Clause 13 to 15, does committee agree?

Schedule, does committee agree? Does committee agree on the schedule?

Committee, to the bill as a whole, does committee agree that Bill 85, United Nations Declaration on the Rights of Indigenous Peoples Implementation Act, is now ready for third reading?

Thank you, committee. Does committee agree that this concludes our consideration of Bill 85, United Nations Declaration on the Rights of Indigenous Peoples Implementation Act?

Thank you, Madam Premier. Thank you to the witnesses. Sergeant-at-arms, please escort the witnesses from the Chamber. We will take a short recess.

---SHORT RECESS

I now call Committee of the Whole back to order. Committee, we've agreed to consider Bill 65, Builders' Lien Act. I will ask the Minister of Justice to introduce the bill.

Thank you, Madam Chair. I'm pleased to be here to present Bill 65, Builders' Lien Act.

The purpose of Bill 65 is to repeal the current Mechanics' Lien Act and replace it with a more modern Builders' Lien Act to address modern construction practices.

Lien legislation is in place to ensure that parties who contribute work, labour, or materials to a construction project in the NWT are paid, and to provide a remedy if they are not. Lien legislation also creates stability and predictability for owners of construction projects by setting out their obligations to other parties involved in a construction project. The new act will use plain language where possible and take into consideration evolving best practices in construction business and terminology. Some of the existing provisions will be maintained and adjusted. At the same time, substantive changes will be brought forward in 15 areas based on research conducted by the department and engagement with external stakeholders.

The new act will bring the NWT's lien legislation into the 21st century, support modern construction practices, provide more stability and predictability in the industry, and serve as a concrete example of this Legislative Assembly's support for our territory's business sector.

This concludes my opening remarks. Thank you.

Thank you, Minister. Would you like to bring witnesses into the Chamber?

Yes, I would.

Thank you. Sergeant-at-arms, please escort the witnesses into the Chamber.

Minister, would you please introduce your witnesses.

Thank you. To my right is Matthew Yap, director of legal registries with the Department of Justice. To my left, Brian Asmundson, registrar of land titles. And behind me is Mr. Ian Rennie, legislative counsel with the Department of Justice.

Thank you, and welcome. I will now turn to the chair of the Standing Committee on Social Development, the committee that reviewed the bill, for any opening comments on Bill 65. Member for Kam Lake.

Thank you very much, Madam Chair. Madam Chair, Bill 65, Builders' Lien Act, received second reading in the Legislative Assembly on November 3rd, 2022, and was referred to the Standing Committee on Social Development for review. On January 18th, 2023, the standing committee held a public hearing with the Minister of Justice.

At the public hearing, committee expressed serious concern about the lack of consultation on the bill. The Minister acknowledged this and made a commitment to conduct further engagement with the public.

Following this, committee sought an extension of the review period under Rule 8.3(2). Over the next several months, committee engaged extensively with the department to consider several potential amendments to the bill.

Bill 65, as drafted, does not bind the GNWT but it does bind municipalities. Committee does not want the GNWT to be exempt from the application of liens while other governments are subject to this clause. Committee was concerned that other levels of government in the Northwest Territories, such as municipalities and Indigenous governments, were not as protected from seizure and sale of land as the GNWT. Committee wants to see all levels of government in the Northwest Territories treated the same. Committee recognized that if the bill was amended to bind the GNWT, municipalities, and Indigenous governments to liens, but not seizure and sale, that very little infrastructure in the Northwest Territories would be left for which seizure and sale could apply. Recognizing this, committee felt that the bill as drafted, which provides exemption for seizure and sale on the basis of who owns a project, was problematic.

After a lot of consideration on this point, committee felt that exemption for seizure and sale of land should rather apply to the type of project, not the owner of the project. This would ensure that critical public infrastructure like health centres, schools, and roads are always protected. Because this is such a substantial shift in how the bill is applied, committee feels the bill needs to be redrafted.

While Bill 65 is proposed to improve assurances that parties who contribute to construction projects are paid, committee believes the bill can do more to establish prompt payment in legislation. There are also other changes committee would like to see that address procedural and technical improvements to the administration and application of the bill. The unequal application of the bill to different levels of government, whether territorial, municipal, or Indigenous governments, remain the outstanding point of contention for committee.

Madam Chair, on June 29th, 2023, committee held a clause by clause with the Minister at which time committee passed a motion to report the bill as not ready to proceed.

Madam Chair, I'd be remiss if -- I am speaking first and foremost as the chair of social development but, second, I'm also the MLA for Kam Lake and ultimately I want to state that this -- the point of this bill is that private industry be paid for the work that it does and the material they provide. As the MLA for Kam Lake, I believe that this is first and foremost what we need to keep in mind as the goal of this bill.

The existing Mechanics' Lien Act has not changed substantially over -- in over a hundred years. Since then, practices and contractual arrangements in construction and real property development have changed considerably and continue to evolve. During committee's review and public hearing on Bill 65, participation focused on applying the Builders' Lien Act to the Government of the Northwest Territories, Indigenous governments, and municipalities, including questions on how provisions related to lands owned by those entities would work.

As a result of January's extension, no substantial amendments were brought forward by the GNWT. The same core concerns, though, remain, Madam Chair. Determining which land interests held by different levels of government and Indigenous governments would be subject to sale and seizures and that committee preferred the core structure that on exemptions to seizure and sale be made on the basis of the type of infrastructure rather than ownership to strike a balance between protecting critical public infrastructure and ensuring private industry is ultimately paid.

