Mining Law

Overview

Our firm has been active in this industry for more than fifty years, helping many companies achieve their business development objectives in Canada and abroad, in particular by implementing strategic alliances and various financing strategies. Lavery’s expertise in this field is recommended by the Canadian Legal Lexpert Directory.

Services

  • Documents required for private placements and public offerings, debt and equity financing, and all documentation required by stock exchanges and securities commissions
  • Purchase and sale agreements for mineral rights and related assets
  • Joint ventures and shareholder agreements for mine operators and mining projects
  • Traditional bank financing, alternative financing structures (construction loans, asset-backed loans, mezzanine financing) and setting up of securities (including with regard to mobile and fixed mining assets, while respecting the legal requirements affecting mining)
  • Mergers, plans of arrangement, and business combinations
  • Construction contracts related to mine sites and their infrastructure (including highways and bridges leading to remote sites)
  • Expertise in construction and insurance law, including invitations to tender, building permits, relevant legislation, performance bonds, construction warranties, and the many types of insurance required to protect projects
  • Sale agreements, mineral supply agreements and other standard agreements (e.g. milling agreements, royalties, streaming agreements, etc.)
  • Legal advice on Aboriginal and treaty rights, including rights set out in land claims agreements, and strategic advice with respect to relations with Aboriginal communities
  • Impact benefit agreements (IBAs) and other agreements between mining companies and Aboriginal groups
  • Advice regarding the application of environmental laws and regulations, obtaining the necessary permits, and the environmental assessment process
  • Expertise in real estate law, including title searches, the transfer of mineral rights, and the various ways to hold mineral rights
  • Expertise in agricultural land law and representation in legal disputes before administrative tribunals
  • Prepare and conduct due diligence reviews
  • Advise concerning the exercise of expropriation rights under the Mining Act (Québec)
  • Representation in all issues concerning union certification and negotiation of collective agreements
  • Representation in all conciliation or arbitration proceedings or before the courts
  • Tax planning
  • Leases and installment sales of heavy mining equipment
  • Expertise in the use of private energy sources on mining sites: electricity, natural gas, wind, solar, etc.

Representative mandates

  • Legal advisors to Exploration Midland Inc. in a private placement for gross proceeds of more than $14 million (May 2015)
  • Legal advisors to Richmont Mines Inc. in a prospectus offering for gross proceeds of $38.5 million (February 2015)
  • Legal advisors to Magris Resources Inc. in Québec in the acquisition of Niobec Inc., a wholly owned subsidiary of IAMGOLD Corporation, owner of the Niobec mine, and in the acquisition financing (January 2015)
  • Legal advisors to Redevances Aurifères Osisko Ltée in a private placement with the Caisse de dépôt et placement du Québec and the Fonds de solidarité FTQ for gross proceeds of about $42 million (November 2014).
  • Legal advisors to the Caisse de dépôt et placement du Québec in the financing transactions of Stornoway Diamond Corporation for a total investment by the Caisse of $100 million in a mix of debt, equity, and revenue streaming spring 2014).
  • IAMGOLD Corporation (formerly Cambior Inc.), counsel to the issuer: private placement of $43,316 million in flowthrough shares (February 2011)
  • Co-counsel to Integra Gold Corp in the acquisition of the Sigma-Lamaque mine located in Val-d'Or. The mine was acquired from Century Mining Corporation and Samson Bélair/Deloitte & Touche Inc., as receiver for Century. At the same time, Integra sold waste rock from the Sigma-Lamaque mine to a third party.

Canadian Legal Lexpert Directory

  1. The Government of Canada extends the Mineral Exploration Tax Credit for an additional year

    On March 28, 2024, the Department of Finance Canada announced a one-year extension to the 15% Mineral Exploration Tax Credit (“METC”) available to investors in flow-through shares. The extension means that the METC will be effective until March 31, 2025. This announcement came at a time when uncertainty loomed over the industry and some stakeholders feared that the government would not renew the METC. Over time, this tax credit has become a key component of flow-through share financings. It is intended to enhance the tax deductions already available to flow-through share holders and ultimately help companies raise capital for mineral exploration. The METC was last renewed in 2019 for a five-year period, indicating the government’s long-term commitment to the sector at that time. And while this renewal is welcome news for exploration companies, it should be noted that the shorter one-year horizon of the extension does not provide the same assurance regarding the incentive’s future. It is possible that this one-year renewal reflects the government’s intention to promote the new 30% Critical Mineral Exploration Tax Credit (“CMETC”) instead, on which more information can be found here: Federal Budget 2022: Good News for Mining Exploration Companies! In closing, it is important to note that the one-year extension to the 15% METC will not affect the period during which the 30% CMETC is available for critical mineral exploration, which will end on March 31, 2027, and is subject to renewal. If you were planning on financing non-critical mineral exploration, you may want to complete this transaction in the coming year in order to benefit from the 15% METC. Our team of professionals specializing in securities, mining law and taxation is available to answer any questions you may have concerning this new measure and to guide you in arranging a successful flow-through financing.

