The Canadian Securities Administrators (CSA) have put forward a proposal to repeal and replace National Instrument 43-101 - Standards of Disclosure for Mineral Projects (NI 43-101).
As the backbone of mining disclosure in Canada, NI 43-101’s modernization is a pivotal moment for issuers, investors, and legal advisors alike. While the changes are meaningful, they likely fall short of the comprehensive overhaul that Canada’s capital markets and mining industry require to ensure Canada remains the global leader in mining capital markets.
Drawing on the collective expertise of the Cassels Mining Group and extensive industry feedback, this article examines certain consequential aspects of the proposed changes and offers practical recommendations to ensure Canada’s capital markets remain competitive and aligned with global standards.
With the comment period having just closed, and regulators considering the feedback received, now is the time for regulators, industry participants, and legal advisors to work together to create a disclosure regime that not only protects investors but actively encourages investment and innovation. Mining is a heavily regulated industry, and while robust disclosure standards are essential, excessive complexity and rigidity can deter new entrants and slow the pace of development.
The next generation of investors and mining professionals is looking for simplicity, transparency, clarity, and engagement. These qualities must be reflected in both the rules and the way companies communicate to the market and their stakeholders.
The limits of incremental change
The legal and practical realities of mining disclosure have evolved dramatically since NI 43-101 was first introduced, and the regulatory framework must keep pace to ensure clarity and consistency. While the CSA’s proposals address several long-standing issues, such as the consolidation of definitions and the attempt to clarify the role of Qualified Persons (QPs), many of the changes are incremental, rather than transformative.
In addition, the Companion Policy (CP) continues to blur the line between guidance and regulation, and some of the more significant impacts from the proposals result from additions being made to the CP. Prescriptive language in the CP risks creating new, quasi-binding obligations that may not be fully understood or consistently applied.
This ambiguity increases legal risk for issuers and their counsel, who must now interpret not only the Instrument but also the CP’s intent. This challenge could be resolved by a more decisive separation of rules from guidance.
Economic substance, not just geography
The proposed definition of “mineral project” is a step toward simplification, but it remains tethered to geographic and operational boundaries that do not always reflect economic reality. Modern mining projects are increasingly complex, often involving multiple deposits, joint ventures, and phased developments.
The regulatory regime should empower issuers to define projects based on economic substance (such as the allocation of capital, risk management, and value creation) rather than forcing artificial groupings based on proximity or shared infrastructure.
A truly modern approach would allow for flexible project definitions, tailored to the issuer’s business model and investor needs, while maintaining clear standards for transparency and comparability.
Materiality and QP oversight, a missed opportunity
For junior issuers and those with immaterial projects, the QP oversight requirements could mean significant costs and administrative burdens, with little corresponding benefit to investors. Alternatively, a more modern regime could recognize the importance of materiality as a guiding principle, focusing regulatory attention on more critical project aspects.
Routine disclosures, such as lab results or production figures, should be subject to streamlined requirements, with QP involvement reserved for information that could significantly influence investment decisions.
Cross-border disclosure
The extra-territorial expansion of the applicability of NI 43-101 through the removal of “in a jurisdiction of Canada” from the definition of “disclosure” is intended to close loopholes, but it risks overreach.
In today’s global capital markets, Canadian issuers routinely communicate with investors and stakeholders around the world. The new rules could inadvertently trigger Canadian filing obligations for presentations or reports delivered entirely offshore, creating confusion for dual-listed companies and those subject to foreign codes like JORC or SAMREC.
Modernization demands a regulatory framework that is harmonized with international standards, recognizes the realities of cross-border disclosure, and provides clear, practical guidance for issuers operating in multiple jurisdictions.
Foreign codes and transactional flexibility
The proposal to eliminate reliance on “acceptable foreign codes” in favor of CIM definitions is a significant change, but it may not reflect the realities of the global mining industry. Royalty and streaming companies, as well as those involved in cross-border M&A, often rely on foreign codes to communicate project economics and justify transactions. The inability to use harmonized foreign standards could delay or prevent disclosures, complicate deal structuring, and reduce Canada’s attractiveness as a listing venue.
A modern regime should allow for the use of harmonized or acceptable foreign codes in specific circumstances, with appropriate reconciliation periods and safeguards where needed, supporting both investor protection and market efficiency.
