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Home > Our Insights > Northern Exposure: Anti-Corruption Law Exposes Payments to Governments Under Extractive Sector Transparency Measures Act (ESTMA)
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Northern Exposure: Anti-Corruption Law Exposes Payments to Governments Under Extractive Sector Transparency Measures Act (ESTMA)

Published:

May 11, 2017

Author(s):

  • Julie Robinson
  • Elizabeth McIsaac

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The Extractive Sector Transparency Measures Act is one of several anti-bribery and anti-corruption laws aimed at fighting corruption in the extractive resource sector by requiring certain commercial developers of oil, gas or minerals, whether domestically or abroad, to report certain payments to government bodies – which effective June 1, 2017, includes payments to Indigenous or Aboriginal governments. And while the Act took effect on June 1, 2015, under its transitional provisions, reporting businesses with a December 31 year end must complete their first full-year report no later than May 30, 2017.

Here’s why the new reporting requirements exist, who must report and what, when and where they must report it.

Why are there new reporting requirements? 

The purpose of the Act is to fight corruption in the extractive resource sector through increased financial transparency. To achieve this transparency, certain extractive resources developers are required to report specified payments they make to government authorities.

Who has to report?

The Act imposes reporting obligations on extractive businesses: corporations, trusts, partnerships and other unincorporated organizations engaged in the commercial development of oil, gas or minerals in Canada or abroad – as well as the entities that control such businesses –  that either:

  • Are listed on a stock exchange in Canada.
  • Have a place of business in Canada, do business in Canada or have assets in Canada, and meet two of these three thresholds in at least one of its last two financial years: $20M in assets; $40M in revenue; 250 or more employees.

What must extractive businesses report?

Extractive businesses may have to report payments they make to a broad range of government bodies depending on the purpose of the payment and its amount. And beware: “creative” payment structuring won’t excuse them from their reporting obligations.

Government Payee. Since the Act’s purpose is to combat corruption, extractive businesses must account for their payments to a broad scope of government payees, including: any government in Canada or a foreign state; a body established by two or more governments; or an authority that performs a power, duty or function of such a government or body. And although reporting obligations didn’t apply to payments to Aboriginal governments for the first two years the Act was in force, they do apply to payments to Indigenous or Aboriginal (the term the Act uses)  governments, such as under an Impact and Benefit Agreement, made on or after June 1, 2017. Thus reporting obligations apply to payments made to federal, provincial and state governments, and can also apply to other types of payees, including municipal and local governments, Crown corporations and Aboriginal governments.  It’s crucial for the extractive business to clearly identify the government payee: where it makes separate, multiple payments to bodies representing or constituted by the same government, those payments are deemed to be made to a single government payee for purposes of the reporting threshold. The Government of Canada’s Extractive Sector Transparency Measures Act Guidance document gives this example (at page 12): separate payments to each of the National Energy Board, Natural Resources Canada and Environment Canada are deemed to be made to one government payee since they all represent the Canadian federal government.

Payments Category & Reporting Threshold. The Act creates reporting requirements in respect of the following categories of payments made to government payees:

  • Taxes other than consumption taxes and personal income taxes.
  • Royalties.
  • Fees, including rental fees, entry fees and regulatory charges as well as fees or other consideration for licences, permits or concessions.
  • Production entitlements.
  • Bonuses, including signature, discovery and production bonuses.
  • Dividends other than dividends paid as ordinary shareholders.
  • Infrastructure improvement payments.

However, as the Government of Canada’s Extractive Sector Transparency Measures Act Guidance document confirms (at page 14), not every type of payment an extractive business might make to a government payee is reportable: payments to government for ordinary course commercial transactions (such as electrical bills) are not. Payments to the same payee in a single category are reportable when they are $100,000 or more in a financial year and, where possible, extractive businesses are to state the particular project to which the payments relate.

Nature of Payment. The Act emphasizes substance over form: an extractive business is required to account for payments that meet the criteria whether a payment was monetary or in kind, or the total sum was paid as one or as multiple payments. And “creative” structuring of payments to government payees, such as through third parties or subsidiaries, won’t excuse an extractive business from reporting obligations. For example, the Act deems:

  • Payments to employees or public office holders of a government payee to have been made to the payee directly.
  • Payments to third parties that receive the payment on behalf of a government payee to be made to the government payee directly.
  • Payments made to a government payee by an entity the extractive business controls to be made by that extractive business.

