Mining and exploration companies with projects in developing nations should take note that an amendment to the Corruption of Foreign Public Officials Act (CFPOA) has been approved by the Senate and is currently before the House of Commons. Bill S-14 is intended to address certain criticisms of the existing legislation, most notably from the Organisation for Economic Co-operation and Development (OECD), an international organization of 34 countries of which Canada is a member.

The CFPOA makes it a crime to bribe a foreign public official in order to obtain or retain an advantage in the course of business. To date, three companies have pleaded guilty and been convicted of offences under the CFPOA, the latter two resulting in fines of approximately $10 million each.

Bill S-14 proposes to make the following changes to the CFPOA:

• the offence of bribing a foreign public official will be expanded beyond business carried on “for a profit” to include activities not carried on for profit. As a result, the CFPOA will apply to charities and other not-for-profit organizations in addition to for-profit corporations;
• the maximum period of imprisonment for bribing a foreign public official will be increased from 5 years to 14 years;
• instead of requiring a “real and substantial connection” between Canada and the location where acts of bribery occur as is currently the case, the CFPOA will apply to acts of bribery anywhere in the world where such acts are conducted by Canadian citizens, permanent residents present in Canada, Canadian corporations or other entities created under the laws of Canada or a province;
• “facilitation payments” (generally, payments to a public official to expedite a routine governmental act that is part of the official’s duties, and not to obtain or retain business or any other undue advantage), which are currently permitted as an exception to the offence of bribing a foreign public official, will become illegal at a future date to be set by the Governor in Council;
• a new offence of manipulation or falsification of accounting records to conceal bribery has been created, which attracts a maximum sentence of 14 years in prison; and
• whereas currently many different categories of peace officers that exist in Canada are empowered to enforce the CFPOA, the Royal Canadian Mounted Police will be given exclusive jurisdiction to charge persons for offences under the CFPOA.

It is important for companies operating internationally, especially in developing nations, to have appropriate policies and procedures in place to ensure compliance with the CFPOA and other applicable anti-bribery legislation throughout the world. When entering into transactions with companies that also operate internationally, it is important to ensure appropriate due diligence is conducted and appropriate language is contained in contracts relating to the transaction to minimize the possibility that your corporation will attract liability through under the CFPOA and other applicable anti‑bribery legislation through its association with proposed business partners or other counterparties.

Dentons’ team of seasoned professionals throughout Canada, the US, Europe, Russia and the CIS, Africa, Asia Pacific and the Middle East represents corporate clients, boards of directors, board committees, hedge funds, partnerships and joint ventures, audit firms and individuals in connection with all aspects of anti-corruption compliance, enforcement and defense.

Please contact a member of our Global Anti-Corruption Group for more information.

The new Québec mining tax regime was announced on May 6^th 2013, by the Minister of Finance, Nicolas Marceau, accompanied by the Minister of Natural Resources, Martine Ouellet.

The Québec Government has presented a new regime under which all mine operators in Québec will have to pay a minimum mining tax.

The mining corporation will be required to pay the greater of two amounts, either a minimum mining tax on ore extracted or a mining tax on annual profit for a fiscal year starting after December 31, 2013.

• The minimum royalty rate is set at 1% for the first $80 million of ore extracted and at 4% of the value of ore extracted in excess of $80 million, these rates being applied to the output value of the ore at the mine shaft head.
• The mining tax on profit will be calculated according to a progressive rate structure. The new tax rates to be applied will be 16%, 22% or 28% depending on profit margin, the Government having provided for three segments of profit margin (from 0% to 35%, from 35% to 50% and from 50% to 100%).

Minister Marceau also stressed the importance of jobs in Québec for processing activities, and therefore has added incentives in the new tax regime in an effort to increase processing in Québec.

Minister Ouellet spoke briefly about the future Mining Act and indicated that this new mining tax regime has been developed in order to be more transparent and in the context of more responsible development of mining resources.

