Thank you, committee. There are 80 clauses, the first of which can be found on page 6. I will group the clauses as I call them out. Please respond accordingly. We will consider the bill number and title after consideration of the clauses. Beginning on page 6, clauses 1 through 7. Mr. O'Reilly.
Thanks, Mr. Chair. I would like to turn to clause 2.1, if I may, which is the purpose section. I would like an explanation from the department as to why the department's Land Use and Sustainability Framework and even its own Lands Establishment Policy, which is a policy that was signed off by the Premier, Cabinet-level approval, why it appears that some of those principles were not incorporated into the original bill, which did not even have a purpose statement? Thanks, Mr. Chair.
Thank you. Ms. Bard.
Yes, the department initially considered a purpose clause, but did not spend a lot of time on it. There are not any purpose clauses in equivalent legislation across the country, primarily because land administration legislation conveys legal interest in land, and purpose clauses that are very aspirational and broad in their nature can impact the interpretation of the legislation and can bring an ambiguity to the legal rights and interests that are being established under the act. Further to that, the Land Use and Sustainability Framework that was referred to is a GNWT-wide policy that was established, actually, pre-devolution.
The Department of Lands along with the GNWT departments have responsibilities to implement the Land Use and Sustainability Framework in all of its pieces of legislation and all of its programs and all of its functions. This bill is only one piece of that puzzle. I can say for the Department of Lands we have multiple pieces of legislation that we use to carry out our responsibilities. The Area Development Act is an example. We have delegated responsibilities under the MVRMA. This is just one piece of the much broader functions where we implement the Land Use and Sustainability Framework into our jobs. Thank you, Mr. Chair.
Thank you. Mr. O'Reilly.
Thanks, Mr. Chair. Yes, I also referenced the Cabinet-approved Department of Lands Establishment Policy that references some of the same sorts of things that you see in the purpose section, so these are the reasons why the Department of Lands was set up, the principle that should guide how they operate. I am just going to read some of these: land management decision making should recognize and respect Aboriginal treaty rights; decisions about public lands should take into consideration ecological, social, cultural, recreational, and economic values; decisions about land and resources should be made in an effective and accountable manner; traditional and scientific knowledge should be brought to bear; land use planning should be a shared responsibility; land management decision making process should be clear, transparent, consistent, and communicated; natural resources should be managed and developed in a manner that meets the needs of the present without compromising the ability of future generations to meet their needs.
So I think we have captured some of those things in the items in the purpose, but can someone explain to me why initially the bill that we got did not really have any of these items as sort of guiding principles for how land administration and land management would be carried out under this bill? Thanks, Mr. Chair.
Thank you. Minister.
Yes. I thank the Member for the question. The principles by which we administer a resource may evolve over time, and, in our view, it's best to clarify to the public in policies and other tools. Thank you.
Thank you. Mr. O'Reilly.
Thanks, Mr. Chair. So, if I was to rewrite this, this is the one place where "polluter pays" should actually be found, and there is no reference to "polluter pays" in the purpose section. Can someone from the department explain to my why that is the case?
Thank you. Ms. Bard.
In the amended bill, the purpose clause includes a statement that administration of public lands should encourage responsible stewardship of public land, and I would consider that that should include the "polluter pays" principle. Thank you.
Thank you. Mr. O'Reilly.
Thanks, Mr. Chair. I appreciate the comments from the witness. If that is what the intention is, we should have included it in the bill itself. I would urge whoever takes up the torch after us to give this bill a very thorough going through to make sure that it does incorporate principles around polluter pays because I do not think it does, and we are going to get to some other matters in the bill itself where I think we have opportunities to address that. Those are all the comments I have for now on the purpose section. Thanks, Mr. Chair.
Thank you. Clauses 1 through 7. Does committee agree?
---Clauses 1 through 7 inclusive approved
Agreed. Thank you, committee. Clause 8? Mr. O'Reilly.
Thanks, Mr. Chair. I do have some questions for the Minister before we get into other matters. Can someone explain to me why this clause would appear to make financial security completely at the discretion of the Minister? Thank you, Mr. Chair.
Thank you. Minister.