When is reporting required?

The Act requires extractive businesses to complete their reports no later than 150 days after the end of each financial year. Extractive businesses with a December 31 year end must provide their first full-year report (i.e., for the year ended December 31, 2016) under the Act no later than May 30, 2017.

Where must the extractive business submit its report?

Extractive businesses must submit their reports to the federal Minister of Natural Resources and must also make it available to the public.


Please contact your McInnes Cooper lawyer or any member of the Energy & Natural Resources Team @ McInnes Cooper to discuss this topic or any other legal issue.


McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2017. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.

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    May 2, 2016

    “Due diligence” is a legal defence to many charges under occupational health and safety (OHS) laws. Here are five of the most…

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    Publications
  • The New Nova Scotia Mineral Resources Act: The Good, The Risky & The Neutral

    Apr 21, 2016

    On April 15, 2016, Bill No. 149, The Mineral Resources Act (2016) (2016 Act), passed its second reading in the NS House of Assembly. Although…

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    Publications
  • Supreme Court of Canada Decides Federal Government Has Legislative Authority Over Métis & Non-Status Indians

    Apr 19, 2016

    On April 14, 2016, the Supreme Court of Canada decided that Métis and “non-status Indians” are “Indians” under section 91(24) of the…

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    Publications
  • Doing Business With the Public Sector: Key Confidentiality Risks & 3 Risk Management Strategies

    Mar 24, 2016

    When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these…

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    Publications
  • Construction Project Manager Sentenced to 3½ Years for Workplace Accident in R. v. Vadim Kazenelson (aka “Metron”)

    Mar 9, 2016

    In what appears to be the first case of the conviction of a front line supervisor under section 217.1 of the Criminal Code and sentencing to a…

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    Publications
  • Energy Safety and Security Act (ESSA) Effective February 26, 2016: 7 Key Changes Toughen Up Atlantic Offshore and North Oil & Gas Regulatory Regime

    Feb 15, 2016

    On February 26, 2016, the bulk of the offshore-related amendments of the Energy Safety and Security Act (ESSA, formerly known as Bill C-22) take…

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    Publications
  • NB Kicks-off First Request for Expressions of Interest from Aboriginal Businesses Under New Electricity from Renewable Resources Regulation

    Feb 1, 2016

    On January 29, 2016, the New Brunswick Power Corporation (NB Power) kicked-off compliance with its obligations under the new Electricity from…

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    Publications
  • 5 Key Changes Streamline Venture Issuer Obligations

    Jan 18, 2016

    Things have gotten a bit easier for venture issuers, such as those listed on the TSX Venture Exchange, with recent changes to their obligations.…

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    Publications
  • Offshore Oil and Gas Decommissioning Best Practices

    Dec 21, 2015

    A practical and current guide created to help you navigate the increasingly important issues surrounding offshore decommissioning and…

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    Publications
  • New Kid on the Block: Crowdfunding Joins Traditional Equity-Based Funding Options for Startups & SMEs

    Oct 19, 2015

    Access to sufficient capital to fund operations, research and development, and other costs is a key challenge for start-ups and for some small…

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    Publications
  • University of Calgary, The School of Public Policy Research Paper – Canada, The Law of the Sea Treaty and International Payments: Where Will the Money Come From?

    Sep 8, 2015

    The United Nations Convention on the Law of the Sea requires parties, of which Canada is one, to make payments in respect of oil production on…

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    Publications
  • The Changing Face of Aboriginal Law: 1 Short Year, 2 Big Court Decisions, 3 Key Implications for the Energy & Natural Resources Sector

    Jul 17, 2015

    On the heels of National Aboriginal Day, we pause to take a look back at two significant Aboriginal law cases decided in the last year, how…

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    Publications
  • Unproven Aboriginal Rights Enough For Lawsuit Against Private Industry in Saik’uz First Nation and Stellat’en First Nation v. Rio Tinto Alcan Inc.