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  2. Mining industry: reduction of red tape aimed at facilitating lithium exploration in Quebec

    Canada’s finance minister unveiled a series of legislative proposals on August 4, 2023 aimed at making significant changes to the flow-through share regime, particularly as regards lithium exploration. Although a number of these changes had already been announced in the 2023 federal budget, e.g. the inclusion of lithium brine in the “mineral resources” definition, they had not really affected junior exploration companies in Quebec since this type of lithium is virtually non-existent in the province. More targeted change However, the recent proposals include a more targeted change for mining companies exploring for traditional “hard rock” lithium, which is much more common in Quebec. These proposals include amending the definition of “mineral resources” to systematically includetraditional hard-rock lithium in the list set out in section 248 of the Income Tax Act (the “Act”). The consequences As a consequence of this change, the requirement for mining companies to obtain a certificate issued by Natural Resources Canada will be eliminated. The application process for this certificate represented a heavy administrative burden for exploration companies. Moreover, lengthy processing times often delayed the conclusion of flow-through share subscription agreements. This change is a timely one: growing numbers of companies are refocusing on exploring for lithium rather than for more traditional metals such as gold. This reflects not only the market’s infatuation with lithium, but also the recent 30% tax credit potentially available to investors incurring mining exploration expenses involving critical metals. Proceed with caution For the time being, however, these legislative proposals only apply to lithium; they do not cover all critical minerals. Mining exploration companies should proceed with caution if they plan to explore for other types of critical minerals such as graphite and rare earth elements, for example. This is because a mineral resources certificate issued by Natural Resources Canada may still required in those cases. Our team of professionals specializing in securities, mining law and taxation is available to answer any questions you may have concerning this new measure and to guide you in arranging a successful flow-through financing.

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  3. 2023 Quebec budget: tax holiday for investments in critical and strategic minerals

    On March 21, 2023, Quebec’s Minister of Finance tabled his budget for the 2023-2024 fiscal year. One of the budget’s key measures is the introduction of a new tax holiday in connection with major investment projects. At first glance, the new measure does not appear to be specifically aimed at the mining industry, but some mining companies involved in the extraction of critical and strategic minerals and planning substantial investments in the near future could greatly benefit from it. Under the new tax exemption, a corporation or partnership that carries out an investment project of more than $100 million in Quebec will be eligible, under certain conditions, for an income tax holiday and a holiday from the employer contribution to the Health Services Fund. As far as income tax is concerned, this new 10-year tax holiday consists of a deduction in the calculation of the company’s taxable income. The deduction is calculated by applying a rate of 15%, 20% or 25% to the cumulative total of eligible project expenditures. Since this tax measure is intended to promote investment outside major urban centres, the rate will vary according to the project’s location, ranging from 15% for projects in areas with high economic vitality, to 20% for projects in areas with intermediate economic vitality and up to 25% for those in areas with low economic vitality. The higher rates of 20% and 25% are more likely to apply to mining projects, which are generally located in remote areas with lower economic vitality. The critical and strategic minerals identified in the context of this measure are the following: antimony, bismuth, cadmium, caesium, copper, tin, gallium, indium, tellurium, zinc, cobalt, rare-earth elements, platinum-group elements, graphite (natural), lithium, magnesium, nickel, niobium, scandium, tantalum, titanium and vanadium. Let’s briefly consider the example of a mining company carrying out a major investment project for lithium mining in the Nord-du-Québec administrative region, designated by the Quebec government as a territory with intermediate economic vitality. During the investment phase, while the mine is being developed and built, the company incurs $200 million worth of eligible expenditures, which are capital expenditures for new mining equipment and heavy machinery for lithium extraction and processing. Evidently, the company will probably sustain a loss during the investment phase, and, because it has no taxable income, it will not be able to immediately benefit from the tax holiday. However, should the company have taxable income of $50 million in year 5, after four years of investment and mine development, it will be able to deduct $40 million of this taxable income under the new tax holiday, reducing its taxable income to $10 million for that year. This $40 million deduction is based on the application of the 20% rate for territories with intermediate economic vitality to the $200 million of eligible expenditures for the mining project. Another point relevant to the mining industry is that the income tax holiday will apply only to tax payable under the provisions of the Taxation Act. In other words, this tax holiday will not reduce the amounts payable under the Mining Tax Act. With respect to the Health Services Fund, companies will generally be eligible for an employer contribution holiday on wages paid to employees for pay periods falling within the exemption period for major investment projects. In order to benefit from this new tax holiday, companies will have to obtain an initial certificate, as well as annual attestations issued by the Quebec Minister of Finance. Our team of professionals specializing in mining and tax law is available to answer all your questions regarding this new measure and to assist you in your mining investment projects in Quebec.

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  4. Federal Budget 2022: Good News for Mining Exploration Compagnies!

