Changes to Canadian securities rules are set to make rights offerings quicker and more cost-effective. Capital-starved resource companies may well be among the main beneficiaries. See our Dentons Insight.
Important Changes to Offerings to Existing Security Holders and Rights Offerings and their Impact on the Mining Sector in Canada
Two important developments were announced today that affect how Canadian reporting issuers can raise capital from their existing security holders:
- The Ontario Securities Commission (“OSC”) announced the introduction of a new prospectus exemption for offerings to existing security holders, similar to what is offered in other Canadian jurisdictions (the “New Exemption”).
- The Canadian Securities Administrators (“CSA”) published for comment a proposal to make significant changes to the regime governing rights offerings (the “Proposed Changes”).
What is a rights offering?
A rights offering is an offering of securities to an issuer’s existing security holders to buy new securities at a specified price. In Canada, this activity requires the issuer to provide a prospectus or establish that it has an exemption from the prospectus requirements.
What is the existing regime in Canada for rights offerings?
In Canada, rights offering can either be carried out under a prospectus or under a rights offering circular. In either case, a review of the offering document by the relevant securities commission(s) has been required. Rights offerings must also be left open for participation by existing shareholders for a period of at least 21 days. Research by the CSA indicates that the average length of time to complete a rights offering is 85 days. This has discouraged some issuers from pursuing rights offerings.
What changes have been made?
The New Exemption will be available in Ontario to permit offerings to existing security holders. It includes investment limits (of $15,000 per purchaser, unless suitability advice is obtained) and securities issued will have a four-month hold period.
At the same time, the CSA has proposed a new streamlined process for more traditional rights offerings. An important feature of both the new exemption and the CSA proposal is that offerings can proceed without securities regulatory review, although stock exchange approvals will continue to be required.
How will this affect the mining sector?
According to the TMX Group, there are more mining companies listed on the TSX and the TSX-V than on the exchange(s) of any other jurisdiction in the world. In the current investing climate, reporting issuers in the mining sector must deal with higher-than-normal volatility in commodity prices which can often be accompanied by large movements in share prices. This creates a need for speed and efficiency in fundraising when financing is required. The current rights offering rules require a review by securities regulators and this can be a lengthy process, acting as a deterrent to reporting issuers wishing to utilize rights offerings as a means of raising capital.
In a recent example, Paladin Energy Ltd. (“Paladin”, a uranium miner cross-listed in Canada and Australia) announced a $138 million rights offering on November 25, 2014. However, given the regulatory requirements in Canada, Paladin’s management decided to exclude its Canadian shareholders. Australian rules allow Paladin to announce and complete the rights offering on an extremely tight timetable, protecting the company from market volatility and reducing risk. A Paladin spokesman said, “The advantage to the issuer in being able to quickly complete an offering of this sort is significant”. In this case, the reporting issuer loses because it is leaving potential investor money “on the table”, while shareholders in Canada could be faced with dilution of more than 70%.
The New Exemption, along with the Proposed Changes, create a streamlined process that decreases the time, effort, and expense required to issue a rights offering, making it a more attractive financing option for reporting issuers in the mining sector. To learn about the specific contents of the New Exemption and the Proposed Changes please see our Dentons Insight: Important changes to offerings to existing security holders and rights offerings in Canada published on November 28th.
The Province of British Columbia approved an Order in Council dated April 11, 2014 to establish environmental assessment fees in British Columbia for the review of environmental assessment applications, orders and enforcement fees.
The fee structure became effective on April 14, 2014.
There are three categories of fees: 1. pre-certificate fees; 2. transitional assessment fees; and 3. post-certificate fees.
There is an exemption fee of $10,000 payable when a party seeks an exemption from the requirement for an environmental assessment certificate. The first installment for an assessment fee ranges from “simple” at $25,000 to “typical” at $75,000 and the assessment fee for the second installment ranges from $25,000 to $75,000.
Transitional Assessment Fees
Transitional assessment fees range from “simple” at $37,500 to “complex” at $112,500.