    Jul 10, 2015

    On April 15, 2015, British Columbia’s Court of Appeal confirmed that First Nations can make certain legal claims grounded in Aboriginal rights…

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    Publications
  • 3 Reasons for Directors, Officers and Supervisors To Take Occupational Health and Safety Personally

    Jun 25, 2015

    Most people know that a company itself has OHS obligations, and that it risks corporate liability if it violates those obligations. However, not…

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    Publications
  • 5 “Legal” Reasons Why Natural Resource Companies Should Care About Corporate Social Responsibility (CSR)

    Dec 10, 2014

    “Corporate Social Responsibility” (CSR) as a concept has been floating around in business-speak for years – but stakeholders in the mining…

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    Publications
  • The Top 5 Corporate Governance Best Practices That Benefit Every Company

    Sep 16, 2014

    Many believe that only public companies or large, established companies with many shareholders need to be concerned about, or can benefit from,…

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    Publications
  • SCC Sets Test for – and Defines Rights of – Aboriginal Title in Canada in Tsilhqot’in Nation v. B.C.

    Jun 26, 2014

    On June 26, 2014, in a groundbreaking decision on Aboriginal title, the Supreme Court of Canada (SCC) significantly elaborated on the legal test…

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    Publications
  • Joining the Crowd – NS & NB Consider Crowdfunding

    Jun 11, 2014

    Note: For an update on Crowdfunding, read: New Kid on the Block – Crowdfunding Joins Traditional Equity-Based Funding Options for Start-ups…

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    Publications
  • NS Workers’ Compensation Board Issues New Policy for Psychological Injury Claims

    Apr 7, 2014

    On March 31, 2014 the NS Workers’ Compensation Board (WCB) issued a new policy applicable to its adjudication of psychological injury claims…

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    Publications
  • Legal Update: Risky Trading – Insiders and Potential M&A’s

    Nov 1, 2013

    Recent decisions of securities regulators and amendments to Canadian securities laws demonstrate regulators' lowered tolerance for insiders who…

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    Publications
  • A Practical Analysis of “Material Fact”

    May 21, 2013

    In its April 2013 decision in Re Stan, the Alberta Securities Commission provides issuers with a practical approach to the assessment of both a…

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    Publications
  • Legal Update: The Duty to Consult – Important Lessons from Canada’s Mining Sector

    Mar 15, 2013

    Recent developments in Ontario and Yukon are an important reminder of the practical implications of the Crown’s legal Duty to Consult with…

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    Publications
  • A White Paper on Reforming Canada’s Transportation Policies For the 21st Century

    Feb 8, 2013

    While much of the developed world struggles with debt and chronically low growth, Canada, one of the best-performing members of the G-7,…

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    Publications
  • CSA Staff Notice 11-318: Guidance for Cease Trade Order Database Users

    Aug 27, 2012

    Introduction and Purpose Staff of the Canadian Securities Administrators (CSA Staff or we) are publishing this Staff Notice (the Notice) to…

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    Publications
  • Canadian Securities Administrators Adopt Rule For Over-The-Counter Issuers

    Jun 1, 2012

    Multilateral Instrument 51-105, Issuers Quoted in the U.S. Over-the-Counter Markets will come into effect on July 31, 2012. Once effective,…

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    Publications
  • Alert: Supreme Court of Canada Finds Proposed Canadian Securities Act Unconstitutional

    Dec 22, 2011

    On May 26, 2010, the Canadian federal government released the proposed Canadian Securities Act (the Act) which would, among other things, create…

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    Publications
  • Investor Readiness

    Nov 1, 2011

    Entrepreneurs need to be ready for due diligence, so it’s essential to involve legal advisors and accountants early in the process. Click…

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    Publications
  • Accounting Firms – Do they need to be registered as exempt market dealers

    Oct 6, 2011

    In 2009 Canadian securities regulators changed the rules relating to securities “registration” – these rules determine who is required to…

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    Publications
  • A Review of the Project Scope and Environmental Assessment Scope for Mining and Energy Projects Across Canada

    Apr 6, 2010

    Carole Chan was the Co-author of the following publication: A Review of the Project Scope and Environmental Assessment Scope for Mining and…

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    Publications

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