Article first published in the September 2025 issue of Mining Engineering. Reproduced with permission from Mining Engineering and the Society for Mining, Metallurgy & Exploration Inc.
Introduction
During the 14 years since the last update to National Instrument 43-101 (NI 43-101), there have been many discussions between the Canadian regulators and mining companies about mining disclosure deficiencies that arise from regulatory reviews. These discussions are not made public, and as a result, there has been some drift in how NI 43-101 is interpreted by the regulators, which in turn creates uncertainty for the mining companies trying to comply with the Instrument.
To reduce uncertainty in mining disclosure requirements, the Canadian Securities Administrators (CSA) have issued a notice to update the current NI 43-101 with a streamlined Instrument and Form. Changes and benefits are listed in the “CSA Notice and Request for Comment – Proposed Repeal and Replacement of National Instrument 43-101 Standards of Disclosure for Mineral Projects,” which is available on the Ontario, Quebec, Alberta and British Columbia Securities Commission websites. The public has been invited to comment, with the comment period ending on October 10, 2025.
The 43-101 Companion Policy (43-101 CP) provides an update to the views of the regulators on how the CSA staff interpret and apply certain provisions of the Instrument. Collectively, some of the changes to NI 43-101, the Form and 43-101 CP are likely to increase the financial and other burdens on the mining companies responsible for the disclosure, and the qualified persons (QPs) who create the disclosure. In other instances, there are missed opportunities to reduce the burden on mining companies and QPs without impacting the markets.
Impacts on Mining Companies
Foreign codes
The proposed changes recognize the harmonisation of mineral resource, mineral reserves and mining studies across major mining jurisdictions as part of the Committee for Mineral Reserves International Reporting Standards (CRIRSCO). As a result, the definition, “acceptable foreign codes” has been removed from the NI 43-101 Definitions.
However, the removal of the definition of “acceptable foreign codes” does not translate into a reduced obligations or financial burden for dual listed mining companies. Any mining company who does not meet the requirements to be an ‘exempt foreign issuer’ in their respective foreign jurisdictions, will now be required to produce two (or more) technical reports that satisfy the subtle differences between NI 43-101 and the requirement for each other jurisdictional code.
Independent technical report trigger
The trigger for an independent technical report has been expanded from a material change in mineral resources estimates, mineral reserve estimates and preliminary economic assessment to include a 10 percent change in the results of any economic analysis. Guidance states the requirement for economic analysis is triggered when there is a 100 percent or greater change in the net present value (NPV), internal rate of return (IRR), or any metric relied upon in the results of an economic analysis of a mineral project. This may cause some unnecessary updates to a technical report, as sometimes, a 100% change in one of the economic variables does not have much impact on the economic analysis, such as a change in NPV from 2 to 4 percent or the doubling of forecast mine life in light of a mineral project subject to an aggressive drill program to define the mineral resource.
Technical report triggers to support transactions
The regulators have attempted to reduce cost burdens by permitting companies to rely on previously filed technical reports when contemplating a transaction. This is generally a positive step that reduces costs and potentially increases the speed with which a company may list or complete mineral project acquisitions.
Complications may arise during a reverse takeover (RTO) as a stock exchange will usually review the technical reports, in order to determine if the resulting listed company meets the exchange listing requirements. Listing requirements usually include: details of property ownership, evaluating previous work done on the property, and what is the recommended work program. The information in the technical report is expected to align with the company’s listing application, both of which will be made public on SEDAR+, CSA’s web-based system for all market participants to file, disclose and search for information in Canada’s capital markets (https://www.sedarplus.com/home/).
For RTOs, the technical report is usually made out to the mineral project vendor who is taking out the listed shell company. The information in a vendor’s technical report will likely not have details of the transaction and resulting ownership, up to date property details and obligations (expired and/or dropped/added mineral claims), results of more recent exploration and development results, or a current recommended work program. This could be an issue in aligning the technical report with the listing application disclosure, especially if the vendor is a private entity and does not have a continuous disclosure record available on SEDAR+.
It is uncertain at this time how the stock exchanges will find the required listing requirement information when handed a technical report which is several years old and current for the vendor but not the listed company.
Impacts on QPs
Professional experience
For someone to be able to call themselves a QP, the proposed changes will require a QP to not only have a membership with a Canadian or foreign professional association, but to also have been a member of that association for 5 years.
The expectation that a QP will have 5 years registration with recognized professional association, in addition to experience relevant to the work being performed on a mineral project, appears to be an unnecessary hurdle for both mining companies and QPs. Many geologists and engineer may not obtain professional membership in the early years of their career, or they could have emigrated to Canada and only recently acquired their professional designation, despite having obtained significant relevant experience internationally.
