The GNWT is introducing its made-in-the-North mining legislation, enabling the territory to create and implement regulations for exploration and development post-devolution.
Avery Zingel/NNSL photo
The proposed Mineral Resources Act (MRA) creates provisions for online map staking, mandatory benefit agreements and ministerial powers to create exploration zones nominated by Indigenous governments.
“We think this legislation balances the NWT’s unique interests,” said Tom Jensen, deputy minister for the department of Industry, Tourism and Investment.
Review boards are still responsible for regulating securities for reclamation, remediation, land use and water licensing. The legislation does not replace remediation or securities.
“This is a balancing of interests. There are investors interests, prospectors, explorers, big companies, investment and of course indigenous governments and organizations,” said Jensen.
The proposed act is designed to improve transparency within the territory’s mineral resources regime, GNWT documents state.
The legislation saw hundreds of contributions and collaboration from the Intergovernmental Council and technical advisory panels. Almost all indigenous governments and organizations were part of that policy process, said officials with the department during a technical briefing Feb. 7.
Groups that are a part of the council include the Inuvialuit Regional Corporation, Gwich’in Tribal Council, Sahtu Secretariat Inc., NWT Metis Nation, Tlicho Government, Acho Dene Koe First Nation, Fort Liard Metis, Salt River, Deninu Kue and Katl’odeeche First Nations.
The GNWT has an obligation under Section 35 of the Charter to consult with Indigenous Governments and also consulted with nations that did not sign on to devolution. They were provided the full legislation before tabling Monday.
The NWT and Nunavut Chamber of Mines made a detailed submission but were not provided with a full version of the proposed legislation.
The proposed act will not address royalties, said Pamela Strand, director of mineral resources.
The royalty regime will be mirrored from federal legislation and will require a “deep dive.”
“We have the ability to conduct a review of this as needed. This will be a future project but it sets the stage for a full fiscal review.”
Mineral Resources Act to feed into proposed Protected Areas Legislation
The MRA will be one of several laws that allow for the creation of regulations for exploration and development, said Strand.
“We recognize that we need to have exploration. You need a pipeline of projects from exploration to discovery to advanced exploration,” she said.
The department developed a feature in the legislation that would allow for the creation of special zones. The tool is evolved from prospecting permits which are meant to encourage activity in remote areas.
Zones subject to ministerial orders could promote exploration in region by reducing rents, work requirements or lengthening deadlines, said Strand.
The Minister of Industry, Tourism and Investment can give a ministerial order if an Indigenous Government nominates a zone. Indigenous governments whose traditional territory or settlement are affected must be engaged.
Zones are limited by size and would be subject to their own unique regulations. An exploration zone cannot be created on lands that are subject to land use plans, land claims, interim withdrawal or protected areas that prohibit mineral interests.
“This would not give any of the proponents any relief from all the required legislative authorizations, environmental, that they would have to conduct,” said Strand.
Zones would be created for a finite period of time and agreed upon with Indigenous governments. The conditions to encourage investment would have no influence on environmental protect, remediation or securities, said Strand.
Recognizing that formal processes to create protected areas take time, the department is also suggesting a provision that would allow the minister to temporarily restrict development.
In a prescribed area, the tool will allow a one year restriction with a one-year maximum extension. The restriction would be applicable to areas of cultural, geological or ecological significance.
The GNWT’s proposed Protected Areas Legislation set to be introduced in this assembly is designed to help the territory meet its conservation network planning requirements.
The legislation will create the framework for comanagement and the establishment of protected areas, several of which are currently candidate areas.
Candidate protected areas including Dinàgà Wek'èhodì on the North Arm of Great Slave Lake, Thaidene Nëné on the East Arm of Great Slave Lake and Ts'ude niline Tu'eyeta, also known as Ramparts River and Wetlands would all be subject to the incoming Protected Areas Legislation.
The MRA meanwhile would institute a stopgap measure to protect small areas of land before they can successfully enter the protected areas process or including interim land withdrawal.
Online Map Staking
The NWT and Nunavut Chamber of Mines has advocated for online map staking and if the legislation passes with this provision intact, the tool could cut staking costs.
The NWT will assess how other jurisdictions including B.C., Saskatchewan and Ontario rolled out the tool to create a more “competitive environment,” said Strand.
Online staking allows users to track all claims and leases. It also enables landowners and Indigenous governments to be notified if someone has an application for mineral claims in lands they are subscribed to notifications for.
Historical leases will have to be digitized into the new system.
The provision is built to encourage early engagement between a claim holder and communities. The roll-out could take years because the GNWT must develop regulations first.
“We need to create a balance to avoid speculation or land grabs,” said Strand.
In Manitoba, a company can put down a deposit on an area and the deposit is refunded when they work the lease, preventing indiscriminate land staking.
“They cannot just select areas without giving consideration,” she said.
Governments can also limit the size of online staking, which excludes surface rights.
Act requires benefit agreement negotiations
The proposed MRA will require that companies negotiate benefit agreements with Indigenous governments for major mining projects, said Strand, adding that the provision was developed with ITI’s partners on the Intergovernmental Council.
If no agreement is reached, parties can go to an arms-length oversight body created by the act that will rule on decisions over mineral rights, interests and the issuance process.
Although the act creates a provision that requires benefit agreements be negotiated, a dispute resolution body would only weigh in on matters of benefits provision but would have no authority over impact mitigation or infringement upon Aboriginal or Treaty rights.
Benefit agreements provide benefits beyond impact mitigation measures, said Mike Westwick, ITI senior communications officer.
If an Indigenous government does not want a project, that would be noted and investigated through an Environmental Assessment, completed under the federal Mackenzie Valley Resource Management Act.
The Mineral Resources Act also creates incentives for early engagement with Indigenous governments through the creation of work credits. Early notice of applications for claims and planned work are intended to preempt and avoid disputes.
Benefit agreements would be negotiated only once an environmental assessment is complete, said Westwick.
If Indigenous government organizations and a proponent decide they don’t want to have a benefit agreement, parties can opt out or go to arbitration, said Senior Legislative Advisor Laura Faryna.
The department plans to put the bill through first and second reading in the February session of the legislative assembly. After 120 days of public engagement, MLAs could pass it through by the May session.