NI 43-101 consultation shows divide between regulators and industry

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In the wake of the Bre-X Minerals gold salting fraud of the late 1990s, Canada’s regulators introduced National Instrument 43-101 in 2001. The regulation, which spelled out standards of disclosure for mineral projects and put the onus on the “qualified person” — a professional responsible for the information in a technical report – earned back the trust of investors, prevented similar frauds, and even became a recognized “brand.”  

But that doesn’t mean it’s perfect. 

In the eyes of regulators, work still remains to address common issues it sees in company disclosures and to adapt to changes since NI 43-101’s last revision in 2011, such as growth in green energy commodities and increased investor interest around ESG and the social impacts of mining. To that end, the Canadian Securities Administrators (CSA) released a consultation paper last April seeking input on 38 different questions about NI 43-101. 

The questions ranged from whether the standard should be more closely aligned with those in other “influential” mining jurisdictions, whether the CSA should reduce the 45-day delay between disclosure of aspects of a technical report and its filing; whether disclosure of a PEA should be prohibited on projects that already have a mineral reserve; and whether more information about Indigenous relationships and consultation should be disclosed. 

The comment period ended in September 2022, with around 85 comments submitted. At this point, the CSA says it’s still reviewing those comments and no decision has been made about whether or when the consultation will result in proposed amendments to the regulation. 

A review of the comments shows that many of the respondents believe the definition of a qualified professional (or QP) is unclear — or that CSA staff are reading into the definition something that isn’t there