Merci, Monsieur le President. Members may speak to the object, expediency, principles, and merits of a bill at second reading, and I will certainly take that opportunity with the proposed Mineral Resources Act. We have had it for less than 24 hours, to review the 65-page bill.
I will speak to the process that got us here and how that could and should have been better. I will also provide some comments on the approach of the bill and concerns with what is there and what is missing. There are some good things in the bill, as well, Mr. Speaker.
The Process
This bill will replace the Mining Regulations under the NWT Lands Act. The Mining Regulations mirrored the federal government law under the old Canada Mining Regulations. Those regulations were built on the centuries-old concept of free entry, where mining was viewed as the highest and best use of the land.
With devolution effective April 1, 2014, our government has had the opportunity to develop our own legislation on mineral rights disposition. The public part of that process began in August 2017 with the release of a discussion paper, "Unlocking our Potential Together." Community drop-in sessions were held August to November 2017. The Minister, his department, and public communications promised world-class, leading-edge, and made-in-the-North legislation that would increase competitiveness. The scope of the consultation included just about everything, including a review of royalties, closure and reclamation, socio-economic benefits, Ministerial authority, accountability, and more.
Limited public information was made available, despite claims of extensive cross-jurisdictional research and analysis, including best practices. A mineral sector review and benchmarking study was released on October 11, 2017, after repeated requests for more information. On October 18, 2017, the Minister had this to say in the House about a jurisdictional scan of best practices: "We can share with all the people in the NWT."
A so-called "what we heard" report was released on February 12, 2018. I described it as a classic example of regulatory capture, when a government agency, created to act in the public interest, instead advances the commercial concerns or interests of the industry or sector that it is charged with regulating. Public input was boiled down into almost unintelligible bullets, where comments were taken out of context, categorized improperly, or not even included. Next steps were not clearly identified, there were no timelines set out, and no clear policy direction emerged. None of the written submissions made to ITI are available on its website. This stands out in stark contrast to the department's own review of the targeted changes to petroleum legislation, where such submissions are posted, and a thoughtful "what we heard" report was developed. I would add that information was provided freely to the standing committee as part of the petroleum legislation review process.
Calls for more information on topics under consideration in the Mineral Resources Act continued from the public and Regular MLAs. I had to resort to Access to Information requests to finally force the Minister to make more information available, including a review of socio-economic agreements, which I tabled in the House on October 28, 2019. I tabled five more documents obtained under an additional Access to Information request made to ITI requesting deliverables under a publicly available contract listing for assistance in the development of the bill. Mr. Speaker, I tabled those documents yesterday in this House.
I continue to encourage the Minister to make this sort of information available to the public to help with the review of the bill and subsequent regulations. It is quite remarkable that a Regular MLA has to resort to Access to Information requests to get a Minister to share information in a consensus government system, information paid for with public funds. This certainly does not reflect well on how this legislation was developed or the state of a consensus government purportedly committed to transparency and accountability.
To be fair, around the end of last year, the Minister began to provide confidential briefings and more information to the Standing Committee on Economic Development and Environment on the bill. This improved communications is much appreciated. The bill development was clearly being shaped by a mysterious technical working group made up of Indigenous government representatives that was involved in some sort of co-drafting process. This is, as it should be and is indeed, a legal requirement of the devolution agreement, its implementing legislation, constitutionally entrenched land rights agreements, and a requirement of section 35 Aboriginal rights to consultation and accommodation. We are still trying to figure out how to mesh this new way of developing legislation with the public government approach of the Executive holding the pen and the Legislature conducting a review.
Clearly a lessons-learned review is required for the development process on post-devolution legislation as the processes across department and even within departments has varied wildly with different outcomes and satisfaction levels. The process for developing the Mineral Resources Act could and should have been a lot better.
I want to move on to the principles and merit of the bill, Mr. Speaker.
Principles and Merit of the Bill
This bill is about mineral rights management. It is not about promoting mining. The purpose lays out a number of matters necessary for responsible and balanced mineral exploration and development, including maximizing benefits, building positive relationships, respect for Indigenous and treaty rights, improving geological knowledge and sustainability. One of the most fundamental questions is: who should administer and implement the bill? I have already raised the issue of regulatory capture, in that ITI developed the bill but is also largely responsible for the promotion of mining. The department certainly does a very good job at promoting mining.
In my view, it is an inherent conflict of interest for a department to promote something and attempt to impartially regulate it at the same time. This is not good governance. This issue was also raised during the development of the bill and received very little serious consideration. The implementation of this bill should be transferred and delegated to the Department of Lands, which already has systems and expertise in place for surface lands management. This would remove the apprehension of bias.
