Mutual Reliance Review System for Exemptive Relief Applications -- Relief from timing requirement for filing a technical report at the time of filing AIF - Filer is completing feasibility study and technical report on a material property - Filer's AIF will contain feasibility study results that are new material or scientific technical information - Technical report may not be finalized and capable of being filed contemporaneously with AIF - Relief granted provided that the Filer files the technical report as soon as practicable but in any even not later than 30 from the date of filing AIF - AIF will include appropriate cautionary language.
Applicable Ontario Statutory Provisions
National Instrument 43-101 Standards of Disclosure for Mineral Projects, ss. 4.2, 9.1.
March 30, 2007
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
BRITISH COLUMBIA AND ONTARIO
IN THE MATTER OF
THE MUTUAL RELIANCE REVIEW SYSTEM
FOR EXEMPTIVE RELIEF APPLICATIONS
IN THE MATTER OF
NEW GOLD INC.
MRRS DECISION DOCUMENT
1. The local securities regulatory authority or regulator (the Decision Maker) in each of the Jurisdictions has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that the Filer is exempt from the requirement in National Instrument 43-101 Standards of Disclosure for Mineral Projects (NI 43-101) that an issuer file a supporting technical report not later than filing its annual information form (AIF) which contains new material scientific or technical information (the Requested Relief).
Application of Principal Regulator System
2. Under Multilateral Instrument MI 11-101 Principal Regulator System (MI 11-101) and the Mutual Reliance Review System for Exemptive Relief Applications:
(a) the British Columbia Securities Commission is the principal regulator for the Filer,
(b) the Filer is relying on the exemption in Part 3 of MI 11-101 in Alberta, Saskatchewan, Manitoba, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland and Labrador, and
(c) this MRRS decision document evidences the decision of each Decision Maker.
3. Defined terms contained in National Instrument 14-101 Definitions have the same meaning in this decision unless they are otherwise defined in this decision.
4. This decision is based on the following facts represented by the Filer:
1. the Filer is a corporation with its head office located in Vancouver, British Columbia; in addition to British Columbia, the Filer is also a reporting issuer, or equivalent, in the jurisdictions of Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland;
2. to its knowledge the Filer is not in default of any requirement under the securities legislation of any jurisdiction in which it is a reporting issuer or equivalent;
3. the Filer is a junior natural resource issuer listed on the Toronto Stock Exchange and American Stock Exchange and has a year end of December 31, and must file its AIF by April 2, 2007;
4. the Filer's principal development project is a 100% interest in a copper-gold project located near Kamloops, British Columbia (the New Afton Project);
5. in December 2005 the Filer retained Hatch Ltd. (Hatch) to coordinate a feasibility study of the New Afton Project (the Feasibility Study) and to prepare a NI 43-101 compliant technical report on the New Afton Project (the Technical Report); a team of engineering consultants including Hatch, Australian Mining Consultants Pty Ltd., Scott Wilson Roscoe Postle Associates and Rescan Environmental Services Ltd. is preparing the Feasibility Study; at this time it is not known whether the Technical Report will be finalized and capable of being filed contemporaneously with the AIF, not later than April 2, 2007;
6. the Filer believes that in order to provide up-to-date, full, true and plain disclosure, it is necessary that the information contained in the Feasibility Study form the basis of the AIF;
7. however, as the Feasibility Study information is new material scientific or technical information, filing an AIF containing this information will trigger the requirement under NI 43-101 sections 4.2(1)(f) and 4.2(4) to file the Technical Report to support such information, not later than filing the AIF;
8. Hatch, the lead engineering firm, has not provided a precise date for release of the Technical Report, and representatives of Hatch, the engineering consultants referred to in 3.above and the Filer are working diligently to complete the Technical Report so that it can be filed contemporaneously with the AIF; however, as a cautionary measure the Filer has determined that it would be prudent to seek the relief contemplated by this application in the event it is unable to comply with the applicable filing requirement of NI 43-101;
9. the Filer proposes to issue a news release with the results of the Feasibility Study prior to or contemporaneously with the filing of the AIF;
10. under NI 43-101 sections 4.2(1)(j) and 4.2(5), the Filer would normally have 45 days following the issuance of a news release announcing the results of the Feasibility Study that discloses mineral reserves for the first time, to file the supporting Technical Report; this 45-day period will be truncated when the Filer files its AIF on April 2, 2007;
11. the AIF will contain the following statement (the Cautionary Language) in close proximity to the information regarding the Feasibility Study results:
"The technical disclosure in this annual information form relating to the New Afton Project has not been supported by a technical report prepared in accordance with National Instrument 43-101. The technical report is being prepared by a qualified person as defined under National Instrument 43-101 and it will be available on SEDAR (www.sedar.com) on or before April 30, 2007. Readers are advised to refer to that technical report when it is filed."
12. the Filer will complete and file the Technical Report as soon as practicable but in any event not later than April 30, 2007;
13. the Filer has no reason to believe that the information in the Technical Report will be materially different from the information in the AIF.
5. The Decision Makers being satisfied that they have jurisdiction to make this decision and that the relevant test under the Legislation has been met, the Requested Relief is granted provided that:
(a) the Filer issues a news release containing information regarding the Feasibility Study results not later than filing its AIF on or before April 2, 2007;
(b) the AIF includes the Cautionary Language; and
(c) the Filer files the Technical Report as soon as practicable but in any event not later than April 30, 2007.