SETTING NEW STANDARDS — ‘QP’ concept clarified

Speakers at the recent Setting New Standards conference in Toronto worked hard to show that the rules governing “Qualified Persons” create neither a closed shop for mineral exploration work nor a minefield of potential liability.

In recommending the adoption of the QP concept, an idea that grew from a similar rule in Australian disclosure practice, the Mining Standards Task Force is “not looking for someone to blame,” said Kenneth Grace, the task force’s technical consultant. “It’s looking for help.”

Grace said the task force was faced with a choice between specifying detailed requirements for exploration work, with “some regulator looking over your shoulder . . . some long list of things you should be doing,” and relying on professionals to practise in a conscientious and prudent manner. The task force chose professional conscience.

QPs are being asked to make decisions on the specifics of exploration and development work, and to draw conclusions and make recommendations based on the results of the work. Grace says the onus stays on officers and directors of the company to ensure that QPs run the company’s programs and check the technical content of corporate disclosures. He emphasized that the QP will not be held responsible for legal opinions (for example on property title), for political risks like land claims, or for policing the opinions of others.

The requirement that a QP hold membership in a professional association, designed to ensure that the scientist or engineer is subject to professional discipline, has caused some anxiety in Ontario, one of only three provinces where the acts regulating professional engineering have not been amended to include professional geosciences. Morley Carscallen, vice-chairman of the Ontario Securities Commission, said it was “ridiculous that the largest and most populous province cannot do what the other provinces have done” and license its geologists.

William Pearson, president of the Association of Geoscientists of Ontario (AGO), told the conference that “licensure is critical to making the QP system work,” and drew the distinction between a right to title and right to practise. When a professional organization is certified, its members receive the exclusive right to a professional title, but non-members can still practise the profession as long as they do not use the title. Licensure, which the AGO is currently seeking in Ontario, defines a scope of practice that non-members cannot legally invade, and compels members of the professional body to follow both legal and ethical codes of conduct.

The AGO, which saw an earlier agreement with the Professional Engineers of Ontario fall through earlier this year, is now lobbying the Ministry of Northern Development and Mines to sponsor a new law modelled on the province’s Engineers Act that would require anyone practising geological science in Ontario to be licensed. Statements by the minister, Chris Hodgson, indicate that he is behind the proposal.

Another issue that had been raised in many submissions to the task force and in open forums was the requirement that the QP have “five years experience . . . relevant to the subject matter of the project,” which had led some people in the industry to believe that few people would have a full five years of experience in specific aspects of geology, mining engineering or metallurgy that might crop up in an individual project. Grace said the task force never intended to make the requirements so strict that an ordinary mining professional could not meet them, and the AGO’s Pearson points out that the push for professional registration in Ontario is “not a witch-hunt.” Instead, the emphasis in developing professional-registration laws and implementing the QP concept is on “reasonable and prudent practice,” which (as the courts have historically recognized) is subject to differences of opinion.