Post certificate fees for an extension range from $2,000 to $10,000 and an amendment fee ranges from $2,000 to $50,000. In addition, there are inspection fees imposed and the timelines for the payment of the fees are as set out in the regulations. There are a number of factors that are used to determine the fees and these are set out in the materials available on the government website at http://www.eao.gov.bc.ca/fees.html.
The Government of Canada recently issued a Consultation Paper regarding proposed mandatory reporting standards (the proposed standards) for payments by extractive industry companies to governments, both domestic and foreign, and including Aboriginal entities.  The proposed standards are Canada’s implementation of a commitment made at the 2013 G8 Summit  and reflect similar initiatives in several other countries, including the US through the Dodd Frank Act and the European Union (EU) through its Transparency and Accounting Directives. 
The proposed standards will apply to companies operating or headquartered in Canada that are involved in the commercial development of oil, natural gas, and minerals, whether in Canada or abroad. Companies involved in transportation within Canada are, apparently, not subject to the proposed standards, although the consultation paper is unclear as to how cross-border transportation undertakings are to be dealt with.
The proposed standards will apply not only to publicly listed companies, but also to medium and large private extractive companies operating in Canada. Medium and large private companies are determined as those which meet two of the three following criteria: (1) CA$20 million in assets; (2) CA$40 million in net turnover; and (3) 250 employees.
With respect to joint ownership or subsidiaries, extractive companies operating in Canada will be required to report if they have a controlling interest in any project in Canada or abroad. The proposed standards will adopt the International Financial Reporting Standards (IFRS) definitions of “control”, “joint venture”, and “joint operation”.
Affected companies would have to publish annual reports of payments of $100,000 and over, either cumulatively in one year or on a one-time basis. The reports would have to be made on a project-level basis, and include payments made to all levels of government, both domestically and abroad. Under the proposed standards, the following categories of payments would have to be reported:
- Taxes levied on income, production or profits of companies, excluding consumption taxes;
- Fees, including license fees, rental fees, entry fees and “other considerations for licenses and/or concessions”;
- Production entitlements (including payments made in-kind);
- Bonuses, such as signature, discovery and production bonuses;
- Dividends paid in lieu of production entitlements or royalties (excluding dividends paid to governments as ordinary shareholders; and
- Payments for infrastructure improvements (including roads, electricity, etc.).
Consistent with the U.S. and the EU, it is proposed that companies would not be required to report social payments such as for community centres, schools, hockey teams, arenas, capacity development, training and the like.
It is proposed that the disclosures would be posted on company websites, and would be available for free and unrestricted use by the public.
Payments to Aboriginal entities
The proposed standards would also extend to payments made to Canadian Aboriginal entities, including in relation to Impacts and Benefits Agreements. Payments to the following types of Aboriginal entities would be subject to mandatory reporting:
- Aboriginal organizations or groups with law-making power and/or governance mechanisms related to the extractive sector;
- provincially or federally incorporated Aboriginal organizations that undertake activities in the extractive sector on behalf of their beneficiaries; and,
- Aboriginal organizations or groups that are empowered to negotiate legally binding agreements on behalf of their members (this would include Impacts and Benefits Agreements).
Third party verification
Under the proposed standards, reports would have to be assured or verified by a third party, according to recognised accounting standards.
The Government of Canada has indicated its preference for these rules to be introduced via provincial securities regulators. However, if the provinces do not take the necessary steps in the near future, the Government of Canada has stated its commitment to introducing federal standards, and will begin work over the summer of 2014 to implement legislation by April 2015.
The Government of Canada is inviting feedback from interested parties prior to May 9, 2014. The consultation process builds on government dialogue with various groups that has occurred over the past year. The Resource Revenue Transparency Working Group (the Working Group), comprising the Mining Association of Canada, the Prospectors and Developers Association of Canada, Publish What You Pay – Canada, and the Revenue Watch Institute, issued recommendations in a paper published earlier this year.4 The Working Group’s recommendations include mandatory disclosure of the same information as contained in the proposed standards, but also includes transportation and terminal operations fees. The Working Group has also recommended that such disclosure be imposed through the provincial securities regulators.