The details relating to the newly announced mining tax regime may be found in the following documents which have been made available by the Government:

• In English

- Press Release: http://www.finances.gouv.qc.ca/documents/Communiques/en/COMEN_20130506.pdf

- Full document: http://www.finances.gouv.qc.ca/documents/autres/en/AUTEN_NewMiningTaxRegime.pdf

- Charts: http://www.finances.gouv.qc.ca/documents/autres/en/AUTENCharts_MiningTaxRegime.pdf

- Information bulletin: http://www.finances.gouv.qc.ca/documents/bulletins/en/BULEN_2013-4-a-b.pdf

• In French

- Communiqué de presse: http://www.finances.gouv.qc.ca/documents/Communiques/fr/COMFR_20130506.pdf

- Document complet: http://www.finances.gouv.qc.ca/documents/Autres/fr/AUTFR_NouveauRegimeImpotMinier.pdf

- Graphiques: http://www.finances.gouv.qc.ca/documents/Autres/fr/AUTFRGraph_RImpotMinier.pdf

- Bulletin d’information: http://www.finances.gouv.qc.ca/documents/bulletins/fr/BULFR_2013-4-f-b.pdf

This article was written by Ann Bigué and Dominique Quirk.

Further to an earlier post, the Autorité des marchés financiers (“AMF”) has published a consultation paper (the “AMF Proposal”) inviting comments on an alternative approach to that contemplated by the Canadian Securities Administrators’ Proposed National Instrument 62-105 – Securities Holder Rights Plans.

The AMF states that the aim of the AMF Proposal is to restore the regulatory balance between bidders and target boards and update the policy framework of the current take-over bid regime to reflect the current legal and economic environment and market practices respecting unsolicited take-over bids.

The AMF Proposal introduces two significant changes to the current take-over bid regime that would:

1. replace National Policy 62-202 with a new policy on defensive tactics that would clearly recognize the fiduciary duty of directors to the corporation in responding to an unsolicited take-over bid and would redefine securities regulators’ intervention on the ground of public interest; and

2. require, as an irrevocable condition of any bid for all securities of a class, and for any partial bids, that more than 50% of the outstanding securities of the class held by persons other than the offeror and those acting in concert with it, be tendered and not withdrawn on the date the bid would otherwise expire.

The AMF believes that the implementation of these changes would have the following effects:

• it would give directors more latitude to exercise their fiduciary duty and consider all alternatives to maximize security holder value, without securities regulators’ intervention;
• it would create a revised framework for the regulation of all defensive tactics, not only rights plans;
• it would mitigate the coercion effects of the current take-over bid regime for all bids and not just those subject to rights plans;
• it would provide a direct regulatory solution to some gaps in the current take-over bid regime;
• it could minimize the ability of arbitrageurs to exert influence on the sale of take-over targets ; and
• it could encourage bidders to negotiate with boards and, as a result, possibly maximize security holder value.

The AMF Proposal can be found by clicking here.

The Canadian Securities Administrators (CSA) published for comment proposed National Instrument 62-105 Security Holder Rights Plans, with the intention of establishing a comprehensive regulatory framework in respect of rights plans in Canada.

The proposed Instrument would provide a target company’s board and shareholders with greater discretion in the use of rights plans.

According to Bill Rice, Chair of the CSA and CEO of the Alberta Securities Commission, “the CSA believe that the proposed rule will modernize, harmonize and codify an appropriate regulatory approach to rights plans in Canada….barring exceptional circumstances, the decision to adopt and maintain a rights plan would be a matter for company boards and shareholders, not securities regulators.”

Specifically, the proposed framework allows a rights plan adopted by a board of directors to remain in place provided majority shareholder approval of the plan is obtained within 90 days after the rights plan is adopted or, if adopted after a takeover bid has been commenced, within 90 days after the date of the commencement of the takeover bid. To remain in effect, the rights plan would have to be approved at each annual meeting of the company following the initial shareholder approval. Any announced takeover bidder for the company, and joint actors of the bidder, would be excluded from the shareholder vote. Shareholders would also be able to terminate a rights plan at any time by majority vote at a shareholder meeting.

Under the current regime, securities regulators will usually cease trade a shareholder rights plan after a limited period of time once the plan has given the target board sufficient time to respond to a takeover bid.  The draft framework proposes that regulators not intervene to cease trade a rights plan that has complied with the proposed framework, which is a significant step in empowering the target board and shareholders in responding to a takeover bid.

The CSA comment period is open till June 12, 2013.

Following the announcement that a forum on mining royalties will be held on March 15^th, 2013 in Montréal, the Québec Ministries of Finance and Economy and of Natural Resources have made available, on March 8^th, a consultation document entitled “Le régime d’impôt minier du Québec”. This document includes information on the mining sector in Québec and on the operation of the current Québec mining tax regime.

The Québec Mining Association and the Québec Mineral Exploration Association as well as several mining companies, groups and experts will be invited to provide their opinion and suggestions on this question. The consultations will culminate in the forum on mining royalties which will be co-presided by Mr. Jacques Fortin (HEC Montréal) and Mr. Pierre Lasserre (UQAM-CIRANO).

