Mining lawyers, in the Canadian context, are generally understood to work on all legal issues relating to the mineral exploration, development, production and reclamation cycle, that is to say, from raw grass roots exploration through to the fabrication and ultimate sale of finished metal product, as well as mine closure and reclamation.
They deal with such items as exploration and development agreements, joint ventures, syndicates and royalty agreements; mining taxation; project financing, structured financing, capital markets financing and the corporate and technical due diligence relating thereto; related infrastructure development and financing; engineering and service contracts; processing and refining contracts as well as metal sales contracts; intellectual property issues relating to mineral and mining technologies; mining commissioner and severance disputes; mineral policy and mineral strategy issues; and related socio-economic and environmental issues. It can be said to include the extractive sectors.
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The mining industry is governed by numerous regulations designed to ensure fair benefits among all stakeholders, to preserve the environment, and to balance the safety and health of citizens. These regulations already attach during preparatory period (permitting and licensing of mining entities), up to the actual mining operations, mineral-processing stage, sale of these minerals, and even in times of rehabilitation and restoration when social and environmental damages are done.
It is the main task of a mining lawyer to assist mining companies or operators in providing legal aid during these processes. A mining lawyer commences their legal work with the licencing and acquisition of various permits, who may have deal with different laws and regulations, since each province and territory have different administrative licencing procedures.
Next are the laws and regulations regarding operations, which may include policies that has to be set-up, infrastructure standards that must be followed, and the continuous compliance of said licences and permits at this stage.
The mining industry in Canada is generally governed and regulated by both the federal government and the provincial governments, with specific jurisdictions accorded to each. It can be said that the laws on mining in Canada depend on two things:
This means that a local mining lawyer is much preferred since each province has different applicable mining laws.
While most of the regulations on the mining industry are given to the provincial and territorial governments, some pieces of federal legislation grant the federal government specific jurisdiction for some transactions or processes with regards to mining. Some of these legislations are:
In addition, mining activities on federal lands and in offshore areas are regulated at the federal level. Similarly, mining activities of federal Crown corporations are also regulated by the federal government.
Other federal laws which may affect mining operations in Canada are (1) environmental laws, (2) health and safety regulations, and (3) laws protecting the rights of Aboriginals and Indigenous Peoples. Each province and territory also have its own regulations regarding these areas that may overlap with federal legislations. As such, a mining lawyer does not only focus on mining laws, but also with the other areas of law affecting the mining industry.
The Impact Assessment Act mandates that major projects that are carried out on federal lands should undergo an impact assessment to determine any positive and negative impacts of these projects on the environment, including its effects on the health of citizens who may be directly and indirectly affected.
The Act also has a touchpoint with the laws on Indigenous Peoples as it also aims to assess the specific impacts of these projects to the rights of the Indigenous Peoples. Among the regulated projects that needs an impact assessment are mining projects, among others.
Certain health and safety laws may also apply before a mining operation can start, until its operation itself. While health and safety laws may still fall under the governance of provincial laws, federal laws on health, such as Government Employees Compensation Act, will apply when the mining project or operation is under federal jurisdiction.
The Indigenous Peoples are protected by Canadian laws, through the Constitution Act, 1982 itself and by federal and provincial legislations. As regards mining operations, Indigenous lands are duly protected from invalid intrusions based on treaty rights, except when these mining operations are granted consent by the Indigenous Peoples who currently owns said rights.
In addition, licences and concessions may only be awarded to applicants (i.e., mining companies) when there have been prior consultations and accommodations with the affected Indigenous Peoples who will be greatly affected by a proposed mining operation or project.
Under the primary jurisdiction of the provinces and territories of Canada are the exploration, development, and extraction of mineral resources. This power stems from the provincial and the territorial control of public lands, minerals, and natural resources. Here, a mining company, with the assistance of a mining lawyer, must coordinate with the respective provincial and territorial government for its permission of the said exploration, development, and extraction. Additionally, the construction, management, reclamation, and closure of mining sites are also within the jurisdiction of these provincial and territorial governments.
An exception of this provincial or territorial mining jurisdiction are the territories of Nunavut and some areas of the Northwest Territories. For these two areas, public lands and natural resources are regulated by the federal government.
It is also worthy to note that each province and territory have its own mining legislation which may have its similarities and differences among each other. Therefore, the services of a mining lawyer must be sought to clarify and interpret these legislations.
There are different taxes imposed on the mining industry in Canada. As such, the practice of a mining lawyer may also include taxation laws to help mining companies with the computations on their taxes.
Subject to the provisions of the Income Tax Act, all businesses operating in Canada are levied with incomes taxes and this includes mining operations. Moreover, the income tax that mining operators need to pay are not only imposed by the federal government, but also by the provincial government as well. Separate from the income tax is the mining tax that are also dependent on the provincial mining law where the mining operations are situated.
A mining company must also be mindful of the federal goods and services tax (GST) under the Canada Revenue Agency (CRA) regulations, and/or the harmonized sales tax (HST) which may vary in each province.
Scroll below to find the Lexpert Ranked list of the best mining lawyers in Canada for any concerns regarding the laws and regulations imposed on Canada’s mining industry.
