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2016/17
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LEXPERT 29
defence for directors and officers who can show compre-
hensive governance and internal controls.
The new transparency laws pose the problem
of overlapping jurisdiction, with about 20 countries
demanding reports on worldwide operations. Mining
lawyers say the problem is expected to be substantially
reduced by reciprocity agreements,
making reports prepared under one
transparency law acceptable in other
jurisdictions. But Paul Cassidy of
McCarthy Tétrault LLP in Vancou-
ver says ESTMA could still cause
unintended trouble.
"is could be the sleeper com-
pliance issue of the year," Cassidy
warns. "ere may be some degree
of surprise once people realize the
breadth of the legislation. What's re-
ally interesting is the degree to which
private companies can be caught."
He notes that ESTMA makes hedge
funds, private equities and pension
funds into reporting entities if they
hold controlling interests in mining
or oil and gas companies. "ere
hasn't been a lot of concern or public
discussion from the sector" and, as a
consequence, some private compa-
nies may not be fully aware of their
new ESTMA obligations. "e Act
is in force now. It's law and you've
got to start registering," he says.
Cassidy adds that, under EST-
MA, it's not corruption that's an of-
fence but filing deficiencies. "If you
didn't properly report, that in itself
is worth a $250,000-per-day penalty.
It's the Al Capone effect," he says,
referencing the mobster famously
jailed for tax evasion.
Shishler observes that "control" is
not well defined in ESTMA, leaving
open the question of whether con-
trol is anything above 50-per-cent
ownership or whether the law also
applies to stockholders who exercise
effective control at lower levels. "It's
also not clear who is a government,"
she says. Communal land organiza-
tions are common in some countries and state-owned
enterprises could be deemed government departments.
"at has people scratching their heads a little bit."
Richer La Flèche says that some SOEs are exclusively
commercial in nature but others perform regulatory
LEXPERT-RANKED LAWYERS
McLean, QC, John I. Gowling WLG
(604) 891-2285 john.mclean@gowlingwlg.com
Mr. McLean is a partner in Gowling WLG's Vancouver office practising in
insolvency matters, including bankruptcy, CCAA proceedings, foreclosures
and creditor and debtor rights. He has acted as counsel for trustees in
bankruptcy, monitors under CCAA proceedings, as well as creditors and
debtors, and has been involved in most major insolvency matters in BC.
Melanson, Michael N. Bennett Jones LLP
(416) 777-6552 melansonm@bennettjones.com
Mr. Melanson, Partner and Co-head of Corporate, practises extensively
in the capital markets area, with an emphasis on public and private offer-
ings of securities, take-over bids and M&A. He acts for clients in a wide
range of industries, particularly in the mining industry. One area of focus
of his practice is representing clients in China, Hong Kong and other
international markets.
Mercer, Cathy L. Cassels Brock & Blackwell LLP
(416) 869-5772 cmercer@casselsbrock.com
Ms. Mercer has extensive experience drafting and negotiating mining
royalty, mineral streaming, option and joint-venture agreements. She has
also engaged in debt financing transactions for companies with mines
on the verge of commercial production.
Mingay, Cameron A. Cassels Brock
& Blackwell LLP (416) 860-6615 cmingay@casselsbrock.com
Mr. Mingay practises M&A, securities, natural resource and clean tech
law. He acts on public and private corporate finance transactions, as lead
counsel for a number of public clients, and is the head of the firm's
China Mining Group.
Mingay, Paul A.D. Borden Ladner Gervais LLP
(416) 367-6006 pmingay@blg.com
Mr. Mingay is the national leader of BLG's Public Mergers & Acquisitions
Group. His practice focuses on mergers & acquisitions, including strategic,
private-equity and cross-border transactions, and corporate finance in-
cluding debt and equity offerings. His practice has included many M&A
and finance transactions for mining companies and financiers.
Misetich Dann, Linda E. Bennett Jones LLP
(416) 777-4636 misetichdannl@bennettjones.com
Ms. Misetich Dann practises securities and corporate law with a focus
on corporate finance, M&A and transactional work in the mining sector.
She represents a broad range of clients, including issuers and investment
dealers in connection with public financings, private placements, take-over
bids, plans of arrangement and restructurings.