This requirement will make it harder for the industry practice of companies hiring or promoting an experienced geoscientist or engineer to act as a QP, even if they have no history of professional membership. Currently, it is a formality to get the geoscientist or engineer registered with a professional association so they can act as QP. This change would now mean it would take an additional 5 years after receiving their professional designation, before the person would be recognized by the regulators as an eligible QP.
Materiality vs Relevant information
“Materiality” in Canadian securities law is defined as something which may significantly affect a company’s share price, either negatively or positively. The current version of NI 43-101 requires a QP to determine if information is material or not for the purposes of the technical report. This is challenging for a QP if they are independent of the Company, as they are not privy to all information concerning the company. To rectify this, the proposed changes have changed the QPs requirement to determine ‘materiality’ of information to determining if the information is “relevant.”
However, ‘relevant’ is not a term under Canadian securities law, but generally applies to a larger repository of information, of which ‘material’ information is a subset. QPs will be challenged to know what they must summarize into the technical report from the much larger amount of relevant information (data), particularly since the target audience likely will have a wide range of opinions on what they would consider “relevant.”
Impacts on Technical Reports
Reliance on other experts – marketing
The ability for QPs to be able to rely on a report, opinion or statement of another expert for pricing of commodities and which the pricing is not publicly available has been removed from the Form. Information on price forecasts, supply and demand forecasts, market entry strategies, competitor analysis, and the different product premiums that can be paid on certain commodity forms is well outside the expertise of engineers and geoscientists.
Market studies are often conducted by the mining company using marketing experts who are familiar with these opaque markets. These market studies are then used to know what price to use when generating the mineral resource estimate and assessing it for “reasonable prospects for eventual economic extraction”, establish the battery limits for the mine, as well as working out the financial model and economic viability of the mineral project
As the QPs are subject to secondary market liability, it is alarming to see they cannot rely on market studies for information that they themselves do not have access to, or the necessary expertise to develop.
Data Verification
Data verification by QPs in technical reports has been historically confined to the geologist and mineral resource estimator, even though the requirement existed for all QPs to provide details of their data verification. Under the proposed new rules, all QPs are required to state what they did with respect to data verification and provide an opinion on its adequacy of the data for the purposes used in the technical report. This means QPs will have to provide information in the technical report on what they have done to confirm the results of any test work they have completed, as well as what they have done to verify any legacy results that can be relied upon.
Whereas in the past, QPs have provided details of previous data verification completed by QPs before them, there are now explicit instructions in the revised 43-101 CP, which state referencing “prior data verification conducted by others does not meet the requirements of the technical report.” In projects with long histories, it is very important for a QP to be able to make a judgement call about the reliability and inclusion of data verification done by others. The information is often relevant to what data was used for the mineral resource estimate, and how reliable it is for the report purposes. As long as a QP is satisfied that the historical data verification by others is satisfactory for the purposes of the report, they should be permitted to include a description of that work done – after all, they are still going to take responsibility for that section in the report.
Environmental, Social and Governance (ESG)
The disclosure requirements of NI 43-101 have been remarkably successful when it comes to creating a more transparent medium for technical information regarding mineral projects. However, it was not created to disclose information that may be sensitive and fluid in nature such as negotiations with indigenous people, rightsholders and local communities. This information is also outside the area of expertise of most geoscientists and engineers.
As part of the proposed updates, the regulators have made two noteworthy changes to ESG disclosure: (i) permitted ESG disclosure in reports for any property, where previously it was confined to reports that contained an economic analysis, and (ii) added a requirement to discuss how indigenous peoples and rightsholders will be impacted.
In the early stages of a mineral project, there are multiple regulatory triggers for a technical report. However, mineral projects that are still being explored and developed have many uncertainties from size and potential of mineralization, processing and recovery, infrastructure requirements through to necessary permitting and the requirements to obtain the permits.
Similarly, in the early stages of a mineral project, a junior mining company is involved in a delicate balance between keeping indigenous peoples, rightsholders and/or local communities informed of the mineral projects development but also not providing information that inflates their expectations, in case the mineral project is not economic. Not achieving this delicate balance can impact future relationships with the local community for both the current property owner as well as anyone else who subsequently becomes the property owner or enters the area in general.
This balance be particularly tricky when it comes to determining who are “rightsholders?” There is no definition provided in the proposed changes, so it is not clear where the boundary is for discussing the impact of rightsholders. Does it end at the property boundary? All along the land access route to any mineral project? Or the community at the mouth of the river which has a tailings dam located 200km upstream? Discussing rightsholders is extremely nebulous and clearly very sensitive in the early stages of a project.
