Canada: Is Your Investor Presentation NI 43-101 Compliant? CSA Staff Notice 43-309 Review Of Website Investor Presentations By Mining Issuers Provides Some Guidance

Last Updated: April 29 2015
Article by Laurel M. Petryk

Most mining issuers pay attention to National Instrument 43-101 Standards of Disclosure for Mineral Projects ("NI 43-101") when it comes to mandatory filings, but when it comes to promotional materials like investor presentations they can fall short. Mining issuers can forget that investor presentations (as well as other content linked to a company's website like fact sheets, media articles, and links to third party websites) are "written disclosure" as defined in NI 43-101, and that this disclosure must be reviewed by a qualified person to ensure compliance with NI 43-101. Often investor presentations are not prepared by or reviewed by a qualified person, and can be overly promotional and contain information that is not compliant with NI 43-101 - prompting a much dreaded letter from the regulator.

The securities commissions of British Columbia ("BCSC"), Ontario ("OSC"), and Quebec ("AMF") (collectively, the "Regulators") recently conducted a review of investor presentations of pre-production stage mining issuers for compliance with NI 43-101, as well as forward looking information for compliance with part 4A of NI 51-102 Continuous Disclosure Obligations ("NI 51-102"). The results of the Regulator's review are set out in CSA Staff Notice 43-309 Review of Website Investor Presentations by Mining Issuers (the "Notice"). Mining issuers are expected to use the Notice to help them comply with securities legislation and improve their disclosure.

The Notice states that mining issuers need to improve their disclosure in the following areas in order to better comply with NI 43-101:

  • Naming the qualified person: review of technical information by a qualified person directly improves compliance with requirements;
  • Preliminary economic assessments ("PEA"): providing required cautionary statements ensures proper understanding of the PEA results' limitations;
  • Mineral resources and mineral reserves: a clear statement whether mineral resources include or exclude mineral reserves is essential to avoid misleading disclosure;
  • Exploration targets: potential quantity and grade must be expressed as a range and be accompanied by the required statements outlining the target limitations;
  • Historical estimates: disclosure must include source, date, reliability, key assumptions and be accompanied by the required cautionary statements;
  • Exploration information: include summary of quality assurance and quality control measures and name testing laboratory;
  • Data verification: include statement that the qualified person has verified data in the investor presentation;
  • Taxes in economic studies: include pre and post tax financial results in economic studies;
  • Metal or commodity price assumptions used in resources and reserves: clearly state metal or commodity price and cut-off grade; and
  • Drilling information: include information on true widths of mineralized zones and results of significantly higher grade intervals enclosed in a lower grade intersection.

The Notice reminds mining issuers that they can rely on a previously filed document for required disclosure in some circumstances to satisfy these requirements.

The Regulators found that exploration and resource stage issuers were using words like "world class", "spectacular", "production ready" and "ore" in investor presentations, and cautions mining issuers that these words can be interpreted as overly promotional and may be used inappropriately.

In addition, mining issuers at the resource stage or earlier must be careful about disclosing anticipated economic outcomes, because such disclosure may trigger a technical report to be filed to support such findings. Examples include production rate, capital costs, operating costs, and mine life - all which suggest the project is at a more advanced stage of development and can be misleading.

The Notice states that the majority of mining issuers did not provide information required by paragraph 4A.3(c) of NI 51-102 concerning the material factors and assumptions used to develop forward looking information. The Notice reminds mining issuers that forward looking information includes metal price assumptions used in resource and reserve estimates as well as other assumptions used in economic analysis and financial projections based on engineering studies.

The Notice warns that the Regulators will continue to review mining issuers' website disclosure, and when they find material deficiencies they will ask mining issuers to correct such deficiencies by amending or removing the problematic disclosure and filing a clarifying or retracting news release. Even worse, mining issuers with disclosure that is not compliant with NI 43-101 may be placed on the defaulting issuer list or cease traded. And any prospectus offering would likely be delayed as well.

Recommendations on how to comply

It is tempting for a mining issuer to forget about NI 43-101 when putting together an investor presentation, because it is focused on selling the company and its project(s). And the goal of the mining issuer is to keep the investor presentation simple, eye catching, and uncluttered, rather than including all the information necessary under NI 43-101. However in our experience, it is still possible for a mining issuer to have an effective investor presentation and comply with NI 43-101. For example, by including the required information at the back of the presentation, or referencing previously filed documents containing the information when this is allowed. It is important to remember, however, that required cautionary language must be in close proximity to the relevant disclosure, and not buried at the back in small font.

Finally, the Notice reminds mining issuers it is important to take a step back, and take the time to make sure its investor presentations comply with NI 43-101 and to have a qualified person review and approve the disclosure.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2015

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.

Laurel M. Petryk
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
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
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 (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

To Use 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.


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.


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