia Supreme Court’s recent decision in Re: Walter Energy Canada Holdings, Inc. is a case in point. The case dealt squarely with the question of whether a mineral royalty “runs with the land” – a question that takes on significantly greater importance in the insolvency context. Continue Reading
The Ontario Court of Appeal in 798839 Ontario Limited v. Platt, 2016 ONCA 488, recently affirmed a trial judge’s decision that saw an optionholder that invested millions into the development of mining claims be left with zero interest in those claims. The optionholder failed to meet all of the necessary preconditions to be able to exercise its option, and was left without any interest to show for it. What seems like an unjust outcome is just the nature of options, according to the Court of Appeal. Continue Reading
In an important decision for Canadian resource companies operating abroad, the British Columbia Supreme Court has permitted claims alleging human rights abuses at a mine in East Africa to proceed to trial. Continue Reading
Over the years, climate change policy has experienced its ebbs and flows. Climate change landed on the international stage at the Rio Earth Summit in 1992, where 154 countries signed the United Nations Framework Convention on Climate Change (UNFCCC) to stabilize atmospheric concentrations of greenhouse gas (GHG) emissions at a level to prevent “dangerous anthropogenic interference with the climate system.” The UNFCCC came into force on March 21, 1994 and, to date, has been ratified by 195 countries. Subsequent international negotiations led to the Kyoto Protocol, an international treaty which extends the UNFCCC and commits its signatories to reduce GHG emissions. The Kyoto Protocol was adopted in December 1997 and came into force on February 16, 2005. There are currently 192 signatories to the Kyoto Protocol. While Canada withdrew from the Kyoto Protocol effective December 2012, a newly elected federal government has indicated its willingness to re-engage in international eff orts to implement a new global climate change treaty for the post-Kyoto era.
Canada is often considered to be the mining capital of the world. More than three-quarters of the world’s mining and exploration companies are based in Canada. Canada’s extractive sector typically amounts to more than one-third of the total value of Canadian domestic exports, and its natural resource sector directly and indirectly accounts for almost one-fifth of the country’s nominal GDP and 1.8 million jobs.
In 2015, the government of Québec introduced legislative changes that have a direct impact on the mining industry. In October, An Act respecting transparency measures in the mining, oil and gas industries came into force (Act). By the end of the year, significant changes had also been introduced to the province’s Mining Act. Each of these legislative developments is described below.
In 2015, Canada’s new federal government committed to implementing the United Nations Declaration on the Rights of Indigenous Peoples (Declaration). This has generated significant attention in the mining and natural resource sectors due to the Declaration’s potential incompatibility with Canada’s constitutional and legal framework for Aboriginal rights and consultation, particularly the potentially broad interpretation of “free, prior and informed consent” (FPIC) as a veto right against resource development and administrative and legislative decision-making. While FPIC is a potential game changer, ultimately its impact in Canada will depend on how it is interpreted.