Paradoxically, once a project has advanced to a prefeasibility study (PFS) or feasibility study (FS) level, the triggers to produce a technical report are significantly reduced. This means there can be lengthy periods of time when an updated report is not produced for a variety of reasons, including but not limited to no regulatory triggers for a technical report, unfavorable markets for raising money, ongoing work is not producing encouraging results, to there being an operating mine with no need to raise money. Ironically, this means the local stakeholders will now find that there is no requirement for the company to update their reports at a time when there is meaningful progress being made on ESG requirements of the mineral project.
Because of this paradox, it is important to recognize junior mining company have the highest burden to produce technical reports on a regular basis but are also subject to the greatest uncertainty with respect to the future of their mineral project. There is a real danger that enhanced requirements could result in information being misconstrued by local and regional stakeholders, which could have an impact on the project’s future development.
There are other avenues which might be a more suitable place for any enhanced ESG requirements, such as a company’s continuous disclosure record.
QP Responsibility
The proposed changes to 43-101 CP makes it clear that if two or more QPs are jointly responsible for a particular section or item in a technical report, then each of the QPs are equally responsible for the entire section or item. This has immediate liability implications for QPs who contribute to reports with economic analyses as often there are sections which provide a summary of all the information for the convenience of the reader - for example, tables summarizing the breakdown of capital expenditure and operating expenditure costs from mining, processing, infrastructure and other costs.
Currently, common sense prevails and if someone takes responsibility for these summary sections, any errors in the line items are attributed to the relevant QPs input. With responsibility now assigned equally to all the QPs in the event of an error, this will result in less clarity in technical reports as QPs may insist there are no “summary” subsections or tables so they can avoid being in the untenable position of being liable for information in a summary section that was outside their area of expertise.
Missed Opportunities
Independent QPs and third party sign off
CRISCO provides a template for international standards for reporting mineral resources and mineral reserves. While Canada is a member of CRIRSCO, along with 15 other countries, it is unique in requiring independent qualified person(s) for a number of reports triggered under securities laws. The origins of the independence requirement almost certainly lie in the aftermath of the Bre-X gold hoax in 1998 and subsequent loss of investor trust.
it is noted that under other Canadian securities law, there are no triggers for independent authorship of expert materials (e.g. legal or accounting). It is also important to note that while there are some triggers for the accounting or legal firm to be independent of the mining company, there are no requirements for an individual to be independent of the mining company.
In contrast, NI 43-101 places all the burden of responsibility on the individual QP, with an outsized adherence to the QP being independent of the mining company which causes them to be subject to secondary market liability for technical disclosure. NI 43-101 also does not provide any options for a third party firm of technical experts to sign off on behalf of their QPs, as was introduced in 2022 by the Unites States of America under S-K 1300.
This issue becomes a tremendous financial and time burden to mining companies when they need ‘expert’ consent from all the QPs on a technical report for a prospectus offering. Time may have lapsed between fling the technical report and the prospectus offering. As a result, QPs may simply be unavailable to provide an expert consent at short notice as they are in the field, on leave, or have left their previous employer and are no longer in a position to provide individual consents.
QPs, like lawyers and accountants, have professional credentials and are affiliated with a professional association which place a similar emphasis on ethical and educational requirements as well as a mandate to protect public safety, which includes the public’s investments. It is unclear why it is acceptable for legal and accounting firms to sign off on expert documentation, but not third-party technical firms.
The CSA should move to treat QPs who work on expert documents like the technical report to be in line with other experts under securities law, and permit third party firms comprising mining experts to state and sign technical reports and provide written consents.
Specialists sign off
The technical reports often require inputs from experts or specialists with expertise outside geoscience or engineering. This includes input from business analysts, biologists, chemists, accountants, lawyers and other experts. Many of these experts are also members of professional associations that have similar requirements and obligations as the professional associations for geoscientists and engineers.
While it is far from clear these experts would be willing to sign off as independent individuals given that is not required for any other form of regulatory disclosure, it does seem appropriate to find a path forward whereby these professionals can take responsibility for the content they have generally authored in the technical report and place the burden of knowledge on the true expert.
Conclusion
The CSA has made considerable effort to provide additional clarity on the current regulatory interpretations of NI 43-101 and the Form. However, in the process there are some issues raised where they have potentially added to the burden of QPs and mining companies.
During the process, there was also the opportunity to add some requirements which would have reduced their burden. The proposed changes to NI 43-101 are open to the public for comment until October 10, 2025. Everyone who may be impacted should take the time to review the CSA Notice and provide feedback.