Changes to NI 43-101 – Request for Comments

By Craig Waldie, P.Geo., Senior Geologist, Ontario Securities Commission

On April 23, 2010, the Canadian Securities Administrators (CSA) published for a 90-day public comment period the proposed changes to rules that govern disclosure by mining companies in Canada, better known as NI 43-101 Standards of Disclosure for Mineral Projects.

This is the first proposal for major changes since NI 43-101 went into effect in 2001. The proposal reflects nine years of regulatory experience with the rule and broad consultation through focus groups and advisory committees. It is anticipated that the changes will provide cost savings and efficiencies to mining companies without compromising investor protection and the benefits of NI 43-101. The proposed changes aim to:

• eliminate or reduce the scope of certain requirements;
• provide more flexibility to mining companies and qualified persons in certain areas;
• allow technical reports to better reflect the stage of development of a mineral property;
• provide more flexibility to accept certain foreign professional associations, professional designations, and reporting codes as they arise or evolve;
• reflect changes that have occurred in the mining industry; and,
• clarify or correct areas where NI 43-101 is not having the intended effect.

In addition, guidance has been added to clarify that membership in a foreign professional association is only for purposes of NI 43-101.  It does not supersede or alter Canadian provincial and territorial legislation regarding registration in order to practice in a particular jurisdiction of Canada where geoscience or engineering is a regulated profession.

The comment period closes on July 23, 2010. The following provides a summary of the key changes. More details about the changes and the comment process, as well as specific questions for consideration can be found in the Notice and Request for Comment.

Summary of Key Proposed Changes

1. Added or amended several definitions including:

  • adding a definition of “acceptable foreign code”, and amending the definitions of “professional association” and “qualified person”, to replace prescriptive lists with objective tests that will accommodate changes without formal amendment;
  • amending the definition of “historical estimate” to permit disclosure of third party estimates made after 2001; and,
  • expanding the definition of “preliminary economic assessment” to include preliminary economic analyses after the completion of a pre-feasibility or feasibility study.

2. Clarified the existing requirements applicable to all disclosure by:

  • restricting the disclosure of economic analyses that includes exploration targets and historical estimates; 
  • restricting the disclosure of gross metal or mineral value and metal or mineral equivalent grades; and,
  • requiring that disclosure of historical estimates always be accompanied by cautionary language.

3. Amended the obligation to file a technical report by:

  • removing the requirement to file updated certificates and consents of qualified persons when relying on a previously filed technical report;
  • expanding the technical report trigger to include any first time written disclosure of mineral resources, mineral reserves, or preliminary economic assessments; and,
  • allowing a conditional 6-month filing delay for a technical report supporting mineral resources, mineral reserves, or a preliminary economic assessment, if these estimates are supported by a current technical report filed by another issuer.

4. Expanded the exemption from filing an independent technical report for producing issuers, if certain conditions are met.

5. Exempted royalty holders from the requirement to file a technical report, if certain conditions are met.

6. Substantially amended the technical report form by:

  • making the form less prescriptive and more adaptable for advanced stage and producing properties;
  • allowing the qualified person more discretion regarding the level of detail required under each section based on stage of development of the property; and,
  • replacing Item 25 with eight new items that reflect the major components of various economic analysis. 

7. Amended the companion policy to:

  • track the sections of NI 43-101 to which it refers; and,
  • remove or update old guidance and add new guidance

8. Made a consequential amendment to the short form prospectus rules to allow firms that employ qualified persons to sign expert consents, rather than the qualified person, if certain conditions are met.


Copyright 2010, Association of Professional Geoscientists of Ontario (APGO)