    On April 7, 2022, Finance Minister Chrystia Freeland tabled the federal government’s new budget for 2022. This budget includes several tax measures relevant to the mining industry in Canada. The Canadian federal government intends to provide $3.8 billion over eight years to implement Canada’s first critical minerals strategy. One of the methods used to implement this new strategy and stimulate exploration is an investment vehicle well known to the mining industry: flow-through shares. The 2022 budget proposes to create a new 30% Critical Mineral Exploration Tax Credit (CMETC) for certain specified minerals. Specified minerals that would be eligible for the new CMETC are: copper, nickel, lithium, cobalt, graphite, rare earth elements, scandium, titanium, gallium, vanadium, tellurium, magnesium, zinc, platinum group metals and uranium. As for the regular mineral exploration tax credit, the exploration expenses must have been incurred in Canada. The renunciation of expenses must also have been made under flow-through share agreements entered into after budget day and before March 31, 2027. It is important to note that there will be no cumulation of tax credits. Eligible expenditures will not be eligible for both the proposed new CMETC and the 15% regular mineral exploration tax credit (METC). In order for exploration expenses to qualify for the CMETC, a qualified person (as defined in National Instrument 43–101 issued by the Canadian Securities Administrators) will further have to certify that the expenses renounced will be incurred in the course of an exploration project for specified minerals. On this point, the measure seems to insert a new legal test of “reasonable expectation” that the minerals targeted by the exploration are “primarily specified minerals”. No details have yet been issued on the mechanics of applying this test.  However, if the qualified person is unable to demonstrate that there is a reasonable expectation that the minerals targeted by the exploration project are predominantly specified minerals, the related exploration expenses would not be eligible for the CMETC and consequently, any credit granted for ineligible expenses would be recouped from the flow-through share holder who received the credit. Pending the tabling of a more detailed legislative version, careful attention and planning will therefore be required for new flow-through share financings to ensure that they meet the legal criteria for this new tax credit. Our team of professionals in securities, mining law and taxation is available to answer all your questions regarding this new measure and to assist you in the implementation of a successful flow-through financing: Josianne Beaudry René Branchaud Ali El Haskouri Charles-Hugo Gagné Éric Gélinas Sébastien Vézina

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  1. Lavery's expertise recognized by Chambers Global 2024

    We are pleased to announce that Lavery has once again been recognized in the 2024 edition of Chambers Global in the following sectors: Intellectual Property (Canada) - Band 4 Intellectual Property Litigation (Canada) - Band 4 These recognitions are further demonstration of the expertise and quality of legal services that characterize Lavery’s professionals. Two lawyers have been recognized as leaders in their respective areas of practice in the 2024 edition of the Chambers Global guide. Areas of expertise in which they are recognized: René Branchaud : Mining (International & Cross-Border) - Band 5 Sébastien Vézina : Mining (International & Cross-Border) - Band 5 Since 1990, Chambers and Partners' ranks the best law firms and lawyers across 200 jurisdictions throughout the world. The lawyers and law firms profiled in Chambers are selected following through a rigorous process of research and interviews with a broad spectrum of lawyers and their clients. The final selection is based on clearly defined criteria such as the quality of client service, legal expertise, and commercial astuteness. About LaveryLavery is the leading independent law firm in Québec. Its more than 200 professionals, based in Montréal, Québec City, Sherbrooke and Trois-Rivières, work every day to offer a full range of legal services to organizations doing business in Québec. Recognized by the most prestigious legal directories, Lavery professionals are at the heart of what is happening in the business world and are actively involved in their communities. The firm's expertise is frequently sought after by numerous national and international partners to provide support in cases under Québec jurisdiction.

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  2. Mining: Lexpert Recognizes Three Partners as Leading Lawyers in Canada

    On October 23, 2023, Lexpert recognized the expertise of three of our partners in its 2023 Lexpert Special Edition: Mining. Josianne Beaudry, René Branchaud and Sébastien Vézina now rank among Canada’s leaders in the area of Mining. Josianne Beaudry is a partner and leader of the Business law group at Lavery. Her practice is primarily focused on securities law, investment funds and mining law. She advises financial sector participants on the application of regulations relating to securities and corporate governance. René Branchaud is a partner in the firm’s Business Law group. He practises in the fields of securities, mergers and acquisitions, as well as corporate law. With more than thirty years’ experience, he advises companies on matters such as incorporation and organization, the drafting of shareholder agreements, private placements, public issues, going public, dispositions, and takeovers. Sébastien Vézina is a partner in the firm’s Business Law group. Over the years, he has refined his practice and developed a particular interest in negotiating commercial agreements with companies in the mining and renewable energy sources, financial services and sports and entertainment industries. Generally, Sébastien's practice in these different industries includes public and private mergers and acquisitions, public and private financing, private sector investments and company buyouts, in particular cross-border transactions between Canada and the United States and international transactions, and the negotiation of various commercial agreements. About Lavery Lavery is the leading independent law firm in Quebec. Its more than 200 professionals, based in Montréal, Quebec, Sherbrooke and Trois-Rivières, work every day to offer a full range of legal services to organizations doing business in Quebec. Recognized by the most prestigious legal directories, Lavery professionals are at the heart of what is happening in the business world and are actively involved in their communities. The firm’s expertise is frequently sought after by numerous national and international partners to provide support in cases under Quebec jurisdiction.

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