Communication in the digital age, still behind the curve
The proposals acknowledge the challenges of disclosure via social media, interviews, and other modern platforms, but offer little in the way of concrete solutions. In an era where investor relations are increasingly digital and dynamic, the regulatory framework must provide clear standards for what constitutes “reasonable likelihood” of disclosure, how compliance will be monitored, and how issuers can use new channels without undue risk.
Canada has an opportunity to lead in this area, setting practical, forward-looking rules that encourage innovation while maintaining robust investor protections.
Toward true modernization
The CSA’s proposed changes to NI 43-101 are a necessary update, but to truly modernize Canada’s mining disclosure regime, regulators should consider:
- Embrace materiality as a core principle, focusing oversight where it matters most.
- Separate guidance from regulation to reduce ambiguity and legal risk.
- Allow flexible project definitions based on economic substance, not just geography.
- Harmonize with international standards to support cross-border disclosure and global competitiveness.
- Provide practical solutions for digital communication, recognizing the realities of modern investor relations.
- Permit transactional flexibility by allowing foreign codes in appropriate contexts.
The mining industry is evolving rapidly, and Canada’s regulatory regime must evolve with it. Only by embracing deeper reform can NI 43-101 remain a leading standard, one that supports business growth, protects investors, and ensures Canada’s continued leadership in global mining markets.
Conclusion: A critical moment for Canadian mining disclosure
The CSA’s proposed changes to NI 43-101 arrive at a pivotal time for Canada’s mining industry. Demand for minerals is surging and Canada is uniquely positioned to lead.
Yet, attracting investment in mining has never been more challenging. The sector faces intense global competition, rapidly evolving investor expectations, and a regulatory environment that is among the most complex in the world.
Modernization must go beyond incremental updates. The regulatory framework should empower issuers to market their projects effectively, using digital platforms and plain language to reach younger audiences who consume information differently. It should also provide practical pathways for companies to showcase their environmental, social, and governance (ESG) initiatives, which are increasingly central to investment decisions.
Canada’s mining sector has the potential to drive economic growth and support Canada in the global sphere. To realize this potential, NI 43-101 must evolve such that it balances rigorous oversight with flexibility, embraces new communication channels, and positions Canadian mining as a destination for global capital and talent.
By embracing deeper reform, Canada can ensure its mining disclosure regime is ready for the future.
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Alexander Pizale is a partner in the Capital Markets Group at Cassels, and serves as Co-Chair of the firm’s Environmental, Social & Governance (ESG) Group. Alex practices corporate and securities law with a focus on mining law and related commercial transactions, including expertise with streaming, option and joint venture arrangements. He also has extensive experience in advising issuers with respect to National Instrument 43-101 – Standards of Disclosure for Mineral Projects. In addition to mining, he represents clients in a wide variety of industries, including real estate, cannabis, technology, blockchain and cryptocurrency. He acts as counsel to clients at all stages, from private startups to large cap public companies and investment banks in a wide range of domestic and cross-border transactions, including business combinations, take-over bids, corporate finance and stock exchange listings. He also advises issuers with respect to general corporate and securities law matters, including commercial agreements, continuous disclosure (including ESG), compensation plans, corporate governance, and stock exchange-related matters. For this work, Alex is recognized as a leader in his field by Lexpert.
- Canadian Legal Lexpert Directory (Mining)
- Chambers Canada (Mining)
- Chambers Global (Mining)
- Lexpert Special Edition, Energy and Mining
Jen Hansen is a partner in the Capital Markets Group at Cassels, serving as Co-Chair of the Mining Group and as a member of the firm’s Executive Committee. Jen’s practice focuses on mergers and acquisitions and corporate finance. She specializes in the representation of public mining companies involved in complex transactions, including business combination transactions, take-over bids, domestic and cross-border public offerings and other finance transactions. In addition, Jen advises on continuous disclosure obligations, corporate governance and regulatory compliance, including mineral project disclosure and recommendations for aligning governance practices with best practice recommendations. She is recognized as a leader in her field by such authorities as the Canadian Legal Lexpert Directory, Chambers Canada and Best Lawyers in Canada.
Clara Pencer is an associate in the Capital Markets Group at Cassels. She graduated from the University of Toronto with a JD/MBA. During her degree, Clara conducted research at Harvard Law School and helped to launch early-stage start-ups. In her free time, she enjoys trying new restaurants, travelling, and skiing.