Thank you, Mr. Chair. Bill 46 contains provisions that broaden the existing securities authority in the Commissioner's Land Act. This means that securities may be required where risks are identified rather than limiting it to leases or specific categories, like commercial or industrial. Understand that no other jurisdiction in Canada has a mandatory securities requirement in equivalent legislation. Now, Bill 46 uses a "may" instead of "shall" to give the Minister the ability to require securities for the types of dispositions that have risk. A mandatory securities requirement for all commercial and industrial dispositions of public lands would include any type of business, such as smaller businesses, small-scale businesses, and so on. So those are the reasons why we went with the legislation that we did, and, again, it gives us the "may" rather than "shall," gives the Minister the ability to require securities for the type of dispositions that have risk. We recognize that some do have risk. Thank you.
Thank you. Mr. O'Reilly.
Thanks, Mr. Chair, and I want to thank the Minister for raising the financial security provisions in the Commissioner's Land Act which have been in place. They were actually brought into place on February 14, 2011, and those do require that financial security for industrial and commercial purposes would be mandatory so that this has now been in place for seven or eight years, over eight years. That was largely based on the experience from what happened with Giant Mine, where our government assumed a liability of $23 million because the surface lease that we had, GNWT had for the property, there was no financial security that was requested, zero, and, in order to move forward with the remediation of the site, our government signed in 2005 a cooperation agreement with the federal government where we agreed to provide $23 million towards remediation costs because our government did not ask for financial security for a surface lease for the mining operation.
Our government has also assumed financial liability of we do not know exactly what that is at this point, for another abandoned mine down the Ingraham Trail, at the Ptarmigan Mine site. Our government did not fix up the financial security around Cantung. Our government has not fixed up financial security in relation to the Prairie Creek mine site. I think, largely, this stems from the fact that Ministers have discretion. I would like to know from the Minister: if this provision for mandatory financial security has been in place since 2011 under the Commissioner's Lands Act, why do we need to change it now? What is the evidence of any kind of problems, complaints? Why does this need to be changed now? Thank you, Mr. Chair.
Thank you. Minister.
I will start off perhaps, Mr. Chair. Well, the Member is quite correct. It was under section, I think, 3.1 of the Commissioner's Land Act, but that dealt with conditions of leases of land for commercial and industrial use. To some degree, of course, we have broadened the geographic ambit of it. Again, we do realize that there have been problems in the past. We would be foolish to say there have haven't been. It is just not mines that this would cover. We tend to think of them because those are the most spectacular and difficult examples in the past. Mines are often used to justify matters of security and quite correctly. We get that.
Mines are in some ways designed and permitted from the outset to close. We didn't want anything to be overly restrictive on smaller operations. It is not mandatory. It is a "may" rather than "shall" clause, but it is hard to imagine that a major project would slip through the lines and not be covered. Again, we wanted to have the flexibility. Obviously, in the modern world, there is a recognition that certain projects are more dangerous. Surely, the Minister involved would be able to recognize that. Thank you.
Thank you. Mr. O'Reilly.
Thank you, Mr. Chair. When decisions around financial security have flexibility, that is when problems start. I would like to ask the law clerk, if I may: the way that section 8(1) is written, it says, "The Minister may, in accordance with regulations, require that an applicant for disposition," blah, blah, blah, blah, blah, "post financial security," essentially. Does this give the Minister the scope to set financial security requirements in regulation where there could be thresholds of activity that would require financial security? Thank you, Mr. Chair.
Thank you. Madam Law Clerk.
Mr. Chairman, thank you. The regulation-making provision is worded quite broadly. If that was the direction that the Minister wished to go in, I think that the existing framework for setting regulations would allow that to occur, Mr. Chairman.
Thank you. Mr. O'Reilly.
I appreciate the advice from the law clerk. My interpretation of that is that the Minister already has the authority to set thresholds to deal with some of the issues that he has raised about different size of commercial operations and so on, some of which may not require financial security in his or her view in the future. I don't accept the reasoning that the Minister has provided that he or she in the future requires total discretion to determine financial security and that it not be mandatory in some way. I would like to move a motion if I may, Mr. Chair on this clause.
Thank you, Mr. O'Reilly. There is a motion on the floor. The motion is in order. I believe it has been distributed. It has been distributed. To the motion. Mr. O'Reilly.
Thanks, Mr. Chair. This was a motion that was introduced at the committee clause-by-clause review of the bill. It was supported by committee, but the Minister did not concur for the reasons that he just provided, the need for flexibility and so on to allow for some commercial operations not to have security required of them. The wording of this would make it mandatory to some degree that for dispositions for commercial or industrial use, that financial security would be required subject to whatever the Minister sets out in regulations. There, again, is an opportunity for the Minister to set appropriate thresholds for when financial security would be required, even for commercial or industrial uses. At least, that is what I take away from what our clerk had indicated earlier on the original wording.
