This is page numbers 6187 - 6288 of the Hansard for the 18th Assembly, 3rd Session. The original version can be accessed on the Legislative Assembly's website or by contacting the Legislative Assembly Library. The word of the day was public.

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R.J. Simpson

R.J. Simpson Hay River North

Thank you, Mr. Chair. I was going to say, "I will keep my comments brief because they have been extensively canvassed," but I have to remind myself that, despite the fact the committee has spent countless days considering this bill, the only real public consideration of it has been in the clause-by-clause as well as some of the public meetings.

I think that this bill cleans up a lot of the issues that have been lingering in the industry. I think that there are some very progressive ideas in here. The idea of including benefit agreements in legislation is one of those things that we can claim is world class. I think that, in the end, it is going to work out to be a model for other jurisdictions.

My concern is that that section of this bill, which could be the most important section of one of the most important pieces of legislation that this Assembly is going to see, is that it doesn't quite seem to be ready for primetime. It is still quite vague. When I look at it and when committee looked at it, we had more questions than answers. I know that industry felt the same.

I am a little confused by why that is. I understand that this co-development process was tough, and it wasn't necessarily always fast. You can only get so much done in a certain amount of time. Just because we are coming to the end of an Assembly doesn't mean that all the work has to stop and you have to hand in your homework right now because it is the deadline because that is not the case. This work could have gone on for another year. Perhaps we could have fleshed out this section.

The regulations where this information that we are looking from part 5 will be kept are generally reserved for more technical details. The information in part 5 that we would like to see is of a much grander nature. It is really broad public policy. I think that, as Legislators, we need to have a look at it. I think that that is sort of a difference of opinion, maybe, between Cabinet and the Regular Members because I was struck that, in the clause-by-clause, when certain Members were explaining the reasons why they thought this wasn't ready to be put forward, the Minister used those exact reasons to demonstrate why it was ready to be put forward.

I think that, when we are passing broad legislative policies, it needs to come to us as representatives of the public and as the people who bring it out to the public for comment. I had a very difficult time trying to come up with any way to amend section 5 in order to make it more clear because it was so broad that you would just be making guesses in the dark, essentially, by trying to amend it.

We also heard from at least one Indigenous government, I believe two, but I know for sure one, that, if a single word was changed in part 5, they would pull their support for the bill. While we still had the ability to make those amendments, it was very difficult, especially when we are not subject-matter experts necessarily. I think this should be a lesson for future Assemblies on how to put forward legislation and how not to put forward legislation.

I guess I would like to try to address some of those issues that we are all a little confused about. Like I said, my concerns are around part 5. I would like to ask the Minister if he could get on the record, and I will point this out, as well, that the most clarification we have had about part 5 happened at about 10:00 p.m. last Thursday out in the Great Hall. When we were in the middle of a four-and-a-half-hour meeting, the Minister made some statements which I think would be great to have on the public record, but the fact is that that meeting, while it was public, it wasn't transcribed and it wasn't really attended by members of the public necessarily. I think there were industry representatives there, but there was no media there. It was not streamed live, as well. It only exists in video format somewhere on YouTube or the Legislative Assembly website.

What I am getting at is: I would like to see if the Minister has that information for us again. I would like the Minister to, if he can, state the objectives of part 5 and provide clarification on the questions raised by industry, including the types of agreements that would satisfy the benefit agreement portion of the bill, at what point between exploration and production such an agreement would be required, and any other concerns that the Minister thinks need to be addressed here. Thank you, Mr. Chair.

The Chair

The Chair Daniel McNeely

Thank you, Mr. Simpson. Minister Schumann.

Wally Schumann

Wally Schumann Hay River South

Mr. Chair, I do have what I read out there. I will read it out. I am going to run the Member's time probably, so he is going to have to get back on the list. I will read this out.

Mr. Chair, I would like to take a moment to discuss part 5 of the Mineral Resource Act, which refers to the new requirement for benefit agreements in the proposed legislation. We have heard from Indigenous governments and organizations that codify the territory's longstanding commitment to bringing benefits to Indigenous peoples in part 5 is of great importance to them.

Companies here have done a good job working with Indigenous communities to realize these kind of benefits in recent decades, leading across the country, in fact. We want to set that for the baseline for the future.

The Department of Industry, Tourism and Investment has been clear that Bill 34 is the enabling act. While the process and procedures for regulation development will be set by the 19th Legislative Assembly, we are committed to moving forward in the spirit of partnership with Indigenous governments, industry, and other stakeholders as we develop regulations, should this bill pass.

The department has been clear that the Mineral Resource Act will not come into force until appropriate regulations have been developed and a level of comfort has been achieved with stakeholders prior to the implementation of the act. We will get it right.

We recognize a need for balance and also a need to attract and maintain investment in the mineral sector. Nevertheless and considering the feedback received, I believe there is value in clarifying the department's intentions around part 5 as outlined in the proposed bill.

