National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Impracticable for Filer to prepare 51-101 reports for predecessor entity assets which were subject to exemptive relief permitting modified disclosure based on US oil and gas disclosure requirements -- Modified annual oil and gas forms and reliance on US oil and gas disclosure requirements.
Applicable Legislative Provisions
National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities.
Citation: Suncor Energy Inc., Re, 2009 ABASC 571
November 16, 2009
IN THE MATTER OF
THE SECURITIES LEGISLATION OF
ALBERTA AND ONTARIO
IN THE MATTER OF
THE PROCESS FOR EXEMPTIVE RELIEF
APPLICATIONS IN MULTIPLE JURISDICTIONS
IN THE MATTER OF
SUNCOR ENERGY INC.
The securities regulatory authority or regulator in each of the Jurisdictions (Decision Maker) has received an application from the Filer for a decision under the securities legislation of the Jurisdictions (the Legislation) that the Filer be exempted from the requirements contained in the Legislation to disclose information concerning oil and gas activities in accordance with the following sections of National Instrument 51-101 Standards of Disclosure for Oil and Gas Activities (NI 51-101):
(a) section 2.1;
(i) sections 5.2(a)(iii) and (iv),
(ii) sections 5.2(b) and (c), and
(iii) section 5.3,
but only in respect of reserves as disclosed in accordance with US Disclosure Requirements defined below; and
(c) sections 5.8, 5.15(a), 5.15(b)(i) and 5.15(b)(iv);
including as those requirements pertain to prospectuses, annual information forms and other disclosure documents (collectively, the Specified Canadian Disclosure Requirements).
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a dual application):
(a) the Alberta Securities Commission is the principal regulator for this application,
(b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the provinces and territories of Canada other than Ontario, and
(c) the decision is the decision of the principal regulator and evidences the decision of the securities regulatory authority or regulator in Ontario.
Unless otherwise defined, the terms herein have the meaning set out in National Instrument 14-101 Definitions, MI 11-102 and CSA Staff Notice 51-324 Glossary to NI 51-101 Standards of Disclosure for Oil and Gas Activities.
This decision is based on the following facts represented by the Filer:
1. The Filer's head and registered office is located in Calgary, Alberta.
2. The Filer is a reporting issuer or equivalent in each of the provinces and territories of Canada and is not in default of securities legislation in any such jurisdiction.
3. On August 1, 2009 predecessor Suncor Energy Inc. (Suncor) and Petro-Canada merged to form the Filer by way of plan of arrangement under the Canada Business Corporations Act (the Merger).
4. The Filer's plan to coordinate all major change initiatives and personnel and to ensure the organization is aligned, engaged and supported on a go-forward basis is expected to take an additional 12 months.
5. Prior to the Merger, Suncor and Petro-Canada received exemptions from certain requirements of NI 51-101 subject to certain conditions including, but not limited to, a condition that disclosure be provided that is consistent with the disclosure requirements relating to reserves and oil and gas activities under United States securities legislation (including disclosure requirements or guidelines issued or referenced by the SEC) as interpreted and applied by the SEC (the US Disclosure Requirements) pursuant to decision documents dated December 22, 2003 (the Suncor Order) and January 16, 2004 and November 11, 2008 (the Petro-Canada Orders).
6. Petro-Canada had approximately 4300 reserves entities, which are located in multiple jurisdictions including the United States, Canada, East Coast Canada, North Sea, North Latin America and North Africa (Petro-Canada Reserves Entities) compared to Suncor's 600 reserve entities, which are primarily Western Canada conventional, oilsands mining and oilsands in situ assets (Suncor Reserves Entities).
7. The Filer is currently engrossed in integration efforts including organization design, co-location of personnel and transitioning of information systems. Internal reserves evaluators assigned to Petro-Canada Reserves Entities may no longer be associated with the assets they evaluated for year-end 2008. As a result certain Petro-Canada Reserves Entities may have new internal evaluators, which would extend the time needed to evaluate the Petro-Canada Reserves Entities in accordance with NI 51-101.