The Minister still would have authority here to set the thresholds, but there would be a requirement, whether it is commercial or industrial, to have in place what those thresholds would be. In the interest of transparency, openness, that would be a good thing to have those, as well.
All of this comes back to the experience from about five kilometres down the road where our government assumed $23 million of financial liability because earlier Ministers had discretion over whether financial security should be required. I think we will continue to see that practice unless we plug this gap. This is what this really does.
There are a lot of words in here to basically bring us back to the provisions that are already in place in the Commissioner's Land Act, have been there for seven years. The Minister has not provided any evidence that there is a problem with the way that those provisions have been operating for seven years. Why change it now and put taxpayers and the environment at risk? This is about bringing back a plan and stopping the rollback the Cabinet wants to do on mandatory financial security.
I look forward to my colleagues on this side of the House debating and discussing it. I will request their vote. When we are closed, I would request a recorded vote. Thanks, Mr. Chair.
Thank you, Mr. O'Reilly. To the motion. Minister Sebert.
Thank you, Mr. Chair. We have already set out some of the reasons and our concerns about the "shall" rather than "may." I won't go into them in great depth. Again, no other jurisdiction in Canada has a mandatory securities requirement in equivalent legislation. I don't think we want to send the wrong message.
The bill we propose has a "may" rather than a "shall" to give the Minister the ability to require securities for the types of dispositions that have risk. Again, a mandatory securities requirement for all commercial and industrial dispositions would include any type of business, such as greenhouses, agriculture, tourism, small-scale businesses. Again, we do not want to send the wrong message here. For that reason, Cabinet will be voting against this motion. Thank you.
Thank you. To the motion. First, Mr. Testart.
Thank you, Mr. Chair. I am sympathetic to my colleague bringing this forward. I serve on the committee where this was first discussed. Again, I won't reflect on the disposition of that outcome. My concern around this is the impact it might have on those small-scale businesses. We talk a lot about wanting certainty in statute when reviewing legislation.
Again, I am sympathetic to the idea of a large chemical plant requiring a posted security. A mandatory security on a retail outlet or something along those lines that has less impact on the land that it occupies, I think, might be a bit of an overreach. I don't have the comfort of huge certainty to that point. I think the Minister has raised that, as well.
The one thing I will say in response to the Minister saying we are not the first jurisdiction to do something: that is never a good reason to not do something. I think we should be carefully considering the merits of why we are proposing things in legislation and not just, "Well, no one else has done it, so we can't."
Although I don't buy that argument, I certainly have concerns around this motion, so I will not be supporting it at this time. Thank you.
To the motion. Mr. Vanthuyne.
Thank you, Mr. Chairman. I am actually going to be in support. I have been seeing both sides of how some of these land uses have taken part in the past. I don't think that the mover of this motion has any intention to limit anyone's ability in terms of, let's say for example, leaseholders who are going to have recreational properties or cabins or the like; that's not the intention of the mover to want to put any kind of mandatory security on those types of leaseholds.
While the Member has mentioned the Giant Mine project and the now remediation that we have to deal with, and the lack of security there, and what it has incurred our government now to have to cover the bases, it is only one example of many throughout this territory that show that we have in the past, by not having some forms of security allowed for various forms of uses to take place that maybe would have otherwise been swayed or dissuaded, had there been appropriate mandatory securities in place. We have at last count, I think, somewhere over 400 various contaminated sites throughout the Northwest Territories, from as large as Giant Mine to as small as some call it barrels of diesel or what have you that have been left at an old site.
I think, when people or land users of various kinds are going to engage in commercial or industrial uses, that it isn't unbecoming of a government to expect that they put some degree of security in place. Remember that it is a security and, if you do what you are expected to do in this territory, then it's a good chance you're getting your security back.
I appreciate that, in other various forms, we've tried to make security a thing within our pieces of legislation, and I am supportive of the Member's motion. I look forward to passing this. Thank you.
Thank you. Mr. Beaulieu.
Thank you, Mr. Chair. I think that the size of the project or the size of the development will determine the size of the security. Security can come in various forms. It doesn't have to be cash up front. It doesn't have to be cash put in the bank. It can be a letter from the bank, and it can be a letter that the bank writes to say that the credit is available for clean-up should it be necessary. A letter of comfort bonds, whatever. My belief is that there are more than 600 contaminated sites in this area alone. Across the territory, there are probably a lot more, and we shouldn't allow that to increase. I think we should stop the contaminated sites at this point, and, if there is credit available for the companies that are going in and, of course, it depends on the size of the operation, the scale of the operation, then this is a good thing that there will be no sites left.