I would like to walk you through some of them now and set the record straight.

Mr. Chair, I would like to first address the perception that this provision will deter investment. When we speak with major investors, we hear a growing trend towards socially conscious investing. Increasingly, whether projects have buy in from and to provide benefits to Indigenous peoples and their governments is a major consideration, we believe enshrining this requirement can enhance investment by preparing the Northwest Territories to lead in the sustainable investment movement.

Second, I wish to address the concern that legislating benefit agreements could deter small-scale mining operations at the grass-roots level from investing in the territory. The act outlines a benefit agreement requirement would only be triggered for those projects that meet a prescribed threshold. The intent is that only significant, major mining projects would meet this threshold. The exact ways to be determined will be defined in regulations.

Third, such major mining projects will be required to enter into agreements with Indigenous governments, organizations that the Minister considers appropriate for the specific project. The Minister will provide the proponent a list of these Indigenous governments and organizations. This means that, if the Minister identifies two Indigenous governments which should benefit from a project, a major mining proponent will be required to conclude an agreement with each of them. Whether there is a priority among various Indigenous governments and organizations in the distribution of benefits is a matter to be determined in negotiations between Indigenous governments and the organizations and the proponent because priority concerns the substance or contents of the benefit agreement is not a matter in which the GNWT would be involved.

Fourth, the requirement for a benefit agreement also does not mean the parties need two agreements. Duplication is not the intent here. An existing impact agreement, benefit agreement, participation agreement, or any other agreement whereby benefits are provided to Indigenous government and its members would suffice. It is intended that the regulations will only require a proponent to show that an agreement has been concluded which provides fair and proportional benefits in the context of the project.

Fifth, with regard to timing, the intent is for the requirement to be flexible to all major mining proponents to enter into these agreements at any time, as long as it is prior to commencing production from a mine or the operation phase of a mine. The benefit agreement requirement is not intended to affect or to be connected to the external regulatory process for a mining project, such as those that run through the territory's regional land and water boards.

Sixth, we have also heard concerns about perceived risk and uncertainty relating to the requirement for major mining proponents to negotiate satisfactory benefit agreements before entering into production and the impacts this might have on potential investors. Bill 34 has built in three components that will address such risks. The first component could be used where neither the proponent nor the Indigenous government or organization wish to enter into a benefit agreement for a proposed project. In this case, the two parties may approach the Minister and request that the requirement be waived. This can be done as long as both parties are in agreement.

The second component is the creation of a dispute resolution mechanism. If a proponent and an Indigenous government or organization does not wish to waive the requirement for a benefit agreement and have done everything in their power to negotiate an agreement, they may request that this dispute resolution body resolve the issue. The dispute resolution body here negotiates related issues and not benefit agreement implementation disputes. Parties can enforce implementation through contract law. The regulations will ensure that the dispute resolution is only used if negotiations break down significantly.

The third component is ministerial waiver power. This power is not expected to be exercised often, only in exceptional circumstances. The vast majority of issues will fall under the dispute resolution body's jurisdiction. Cabinet must also support any proposed waiver.

Mr. Chair, in closing, the department has heard the concerns about the need for the clarity around part 5 and a recognition of these concerns, and I am prepared to bring forward two motions during Committee of the Whole review of Bill 34 that will amend this part. I believe that these will add greater clarity around the requirement of benefit agreements, and I hope this will provide some confidence to Members about the department's intention. Once again, I look forward to continuing to work with our partners and Indigenous governments, industry, other stakeholders to provide further details around this section and others in the bill during regulation development, and, as we develop our execution plan with milestones and timelines, we will work closely with our key stakeholders while leaving room for our future government to define and implement a consistent process moving forward.

The Chair

The Chair R.J. Simpson

Thank you, and I will just once again remind all Members of the rule against anticipation. Do not speak to motions that are yet to be moved, as they are to be spoken to once they are moved. Next, we have Mr. Nakimayak.

Herbert Nakimayak

Herbert Nakimayak Nunakput

Thank you, Mr. Chair. I will not comment too much. The Minister had spoken a lot about section 5. You know, coming from an Indigenous government and having our land claim signed, I definitely have been around the activities from the beginning and closing of exploration. I am a firm believer that we must attract investment in our territory and in fact attract it safely and responsibly, and I believe that this act will do that. I will not have much to add. A bunch of my colleagues have mentioned a lot about it, so I will not reiterate. However, I would like to ensure that my concerns are definitely around benefit agreements with Indigenous governments, impact benefit agreements, as well as investor confidence, as well as partnerships.