In addition to placing an obligation on extractive sector companies to implement or adapt systems and processes to track and record relevant payments to governments, the proposed rules should be assessed in the context of business ethics and anti-corruption compliance policies and controls. Given the short lead-in time for introduction of the rules, companies operating in Canada should start the process of evaluating and implementing the steps they need to take, to avoid being unprepared for the changes to the Canadian regime. For companies with an international presence, compliance efforts in Canada will need to be addressed as part of wider efforts to comply with similar regimes to be introduced in the EU, and proposed for the US.
At Dentons Canada, we are working closely with our global colleagues to monitor developments and provide clients with practical solutions and market-leading compliance strategies.
 Natural Resources Canada, Establishing Mandatory Reporting Standards for the Extractive Sector – Consultation Paper: Spring 2014, online: Natural Resources Canada http://www.nrcan.gc.ca/publications/15753 [Consultation Paper].
 See item 5 of the G8 Lough Erne Declaration, online: http://www.g8.utoronto.ca/summit/2013lougherne/lough-erne-declaration.html.
 Consultation Paper, supra.
 The Resource Revenue Transparency Working Group, Recommendations on Mandatory Disclosure of Payments from Canadian Mining Companies to Governments, online: http://www.pdac.ca/pdf-viewer?doc=/docs/default-source/publications—papers-and-presentations/working-group-transparency-recommendations-(2014).pdf.
Lean times may call for lien measures – What you need to know about miners’ liens in Northern Canada
Given the present economic climate of falling metal prices and depressed equity markets for mining companies, many owners and operators of mines are experiencing cash flow and working capital shortages. As a result, contractors and others who provide services or materials to mines, whether in the exploration, development, or production phases of such projects, are increasingly looking to miners lien legislation to help them increase their leverage when seeking payment of outstanding accounts.
Miners’ liens are unique legal and potentially powerful tools. Therefore, those involved in working on or operating a mine, as well as lenders, should have some awareness of the impact of the filing of such liens on mineral tenures and on the interests of any secured creditors.
What is a lien?
In general terms, a lien is a charge against property, including mineral tenures, granted to a person who provides services or materials which improve that property as long as there has been compliance with the rules in the applicable lien legislation. The property acts as security for the debt owing to the lien claimant. Therefore strict compliance with the statute is required in order to get the benefits of the lien.
Lien legislation is different in each province and territory. All Canadian jurisdictions have builders lien legislation that applies generally to improvements and services provided to property, but the northern territories have special miners lien legislation. Where miners lien legislation exists, it is that legislation and not the builders lien legislation that applies to mining projects.
Miners Lien Acts north of 60 – who can lien for what?
In each of the Yukon, Northwest Territories and Nunavut, the applicable Miners Lien Act provides a statutory framework for claiming a miners lien. There are currently two different lien legislation regimes: one in the Yukon and another in the Northwest Territories and Nunavut.
In the Yukon, a lien is provided to a contractor or subcontractor who provides services or materials to a mine “preparatory to, in connection with, or for an abandonment operation in connection with” the recovery of a mineral. The lien is provided on “all the estates or interests in the mine or mineral concerned” as well as on the mineral itself “when severed and recovered from the land while it is in the hands of the owner”. The lien is also on “the interest of the owner in the fixtures, machinery, tools, appliances and other property in or on the mines or mining claim”. In addition, a person who rents equipment to an owner, contractor or subcontractor has a lien for the rent while the equipment is being used or reasonably required to be available for the purpose of the mine.
In the Northwest Territories and Nunavut, a person who performs any “work or service on or in respect of” or “places or furnishes any material to be used in the mining or working of a placer or quartz mine or mining claim” has a lien for the price of the work, service or material on “the minerals or ore produced from and the estate or interest of the owner in the mine or mining claim”.
How to claim a lien and time limits
Under the Miners Lien Acts, there are two initial steps required to claim a lien: first, file a claim of lien, and second, start an action.
