A recent development is set to simplify the process of legalizing mining company documents for international use. Until now, preparing certain Canadian-issued documents for global application posed challenges. Sending a copy of a Canadian government search report to another country, such as Brazil, lacked reliability. Terms like “authenticating,” “apostilling,” “notarizing” and “legalizing” have been associated with complexity and procedural hurdles, evoking concerns among many legal professionals. Think of wax seals, oaths and stamps. But, relief is in sight.
To recap, “authentication” has often been required before using a Canadian document abroad. Authentication validates the legitimacy of the signature of a public official found on a document. In other countries, authentication is also known as “apostille.” After being authenticated, the document may require legalization by the authorities of the destination country (for example, by its embassy, high commission or consulate in, or accredited to, Canada). To be authenticated, the document must bear an original, recognized signature (and wax seal, if applicable).
On May 16, 2023, Global Affairs Canada announced that Canada joined the Apostille Convention, formally known as the Convention Abolishing the Requirement of Legalization for Foreign Public Documents. This change will add efficiency for Canadian companies conducting business abroad – where legalization of corporate documents and powers of attorney can take several weeks, and the legalization requirements can vary significantly depending on the country in which the documents will be used – a well-known and common issue for mining companies and their financiers.
Effective January 11, 2024, certain documents, including Canadian corporate records and powers of attorney, will be submitted for an authenticity certificate called an “apostille,” in a streamlined process that eliminates the need for the historic legalization process and will allow documents to be used in any of the more than 124 countries that are members of the Apostille Convention. Notable member countries include, the United States, the United Kingdom, Australia, Luxembourg, Mexico, Brazil and Argentina, which are all key mining jurisdictions.
The mining industry – in particular, the financing arrangements that swirl around it and hold it all together – are often stapled together with third-party documents and sources of verification and confirmation. These financing arrangements are usually multijurisdictional and complicated, and any renewals, extensions or amendments to the arrangements must take effect contemporaneously around the world. While it’s only one piece of the puzzle, this component can present challenges for lawyers aiming to ensure the continuity and integrity of security arrangements.
Currently, interruptions or gaps in security can arise during the process of getting something legalized for use. When these rule changes come into force, the process for using these documents internationally will become easier, alleviating prior concerns.
For more information on this topic, please reach out to the author, Greg McNab.