The consultation document is available here (in French only): http://www.finances.gouv.qc.ca/documents/autres/fr/AUTFR_RegimeMinier.pdf

This article was written by Ann Bigué and Dominique Quirk.

On February 13, 2013, a notice was published in the Gazette officielle du Québec by the Minister of Natural Resources, Martine Ouellet, announcing amendments to the Regulation respecting mineral substances other than petroleum, natural gas and brine (the “Regulation”). All of these amendments pertain to the rules applicable to financial guarantee requirements for rehabilitation and restoration plans under Section 231 and following of the Quebec Mining Act.

The draft regulation amends the Regulation by increasing from 70% to 100% the financial guarantee required to ensure performance of the work required by the rehabilitation and restoration plan and by broadening the scope of the guarantee from being required only for the rehabilitation and restoration of accumulation areas (for mineral substances, overburden, concentrates and tailings), to being required for the rehabilitation and restoration of the entire mine site.

The payment schedule for the financial guarantee will also be amended for companies who are currently engaging in exploration work as well as for those engaging in mining operations or operating a concentration plant.

In the case of companies engaging in exploration work, under the current Regulation, the total guarantee must be submitted within 15 days after the rehabilitation plan is approved, if the exploration work is expected to last 1 year or less, or the financial guarantee can be submitted in annual payments if the exploration work is expected to last more than 1 year. The amendments now provide that every holder of mining rights who engages in exploration work must provide the financial guarantee to the Minister before the beginning of exploration work.

For operators engaging in mining operations in respect of tailings or mineral substances set out in the regulations, or operating a concentration plant, the current Regulation provides that their annual payments will be made according to rules set forth in a table. However, the amendments to the Regulation provide that the guarantee must now be submitted to the Minister in three payments, the first of which would represent 50% of the total guarantee and would be paid in the 90 days after approval of the rehabilitation plan is received. The subsequent payments of 25% each would be made on the anniversary date of approval.

The draft regulation also reviews certain forms of financial guarantee and requires the filing of a restoration plan for the movement of 1000 m³ or more of unconsolidated deposits.

The new amendments will also apply to operators who are currently engaging in mining operations or operating a concentration plant and whose restoration plan has been approved prior to the draft regulation coming into force. These operators will also have to provide the financial guarantee for the restoration of the mine site in three payments, the first payment being required at the latest one year after the draft regulation comes into force.

The draft regulation is set to come into force on February 28, 2013.

The current Regulation is available here:  http://www2.publicationsduquebec.gouv.qc.ca/documents/lr/M_13_1/M13_1R2_A.htm

The draft regulation is available here:http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=1&file=2462.pdf

This article was written by Ann Bigué and Dominique Quirk.

Québec Minister of Finance and Economy Nicolas Marceau and Québec Minister of Natural Resources Martine Ouellet announce that a forum on mining royalties will be held on March 15th, 2013 in Montréal, during which the mining industry and groups affected by this issue will be consulted.

This announcement made at the Strategic Forum on natural resources which was held in Montréal on February 8th, 2013, follows the commitments undertaken by the Parti Québécois during the last election campaign to raise mining royalties. The forum will enable the parties to agree on the “best way to get there”, said Minister Marceau.

In his speech announcing the forum on mining royalties, Minister Marceau indicated that the following principles are guiding the Québec Government: royalties must be increased, the extracted mineral must generate royalties in all cases, the most profitable projects must generate more royalties and transformation in Québec must be encouraged. He also indicated that the challenge is to find the balance between maximizing royalties, maximizing investments and maximizing employment in the mining sector.

A consultation document will be made available by March 1st and will be available on the Ministry websites. The document will include information on the mining sector, on the operation of the current Québec mining tax regime and on the total amount of royalties collected from mining companies in Québec.

The Québec Mining Association and the Québec Mineral Exploration Association as well as several mining companies, groups and experts will be invited to provide their opinion and suggestions on this question. These consultations will culminate in the forum on mining royalties which will be co-presided by Mr. Jacques Fortin (HEC Montréal) and Mr. Pierre Lasserre (UQAM-CIRANO).

Minister Marceau also indicated that the Québec Government will be able to announce the details of the new royalty regime in early spring.