Of course, I represent the riding of Tu Nedhe-Wiilideh, and the majority of mining explorations and so on have been in that riding. Also, I am aware of some contaminated sites right close to the community of Lutselk'e where the community has a lake there that have an abundance of trout. They won't fish that lake because of the contaminants that were left behind by an exploration camp.
If we could do something in advance, we are not asking companies that are just trying to start out to spit out a bunch of cash and put a bunch of cash in the bank. It could come in various forms, all kinds of forms, in fact, as long as it's security backed up by the bank, is one example. I think it's a good thing. I think it will prevent us from having 900 contaminated sites in this region a few years down the road, so I would support this motion. Thank you, Mr. Chair.
Thank you. Mr. McNeely, to the motion?
Thank you, Mr. Chair. Adding my comments here to the motion, I can't see myself supporting this motion on the basis of we shouldn't be using previous experiences, considering the fact that rights issuance were issued on a lot of these sites as identified in schedule 7, which we seem to be reflecting on this department for the downfalls of somebody else's mistakes. This is a new department, and given the fact that it just got incorporated here with devolution taking effect in 2014 of April 1st, I think we should straighten out our management systems, give some ministerial discretion, and learn from the past so that it's not repeated. We're inheriting these sites which we are looking at to remediate or reclaim and learn from that and move on; and in the process of what we can reclaim or what we can remediate, let's see if we can create some economic development in the process of cleaning up somebody else's mistakes. Thank you, Mr. Chair.
Thank you. To the motion. I will allow the mover of the motion to close debate. Final word, Mr. O'Reilly, to the motion.
Thanks, Mr. Chair. I just would like to, well, first off, seek the advice of the law clerk first. The way the amendment reads that says that the Minister shall in accordance with the regulations require an applicant, blah, blah, blah, for a commercial or industrial use. As I understand this, the Minister could set thresholds in regulations, even for commercial or industrial uses, such that some would require financial security or certain types of thresholds. Is that a correct interpretation of this, or is that the kind of authority that the Minister has with this clause? Thank you, Mr. Chair.
Thank you. Madam Law Clerk.
Thank you, Mr. Chairman. Similar to the initial clause 8, the regulations are worded very broadly to allow for thresholds. Having said that, if the clause itself is mandatory for the provision of security, the issue is raised as to whether the provision of no security below a certain threshold defeats the intention of the clause, and I'm simply not sure how that issue would be resolved were somebody to challenge the Minister not requiring at least a nominal amount of security.
Thank you. Mr. O'Reilly.
Thanks, Mr. Chair. Yes, I would thank the law clerk for that clarification. I just would like to address some of the arguments that I heard from the Minister. He said that a few other jurisdictions, or no other jurisdictions, at least perhaps in Canada, required financial security become mandatory. I don't think many other places in Canada have a Giant Mine in their backyard that is going to cost taxpayers well over a billion dollars.
This provision that's in the Commissioner's Land Act right now was carefully considered by a previous standing committee, and actually agreed to by a previous Minister based on the result of the experience from Giant Mine. Committee, previous standing committee, and a Minister actually agreed. It came to the floor of the House. It was voted on and approved. Now, this Cabinet wants to roll that back without any evidence that the current provision causes any problems. The current mandatory financial security has been in place for seven years. The Minister and his department could not provide any evidence that this is a problem. No evidence. The Minister says we don't want to send out the wrong message.
I think we want to send out a clear message. If you're going to come here and do things, you have to be able to pick up if you make a mess. That is the kind of message that I think we need to tell people. This is not about stopping business. This is about implementing the "polluter pays" principle. The best way to prevent public liabilities is to put in place mandatory financial security. That is what this is attempting to do. I would like to think that we have actually learned from the past and want to maintain the system that we have in place, based on the past experience from Giant Mine and other contaminated sites that have created public liabilities, and keep that system in place. I don't think that it is appropriate to roll back that protection for taxpayers or the environment, but that is what this Minister would like to do.
I encourage my colleagues to support this, and Mr. Chair, once again, I would ask for a recorded vote. Thank you.
The Member for Frame Lake, the Member Yellowknife Centre, the Member for Deh Cho, the Member for Yellowknife North, the Member for Tu Nedhe-Wiilideh, the Member for Nahendeh.
All those opposed, please rise.