This is how British Columbia has successfully drafted its lien legislation and during the clause by clause, the Minister agreed with committee, that this would have been the preferred way forward for lien legislation. Ultimately, it was committee's desire that all levels of government be treated the same under the act.

Committee proposed several draft motions to amend this aspect of the bill and considered many draft motions proposed by the department. As these discussions progressed, though, Members quickly realized that this topic raised bigger questions about defining an Indigenous government that could not and should not be answered within the context of this bill or in the Standing Committee on Social Development.

I maintain my concern about the GNWT not being bound by this legislation. As the primary purchaser and builder in the Northwest Territories, business needs to ensure it is also getting paid by this government. Binding the GNWT was ultimately the impasse on this bill and as such, the majority of committee members wanted to see this bill reported back to the House as not ready, which we did.

Madam Chair, I also want to say a few words about prompt payment. Bill 65 did not include a provision to introduce a prompt payment system to ensure a timeline for both issuing and paying invoices on building projects or provide a dispute resolution mechanism to resolve payment disputes. Prompt payment is crucial to lien legislation. It assures private industry that within a set timeline for contractors and subcontractors to issue invoices for their work and for owners to pay invoices for services rendered. This is crucial when you have limited timelines to both preserve and protect a lien. When liens have deadlines but payment isn't legislated, it makes it hard for people to participate in the process. Where payment used to be 30 days, these days many organizations are working towards net 30-day payments, or others don't even need the net 90 days.

I am left, as the representative of Kam Lake, the home of multitude of NWT businesses, to either support a bill that isn't what I believe to be the best possible product for its purpose or hold out for something better with no guarantee of when that might make it through the legislative agenda. Bill 65 does have marked improvements from the original Mechanics' Lien Act, but I will be trying to move motions today to amend parts of this bill to make it even just a little bit better. None of the motions today will be able to address the issue of how governments are bound or prompt payment, both of which I believe need to be addressed sooner than later, and hopefully long before 100 years if this legislation passes today.

Madam Chair, individual Members may have comments or questions at this time. Thank you.

Thank you, Member for Kam Lake. I will now open the floor to general comments on Bill 65. Member for Great Slave.

Thank you, Madam Chair. I don't reiterate everything that my colleague from Kam Lake said, and I don't think I actually could after this long day in the House and week as well so far. I did just want to say that I too am disappointed that we didn't get this bill further along and kind of did get stuck in this conversation that ultimately did not end up going anywhere. However, I shouldn't say it that way because it really did sort of bring back the importance of ensuring the entire Government of the Northwest Territories has the same approach and all of the bills and acts have the same consideration to be made for what is that entity that we sometimes so loosely call Indigenous governments, which can have many different meanings in many different rooms. So I would have liked to have seen this get done. I, as coming from a consulting background where I dealt with a lot of contractors, I know how important it is for them to have this bill and this act updated. However, I feel that it really missed the mark with the prompt payment, which literally is the number 1 issue for most businesses in the Northwest Territories, is getting paid on time, so that they're not having to float costs which then ends up, you know, costing more because they're financing their work waiting on the government and others to pay. And oftentimes, their sub-consultants don't get paid until they get paid. So as you go further down the line, it becomes longer and longer to the smaller and smaller businesses who can't really take those types of hits and don't have any cash in the bank to sort of to float their business.

And, again, I've never been a person to just do something for the sake of doing it, and when I hear that both sides recognized that this is not a good piece of legislation, it's not hitting the mark properly, for us to go forward with it, it seems kind of pointless. There are other bills where I can see why we could still pass something even though it -- we all agreed it wasn't perfect. But I don't think this is one of them. And I think rather -- it's never, in my opinion, a failure that we say we're not going to go forward with the bill because it's not like this work disappears. But the onus then is on the next government, the next committee, to ensure that the work that was done by the previous one isn't lost. And so all I can say for that is continuity is a good thing, Madam Chair. So I will leave it at that. Thank you.

Thank you, Member. Member for Frame Lake.

Merci, Madam la Presidente. I guess I have a number of questions here. The first one is I distinctly remember the Minister at the clause-by-clause hearing saying something along the lines of, you know, if I had to start over again I would have done this very differently, and I think we should just go back and -- I think it should be reported as not ready, basically so. He was encouraging committee to not proceed with the bill. So I'd like to know why we're here tonight. What happened between the Minister saying those words and why are we here? Thanks, Madam Chair.

Thank you. Minister.

Thank you. Well, during that in-camera discussion, I didn't say that this is a bad piece of legislation. I said that if I would have started -- if I could have gone back, I would have started over again in a different way because I see that the GNWT, being exempt from this bill or being -- having different provisions applied to it under this bill would not go over well with the Regular Members. And lo and behold, here we are in this situation where it was reported back as not ready.

There is -- you know, when we see that the Government of the Northwest Territories is being treated differently, that in and of itself is enough to derail a bill. And so I would have gone forward in a different direction to avoid that. What we have is not a bad bill. It's a modern piece of legislation similar to other modern pieces of legislation in Canada recently modernized. But just -- it was a political comment more than a comment on the quality of the bill. Thank you.

Thank you. Member for Frame Lake.