The press release is available in French only: http://www.finances.gouv.qc.ca/documents/Communiques/fr/COMFR_20130208.pdf

Minister Marceau’s speech from the Strategic Forum on natural resources is available in French only: http://www.finances.gouv.qc.ca/documents/Communiques/fr/COMFR_Allocution20130208.pdf

This article was written by Ann Bigué and Dominique Quirk

On December 17, 2012 the Toronto Stock Exchange (“TSX”) and TSX Venture Exchange (“TSXV” and together with the TSX the “Exchanges”) published a consultation paper on their respective listing requirements applicable to issuers with a significant connection to an emerging market jurisdiction (the “Paper”). The Paper follows the recent guide published by the Ontario Securities Commission: Staff Notice 51-720 – Issuer Guide for Companies Operating in Emerging Markets in which similar issues were identified and discussed. The principal purposes of the Paper are to: (a) present the potential risks associated with listing emerging market issuers (“EMIs”) that have been identified by the Exchanges; (b) provide preliminary guidance to issuers and their advisors with respect to listing considerations applicable to EMIs; and (c) solicit comments from market participants on matters related to listing EMIs, including possible new guidance or requirements that the Exchanges may implement.

READ FULL ARTICLE

Both Institutional Shareholder Services Inc. (“ISS”) and Glass Lewis & Co. (“GL”) released updates in November 2012 to their proxy voting recommendation guidelines for the 2013 shareholder meeting season. Below is a summary of the changes relevant to TSX and TSX-V listed companies.

Read full article here.

On December 6, 2012, the Canadian Securities Administrators (“CSA”) published CSA Staff Consultation Paper 91-301, requesting comments regarding the following Model Provincial Rules: Derivatives: Product Determination (the “Scope Rule”) and Trade Repositories and Derivatives Data Reporting (the “TR Rule” and collectively, the “Model Rules”). The Model Rules are intended to implement the G-20 commitments regarding the regulation of trading derivatives in Canada. In Ontario, the Model Rules will apply only to derivatives that are traded over-the-counter.

In general, the intention of the Model Rules is to impose specific regulatory requirements tailored to address the unique characteristics of derivative products and to bring Canada’s regulation of derivatives in line with international standards. More specifically, the Model Rules look to regulate how derivatives are marketed and traded, the sophistication of the counterparties, existing regulation in other areas (such as the regulation of financial institutions) and the risks they present to the derivatives and financial markets.

The Scope Rule intends to answer which contracts or instruments are to be regulated as “derivatives” and which are to be regulated as “securities” as the current definitions of both in securities legislation are expansive and sometimes overlapping. The TR Rule focuses on the operation and ongoing regulation of designated or recognized trade repositories and the reporting of derivative transaction dates by market participants. In the current draft, there exists an exemption for reporting requirements by small market participants for derivatives transactions in the physical commodity market that have a less than $500,000 aggregate notional value. The intention of the TR Rule, generally, is to improve transparency and the proposed rule will impact the regulation of both trade repositories and derivatives market participants.

The current draft of the Model Rules is based on existing provisions of Ontario securities law. Once the Model Rules have been updated to reflect the commentary, each jurisdiction will publish its own rules, explanatory guidelines and appendices.

Comments on the Model Rules are being accepted until February 4, 2013.

On November 29, 2012, the Canadian Securities Administrators (“CSA”) announced the adoption of regulatory changes and amendments (the “Notice”) to National Instrument 54-101 – Communication with Beneficial Owners of Securities of a Reporting Issuer and National Instrument 51-102 – Continuous Disclosure Obligations. The amendments intend to improve the communications process between reporting issuers and shareholders. Specifically, the process by which reporting issuers send proxy-related materials to, and solicit proxies and voting instructions from, registered holders and beneficial owners of their securities.

The most significant features of the amendments are as follows:

• Providing reporting issuers with a new notice-and-access mechanism to send proxy-related materials to registered holders and beneficial owners of securities;

• Simplifying the process by which the beneficial owners are appointed as proxy holders in order to attend and vote at shareholder meetings; and

• Requiring reporting issuers to provide enhanced disclosure regarding the beneficial owner voting process.

The amendments will take effect on February 11, 2013. Certain other provisions apply as of February 15, 2013, while the notice-and-access provisions can only be used in respect of meetings occurring on or after March 1, 2013.

For more information, please refer to the Notice, which can be found here.

Introduction
Pursuant to recent amendments to the TSX Company Manual (the “Manual”), which will become effective on December 31, 2012, issuers listed on the Toronto Stock Exchange (the “TSX”) will be required to disclose whether they have adopted a “majority voting” policy in respect of director elections.

The TSX is currently seeking comments on a proposal for further amendments to the Manual, which would require TSX-listed issuers to elect directors by way of “majority voting” at uncontested meetings.

