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Canadian Mining Law

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Six Months and Counting for Ontario Cap-and-Trade – Are You Ready?

Posted in Environmental, Legislation

Canada is turning a new leaf on climate change and this will have a real impact on consumers and business. Ontario’s cap-and-trade program, expected to launch January 1, 2017, will require certain emitters to obtain allowances equal to their total emissions. There is some skepticism around this date. Regardless of when introduced, carbon pricing (placing a real cost on the emissions created by business and consumers) is a new reality for those operating in Ontario and elsewhere in Canada

What does this all mean for you?

  • The Ontario provincial government is beginning to implement a program to limit carbon and similar emissions by business.
  • Over time most businesses will need to consider the financial burden (and opportunity) presented by the cap-and-trade regime in Ontario (and similar regimes elsewhere in Canada).
  • The program begins with the largest emitters and gradually increases the scope to include most businesses in the Province with fewer exemptions and ultimately an increased cost.

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Enrollment opened under the Extractive Sector Transparency Measures Act

Posted in Corporate Governance, Legislation

Natural Resources Canada (NRCAN) has opened the enrollment process for companies who meet the definition of a “Reporting Entity” under the Extractive Sector Transparency Measures Act (ESTMA). Reporting Entities can enrol by downloading a “reporting entity contact form” (available here) which must be completed and submitted prior to submitting an ESTMA report. Upon enrollment, Reporting Entities will receive an ID Number and notification of new information published on NRCAN’s website.

Enrollment is not required until the initial ESTMA reports are due; however, NRCAN is encouraging early enrolment. Annual reports under ESTMA are due 150 days after a Reporting Entity’s financial year end, beginning with financial years commencing after June 1, 2015. As an example, companies with a December 31 year-end will be required to submit their first annual report by May 30, 2017. Reporting of payments made to aboriginal governments or entities is deferred for a two-year period until June 1, 2017.  Continue Reading

Canadian regulators update list of acceptable foreign associations and acceptable foreign codes recognized under NI 43-101

Posted in NI 43-101 Disclosure Practices

The Canadian Securities Administrators (CSA) have updated the list of approved “acceptable foreign associations” in National Instrument 43-101 Standards of Disclosure for Mineral Projects (NI 43-101) to reflect three additional professional associations and membership designations. As well, the CSA has also amended the list of acceptable foreign resource reporting codes to include one additional code.

From February 25, 2016, acceptable foreign associations now includes the Russian Society of Subsoil Use Experts (OERN) for persons holding the designation of Expert and also includes members of Engineers Australia and Engineers New Zealand holding the designation of Chartered Professional Engineer (CPEng). These latter persons had previously been identified in CSA Staff Notice 43-308 (Revised) Professional Associations under NI 43-101 Standards of Disclosure for Mineral Projects, as meeting the requisite test. The full list of professional organizations is now included in Appendix A to Companion Policy 43-101 Standards of Disclosure for Mineral Projects (43-101CP). Continue Reading

Canada’s new electronic travel authorization program

Posted in Legislation

Important Update March 10, 2016:

Further to the blog published below, the Government of Canada has provided some updated information regarding the issuance of electronic travel authorizations (eTA) and when they will become mandatory for those travelling to Canada by air.

Although it had been previously communicated by the Government of Canada that travellers with a valid study or work permit issued after August 1, 2015, are exempt from the new eTA requirement, it appears that this exception only applies to a subset of these permit holders.If a work permit or study permit extension was issued within Canada at the Case Processing Centre in Vegreville, Alberta or at the port of entry after August 1, 2015 but confirmation of an eTA was never provided through a written letter or email, it is advisable to apply for an eTA prior to subsequent travel.

To assist travellers to Canada with the new eTA requirement, the government of Canada has provided a transition period from March 15, 2016 until fall 2016 which will allow travellers to Canada who do not have an eTA to board their flight, so long as they have appropriate travel documents such as a valid passport and visa, if required. Accordingly, it will not be mandatory for travellers to have an eTA until fall 2016. Nevertheless, we advise that affected individuals apply for an eTA as soon as possible to avoid any delays in processing.



Canada’s new electronic travel authorization program

The government of Canada has introduced a new entry requirement, known as an electronic travel authorization (eTA) which will be mandatory effective March 15, 2016. The program is the product of a joint U.S.-Canada border action plan to cooperate on pre-screening of travelers to identify security threats.  The Canadian program is similar to the Electronic System for Travel Authorization (ESTA) for visa-waiver nationals travelling to the United States. Below is a summary of the eTA program. Continue Reading

New prospectus exempt rights offering regime to come into force on December 8, 2015

Posted in Public Company Disclosure Issues

The prospectus exempt rights offering regime will be significantly revised to address concerns that it is too expensive and time consuming.  The Canadian Securities Administrators (CSA) states that the amendments are intended to make prospectus exempt rights offerings more palatable for issuers while maintaining investor protections.  The amendments will repeal National Instrument 45-101 Rights Offerings (NI 45-101) – the revised rights offering prospectus exemption will be provided in an amended section 2.1 of National Instrument 45-106 Prospectus Exemptions (NI 45-106).

