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Home > Our Insights > The New Nova Scotia Mineral Resources Act: The Good, The Risky & The Neutral
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The New Nova Scotia Mineral Resources Act: The Good, The Risky & The Neutral

Published:

April 21, 2016

Author(s):

  • Elizabeth McIsaac

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On April 15, 2016, Bill No. 149, The Mineral Resources Act (2016) (2016 Act), passed its second reading in the NS House of Assembly. Although the 2016 Act does contain some good news for the industry, there’s some risky news too: its provisions could have a significant impact on the mining industry in Nova Scotia, even though it’s not a complete overhaul of the current regime.

Here’s what’s good, what’s risky and what’s neutral in the 2016 Act. 

THE GOOD NEWS

The 2016 Act does contain some “good news” for industry members:

Extended Timing. The 2016 Act extends several timelines relative to The Mineral Resources Act (1990) (1990 Act), arguably making them both more realistic and administratively feasible for both industry members and the government:

  • Exploration Licenses. Exploration licences are for terms of two years, with the possibility of two year renewal terms, up from one year terms under the 1990 Act (sections 43 and 48(2)).
  • Production must commence within five years of obtaining a lease or non-mineral registration, up from two years under the 1990 Act (sections 64(1)(d), 74(1)(a), 97(d), and 99(1)(a)).
  • Lease terms may be shorter or longer than 20 years; under the 1990 Act, lease terms and lease renewal terms were permitted for 20 year periods only (sections 64(2), 68).
  • Ministerial decisions. The Minister and Registrar are required to make certain decisions within prescribed timelines, though the Minister retains the broad discretion to modify such timelines (e.g., sections 12, 27, 32 and 35).

New Planning Requirements. The 2016 Act also mandates new planning requirements for certain industry participants that generally reflect current industry trends and best practices, despite imposing additional obligations on participants and permitting the Minister to intervene in the event of non-compliance:

  • Reclamation plan & security. A reclamation plan (section 86) is now required, the content of which will be set out in regulations. There’s no “grandfathering” for lessees or registrants under the 1990 Act; they must file a reclamation plan when the 2016 Act comes into force. Given the pre-existing security requirements, participants’ security obligations won’t necessarily increase with the 2016 Act; as under the 1990 Act, security must still be posted to provide for reclamation of the area that might be disturbed by activities (section 88). Under the 2016 Act, the Minister can review the mineral lease or non-mineral registration if security doesn’t meet the prescribed level for reclamation of peak disturbance (sections 74(1)(e) and 99(1)(e)). 
  • Stakeholder engagement plan. Similarly, licensees are now required to prepare and implement a stakeholder engagement plan (section 44), the required content of which the regulations will set out. While a new obligation under the 2016 Act, many industry members have already recognized the importance of stakeholder engagement to successful projects. Arguably, however, it’s impossible to legislate an appreciation for the importance of meaningful engagement, and it remains to be seen whether legislating this requirement will ultimately result in better engagement between industry and stakeholders. 

THE RISKY NEWS

But the 2016 Act isn’t a completely “good news” story for industry members; the 2016 Act raises some real uncertainties and risks of which industry members must be aware and for which they must be prepared: 

Provincial royalties in limbo. The 2016 Act is notable for what it doesn’t contain: provisions on royalties payable to the province that are detailed in the same degree as those in the 1990 Act. In particular, the 2016 Act doesn’t address the amount and calculation of the royalty; instead, the instructions for determining rates and amounts of royalties payable will be set out in the regulations – which haven’t yet been developed – creating a high degree of uncertainty around a very important issue. The government, in the second reading debates, indicated that the regulations will be drafted in the next few months. 

New investigation powers & new privacy concerns. The 2016 Act gives the Mine Assessor and other officers expanded powers of entry and investigation that may cause industry members some concern about privacy. In particular an officer, when obtaining information on the amount and value of the output of a mine, may “use any computer system at any place to examine any data contained in or available to the computer system”, amongst other powers (sections 123, 124 and 128). From a risk management perspective, industry members should consider data storage and retention policies for sensitive information not required to be provided to the Crown or retained under the 2016 Act. The 2016 Act also gives conservation officers a new enforcement role (section 20) and with it, powers of arrest (section 129). 

