Canada: BCSC Digs Deep Into Qualified Person’s Expert Disclosure

In late June, Barkerville Gold Mines Ltd. announced major estimates of resources and "geological potential". The sizes of the estimates were remarkable – indicated resources of 10.6 million ounces of gold and "geological potential" of 65-90 million ounces of gold. That announcement was followed last week by a Barkerville press release indicating that the British Columbia Securities Commission had reviewed the company's technical disclosure and draft technical report and expressed concerns with both estimates. In the latter press release, Barkerville cautioned investors against relying on either of the disclosed estimates until the BCSC completed its technical disclosure review.

What strikes me as interesting about this situation is what stands out about the facts and the approach the BCSC is taking here. On the facts, the sizes of the estimates certainly made the original announcement hard to miss. One could also consider whether disclosing "geological potential" is what caught the attention of the regulators. While issuers are permitted to say certain things about the potential of exploration targets, the principle underlying NI 43-101 is that mineral disclosure should be based on various levels of certainty. The further one moves away from certainty, the trickier the disclosure can become and the more limited it arguably should be.

On the subject of potential quantities and grades, NI 43-101 allows an issuer to disclose in writing the potential quantity and grade, expressed as ranges, of a target for further exploration. To do so, the disclosure must state, with equal prominence, that: (i) the disclosure is all conceptual in nature; (ii) there has been insufficient exploration to define a resource; and (iii) there is no certainty a resource will ever be defined. The disclosure must also include the basis for the determination of the potential quantity and grade. Barkerville did all of this, and it seems from the description of the BCSC's review that the regulator is not challenging this fact.

Instead, the BCSC has challenged the very parameters, methods and assumptions used by the qualified person to arrive at each of the estimates. As part of its disclosure review, the BCSC asked Barkerville to provide the qualified person's draft technical report. According to Barkerville's second release, following a review of the original press release and the draft technical report,

The BCSC expressed concern that the disclosure in the Original News Release of a 10.6 million ounce indicated gold resource (69 million tons grading 0.154 ounces per ton) and 65 to 90 million additional ounces in "potential" is inadequately supported in the draft technical report and estimated in a manner that appears contrary to normal industry practice and therefore could be construed as misleading.

A summary of the concerns of the BCSC regarding the resource estimate disclosed in the Original News Release include: (i) the drill-hole assays were not composited before estimating resource grade; (ii) the estimates do not apply grade capping, despite most of the gold in the reported 2011 drill intersections being in thin high-grade intersections; (iii) the resource appears to be unconstrained by the geological model of the gold hosting structures; (iv) failure to cap and use of an unconstrained bulk-tonnage resource model is likely to have resulted in material overestimation of grade and tonnage of the resource; and (v) no external cut-off grade.

A summary of the concerns of the BCSC regarding the exploration target relate to what was initially perceived as a lack of local data used to estimate potential ton and grade ranges along strike for such geological potential. For example: (i) using the indicated resource as a basis for the quantity and grade of potential exploration targets in other locations along strike; (ii) grade ranges of estimates of potential set an apparent arbitrary +/- 15% above and below average grade of the resource; and (iii) tonnage ranges apparently arbitrary based on percentages above and below the resource tonnage.

It's worth highlighting that the BCSC said the basis for its concern is that, in its view, the estimates were determined "in a manner that appears contrary to normal industry practice". This puts the spotlight on the General Guidance notes at the beginning of Companion Policy 43-101CP. Note (6) Industry Best Practices Guidelines states:

The Instrument does not specifically require the qualified person to follow the CIM best practices guidelines. However, we think that a qualified person, acing in compliance with the professional standards of competence and ethics established by their professional association, will generally use procedures and methodologies that re consistent with industry standard practices, as established by CIM or similar organizations in other jurisdictions. Issuers that disclose scientific and technical information that does not conform to industry standard practices could be making misleading disclosure, which is an offence under securities legislation.

From a substantive point of view, we'll have to wait to see how the facts unfold. However, regardless of the outcome, the BCSC is deep into the realm of the expert on this one. This is not the first time that a Canadian securities regulator has questioned the technical substance of an expert's work, but it has been relatively uncommon. As such, this serves as a good reminder of the extent to which the commissions may delve in addressing mineral disclosure issues.

As practice points go, when you step into the world of "geological potential", you can find yourself on some thin ice. Even where you may be technically permitted under NI 43-101 to make certain disclosure, this is the uncertainty frontier, and anything out here may receive a long hard look from securities regulators.

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 Mondaq.com.

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

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions