Canadian Lawyer

48 S E P T E M B E R 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m going back and forth on similar legislation under Dodd-Frank for some time. The U.S. has said it will have new disclosure regulations by the spring of 2016. "A lot of international mining companies will be caught by more than one set of rules," says Eden Oliver, a mining and energy lawyer with Bennett Jones LLP. "If we're out there ahead of it helping to pave the way, it will be easier to get reciprocity with the other jurisdictions, and the compliance burden will hopefully be made easier by allowing compliance with one set of rules and the other jurisdictions will accept those reports under other rules that are acceptable." Part of the focus on greater transparency has been that governments that collect roy- alties, taxes, or fees from foreign companies are not accountable for the payments they are collecting and it feeds into corruption. While the Corruption of Foreign Public Officials Act tackles kickbacks, bribes, and the like to foreign public officials, a pay- ment to a government is different. "In the end, there is a global movement within civil society for disclosure of payments to gov- ernments and I think the principle behind that is to increase transparency," says Oliver. "The concerns is the money actually paid makes it to the local populations." The federal act requires companies with connections to Canada that are engaged in commercial development of oil, gas, or min- ing in Canada or elsewhere, or that control such entities, to report payments made to any government, whether foreign or domes- tic, in excess of $100,000 in a given year. The reports will be made available to the public. The act applies to publicly listed compa- nies in Canada that meet at least two of the following conditions in any one of its two most recent financial years: • own $20 million or more in assets; • generate at least $40 million in revenue; or • employ an average of at least 250 employees. The reports must be filed annually. A company with fiscal year ending Dec. 31, 2015 will be obligated to report payments made from and after Jan. 1, 2016, with its first report to be filed by May 30, 2017. Reporting of payments made to aboriginal governments or entities will be deferred for a two-year period follow- ing the date the act comes into force, so the obligation to report such payments does not apply until June 1, 2017. "There is some disappointment among a good number of mining companies that the disclosure of payments to aboriginal gov- ernments were excluded for a two-year period," says Whittaker. "A lot of mining companies had hoped there wouldn't be a delay and really saw that as an oppor- tunity to demonstrate to the public what kind of contributions they were making to these communities," she says. And because the information has to be made public, there will be a "signifi- cant due diligence" requirement before the reporting is done. "In its concept I think it's simple, but in its application I think it can be fairly difficult in terms of the legal analysis required as well as the practical job of gathering the information and reporting the information," says Dattu. The penalties are also fairly harsh — $250,000 for each day there is a violation. "It's a summary conviction offence so the standard of proof for prosecution will be lower," says Dattu. While the act's goals are "laudable," L E G A L R E P O RT \ M I N I N G L AW REGISTER ONLINE www.lexpert.ca/cpdcentre EXECUTIVE PROFESSIONAL DEVELOPMENT FULL DAY IN-CLASS PROGRAMS & LIVE WEBINARS E V E N T S For more information, please contact Lexpert® Events at 1-877-298-5868 or e-mail: register@lexpert.ca CLOUD 2.0: DRAFTING AND NEGOTIATING EFFECTIVE CLOUD AGREEMENTS Toronto | October 6 6TH ANNUAL NEW PROCUREMENT: CRITICAL ADVANCES FROM PROCESS TO PRACTICE Halifax | October 22 Toronto | October 27 3RD ANNUAL CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS: JUST THE FACTS Toronto | November 10 7TH ANNUAL DEALING WITH THE LEASE: WHAT'S NEXT? THE FUTURE IS NOW Toronto | November 24 7TH ANNUAL ABORIGINAL LAW: CONSULTATION AND OTHER EMERGING ISSUES Toronto | November 24 Halifax | November 25 Calgary | December 9 7TH ANNUAL INFORMATION PRIVACY AND DATA PROTECTION Toronto | December 1 8TH ANNUAL ADVERTISING AND MARKETING LAW: LESS IS THE NEW MORE Halifax | December 1 Toronto | December 9 4TH ANNUAL ANTI-BRIBERY AND CORRUPTION COMPLIANCE: COPING WITH THE ONSLAUGHT Vancouver | December 7 Calgary | December 8 Toronto | December 10 All courses are available to view live by webinar on the Toronto date. Untitled-7 1 2015-08-18 4:21 PM

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