Firstly, a lien claimant must file a claim of lien in the mining recorder’s office against the applicable mineral tenures within the prescribed time period. This time period differs between the Yukon and the Northwest Territories/Nunavut. The applicable time periods are summarized in the chart below. The claim of lien must be supported by an affidavit which verifies the facts in the claim of lien, and the claim of lien must include:
- The name and residence of the claimant, owner of the property and of the person for whom the work, service or material was provided;
- A description of the work or service performed or material furnished and the time period within which it was performed or furnished;
- The amount claimed as due or to become due;
- The description of the property to be charged; and
- The date of the expiration of the period of credit agreed to by the lien holder for payment for the work, service or material of the lien holder where credit has been given.
Secondly, a lien claimant must start an action within the prescribed time period in the Supreme Court in the Yukon or the Northwest Territories or in the Nunavut Court of Justice in Nunavut. In addition, the lien claimant must file a certificate from the court in the mining recorder’s office against the liened mineral tenures. Again, this time period differs between the Yukon and the Northwest Territories/Nunavut, and the applicable time periods are summarized in the chart below. The certificate notifies anyone searching at the mining recorder’s office that the mineral tenure is subject to a legal proceeding.
Assuming there has been compliance with the legislation, a miners lien gives a lien claimant limited priority over mortgage and other encumbrance holders. This priority can be important if the mineral tenures are subject to secured financing the amount of which is equal to or exceeds the value of the mineral tenures. In such a scenario, the lien claimant may only be able to recover the amounts which have priority over the secured financing. Therefore it is important for all the players to understand the scope of the priority.
The following chart summarizes the applicable steps and timelines to claim a miners lien in Yukon and in the Northwest Territories/Nunavut, and the priority granted by such liens.
|Yukon||Northwest Territories and Nunavut|
|Time for filing a claim of lien||Before the expiration of 45 days from the last day on which the work or service or material which is the subject matter of the claim, was performed.||Before the expiration of six months from the last day on which the work or service or material, the subject-matter of the claim, was performed or placed or furnished or, where credit has been given, from the time fixed for payment.|
|Time for commencing an action and filing a certificate.||60 days after deposit of the claim of lien.||90 days after filing of the claim of lien.|
|Priority||A lien takes priority over any mortgages or encumbrances to the extent the lien arises from work, services, or materials provided to the mine for a period of up to 60 days.The purpose of this limitation is to provide certainty to financiers of mines that any miners lien has a limited priority. The commencement of this 60 day period is not expressly stated in the Miner Lien Act. The Yukon Territory Supreme Court has indicated that this period should be calculated from the last day of the provision of work, services or materials, and that accordingly it may be different for each lien claimant. However, this case law is not binding, and therefore this legislation may be interpreted differently by a future court.||A lien takes priority over all mortgages and encumbrances registered on or after March 23, 1937, as to 1/2 of the output from the applicable mine or mining claim.This priority typically extends to half of the minerals or ore when recovered from the mine, and, if so ordered by a court, may also extend to half of any net proceeds recovered from the sale of such minerals or ore.|
Impact of liens
Some of the key impacts of miners’ liens for participants in mining projects are summarized below:
Owners & Operators: Owners and operators should be aware of the impact miners liens can have on their debt covenants and should properly manage relationships with contractors, suppliers and lenders when experiencing cash flow and working capital shortages.
Contractors & Suppliers: Contractors and suppliers should be aware of lien legislation, and take timely action to perfect a lien because failure to comply with the strict requirements in lien legislation can have dire consequences. Once perfected, a lien can provide leverage to a contractor or supplier in the settlement of outstanding accounts with an owner.
Lenders: Lenders need be aware that a portion of their security may be subordinated to lien claims. Lenders can ensure there are protective covenants in security documents which contemplate the lenders’ recourse in the event a claim of lien is filed.
On November 7, 2013, the Toronto Stock Exchange (“TSX”) issued a Staff Notice to Applicants, Listed Issuers, Securities Lawyers and Participating Organizations (“Staff Notice”) that provides guidance for companies considering a listing on the TSX. In particular, the Staff Notice addresses listing requirements for mineral exploration and development stage companies as well as clarifies the position of the TSX on financial statement disclosure required for listing and stock options granted prior to an initial public offering.