Mr. Chair, as we move forward, the government must ensure that industry and Indigenous governments actually work together on some of the regulations on some of these so that we can actually work out some of the kinks that will likely occur moving forward. Nothing ever comes out perfectly. It will never please everybody. This is the government's bill, and the government own, but we must ensure that this looks at industry and Indigenous governments, and safe mining is what it comes down to, Mr. Chair, so let's get drilling. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Further general comments. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. I was in the process of trying to get some clarification about why there is no definition of "prospecting" in the bill. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Ms. Faryna.

Faryna

Thank you, Mr. Chair. So, at this time, because we do not govern land use authorizations and activities and because there is a process in terms of reasonable prosecutions, we do not believe that at this time we need to define "prospecting" as there is an industry understanding of what that means. I think across Canada and across the globe, you can see that there is an industry understanding of what that means. Should there be a need in the future to define "prospecting," we do have the enabling authorities to do that. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. There may be an industry understanding of what "prospecting" is, but it's not outlined in the bill. It requires a licence. You have to get a prospecting licence to do prospecting, but I cannot get a clear answer as to what it really means and what work. I understand, if somebody stakes a claim, only they can do prospecting on the claim, but what if you have a prospecting licence? What can you do off of a mineral claim? Can someone tell me that? Thanks, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Ms. Faryna.

Faryna

Thank you, Mr. Chair. With a prospector's licence, you can do activities that are below threshold, and those thresholds are set out in the Mackenzie Valley Resource Management Act and the regulations. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Mr. O'Reilly.

Kevin O'Reilly

Kevin O'Reilly Frame Lake

Thanks, Mr. Chair. Yes, this is just going in circles, so I think I will stop it there. It's not clear to the public, it's not clear to me, what prospecting necessarily is as authorized under this act. Somebody has to get a licence to do it. It's not clear what it is, where it can be done, whether you have to have a mineral claim to do it or not. I think this is part of the problem here. Thanks, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. Seeing nothing further, does committee agree we move to the clause-by-clause consideration?

Some Hon. Members

Agreed.

The Chair

The Chair R.J. Simpson

Thank you, committee. There are 116 clauses in the bill. As I accept there may be a number of amendments that Members wish to move, I am going to take each clause one by one. Committee, we will consider the bill number and title after consideration of each clause. I will begin calling out the clauses one by one. If committee agrees or disagrees with the clause, please respond accordingly. Each Member may get my attention if they wish to speak to any particular clause. The first clause is found on page 10. To clause 1, does committee agree? Minister Abernethy.

Glen Abernethy

Glen Abernethy Great Slave

Thank you, Mr. Chair. I have a number of motions to make on behalf of the Minister responsible. Shall I proceed with Motion 1? Thank you, Mr. Chair.

Glen Abernethy

Glen Abernethy Great Slave

I move that clause 1 of Bill 34 be amended by deleting the definition "settlement lands," and adding the following definition in alphabetical order:

"Settlement area" means:

(a) the area within the Northwest Territories as described in appendix A to the Gwich'in Comprehensive Land Claim Agreement entered into between Her Majesty the Queen in right of Canada and the Gwich'in, as represented by the Gwich'in Tribal Council, on April 22, 1992, as amended;

(b) the area within the Northwest Territories shown in annex A and described in annex A(1) of the Inuvialuit Final Agreement entered into between the Inuvialuit and the Inuvialuit Settlement Region and the Government of Canada on June 5, 1984, as amended;

(c) the area within the Northwest Territories as described in appendix A to the Sahtu, Dene, and Metis Comprehensive Claim Agreement entered into between Her Majesty the Queen in right of Canada and the Dene of Colville Lake, Deline, Fort Good Hope, and Fort Norman and the Metis of Fort Good Hope, Fort Norman, and Norman Wells, as represented by the Sahtu Tribal Council, on September 6, 1993, as amended;

(d) the area within the Northwest Territories described in parts 1 and 2 of the appendix of chapter 1 of the Land Claims and Self-government Agreement among the Tlicho and the Government of the Northwest Territories and the Government of Canada signed on August 25, 2003, as amended; and

(e) other areas prescribed as settlement areas for the purposes of this act.

Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you, Minister. There is a motion on the floor. The motion is in order. To the motion. Minister Abernethy.

Glen Abernethy

Glen Abernethy Great Slave

Thank you, Mr. Chair. The intent of this motion is to change clause 1 of Bill 34 so that the definition of "settlement lands" to "settlement areas," which is intended to clarify that the term captures all areas covered in land claim agreements in the Northwest Territories. Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you. To the motion. Mr. Thompson.

Shane Thompson

Shane Thompson Nahendeh

Thank you. I just need clarification. I understand that there is nothing in the Dehcho, Akaitcho, and Acho Dene process. I understand that it is under (e), other areas prescribed as settlement areas for the purpose of this act. When they finalize this process, where are they going to be? Are they going to be in the act, or are they going to be in regulations? Thank you, Mr. Chair.

The Chair

The Chair R.J. Simpson

Thank you, Mr. Thompson. As this is a motion, there is no question and answer period. To the motion.