Majority Voting
Under Canadian corporate law, in the context of the election of directors, shareholders who vote by proxy have only two options: vote “for” or abstain from voting for each director nominee or slate of directors. Given that votes abstained do not count and that, in practice, most shareholders of Canadian public companies vote by proxy, a director nominee or slate of directors will generally need only one “for” vote to be elected. According to the Canadian Coalition for Good Governance (the “CCGG”), this system is not in the best interests of shareholders “as it does not permit [them] to vote against an underperforming director and allows an entrenched board to continue to be in charge of the company, even if they are opposed by a majority of the owners of the company”.

Under the proposed majority voting policy, votes abstained will be considered “against” votes and will be counted as part of the total votes cast. Consequently, a director who receives a majority of votes abstained is considered not to have received the support of the shareholders and would be required to tender his or her resignation. The CCGG notes that 61% of listed issuers on the S&P/TSX Composite Index have a majority voting policy.

Amendments
The main passage of the proposed amendments reads as follows:

“Listed issuers must have majority voting for the election of directors at uncontested [shareholder] meetings. In satisfaction of this requirement, a listed issuer may adopt a majority voting policy that requires a director that receives a majority of the total votes cast withheld from him or her to immediately tender his or her resignation to the board of directors, to be effective on acceptance by the board. The policy must also provide that the board shall consider the resignation and disclose by news release the board’s decision whether to accept that resignation and the reasons for its decision no later than 90 days after the date of the resignation.”

It should be noted that in order to avoid conflict with applicable corporate or securities law requirements, issuers will be able to adopt a non-binding majority voting policy (also called a “holdover rule”) in satisfaction of the amendments. Under such a policy, directors who receive a majority of votes abstained are still elected but resign at a later date so as to provide the board of directors with time to reconstitute and reorganize itself.

Rationale
The TSX asserts that the amendments will improve corporate governance standards by increasing the accountability of directors, enhancing dialogue between issuers, shareholders and stakeholders as well as improving transparency. Glass, Lewis & Co. and Institutional Shareholder Services, two important proxy advisory firms operating in Canada, have indicated that they generally support proposals calling for majority voting.

There are also negative aspects to majority voting. For example, more time and money may be spent on director elections through telephone solicitation, second mailings of proxy materials, etc. There is also a risk of “failed” elections (where one or more directors are not seated on the board), which can, however, be mitigated by a non-binding majority voting policy.

Comment Period
Please note that the comment period in respect of these amendments ends on November 5, 2012.

If you are interested in submitting comments, please feel free to contact a member of our National Securities | Corporate Finance Group or address them directly to the TSX following the instructions.

 This article was prepared by David Hunter, Nalin Sahni and George McKibbon (McKibbon Wakefield Inc.)

The repeal and enactment of the Canadian Environmental Assessment Act (“CEAA”) and amendments to other federal legislation is the most significant change in federal environmental assessment (EA) since the legislation was enacted. The amendments are aimed at increasing investment in extractive industries by encouraging certainty, reducing regulatory duplication and reducing delays. The implications of these changes are vast and it is too early to determine their impacts on the mining industry.

This is the fourth article in our series on changes to the federal environmental assessment regime and what that means for mining in Ontario. Our first article provided a general overview while our second article addressed changes in CEAA related to Aboriginal consultation. Our third article discussed what the new Aboriginal consultation regime meant for mining in Ontario. In this article we discuss the Fisheries Act amendments, their implications for Aboriginal consultation and other matters relevant to miners taking into account further Fisheries Act revisions proposed in Bill C-45.

Prior to the recent amendments, the Fisheries Act was a powerful environmental and resource management tool of general application. It was applied with force to protected fish habitat across the country. The changes to the Fisheries Act enacted last year and the proposed revisions in Bill C-45 limit the focus from the protection of almost all fish habitat to only the protection of “fish that are part of a commercial, recreational or Aboriginal fishery, or to fish that support that fishery”. The Fisheries Act will apply less often and in more narrow circumstances. It is no longer a statute of general application across Canada but one that will apply only to a limited number of lakes and rivers in limited parts of Canada.

The transition to the new Fisheries Act will occur in two phases. The first amendments to the Fisheries Act were made this past summer. Some of these amendments are placeholders enabling Federal-Provincial negotiations on agreements and protocols and the drafting of new regulations and definitions critical to implementation.