Qualification of an Advanced Property for Mineral Exploration Companies
The TSX requires that companies applying to list under the mineral exploration and development-stage category hold or have a right to earn and maintain at least a 50% interest in an advanced mineral property (“Advanced Property”). The TSX will generally consider a mineral property to be an Advanced Property if continuity of mineralization is demonstrated in three dimensions at “economically interesting grades” as detailed in a technical report prepared by a qualified person in accordance with National Instrument 43-101 – Standards of Disclosure for Mineral Projects (“NI 43-101”).
From a practical standpoint, typically mineral exploration companies had to have at least a current resource estimate for a project to be accepted by the TSX as an Advanced Property. However, the Staff Notice provides that infrastructure may now be an important consideration in the determination of “economically interesting grades”. Infrastructure is a particularly important consideration for a project that is located in a remote or isolated area that is not readily accessible, either by road, railway or port, or for bulk commodities such as coal, iron ore, all base and precious metal concentrates, and industrial minerals, such as sand and gravel, limestone, commercial clay and gypsum (“Bulk Commodities”) which require adequate infrastructure for the delivery of large amounts of materials to the market. Industrial mineral projects located in remote areas far away from their targeted markets may not be economical given their low intrinsic value. Infrastructure will not be a material consideration for the TSX for commodities that can be produced on-site in relatively small quantities, which have a high value relative to their weight and can be transported to market by air, such as gold and diamonds.
Applicants with Bulk Commodity projects in remote areas with poor infrastructure should have a reasonable plan to develop or obtain access to the required infrastructure together with a cost estimate, which should ideally be outlined in a technical report and supported by a preliminary economic assessment, pre-feasibility study or feasibility study. To assess the reasonableness of the plan, the TSX will consider (a) whether infrastructure has been built over similar terrain and circumstances in the past and the cost associated with building such infrastructure, (b) whether the infrastructure will be unconventional (e.g. using a pipeline for concentrate transportation), and (c) the assumptions in respect of the funding of the infrastructure, specifically whether the applicant will fund the infrastructure or rely on third parties to fund or develop the infrastructure.
The TSX Staff Notice provides that in order to satisfy the requirement of having “economically interesting grades” for projects in remote or isolated locations, the assumptions, plans and cost estimates for infrastructure should ideally be outlined in a NI 43-101 technical report under items 18 (project infrastructure) and 21 (capital and operating costs) of Form 43-101F1 – Technical Report and supported by a preliminary economic assessment, pre-feasibility study or feasibility study.
The TSX provides that a project with either a mineral reserve or mineral resource will qualify as an Advanced Property but for those projects located in a remote or isolated area, where infrastructure will be an important aspect of that determination. However, especially when one considers the fact that most mineral deposit discoveries are in remote areas and will invariably require some new infrastructure as part of their development, it is not entirely clear how the TSX will assess mineral resource stage projects in the future. Moreover, it may be necessary to complete a more advanced study like a preliminary economic assessment, pre-feasibility study or feasibility study to demonstrate that the lack of infrastructure or a remote location does not impede the viability of the project.
As a result, although the Staff Notice does not expressly raise the bar for mineral projects to support a listing in the TSX, the practical ramifications of the TSX’s guidance may make it more difficult for mineral exploration companies to list on the TSX prior to completing at least a preliminary economic assessment. For Bulk Commodity projects where there is no public market to set market prices, this will definitely limit earlier stage projects from supporting a TSX listing. For such projects a company will typically not be able to assess the economic value of its deposit before it engages in offtake discussions with potential purchasers of the Bulk Commodity, and these discussions will not take place prior to the company demonstrating the extent and continuity of mineralization to support a potentially economic project. This creates a catch-22 situation at the best of times, but especially so with limited access to a public market to facilitate raising additional capital. The takeaway for all mineral exploration companies interested in listing on the TSX is that they should carefully review suitability for a TSX listing and engage in a pre-filing discussion with the TSX, especially where their mineral project is not yet at a preliminary economic assessment stage.
