The Tsilhqot’in Nation has announced the release of a draft Mining Policy of the Tsilhqot’in National Government (Policy). The release of the Policy on July 31, 2014 follows the June 26, 2014 decision of the Supreme Court of Canada (SCC) in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 (Tsilhqot’in). In Tsilhqot’in, the SCC granted a declaration of Aboriginal title to the Tsilhqot’in Nation over an approximately 1700 sq. km tract of land within its traditional territory. This was the first time that Aboriginal title has been declared in Canada. See our article on this decision here.
The Policy is intended to provide guidance to industry and government seeking to undertake development work or stake claims within the traditional territory of the Tsilhqot’in Nation. Notable aspects of the Policy include: Continue Reading
On July 17, 2014, Moody’s Investors Service (Moody’s) released a report on metal streaming transactions, in which it discusses the impact of streaming transactions on the credit profiles of mining companies. Generally, Moody’s views metal streaming transactions as a form of equity investment, rather than debt financing. This is in contrast to criteria released by Standard & Poor’s (S&P) in 2013, which characterize the upfront payment aspect of metal streaming transactions as debt. Continue Reading
On July 11, 2014, the Supreme Court of Canada (SCC) released its decision in Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48. In a unanimous judgment written by Chief Justice McLachlin, the SCC upheld the decision of the Ontario Court of Appeal (ONCA) in Keewatin v. Ontario (Natural Resources), 2013 ONCA 158 in its entirety, confirming that valid provincial laws over forestry, mining, settlement and other matters continue to apply in Treaty 3 territory in Ontario and are entirely consistent with the terms of Treaty 3. Our analysis of the ONCA’s decision and the background of this case is available here.
Grassy Narrows will be viewed as a positive decision from the perspective of government and industry, as it resolves considerable uncertainty that had been created by the lower court decision (2011 ONSC 4801). Based on its interpretation of Treaty 3, the lower court had suggested that Ontario could not “take up” lands in the Keewatin area of Ontario absent a two-step process requiring prior authorization of the federal government. This would have had the practical effect of essentially freezing Ontario’s independent authority to regulate resource development on those lands, despite such matters falling squarely within its provincial jurisdiction in the Constitution Act, 1867. Continue Reading
On June 26, 2014, the Supreme Court of Canada (SCC) released its highly anticipated decision in Tsilhqot’in Nation v. British Columbia. In this ground-breaking decision, Canada’s highest court granted a declaration of Aboriginal title over a tract of Crown lands to the Tsilhqot’in Nation (Tsilhqot’in) of the west central interior of British Columbia. This is the first time in Canadian history that Aboriginal title has been definitively established and affirmed.
In allowing the appeal of the Tsilhqot’in from the decision of the British Columbia Court of Appeal (BCCA) in William v. British Columbia, the SCC has: (a) clarified the law as it pertains to the establishment of Aboriginal title and the nature of such title; (b) addressed how the establishment of Aboriginal title affects the Crown’s duty to consult with Aboriginal peoples; and (c) clarified how provincial (and federal) legislation may apply to lands subject to Aboriginal title, and if necessary, infringements may be justified. Continue Reading
The Government of Ontario announced today that it will commit $1 billion toward the development of infrastructure in the so called “Ring of Fire” in Ontario’s far north. As discussed here, private investment in the region has been slow in part because of a lack of transportation and power transmission infrastructure. According to Northern Miner, approximately $2.25 billion needs to be invested to facilitate the development of the region. While the Government of Ontario hopes that the Federal Government will match its contribution, it is currently unclear whether federal funding can be expected.
Keep visiting our blog for further updates.
The following Canadian Energy Perspectives blog post by Stephanie Axman, William Fyfe and Gary Litwack may be of interst to readers of this blog: Landmark Ring of Fire Framework Agreement
On March 26, 2014, the Government of Ontario and the group of nine Aboriginal communities known as the Matawa member First Nations entered into a “Regional Framework Agreement” for the development of the so-called “Ring of Fire” in northern Ontario. This long-awaited agreement is expected to be a crucial step forward in the development of the Ring of Fire, a remote area of northern muskeg that is considered to have $60 billion worth of known mineral potential and includes North America’s largest chromite deposit. → Read more.
The following snIP/ITs blog post by Steven Tanner and Timothy Ellam may be of interest to readers of this blog:
Patent Law Historical Observations: Oil and Gas
We recently posted an article reviewing the year past in oil and gas patent litigation. We analyzed new Federal Court cases and issued decisions and provided commentary on future implications. You can read that article here.This article continues that analysis by looking backwards in time; specifically to oil and gas patent litigation for the years 2009-2012. What conclusions can be drawn if we look at a 5-year window of time? The short answer is that 2013 was as busy a year for oil and gas patent litigation as the previous four years combined. For the 2009-2012 time frame, there were 12 patent cases filed in the Federal Court and Federal Court of Appeal relating to oil and gas patent litigation. Six oil and gas patent infringement decisions were rendered by the Federal Court and Federal Court of Appeal in that same timeframe. What kinds of cases are being filed? Read more.
McCarthy Tétrault has released the fourth edition of its annual publication Mining in the Courts, Year in Review. The publication provides an overview of recent legal developments and key Canadian case law affecting the mining sector in 2013. It also offers perspective and insights on issues important to the industry.
Read more about this year’s edition.
Download a copy.
The following article may be of interest to readers of this blog: Patent Law Year in Review: Oil and Gas (2013)
In 2013 the Federal Court experienced a surge in patent infringement actions. Whereas 48 patent infringement actions were filed in 2012, that number rose to 101 in 2013. Part of that increase came about because of growth in the oil and gas patent infringement sector. Put simply, oil and gas companies were more aggressive at enforcing their patent rights in 2013. Read More.
The decision of the Supreme Court of British Columbia (the “BCSC”) in Thomas v. Rio Tinto Alcan Inc., 2013 BCSC 2303 (Thomas) has implications for Aboriginal groups seeking damages or injunctive relief against private third party operations. In the December 13, 2013 decision, the BCSC confirmed that asserted but unproven Aboriginal rights and title are not sufficient interests in British Columbia to base a claim in nuisance (a common law tort for damages against property); such rights must be recognized or proven. Thomas also reaffirms the longstanding principle that the Crown, rather than a private third party, is the appropriate adversary to respond to claims of Aboriginal rights and title. In addition, Thomas notes limits of the defence of statutory authorization, providing a cautionary lesson for industry actors whose operations, while permitted at law, may nevertheless result in adverse impacts to others. Continue Reading