For example, Bill C-38 included two amendments each to Sections 35 and 37 of the Fisheries Act. The first set of amendments that came into force this past summer, maintain the emphasis on protecting almost all fish habitat by expanding the prohibition from only “works and undertakings” that damage fish habitat to include all activities that damage fish habitat as well. The second set of revisions limits the application of the Fisheries Act to only commercial, recreational and aboriginal fisheries or fish that support these fisheries. The second set of revisions will come in to force on a date ordered by federal cabinet, presumably when Federal-Provincial negotiations for new agreements and protocols are complete.

While waiting for the changes from federal cabinet, does nothing change in the interim? No, the place holding amendments diminish the current administrative restrictions and override existing protocols on habitat protection by providing for greater administrative discretion. Staffing and administrative resource cuts underscore the effects of these changes. Even though federal cabined has not approved the second set of amendments, Fisheries and Oceans Canada is processing application as if the legislative changes were in force.

While many of the changes to the Fisheries Act were intended to facilitate mining development, they may not have their intended purpose, at least in the short term. Uncertainty as to the Fisheries Act’s application to mining projects may prevail for some time. Fisheries Act implementation has historically involved the participation of Provincial ministries and agencies to shape implementation agreements and develop an accepted scientific body of practice that defined the measures taken to ensure compliance with the habitat protection provisions.

The refocused Fisheries Act requires development of a new scientific body of practice to implement the more limited habitat protection focus. This will take time and much judgment and consultation will be required, particularly where Aboriginal fisheries are concerned. With staffing and budget reductions, especially among scientists, the resources needed to implement the changes effectively may not be there.

For mining projects, there may be three major impacts. Over larger areas, approvals may become quicker and less expensive to obtain. Projects with existing Fisheries Act approvals will be able to apply to have their permit requirements reduced in accordance with the new Act. However, for projects caught by the new approvals requirements, there may be additional uncertainty as the new science and body of practice are developed.

It may take years to implement the new Fisheries Act and re-establish the science and administrative practices needed for competent implementation. The withdrawal of federal protection for most fisheries could in theory be replaced by additional provincial oversight but this is unlikely to happen in Ontario given the budgetary problems and expected staffing reductions at the Ministry of Natural Resources. But the messaging is clear. The Fisheries Act won’t be the powerful decision-making tool it was in the past.

Ara Basmadjian, articling student, assisted in the preparation of this article.

On October 11, 2012, the Toronto Stock Exchange (“TSX”) issued a request for comments on proposed amendments (the “Amendments”) to the TSX Company Manual (the “Company Manual”) and the TSX Rule Book (the “TSX Rules”). The Amendments provide clarification to the process of appeal with respect to listing-related decisions. Furthermore, the Amendments offer consistency between the appeal rules under the Company Manual and those under the TSX Rules.

The Amendments, which will become effective upon approval by the Ontario Securities Commission (“OSC”), include the following:

(1) changes to the composition of the appeal panel. An appeal will be heard by at least one and up to three senior TSX executives;

(2) codification of the common practice of submitting written requests for appeals and written submissions;

(3) clarification of the decision making responsibilities that are delegated to listing managers;

(4) clarification of the timeline to appeal delisting decisions; and

(5) revision and clarification of the rules relating to the suspension and termination of participating organizations.

The TSX will publish the Amendments for a 30-day comment period. Written comments are accepted until November 12, 2012.

On October 1, 2012, the TSX Venture Exchange (the “TSXV”) published a Notice to Issuers providing guidance in respect of procedures relating to stock symbol reservations. Effective October 1, 2012 (the “Effective Date”), issuers requesting a new stock symbol must provide the TSXV with a written request which identifies the issuer and provides up to three proposed symbols that the issuer wishes to use (ranked in order of priority). The proposed symbols must be composed of not more than three letters.

In the event that none of the requested symbols are available, the TSXV will provide the issuer with a list of available symbols which the issuer must choose from. If one or more of the requested symbols is available, the TSXV will reserve the highest priority symbol from the issuer’s choices for use by the issuer.

A symbol will be reserved for the issuer’s use for a period of 90 days. This reservation period may be extended for up to two additional 90 day periods provided that the issuer requests the extension in writing prior to the end of the then current 90 day reservation period. In the event that a reservation is not extended by the issuer, the reserved symbol will be released and may not be reserved by or for the same issuer for a period of 10 days.

• Symbols reserved as of October 1, 2012 which have been reserved for 270 days or more as of the Effective Date may be extended for no more than an additional 180 days from the Effective Date.
• Symbols reserved as of October 1, 2012 which have been reserved for less than 270 days as of the Effective Date may be extended for no more than an additional 270 days from the Effective Date.