The TSX recommends in the Staff Notice that mining companies seeking listing pre-file their technical report prior to the submission of a listing application to obtain a preliminary opinion as to whether a particular project qualifies as an Advanced Property. As a result, mining companies considering a listing on the TSX should ensure that they complete a technical report as early as possible in the initial public offering (“IPO”) process, and that they allow in their timeline, time for the TSX to review the technical report and provide guidance as to whether or not the company’s mineral project will constitute an Advanced Property. Once the IPO process is underway it may be disruptive and costly (in time and costs) to consider a listing on another stock exchange should the TSX not accept a project as an Advanced Property.
Financial Statements in Support of an Original Listing Application
The Staff Notice also provides guidance with respect to the use of audited forecast financial statements, pro forma financial statements and acceptable accounting standards in an application for listing.
Companies applying to list on the TSX under the forecasting profitability category will generally require sponsorship if the audited forecast is not published in a prospectus or other disclosure document and is not subject to the requirements of future-oriented financial information provided in National Instrument 51-102 – Continuous Disclosure Obligations. The sponsor must review and comment on the audited forecast and any other future-oriented financial information presented in the application.
In addition, upon review of an applicant’s pro forma financial statements, the TSX may make some adjustments to the pro forma financial statements. Where the TSX relies on pro forma financial statements not publicly available, the TSX may require the sponsor or auditor to comment or provide comfort on the adjustments.
The TSX will accept financial statements prepared in accordance with International Financial Reporting Standards or Generally Accepted Accounting Principles (“GAAP”) in the United States for SEC issuers. The TSX may accept financial statements prepared in accordance with GAAP of other jurisdictions depending on a variety of factors including whether the applicant is from a “designated foreign jurisdiction” or an “SEC foreign issuer” as defined in National Instrument 71-102 – Continuous Disclosure and Other Exemptions Relating to Foreign Issuers.
Pricing of Stock Options Granted Prior to an IPO
The Staff Notice also provides guidance that stock options granted within the three months immediately prior to the filing of a preliminary prospectus for an IPO are generally expected to be priced at or above the offering price. Stock options granted within three months immediately prior to the filing of a preliminary prospectus which are priced below the offering price will likely be required to be cancelled, forfeited or re-priced to the offering price as a condition of listing. The TSX may consider accepting options with an exercise price that is not lower than the price at which the relevant securities have been issued pursuant to a recent material financing to arm’s length parties, notwithstanding that such price may be lower than the offering price.
Companies planning to complete an IPO and TSX listing should ensure that the terms of any stock options contain a price adjustment mechanism to ensure that all stock options will be compliant with TSX requirements.
On July 25, 2013, the Canadian Securities Administrators (“CSA”) announced that they would not pursue implementation of National Instrument 51-103 Ongoing Governance and Disclosure Requirements for Venture Issuers (“NI 51-103”), which would introduce a regulatory regime aimed at streamlining the disclosure requirements for venture issuers.
Despite having support from several market participants, after reviewing NI 51-103, the CSA has decided that it will not implement the instrument in its entirety, but rather, would consider implementing some of the proposals that it contains. As required, any proposed amendments that the CSA considers will be published for comment.
CSA Releases Three-Year Plan
On July 9, 2013, the Canadian Securities Administrators announced a proposed three-year plan to create a nation wide harmonized securities regulation system aimed to protect investors against unfair practices, foster fair and efficient capital markets and reduce risks while preserving regional flexibility.
The CSA plans to implement the following initiatives in the next three years:
- Enhanced Retail Investor Protection: CSA aims to improve disclosure to investors, develop an avenue for investors to file and resolve complaints, and create an investor education campaign;
- Capital Raising by Small/Medium-Sized Enterprises and Exempt Market Initiatives: CSA will review and propose amendments to current exemption and disclosure rules for complex securitized products;
- Shareholder Democracy and Protection: CSA will review the Canadian proxy infrastructure, including proxy advisory firms, and current take-over bid regimes;
- Market Regulation: CSA will undertake a review of the order protection rule and market data fees, aim to develop a ratings regime, and form an OTC derivatives regulatory framework;
- Enhancement of Enforcement Effectiveness: CSA will aim to develop measures to share information across jurisdictions, increase access to surveillance tools and explore the possibility of a consolidated case management system;
- Enhancement of Information Technology: CSA will explore the development of a new national filing system to replace the current systems (e.g. SEDAR and SEDI) and the implementation of aggregated data repositories; and,
- Other Initiatives: CSA will aim to improve internal processes, as well as initiatives to streamline legislative amendments across jurisdictions.