There are definitely some improvements in the bill to current mineral rights management, including some potential modifications to the free entry system through notice requirements. It offers possible improvements to benefit retention with agreements as a condition of production, potential reductions to environmental disturbance from exploration through map staking, and better capture of geological information. I suspect that the mining industry would agree with me on many of these matters. The biggest issue I see is the overwhelming amount of ministerial discretion within the bill to implement all of these principles and new approaches. A process of regulation development is needed to fully implement the bill, and this will drag on for years. Information on implementation on the ITI website references the experience in Ontario of taking about 10 years to develop its legislation and regulations. I think we are in the same boat. The Minister and his department have raised unrealistic expectations since the beginning of this process back in 2017 and even earlier. Today, we have a hollow shell with so much discretion and work required for regulations that I fail to see how certainty and clear policy direction is created. I think a step-wise or phased approach to targeted changes over time would have been a much more effective strategy in building certainty and clarity in policy direction and public confidence. This seems to be the approach that is being taken with the amendments to our petroleum legislation.
I would like to discuss some of the major shortcomings of the bill as I see it. The dispute resolution processes are muddled with a Mining Rights Panel and another possible body. It is not clear how they will relate to the NWT Surface Rights Board and arbitration processes under the land rights agreements already in place. The Mining Rights Panel does not reflect a co-management approach where Indigenous governments can appoint or nominate individuals to sit on it. Virtually absolute ministerial discretion on appointments creates the potential for an "old boys club" or patronage approach to this key body under the bill.
There is no role anywhere in the bill for community governments, despite this matter being raised during the public consultations and by myself directly with the Minister and his staff. Community governments deserve to be notified of claim staking and work plans on mineral leases within their boundaries. Community governments should also have the right to request temporarily restricted areas to prevent mineral exploration within their boundaries to protect their infrastructure, such as potable water sources and gravel sources. This could also help avoid the sort of land use conflicts that have taken place in Inuvik regarding its major gravel source. This is a disappointing omission.
There is provision for the creation of zones with more favourable requirements or lower standards to promote mining. These zones could be created by the Minister or on request from Indigenous governments. This approach is very problematic. If the purpose of these zones was to facilitate access to high mineral potential areas or to better capture revenues, zones might make some sense. However, when the purpose is to lower fees or requirements to promote mining, this is a dangerous mixing of objectives, promotion of mining, and regulation of mining rights. In my view, these so-called zones will create a race to the bottom that pits regions against each other to lower requirements in the hope of attracting exploration. I cannot support this approach of mixing objectives.
I do support the tying of benefit agreements to commercial production. This is simply best practice and good corporate behaviour. The problem is that the bill creates almost no guidance in this area, leaving all the details to regulations. However, the Minister and Cabinet do have discretion to waive whatever requirements and thresholds there may be for benefit agreements. This will not create certainty or clarity and should be dropped.
I mentioned that there is some modification of free entry through notice requirements of claim staking and intended work on mineral leases. This is good, but all the details and thresholds are left to regulations. I am not convinced that these potentially very weak notice requirements fully recognize or comply with the concept of free, prior, and informed consent, or satisfy the constitutional duty to consult with and accommodate Indigenous peoples. These concepts are enshrined in the United Nations Declaration of Human Rights that this government has adopted and should be more clearly reflected in the bill.
I am very disappointed at the approach to confidentiality of information under this bill, especially when it comes to the disclosure of revenues and royalties paid to our government. This is definitely not consistent with best practices, the international efforts on disclosure as shown by the Extractive Industries Transparency Initiatives, and a Cabinet that espouses open government. The bill appears to preclude or prevent the public reporting of aggregated royalty payments by commodity type to our government. I find it very troubling that our government insists on the disclosure of the identities of students and their loan remission amounts in the public accounts that vary from about $39 to about $15,000, but the public cannot know how much a mining company pays in royalties to our government. The disclosure of revenue information is at the basis of responsible government. I am also concerned that the confidentiality requirements in the bill will hinder the building of our geoscience knowledge base that should help industry better target its efforts and reduce the environmental footprint of exploration.
What is required and not in the bill? Clearly, the Minister and his department have done a lot more research and analysis that has not been publicly released. As much of this work as possible should be made available now to ensure transparency and to assist with an informed review of the bill. Such information would also assist with the mountain of work required on regulations to fully implement the bill.
I have spoken at great length about the promise of devolution, how we were to devolve and evolve and build responsible resource management through a public and independent review of the royalty regime. The federal government never did it, but Alberta has done it at least twice for its petroleum sector. If we have any hope of demonstrating that we are capable of managing our resources in the hope of securing further authority, we must show leadership and work in the public interest by conducting an open review of the mining royalty regime.
So much of the real detail on key issues, such as work and reporting requirements, threshold and content of benefit agreements, notification, confidentiality, and more, is to be set out in regulations. My hope was that the bill would create the floor or minimum requirements, but this is clearly not the case. We may be able to move the bill in that direction or to ensure that discretion is exercised in the public interest. There needs to be a strong and clear commitment to develop regulations in a transparent, collaborative, and inclusive manner. I sincerely hope that the lessons learned from the development of the bill, such as the need for greater transparency, inclusiveness, and greater collaboration, are applied to the regulation-making process.
I wish to commend the department for the public information materials that have been prepared, as this should assist the standing committee with its public review of the bill. Mr. Speaker, we are making history with this bill and we have a responsibility to get it right for this and future generations. There are some good initiatives that may come out of this, but a lot of work is required to be done. I look forward to being an active participant in this process as it moves forward. Mahsi, Mr. Speaker.
