Extractive Sector Transparency Measures Act
The Extractive Sector Transparency Measures Act (ESTMA or the Act) requires public disclosure of payments made to governments by entities engaged in the commercial development of oil, gas and minerals directly or through a controlled organization that are either:
- Listed on a Canadian stock exchange
- Not listed on a Canadian stock exchange but have a place of business in Canada, do business in Canada or have assets in Canada and meet two of the following thresholds in one of their two most recent financial years:
- Have at least C$20 million in assets
- Generated at least C$40 million in revenue
- Employ an average of at least 250 employees
Filings for entities with calendar year-ends are due May 30 (150 days from year-end).
Each entity is required to register for an ID with Natural Resources Canada (NRCan) regardless of whether there are reportable payments during the year.
What needs to be reported?
The Act requires reporting of certain payments made to:
- Any government in Canada or abroad, including indigenous governments
- A body established by two or more governments
- Any trust, board, commission, corporation, body or authority that exercises a function, power or duty of any government in Canada or abroad
Monetary payments and payments in-kind to be reported are those that relate to the commercial development of oil, gas or minerals and total at least C$100,000 to the same payee during the previous fiscal year in one of the following payment categories:
- Taxes (other than consumption and personal income)
- Fees (including rental fees, entry fees and regulatory charges, as well as fees or other consideration for licenses, permits or concessions)
- Production entitlements
- Bonuses (including signature, discovery and production bonuses)
- Dividends (other than dividends paid to payees as ordinary shareholders)
- Infrastructure improvement payments
Payments in-kind are measured at the cost (or fair value if no cost) to the entity of the goods or services provided. Payments made in regular commercial transactions in return for goods and services provided are not reportable under the Act.
ESTMA has clarified that indigenous governments are included in the definition of government; therefore, reporting entities need to include payments to these groups in their ESTMA report.
Penalties for non-compliance include a fine of up to C$250,000, with continuing offences incurring additional penalties.
If there are no reportable payments, an email to the NRCan is encouraged indicating this.
In summary, the following steps should be taken to ensure a smooth filing process:
- Register with NRCan
- Understand which types payments are required to reported
- Research/review payments that the entity has made to ensure you have a record/list of them;
- Determine if any payments to one payee are over the threshold of $100,000:
- If so, then report these.
- If not, then notify NRCan that there are no payments that need to be reported.
For additional resources, visit the website of Natural Resources Canada: http://www.nrcan.gc.ca/mining-materials/estma/18180