As a result of the Ross River Dena lawsuit against the Yukon Government with respect to consultation on the granting of rights to miners to conduct work without consulting and accommodating First Nations, the Yukon Court of Appeal has given the Yukon Government until December 27, 2013 to amend its legislation specifically with respect to Class 1 activities. Class 1 activities can include construction of lines, corridors, trenching, clearing for helicopter pads and camps, construction of access roads and use of explosives.
There were four areas of concern identified as part of the proposed amendments and they include, environmental protection and monitoring, consultation with First Nations, security for Class 1 exploration and identification of areas for specific operating conditions.
The objectives for the amendments were to ensure the duty to consult First Nations was met, improved information sharing, enhanced environmental protection and management of multiple resources. In the case of Class 2 to 4 exploration programs, notice to the Chief of Mining Land Use (“CMLU”) is required.
The proposed amendments include notification by the operator prior to the commencement of a Class 1 program so that additional conditions may be placed on the program by the CMLU if there was significant environmental risk.
CMLU would have the authority to do the following:
1. propose mitigation procedures on potential environmental socioeconomic or adverse impacts on treaty rights of First Nations;
2. refuse the program;
3. provide security; and
4. issue a certificate of compliance.
Upon receipt of a notice, the Chief of Mining Land Use would first determine if there was any potential adverse environmental impact to be mitigated and advise potentially affected First Nations. There would be a 25 day notice reply period and then if no notice is received the proponent could undertake its program. There would be a provision with respect to avoiding undue hardship in proceeding with programs. In addition, there would be “identified areas” where additional requirements could be imposed.
The deadline for review process is July 31, 2013 for comments.
The discussion paper is available on the Yukon website at www.emr.gov.yk.ca/mining.
A principal concern with this legislation will be the capacity of First Nations to have a good understanding of the program and its impact on their traditional territories and what responses are appropriate.
One concern will be that the 25‑day period is unlikely to be met and therefore proponents should be prepared to file their possible exploration programs as early as possible in order to address time delays.
An further concern is that a program can be refused if the environmental or socioeconomic effects cannot be mitigated or that treaty rights are “asserted” if aboriginal rights cannot be eliminated or accommodated. What procedures will be in place to address this problem?
One potential solution in this proposal is to perhaps bring in a definition like that in Section 10 of the Mines Act in British Columbia which requires notice when there is a mechanical disturbance. This would still allow general prospecting geochemical and geophysical exploration to take place.
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 6th 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
– 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
– Bulletin d’information: http://www.finances.gouv.qc.ca/documents/bulletins/fr/BULFR_2013-4-f-b.pdf
AMF Publishes Consultation Paper on Alternative Approach to Securities Regulators’ Intervention in Defensive Tactics
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 15th, 2013 in Montréal, the Québec Ministries of Finance and Economy and of Natural Resources have made available, on March 8th, 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
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
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
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.
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.
As part of its goal of regulating carbon dioxide (CO2) emissions on a sector-by-sector basis, the Federal Government published the draft Reduction of Carbon Dioxide Emissions from Coal-fired Generation of Electricity Regulations (the Regulations) on August 27, 2011, pursuant to the Canadian Environmental Protection Act, 1999 (CEPA).
On September 5, 2012, Environment Canada announced that the Regulations have now been finalized, the official version of which will be published in an upcoming edition of the Canada Gazette. The Federal Government’s authority to enact the Regulations arises pursuant to section 93(4) of CEPA, under which the Governor in Council is granted the power to regulate any toxic substances specified in Schedule 1 of CEPA, which has included CO2 since 2005.
To read the full article, please click here.