The above procedures should be read in combination with section 1.1(c) of Policy 2.3 – Initial Listing Procedures and Parts 3 and 4 of Policy 5.8 – Issuer Names, Issuer Name Changes, Share Consolidations and Splits of the TSXV Corporate Finance Manual.

In late July, the Investment Industry Regulatory Organization of Canada (“IIROC”) issued a proposed guidance (“Guidance”) in respect of certain trading practices deemed to be deceptive. The Guidance was drafted largely in response to the move, over the past number of years, towards automated order systems which promote high frequency trading, an activity which is currently estimated to constitute at least quarter, if not more, of trades on Canadian marketplaces. The Guidance lists a number of practices, including “spoofing”, “layering” and “quote stuffing” which are considered to be manipulative and deceptive trading practices under UMIR marketplace rules. IIROC is seeking comments on the Guidance and will accept feedback until October 15, 2012.

On August 3, 2012 the Investment Industry Regulatory Organization of Canada (“IIROC”) issued its strategic plan for 2012-2015 (“Plan”). IIROC has set out its seven core strategic goals for the next period, namely to (i) promote a culture of compliance; (ii) promote the protection of the investing public; (iii) deliver effective and expert regulation; (iv) strengthen the fairness, integrity and competitiveness of the Canadian capital markets; (v) act in an accountable, transparent and fair manner; (vi) be a cost-effective and efficient organization; and (vii) be an employer of choice.

Susan Wolburgh Jenah, IIROC’s President and Chief Executive Officer said “this Plan will guide IIROC’s efforts to strengthen investor protection and stakeholder confidence in the integrity, fairness and competitiveness of Canada’s capital markets in a rapidly evolving environment”.

The Plan follows IIROC’s first strategic plan which was developed in 2008 and served as a foundation for the priorities and operational strategy of the organization. The 2008 plan was updated for the 2008-2012 period following a comprehensive review. IIROC’s Annual Report will include an annual scorecard which will set out IIROC’s progress in achieving the goals articulated within the Plan.

The Canadian Securities Administrators (“CSA”) recently announced that following consultations with marketplaces, marketplace participants and service vendors, it is proceeding with the implementation of National Instrument 23-103 Electronic Trading and Direct Electronic Access to Market Places (the “Proposed Rule” or “NI 23-103”). The Proposed Rule establishes a regulatory framework for the oversight and management of potential risks associated with electronic trading in Canadian Market places, which, the CSA notes, is consistent with international approaches to regulating electronic trading.

NI 23-103 is designed to address the risks introduced by the speed and automation of electronic trading, and ensure that marketplaces and their participants are actively monitoring and addressing these risks. It will require, among other things, that participants in electronic trading implement and maintain certain controls, policies and procedures.

Subject to ministerial approval the policy will come into effect on March 1, 2013. Further information regarding the Proposed Rule can be found here on the OSC website.

This article was prepared by David Hunter, Nalin Sahni and George McKibbon (McKibbon Wakefield Inc.)

The repeal and re-enactment of the Canadian Environmental Assessment Act (“CEAA”) and amendments to other federal environmental legislation amounts to the most significant change in federal environmental assessment (“EA”) since the legislation was first created decades ago. These amendments are clearly aimed at increasing investment in extractive industries by encouraging certainty, reducing regulatory duplication and shortening delays. The implications of these changes are vast and their full impact on the mining industry is not known.

This is the third article in our series on the changes to the federal environmental assessment regime and what that means for mining in Ontario. Our first article provided a general overview of the changes and our second article discussed changes in CEAA related to Aboriginal consultation. In this article, we discuss how the new CEAA will interact with several changes to Ontario mining legislation to create a new Aboriginal consultation regime in Ontario.

Since the amendment of the Constitution in 1982 to include recognition of Aboriginal and Treaty rights, Canadian governments have been engaged in a process of reforming laws and policies to recognize these new rights. To prevent conflicts with Aboriginal peoples, the 2007 Ipperwash inquiry identified the regulation and development of natural resources on Aboriginal lands as a key area of reform. Justice Linden concluded that the

management of natural resources must take into account the rights and interests of Aboriginal people more effectively. I believe there are ways of sharing and co-managing natural resources that are consistent with Aboriginal and treaty rights while serving the interests of first nations and the people of Ontario¹.

