Canada: New Version Of National Instrument 43-101 To Come


On June 30, 2011, amendments to National Instrument 43-101 Standards of Disclosure for Mineral Projects, Form 43-101F1 Technical Report, and Companion Policy 43-101 (collectively the "New Rule") will come into force (prior to the amendments, the "Old Rule"). With a few minor exceptions, the New Rule substantially adopts the draft amendments to the Old Rule which were published in April 2010.

According to the Canadian Securities Administrators the overarching goals of the New Rule are to:

  • eliminate or reduce the scope of certain mining disclosure requirements;
  • Provide greater flexibility to mining issuers in certain areas;
  • Reflect changes that have occurred in the mining industry; and
  • clarify or correct areas where the previous standards were not having the desired effect

While the basic framework of the Old Rule remains in place, the New Rule represents a significant revision to the mining disclosure regime in Canada.

The Most Significant Changes

Short Form Prospectus Trigger

The Old Rule had a broad short-form prospectus (SFP) trigger, which require issuers to file technical reports at the same time they filed their preliminary SFP if the SFP (including any documents incorporated by reference) contained material scientific or material information about a mineral project on a property material to the issuer if such information was not contained in a previously filed technical report.

The New Rule will relax and narrow this trigger. Under the New Rule, the requirement to file a SFP will be limited to circumstances where the SFP discloses for the first time:

  • mineral resources, mineral reserves or the results of a preliminary economic assessment on the property that constitute a material change in relation to the issuer; or
  • a change in this information from the most recently filed technical report if the change constitutes a material change in relation to the issuer.

This should allow issuers to access the capital markets on a more cost efficient and timely basis.

Technical Reports

Introduction of Six Month Filing Window for Technical Reports in Certain Circumstances and Requirement to Issue a Follow-up News Release

Under the old rule, issuers were required to file technical reports to support first-time disclosure of material changes in preliminary assessments, mineral resources or mineral reserves, with 45 days of such information being contained in a news release or directors' circular. Under the New Rule, an exception has been added, so that issuers will have a 180-day window to file technical reports for first-time disclosure of a preliminary economic assessment, mineral resources or reserves if:

  • these estimates are supported by a technical report previously filed by another issuer, and
  • at the same time it makes the disclosure, the issuer identifies the title, effective date and the name of the other issuer who filed such previous report; it names the qualified person who reviewed the report for the issuer and it states that there is no new information that would make the estimates misleading.

This aspect of the New Rule should be beneficial in acquisition situations, e,g., when reporting issuer acquires another reporting issuer with a property for which a technical report has previously been filed. Given the new 180-day period afforded to issuers to file such technical reports, the New Rule also requires issuers to issue a subsequent news release disclosing the filing of the technical report in all circumstances where the filing delay applies. Note that this requirement applies to both 45 day and 180 day filing.

Royalty Interest

The Old Rule required holders of royalty interests to file technical reports, subject to certain limited exceptions. Because royalty holders often have limited access to project data, their reports are usually based on the property owner's disclosure, and thus their reports are often duplicative and redundant. The New Rule therefore provides an exemption to royalty holders from the requirement to file a technical report if the operator or owner of the mineral project is either a reporting issuer, or a producing issuer whose securities trade on a "specific exchange" (which includes most major foreign exchanges on which mining issuers are listed), and certain other conditions are met.

Historic Estimates

The Old Rule defined "historical estimate" to mean an estimate of mineral resource reserves prepared prior to February 1, 2001. The New Rule revises the definition of "historical estimate" to eliminate that arbitrary date and allows disclosure of historic estimates prepared by third parties before the issuer acquired or agreed to acquire the property, subject to certain conditions, such as the inclusion of mandatory cautionary language.

Qualified Person Certificates and Consents

Elimination of Updated QP Certificates and Consents under NI 43-101

Under the Old Rule, when issuers relied on previously filed technical reports to support technical information in certain disclosure documents, they had to obtain updated certificates and consents of qualified persons. This was often a source of frustration for issuers, because qualified persons often work in remote locations, can be unreachable on short notice and often change employers. The New Rule will eliminate this updated QP certificate and consent requirement.

National Instrument 44-101 Short Form Prospectus Distributions (NI 44-101): New Alternative "Firm Consent Requirement

In addition to the NI 43-101 consent requirement, NI 44-101 contains a requirement to file consents of certain experts (including QPs) in connection with short form prospectus offerings. Because issuers can have difficulties contacting qualified persons to provide the expert consents necessary to complete SFP offerings under NI 44-101 in a timely manner, a corresponding amendment to NI 44-101 will allow engineering or geoscientific services firms that prepared the issuer's technical report to consent, in the place of the qualified person, to the use of the technical report in a SFP.

Changes to Form of Consent

Under the Old Rule, a qualified person had to consent to each part of the technical report. Under the New Rule, the Qualified Person will only be required to consent to the parts of the report that he or she prepared.

Expanded Definitions under the New Rule

Qualified Persons and Professional Associations

The Old Rule had prescriptive lists that recognized designations for foreign qualified persons and foreign professional associations. The New Rule adopts flexible objective tests for foreign qualified persons and foreign professional associations. By eliminating the prescriptive lists, there will be increased flexibility for issuers to use other qualified persons under various foreign professional associations, and increased ability for members of foreign professional associations to be able to work with Canadian mining issuers.

Reconciliation of Foreign Codes and CIM standards

The Old Rule also had a prescriptive list of acceptable foreign codes for categorization of mineral resources and reserves. The New Rule eliminates the prescriptive list by adding a definition of "acceptable foreign code." This should create flexibility for foreign standards respecting the classification of reserves and resources. However, foreign issuers who use acceptable foreign codes rather than the Canadian Institute of Mining, Metallurgy and Petroleum (CIM) standards will have to provide a reconciliation respecting the material differences between the foreign code used and the CIM standards.

Preliminary Economic Assessments

The New Rule has changed the old defined term "preliminary assessment" to Preliminary economic assessment" in order to reflect industry practice. Also, the definition has been expanded to mean a study, other than a pre-feasibility or feasibility study, that includes an economic analysis of the potential viability of mineral resources. This should give issuers increased flexibility, as it will allow issuers to disclose preliminary economic assessments at more advanced stages of a project, subject to the disclosure containing certain cautionary language and information pertaining to the impact of the assessment on the results of an pre-feasibility or feasibility study.

Restricted Disclosure of Gross Value

The Old Rule restricted disclosure of certain things such as the quantity, grade, or metal or mineral content of an uncategorized mineral source. The New Rule adds prohibitions on disclosing the gross dollar value of metals or minerals in a deposit and on disclosing the metal or mineral equivalent grade unless the grade for each individual metal or mineral used is also disclosed. The term "gross metal value" has always been considered misleading by Canadian securities regulators.


The New Rule will significantly change the Old Rule and will provide much needed flexibility for mining issuers in Canada. It should increase issuers' access to markets and ease some of the considerable requirements for technical reports.

Please not that this is a summary only of the most significant changes to NI 43-101.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.