Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m S E P T E M B E R 2 0 1 5 47 hile Canada's min- ing companies are largely in agreement with new federal "publish-what-you- pay" legislation, it may serve to be a compli- cated task and one that could shed light where some hoped it wouldn't. On June 1, the Extractive Sector Trans- parency Measures Act came into force, establishing new reporting standards for Canadian oil, gas, and mining companies. The goal is to promote better transpar- ency and ensure those industries support development where they operate. Its other intended goal is to make it harder to con- ceal illicit payments. "The legislation is fairly complex and I think many companies may be assuming it will be relatively easy to comply with, but as we start looking at the definitions, it's not clear it will be an easy task," says Osler Hoskin & Harcourt LLP parnter Riyaz Dattu. "It may allow some companies to go back to foreign govern- ments and say, 'Based on what we've been able to see about what our competitors are doing in other countries, we're overpaying you in terms of taxes and royalties.'" So, while there may be a competitive disadvantage in reporting, entities that are potentially overpaying may find the infor- mation helpful in future negotiations. "I think there's always a silver lining and that is a potential advantage of this legislation that companies may not have focused on just yet," says Dattu. Overall, mining companies are reacting positively, says Dawn Whittaker, a senior partner with Norton Rose Fulbright Canada LLP. "[Prospectors and Developers Associa- tion of Canada] has welcomed the opportu- nity to demonstrate to the public how much the mining industry contributes to the com- munities in which it operates. PDAC did quite a lot of work with its constituency to work with the government and non-govern- mental organizations on the act." The legislation aims to address concerns that resource-rich countries around the world, particularly in Africa, have natural resources but continue to be underdevel- oped. "Companies will have to implement procedures to respond to the legislation, but from all of the companies I've spoken to, I haven't heard anyone violently complain- ing about it — this information is already tracked for a variety of other reasons any- way so I don't see it as particularly burden- some," says Whittaker. Similar legislation exists in the Euro- pean Union, and the United States has been L E G A L R E P O RT \ M I N I N G L AW W TARA HARDY Transparency goal of 'publish-what- you-pay' law Exposure of payment data will be benefi cial to countries and competing entities. By Jennifer Brown

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