Principal Conditions of the Exemption

The new rights offering prospectus exemption is only available to non-investment fund reporting issuers that meet certain conditions.  The issuer must be a reporting issuer in Canada and it must be current in its continuous disclosure obligations.  In addition, the exercise period for the rights must be no less than 21 days and no more than 90 days and must commence the day after the rights offering notice is sent to security holders.   Continue Reading

One size does not fit all: Changing approaches towards Aboriginal engagement

Posted in Environmental

Attaining an Aboriginal community’s consent to a development project should not be viewed as a line item on a to-do list. Corporations that want to operate successfully in areas subject to Aboriginal interests must therefore find new ways of building or rebuilding relationships – and the first step is developing mutual trust.

The Boreal Leadership Council (BLC) – a working group of conservation organizations, indigenous peoples, resource companies and financial institutions – has developed a framework through which industry and government can engage indigenous communities. The BLC has asked industry and government to implement the idea of Free, Prior and Informed Consent (FPIC) – the right of indigenous peoples to offer or withhold consent to developments that may have an impact on their territories or resources – in other words, a veto power over resource development projects. FPIC cannot exist where a people does not have the option to meaningfully withhold consent.

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Canada seeks consultation on Extractive Sector Transparency Measures Act implementation tools

Posted in Legislation

On August 12, 2015, Natural Resources Canada (NRCAN) posted a notice on its website seeking public input on draft implementation tools (Implementation Tools) it has developed in respect of the Extractive Sector Transparency Measures Act (the Act). As described in our previous entries on our Canadian Securities Law blog (here and here), the stated purpose of the Act is to foster better transparency to ensure that resource extractive industries support proper development in the countries where they operate, while at the same time making it harder to conceal illicit payments.


The Act was proclaimed into force on June 1, 2015, but as we have previously noted precise guidance on the underlying disclosure obligations has been lacking. It was hoped that regulations enacted under the Act would put meat on the legislative skeleton and provide much needed regulatory certainty. Instead, NRCAN has introduced the Implementation Tools as a practical and illustrative alternative. The Implementation Tools do not constitute prescriptive guidance with the force of law, however. Continue Reading

Quebec’s Bill 55 (An Act Respecting Transparency Measures in the Mining, Oil and Gas Industries): Wasteful Duplication?

Posted in Legislation

On June 1, 2015, Canada proclaimed into force the Extractive Sector Transparency Act (Federal Act). The Federal Act requires mining, oil and gas companies to disclose payments made to Canadian and foreign governments and others, including aboriginal groups.

The Federal Act is the result of a commitment made by Canada at the 2013 G8 summit. The “Publish What You Pay” movement and its supporters have long been lobbying G8 and other “rich country” governments for mandatory payment disclosures to combat corruption and increase governmental accountability in poorer countries. For a discussion of the Federal Act please refer to our post of June 2, 2015. Continue Reading

Mining issuers’ continuous disclosure discussed in CSA continuous disclosure review report

Posted in NI 43-101 Disclosure Practices

The Canadian Securities Administrators (CSA) recently published CSA Staff Notice 51-344 Continuous Disclosure Review Program Activities for the fiscal year ended March 31, 2015.  The notice provides stakeholders with guidance arising from the key deficiencies identified by CSA members in their continuous disclosure reviews of reporting issuers last year and include, in particular, a discussion of mining issuers’ compliance with National Instrument 43-101 Standard of Disclosure for Mineral Projects.  While this post focuses on mining issuers’ disclosure practices, we’ve provided a more general summary of CSA Staff Notice 51-344 on CanadianSecuritiesLaw.com.

CSA staff remind mining issuers of the requirement to comply with NI 43-101, including in respect of written disclosures on an issuer’s website such as investor presentations, news articles and even links to third party content.  CSA staff also refer mining issuers to CSA Staff Notice 43-309 Review of Website Investor Presentations by Mining Issuers which we have previously discussed.  Notably, CSA staff advise specifically that investor presentations: (i) must name the qualified person who approved technical information and disclose their relationship to the issuer; (ii) provide the required cautionary statements regarding preliminary economic assessments; and (iii) clearly state whether mineral resources include or exclude mineral reserves, among other recommendations.

For further information, please consult CSA Staff Notice 51-344.

Canada Proclaims the Extractive Sector Transparency Measures Act into Force

Posted in Legislation

Yesterday the Government of Canada proclaimed into force the Extractive Sector Transparency Measures Act (the Act). The proclamation comes in advance of the G7 Summit on June 7, 2015, and is a follow-through on the 2013 G8 Summit commitment made by Prime Minister Stephen Harper to establish new reporting standards for Canadian oil, gas and mining companies. The stated purpose is to foster better transparency to ensure that the resource extractive industries support proper development in the countries where they operate, while at the same time making it harder to conceal illicit payments. As discussed in our post last October, the Act will require affected entities to report any payments made in relation to the commercial development of oil, gas or minerals during a financial year that exceed either the amount prescribed by regulation or, if no amount is prescribed, $100,000 of the following nature and whether monetary or “in kind”: Continue Reading