National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- A mining issuer wants to disclose the results of the updated mine plan that include inferred resources in a press release or other document once work on the updated mine plan is complete and has been subject to the Filer's internal review process.
Applicable Legislative Provisions
National Instrument 43-101 Standards of Disclosure for Mineral Projects, ss. 2.3(1)(b), 9.1(1).
July 18, 2014
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (THE "JURISDICTION") AND IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS AND IN THE MATTER OF DOMINION DIAMOND CORPORATION (THE "FILER")
The principal regulator in the Jurisdiction has received an application (the "Application") from the Filer for a decision (the "Exemption Sought") under the securities legislation of the Jurisdiction of the principal regulator (the "Legislation") to grant an exemption, pursuant to section 9.1(1) of National Instrument 43-101 -- Standards of Disclosure for Mineral Projects ("NI 43-101"), exempting the Filer from the prohibition in section 2.3(1)(b) of NI 43-101 against making any disclosure of the results of an economic analysis that includes or is based on inferred mineral resources.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
(a) the Ontario Securities Commission is the principal regulator for this Application; and
(b) the Filer has provided notice that subsection 4.7(1) of Multilateral Instrument 11-102 -- Passport System is intended to be relied upon in all of the provinces and territories in Canada.
Terms defined in National Instrument 14-101 -- Definitions and MI 11-102 have the same meaning if used in this decision, unless otherwise defined.
This decision is based on the following facts represented by the Filer:
1.1. The Filer is a corporation formed pursuant to a vertical short-form amalgamation under the Canada Business Corporations Act. The registered office of the Filer is located at 1090 Don Mills Road, Suite 506, Toronto, Ontario, M3C 3R6 and its head office is located at P.O. Box 4569, Station A, Toronto, Ontario, M5W 4T9.
1.2. The Filer's business involves the mining and marketing of rough diamonds to the global market. The Filer supplies rough diamonds to the global market from its operation of the Ekati diamond mine (the "Ekati Diamond Mine") (in which it owns a controlling interest) and its 40% ownership interest in the Diavik diamond mine. Both mineral properties are located at Lac de Gras in the Northwest Territories.
1.3. The share capital of the Filer consists of an unlimited number of common shares. As at April 30, 2014, the Filer had a total of 85,134,480 common shares issued and outstanding.
1.4. The Filer's common shares are listed on the TSX and the New York Stock Exchange under the ticker symbol "DDC".
1.5. The Filer is a "reporting issuer" or its equivalent in all of the provinces and territories of Canada. The Filer is, to its knowledge, not in default of securities legislation in any of these jurisdictions.
The Ekati Diamond Mine
2.1. The Filer acquired its interest in the Ekati Diamond Mine on April 10, 2013 from BHP Billiton Canada Inc. ("BHP"). The Ekati Diamond Mine property, located at Lac de Gras in the Northwest Territories, consists of the Core Zone, which includes the current operating mine and other permitted kimberlite pipes, as well as the Buffer Zone, an adjacent area hosting kimberlite pipes having both development and exploration potential. The Filer has an 80% interest in the Core Zone and a 58.8% interest in the Buffer Zone, with the remaining interests held by other joint venture parties. The Filer's indirect wholly-owned subsidiary, Dominion Diamond Ekati Corporation, is the operator of the Ekati Diamond Mine.
2.2. The Ekati Diamond Mine officially began operations in 1998, and prior to its acquisition by the Filer, was operated by BHP as a part of the BHP Billiton group. In 2011, a major milestone was reached when the Ekati Diamond Mine achieved production of 50 million carats of diamonds.
2.3. On May 24, 2013, the Filer filed a technical report in respect of the Ekati Diamond Mine entitled "Ekati Diamond Mine, Northwest Territories, Canada, NI 43-101 Technical Report" prepared in accordance with NI 43-101 (the "Technical Report"). The Technical Report disclosed an aggregate total of 105.7 million tonnes of indicated resources, 24.9 million tonnes of inferred resources, and 20.6 million tonnes of probable reserves. The reserve and resource estimate was as of December 31, 2012, and the reported resources were inclusive of mineral reserves. In addition, the Technical Report disclosed information related to the Misery South & Southwest satellite pipes (the "Misery Satellite Pipes").
2.4. As described in the Technical Report, substantial quantities of the Misery Satellite Pipes occur within the stripping limits of the Misery pushback open pit, optimized based on probable reserves, and are being excavated during the pre-stripping operations of the Misery main pipe. Pre-stripping at Misery for the pushback pit commenced in 2011. Full production from "Misery main", which is classified as a probable reserve, is expected in calendar 2016.
2.5. The Misery Satellite Pipes were originally assessed by BHP from bulk samples collected during exploration programs. Since the Technical Report, diamond grade and value estimates for the Misery Satellite Pipes have been validated by drilling, mining and processing activities.
2.6. The Filer currently expects to disclose inferred resources for the Misery Satellite Pipes. These inferred resources would be incorporated into an updated mine plan (the "Mine Plan") that contains an economic analysis which includes inferred resources (the "Operating Case") in addition to a base case economic analysis that excludes or is not based on inferred resources (the "Base Case"). Inferred resources constitute approximately 14% of the resources and reserves in the Mine Plan.
2.7. The Ekati processing plant has the capacity (at optimal rates) to process up to approximately 4.35 million tonnes per year. The current life-of-mine plan of 6 years for the Ekati Diamond Mine (based on the reserves only) does not fully utilize the processing capacity of the Ekati processing plant. Accordingly, in addition to the tonnage available from the reserves, the Filer intends to process the inferred resources from the Misery Satellite Pipes that is made available as the Misery main pipe is accessed. This is particularly so while the pre-stripping operations are underway for Misery main pipe. The Filer currently expects to process inferred resources from the Misery Satellite Pipes in Fiscal 2015, 2016 and 2017 representing approximately 25%, 28% and 34%, respectively, of the total processing capacity of the Ekati processing plant for those periods.
The Updated Mine Plan
3.1. The Filer intends to disclose the results of the updated Mine Plan for the Ekati Diamond Mine in a press release or other document once work on the Mine Plan is complete and has been subject to the Filer's internal review process (the "Initial Disclosure Document").
3.2. The Initial Disclosure Document may include disclosure of the Operating Case, in addition and as a supplement to the Base Case.
3.3. The Filer considers that the inclusion of the Operating Case economic analysis that includes inferred resources, and the disclosure of the Operating Case, in addition and as a supplement to the Base Case that does not include inferred resources, is reasonable from a technical point of view.
3.4. Given the available capacity at the Ekati processing plant, an Operating Case that includes the inferred resources from the Misery Satellite Pipes reflects the current actual operating plan for the Ekati Diamond Mine. Accordingly, the Filer submits that to exclude inferred resources from its economic analysis in the Mine Plan would incorrectly state the actual operating mine plan for the Ekati Diamond Mine and prevent investors from having full disclosure of the life-of-mine plan for the Ekati Diamond Mine.
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Exemption Sought is granted provided that:
(a) the Filer includes in its disclosure of the Operating Case economic analysis a proximate cautionary statement to investors regarding the uncertainty associated with inferred resources which will address the substance of the cautionary language set out in subsection 2.3(3) of NI 43-101; and
(b) any disclosure of the Operating Case economic analysis is accompanied by disclosure of the Base Case economic analysis.
DATED this 18th day of July, 2014.