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2016/17
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LEXPERT 37
frustrate a project, then you
are frustrating your ability
to move in a rational and
democratic way."
One critical problem
with the explosive use of
social media by mining op-
ponents is they are essen-
tially free of accountability
for their claims and views,
says Bursey. As a result, for
those in the mining sec-
tor, "credibility has to be
earned every day."
Credibility might be
easier to earn, suggests
Junger, if there wasn't a lack
of leadership by the fed-
eral and provincial govern-
ments in developing CSR
standards resource compa-
nies could follow domesti-
cally and abroad in order
to satisfy their obligations
to achieve public trust.
"What is 'standard'?" asks
Junger. "Companies are
le to their own devices to
sort this out. at's a major challenge: the uncertainty,
the unregulated nature of all this." e absence of clarity
around such issues as, for instance, what constitutes con-
sent when negotiating with Aboriginal communities, or
what companies need do in terms of benefits agreements
when negotiating with impacted communities, "do have
a negative impact on investment," says Junger.
So do the Supreme Court rulings that, starting with
the 2004 decision in Haida Nation v. British Columbia
(Minister of Forests) – which established the Crown duty
to consult and accommodate with First Nations, Métis
and Inuit groups – have enhanced the rights of those
groups to determine how resource companies oper-
ate on claimed or treaty lands. at duty requires that
whenever a provincial, territorial or federal government
is involved in a decision that could adversely impact Ab-
original or treaty rights, it must consult with impacted
groups. Since then, notes Ann Bigué, a partner at Den-
tons Canada LLP in Montréal, subsequent rulings and
interpretation by the courts have increased the need for
mining and other resource companies to address the ex-
pectations of Aboriginal communities.
And, with those communities more vocal and better
prepared with qualified advisors to defend their rights,
Canadian mining companies, says Bigué, have become
"very conscious of the fact they have to build good re-
lationships with Aboriginal people to make sure they
Wiseman, David L. Goodmans LLP
(416) 597-6266 dwiseman@goodmans.ca
Mr. Wiseman is a partner with extensive experience in bank and asset-
based lending, high-yield debt, project finance and debt restructurings.
He represents lenders, borrowers and sponsors on domestic, cross-border
and international finance transactions. Resource/energy sector clients
include Eurasian Resources Group, KKR, Mandalay Resources, J.J. Nickel,
SkyPower, CJF Capital and Western Coal.
Woodside, Tina M. Gowling WLG
(416) 369-4584 tina.woodside@gowlingwlg.com
Ms. Woodside is a Firm Managing Partner at Gowling WLG. In addition, she
practises as a senior corporate and securities lawyer, specializing in cor-
porate finance, M&A and corporate governance, with particular emphasis
in the mining industry.
Wortley, Stephen D. McMillan LLP
(604) 691-7457 stephen.wortley@mcmillan.ca
Mr. Wortley is Co-chair for the China Practice Group and Public M&A. His
practice focuses on securities and corporate matters. His experience
includes national and international prospectus offerings and advising both
SOEs and SMEs. He has spoken extensively about Hong Kong Stock Ex-
change listings by Canadian firms and on alternative investment structures
in the Canadian mining industry.
Wright, J. Craig Osler, Hoskin & Harcourt LLP
(613) 787-1035 cwright@osler.com
Mr. Wright focuses on corporate finance and M&A. He advises Canadian
and foreign companies, investors and underwriters on private and public
company matters, and on all aspects of Canadian securities regulation.
LEXPERT-RANKED LAWYERS
achieve a certain level of mutually beneficial relationships. Relation-
ships where Aboriginal people are not le out, not ignored."
ose communities, she says, "want to participate, to help define
how things will happen." And they want training, jobs, contracts for
their business enterprises and entrepreneurs, as well as wanting to en-
sure the future health of their communities and the environment.
So regardless of whether you use the term social licence to operate
– a community's social permission for a company to conduct business
on their turf – the corporate social responsibility initiatives required
to obtain it are now as important a tool to modern mining and other
extractive industries as the pickaxe was to the Gold Rush.
Without it, regardless of all the government permits and approvals
tucked under their arms, mining companies will find it difficult, even
impossible, to start digging holes.