More offences & graver penalties. The 2016 Act adds offences and stiffens the penalties for them, and an industry member’s obligations for making a mistake under the 2016 Act could look very different than it did under the 1990 Act:

  • New Offences. As in the 1990 Act, consent is still required to explore Crown and private lands but rather than make the consent process less onerous, the 2016 Act explicitly states that it’s an offence to perform exploration work on Crown lands without the required consent (section 142). Exploration on private lands without consent was an offence under 1990 Act, but the 1990 Act didn’t expressly articulate offences related to Crown lands; they were instead captured by the general provision making all failures to comply with the Act offences. Another new offence is removing a sign or notice posted by the Department of Natural Resources (section 147).
  • Stiffer penalties. Penalties for performing surface work without consent or mining without the appropriate lease or registration (among other offences) may attract fines as high as $100,000/day for corporations or $50,000/day for individuals; the 1990 Act prescribed maximum fines for these offences at $10,000/day. Furthermore, where a person receives a monetary benefit as a result of committing an offence, courts can order an additional fine in the amount of the benefit (section 151) and can impose the full cost of remedying any situation that resulted from an offence (section 155).
  • Extended limitation periods. Individuals may be subject to a prosecution for offences for a longer period of time than under the 1990 Act. Under the 2016 Act, summary offences have a limitation period of two years after the later of the date of the offence or the date on which the Minister had evidence of the offence (section 154); currently, the Crown must start summary proceedings within six months of the offence.

Ministerial consent for lease and registration transfers. The Minister’s written consent is still required for a transfer of a lease or non-mineral registration, but the 2016 Act will expand the scope of what is deemed to be such a transfer. Absent proper planning, this expanded requirement could delay certain transactions. Both the sale of a controlling interest in a corporation holding a mineral right or non-mineral registration or the transfer of a mineral right or a non-mineral registration from a parent to a subsidiary will be deemed to be a transfer requiring the Minister’s written consent (section 105). The 1990 Act was silent in this respect.

THE NEUTRAL NEWS

There are some changes in the 2016 Act that, while different from the 1990 Act, may have limited practical impact on industry participants:

Lease distinctions. The 2016 Act eliminates the distinction between a “special lease” and a “mineral lease” found in the 1990 Act. However, this seems more a change in name than practical substance because the Minister still retains the authority to withdraw lands from being subject to an application for a mineral right for all or certain minerals (section 59).

Administrative Decision-Makers. Cabinet may appoint a commissioner or establish a board to hear appeals of decisions made under the 2016 Act, and the Minister may delegate decision-making for surface access rights to this new decision-maker (section 22).  However, this structure must first be enabled through regulation and it’s not yet apparent whether Cabinet will ultimately appoint a board or commissioner or if it does, what decisions it will delegate.


Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Mining Law Team to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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  • Get Your SEDAR Profile: Changes to Private Placement Filing Requirements Effective May 24 & June 30, 2016

    Jun 6, 2016

    On June 30, 2016, amendments to National Instrument 45-106 Prospectus Exemptions and related changes to Companion Policy 45-106 Prospectus…

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    Publication
  • 3 Tips to Use “Forward-Looking Information” to Enhance Your Investor Relations

    May 31, 2016

    You’re on a tight timeline to issue a press release. You finish your draft and ‘cut & paste’ your standard “forward-looking…

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  • From Startup to Exit: 5 Key Stages of the Financing Lifecycle

    May 10, 2016

    This publication has been updated as at April 18, 2022. Access to sufficient capital is always a business issue, from the startup stage right…

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    Publication
  • 5 Key Changes to Early Warning Reporting System Effective May 9, 2016

    May 2, 2016

    Amendments changing the early warning reporting system take effect on May 9, 2016, provided all necessary approvals are obtained (except in…

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    Publication
  • New Early Warning Reporting System Exemptions for Certain Securities Lending Arrangements Effective May 9, 2016

    May 2, 2016

    Amendments changing the early warning reporting system take effect on May 9, 2016, provided all necessary approvals are obtained (except in…

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    Publication
  • The Legal Defence of Due Diligence: Top 5 FAQs

    May 2, 2016

    “Due diligence” is a legal defence to many charges under occupational health and safety (OHS) laws. Here are five of the most…

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  • Supreme Court of Canada Decides Federal Government Has Legislative Authority Over Métis & Non-Status Indians

    Apr 19, 2016

    On April 14, 2016, the Supreme Court of Canada decided that Métis and “non-status Indians” are “Indians” under section 91(24) of the…

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  • Doing Business With the Public Sector: Key Confidentiality Risks & 3 Risk Management Strategies

    Mar 24, 2016

    When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these…

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    Publication
  • Construction Project Manager Sentenced to 3½ Years for Workplace Accident in R. v. Vadim Kazenelson (aka “Metron”)

    Mar 9, 2016

    In what appears to be the first case of the conviction of a front line supervisor under section 217.1 of the Criminal Code and sentencing to a…

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    Publication
  • Energy Safety and Security Act (ESSA): 7 Key Changes Toughen Up Atlantic Offshore and North Oil & Gas Regulatory Regime

    Feb 15, 2016

    On February 26, 2016, the bulk of the offshore-related amendments of the Energy Safety and Security Act (ESSA, formerly known as Bill C-22) take…

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    Publication
  • NB Kicks-off First Request for Expressions of Interest from Aboriginal Businesses Under New Electricity from Renewable Resources Regulation