8. Petro-Canada provided annual disclosure in accordance with the US Disclosure Requirements from year-end 2004 to year-end 2008 pursuant to the Petro-Canada Orders.
9. Given the extent of the integration efforts and the quantity of reserves data and other oil and gas information in respect of the Petro-Canada Reserves Entities, it is not practicable for the Filer to provide annual disclosure in accordance with NI 51-101 for the Petro-Canada Reserves Entities for the year-end December 31, 2009.
10. From year-end 2003 to year-end 2007, Suncor provided annual disclosure in accordance with the US Disclosure Requirements pursuant to the Suncor Order. The Filer will fully disclose and discuss in its annual disclosure documents any effect from the transition from NI 51-101 to the US Disclosure Requirements for the Suncor Reserves Entities for year-end 2009.
Each of the Decision Makers is satisfied that the decision meets the test set out in the Legislation for the Decision Maker to make the decision.
The decision of the Decision Makers under the Legislation is that:
1. the Filer is exempt from the Specified Canadian Disclosure Requirements provided that:
(a) Annual Filings -- the Filer files with the securities regulatory authorities the following not later than the date on which it is required by the Legislation to file audited financial statements for its most recent financial year:
(i) a modified statement of reserves data and other oil and gas information relating to its oil and gas activities containing the information contemplated by, and consistent with, US Disclosure Requirements;
(ii) a modified report of qualified reserves evaluators in a form acceptable to the principal regulator; and
(iii) a modified report of management and directors on reserves data and other information in a form acceptable to the principal regulator;
(b) Use of COGE Handbook -- the Filer's estimates of reserves and related future net revenue (or, where applicable, related standardized measure of discounted future net cash flows (the standardized measure)) are prepared or audited in accordance with the standards of the COGE Handbook modified to the extent necessary to reflect the terminology and standards of the US Disclosure Requirements;
(c) Consistent Disclosure -- subject to changes in the US Disclosure Requirements and NI 51-101 and related policies, the Filer is consistent in its application of standards relating to oil and gas information and its disclosure of such information, within and between reporting periods, and without limiting the generality of the foregoing, in any disclosure made to the public, the Filer's estimates of reserves and related future net revenue (or, where applicable, related standardized measure) must be consistent with the reserves and related future net revenue (or, where applicable, related standardized measure) reported in its most recent filing with the Decision Maker;
(d) Disclosure of this Decision and Effect -- the Filer
(i) files on SEDAR (either as a separate document or in its annual information form) a statement:
A. of the Filer's reliance on this decision,
B. that explains generally the nature of the information that the Filer has disclosed or intends to disclose in the year in reliance on this decision and that identifies the standards and the source of the standards being applied (if not otherwise readily apparent), and
C. to the effect that the information that the Filer has disclosed or intends to disclose in the year in reliance on this decision may differ from the corresponding information prepared in accordance with NI 51-101 standards (if that is the case), and briefly describes the principal differences between the standards applied and the requirements of NI 51-101; and
(ii) includes, reasonably proximate to all other written disclosure that the Filer makes in reliance on this decision, a statement:
A. of the Filer's reliance on this decision,
B. that explains generally the nature of the information being disclosed and identifies the standards and the source of the standards being applied (if it is not otherwise readily apparent),
C. that the information disclosed may differ from the corresponding information prepared in accordance with NI 51-101 standards, and
D. that reiterates or incorporates by reference the disclosure referred to in paragraph 1(d)(i)(C)); and
(e) Disclosure of Conflicting Independent Reports -- the Filer discloses and updates its public disclosure if, despite this decision, it obtains a final report on reserves data from an independent qualified reserves evaluator or auditor that contains information that is materially different from the Filer's public disclosure record in respect of such reserves data; and
2. this decision will come into effect on December 28, 2009 and will terminate one year after the effective date.