It is against this backdrop that Ontario has announced new changes to facilitate Aboriginal consultation for mining in Ontario. As described below, the new regulations proposed under Ontario’s Mining Act and the Far North Act amount to a new paradigm for mining and Aboriginal consultation in Ontario. We hope that the requirements for consultation in Ontario will also satisfy CEAA requirements but this is far from certain.

Changes to Ontario’s Mining Act and Regulations
The purpose clause of the Mining Act has been amended. Mineral resources must now be developed in a manner consistent with the recognition and affirmation of existing Treaty and Aboriginal rights including the duty to consult. This change in purpose has led to a new regulatory scheme that is expected to include detailed consultation requirements at each stage in the mine development process from early exploration to mine closure.

Under the proposed regulations, Aboriginal peoples must be notified when mining claims are recorded within their traditional use areas. Exploration plans are required for low impact activities (e.g. surveys that require a power generator) and exploration permits are required for moderate impact activities (e.g. drilling with equipment over 150 kg). For both exploration plans and permits, miners must notify / consult with Aboriginal peoples. Aboriginal peoples will have the ability to make their concerns and objections known at the start of the mining process. While this is likely to reduce conflicts, it could greatly lengthen the mine development process. Further, sites of Aboriginal cultural significance have been withdrawn from claim staking.

The proposed exploration planning and permitting requirements in the Mining Act are not expected to directly interact with the changes to CEAA, a since they operate at different stages in the mine development process. However, Aboriginal consultation requirements for mine production and closure plans could significantly overlap with the Aboriginal consultation requirements under the new CEAA. At present it is unclear if consultation under the Mining Act will count as consultation under the new CEAA regime or if additional consultations will be required. If these two requirements are not harmonized it could lengthen the environmental assessment and Aboriginal consultation process.

The New Far North Act
The Far North Act is essentially a land use planning statute for the northern-most 42% of Ontario. This huge area is home to 24,000 people, 90% of whom are Aboriginal. While half of the 450,000 km2 in the far north must be an interconnected protected area, one of the most important pieces of information for miners is that mines cannot be opened until community-based land use plans are developed for each region in the far north.

The land use planning process must be initiated by Aboriginal peoples in each area and the final plan must be approved by not only the Ontario government but each of the participating First Nation bands in the area. So far, only four land use plans have been developed in the far north and it could be a long-time before a significant portion of the far north is open to mining. The policies used to develop additional land use plans under the Far North Act will strongly influence whether these plans satisfy some or all of the EA and Aboriginal consultation requirements under the new CEAA.

South of the Far North Act area, Crown land use plans may be prepared under s. 12 of the Public Lands Act. Where approved plans exist, activities carried out in the planning area must be consistent with the approved plan. At present, Crown Land Use Planning Guidelines are for the most part silent on addressing mining or the concerns of Aboriginal peoples and do not assess impacts on Aboriginal peoples or the natural environment as required by CEAA.

A New Aboriginal Consultation Paradigm
Between the changes to CEAA, the new Mining Act purpose clause and regulations and the Far North Act, Aboriginal law is now firmly embedded in the mine development process from start to finish. There are now regulatory and Aboriginal consultation requirements for miners in Ontario starting with early exploration plans and ending with mine closure plans. Aboriginal participation and cooperation is now a core part of the CEAA environmental assessment process (see our second article). These changes, taken together, are beginning to operationalize the Aboriginal provisions of the Constitution and give some sense of what these rights mean in practice.

However, many questions remain unanswered. With all of these new Aboriginal consultation requirements at both the federal and provincial levels, it is unclear if there will be sufficient coordination (or harmonization) between the Ontario and the Federal government to make this Aboriginal consultation regime work in practice. Aboriginal consultation at the provincial level must be accepted to meet federal requirements and vice versa. Federal-provincial harmonization of environmental assessments (including Aboriginal consultation) was a key recommendation of the Drummond Report (see our March 2012 article) but it has not yet been implemented into practice.

At a minimum, coordination between federal and provincial governments should include:

• The sharing and acceptance of information between federal and provincial authorities (including Aboriginal consultation information);
• Allowing federal and provincial regulatory processes to run concurrently and
• Timely review by both levels of government.

Otherwise, the new Aboriginal consultation regime will create significant delays for miners and we suspect that governments may be forced to use the highly controversial cabinet override provisions contained in each of the these statues to ensure that projects are not cancelled because of endless delays.

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¹  Linden, Sidney B. Report of the Ipperwash Inquiry. Toronto: Published by Ministry of the Attorney General, Queen’s Printer for Ontario, 2007 at Volume 2, page 44.