    Feb 1, 2016

    On January 29, 2016, the New Brunswick Power Corporation (NB Power) kicked-off compliance with its obligations under the new Electricity from…

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    Publication
  • 5 Key Changes Streamline Venture Issuer Obligations

    Jan 18, 2016

    Things have gotten a bit easier for venture issuers, such as those listed on the TSX Venture Exchange, with recent changes to their obligations.…

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    Publication
  • Offshore Oil and Gas Decommissioning Best Practices

    Dec 21, 2015

    A practical and current guide created to help you navigate the increasingly important issues surrounding offshore decommissioning and…

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    Publication
  • New Kid on the Block: Crowdfunding Joins Traditional Equity-Based Funding Options for Startups & SMEs

    Oct 19, 2015

    Access to sufficient capital to fund operations, research and development, and other costs is a key challenge for start-ups and for some small…

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  • The Changing Face of Aboriginal Law: 1 Short Year, 2 Big Court Decisions, 3 Key Implications for the Energy & Natural Resources Sector

    Jul 17, 2015

    On the heels of National Aboriginal Day, we pause to take a look back at two significant Aboriginal law cases decided in the last year, how…

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  • Unproven Aboriginal Rights Enough For Lawsuit Against Private Industry

    Jul 10, 2015

    On April 15, 2015, British Columbia’s Court of Appeal confirmed that First Nations can make certain legal claims grounded in Aboriginal rights…

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    Publication
  • 3 Reasons for Directors, Officers and Supervisors To Take Occupational Health and Safety Personally

    Jun 25, 2015

    Most people know that a company itself has OHS obligations, and that it risks corporate liability if it violates those obligations. However, not…

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    Publication
  • 5 “Legal” Reasons Why Natural Resource Companies Should Care About Corporate Social Responsibility (CSR)

    Dec 10, 2014

    “Corporate Social Responsibility” (CSR) as a concept has been floating around in business-speak for years – but stakeholders in the mining…

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    Publication
  • The Top 5 Corporate Governance Best Practices That Benefit Every Company

    Sep 16, 2014

    This publication has been updated as at August 25, 2022. Many believe that only public companies or large, established companies with many…

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    Publication
  • SCC Sets Test for – and Defines Rights of – Aboriginal Title in Canada

    Jun 26, 2014

    On June 26, 2014, in its groundbreaking decision on Aboriginal title in Read the SCC’s decision in Tsilhqot’in Nation v. B.C., 2014 SCC 44,…

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    Publication
  • Joining the Crowd – NS & NB Consider Crowdfunding

    Jun 11, 2014

    Note: For an update on Crowdfunding, read: New Kid on the Block – Crowdfunding Joins Traditional Equity-Based Funding Options for Start-ups…

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    Publication
  • Legal Update: Risky Trading – Insiders and Potential M&A’s

    Nov 1, 2013

    Recent decisions of securities regulators and amendments to Canadian securities laws demonstrate regulators' lowered tolerance for insiders who…

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    Publication
  • A Practical Analysis of “Material Fact”

    May 21, 2013

    In its April 2013 decision in Re Stan, the Alberta Securities Commission provides issuers with a practical approach to the assessment of both a…

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    Publication
  • A White Paper on Reforming Canada’s Transportation Policies For the 21st Century

    Feb 8, 2013

    While much of the developed world struggles with debt and chronically low growth, Canada, one of the best-performing members of the G-7,…

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    Publication
  • CSA Staff Notice 11-318: Guidance for Cease Trade Order Database Users

    Aug 27, 2012

    Introduction and Purpose Staff of the Canadian Securities Administrators (CSA Staff or we) are publishing this Staff Notice (the Notice) to…

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  • Canadian Securities Administrators Adopt Rule For Over-The-Counter Issuers

    Jun 1, 2012

    Multilateral Instrument 51-105, Issuers Quoted in the U.S. Over-the-Counter Markets will come into effect on July 31, 2012. Once effective,…

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    Publication
  • Alert: Supreme Court of Canada Finds Proposed Canadian Securities Act Unconstitutional

    Dec 22, 2011

    On May 26, 2010, the Canadian federal government released the proposed Canadian Securities Act (the Act) which would, among other things, create…

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    Publication
  • Investor Readiness

    Nov 1, 2011

    Entrepreneurs need to be ready for due diligence, so it’s essential to involve legal advisors and accountants early in the process. Click…

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    Publication
  • Accounting Firms – Do they need to be registered as exempt market dealers

    Oct 6, 2011

    In 2009 Canadian securities regulators changed the rules relating to securities “registration” – these rules determine who is required to…

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    Publication
  • A Review of the Project Scope and Environmental Assessment Scope for Mining and Energy Projects Across Canada

    Apr 6, 2010

    Carole Chan was the Co-author of the following publication: A Review of the Project Scope and Environmental Assessment Scope for Mining and…

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