Thank you, Madam Premier. Member for Frame Lake.
Yeah, thanks, Madam Chair. Look, I've already said that I agree in principle with this, and I will take issue with the Premier's comments. This is not about me trying to exclude Indigenous governments from getting to shared decisionmaking agreements. This is about trying to find out how Regular MLAs can have a say in agreements before they're finalized. And it's about MLAs doing their job. I'm just not prepared to give Cabinet a bank cheque, I guess. So that's what I think this is about. But in any event, Madam Chair, I do want to move to a motion if I could.
Go ahead. Member for Frame Lake.
Thank you, Madam Chair. I move that Bill 85 be amended by adding the following after subclause 12(2):
(2.1) Before entering into an agreement under this section, a Minister authorized under subsection (1) shall provide notice to and seek comments from the Standing Committee on Accountability and Oversight, or any successor committee that may be established by the Legislative Assembly. Thanks, Madam Chair.
Thank you, Member. The motion is in order. To the motion. Member for Frame Lake.
Yeah, thanks, Madam Chair. I just find it a little bit ironic that standing committee will get notice now of an agreement being negotiated and then there doesn't seem to be any mechanism or way to have any input into that or oversight, dare I say, or ability to comment, ability to work together, other than at the whim of a Minister. And because I don't I'm not sure where we're going with all this stuff. I'm not afraid of it. I agree with it. I support it.
But I think if we're going to do constitutional development, you should come at it with that perspective and that kind of mindset. And in any event, this motion is really about trying to find a way for the Regular MLAs to have some better knowledge, understanding, of what is going to be negotiated and an opportunity to comment on it. It's not about interfering with it. It's not about trying to change it. It's about trying to understand what's happening. Otherwise, there's no other way to hold Cabinet to account until after the agreement's done. And I don't think that's a good place to be. That's all I can say. Thanks, Madam Chair.
Thank you. To the motion. Member for Yellowknife North.
Yeah, thank you, Madam Chair. This motion just says that before we enter into one of these agreements, they're going to come to AOC and say, you got any thoughts. I found it odd the Premier said that, you know, we enter into agreements all the time without talking to Regular Members because it's actually been exact opposite in my experience. I think I got two briefings on the offshore accord negotiations before we actually signed them. I think we I got a briefing on almost every single land claim and what was going on through the special committee on reconciliation in Indigenous affairs. I mean, maybe officials weren't as forthcoming as I would have liked at times but there certainly was no sense that they were going not tell us anything before they signed an agreement. We actually got to see some of the correspondence on the carbon tax negotiations that was actually sent to the Ministers.
Similar when we were the feds were in negotiation for child care and the health care deal. So, you know, I felt whenever we've asked for a briefing on hey, where are you at with this, Ministers are more than willing to come and tell us what they're doing with the feds. And they do it incamera. And I just expect if, you know, a Minister's going to enter into a shared decisionmaking on education or something, they would go to the applicable standing committee and say I'm about to sign this, this is what's happening, you got any thoughts? And, you know, sometimes they take the thoughts and sometimes they ignore them. But, you know, I'm kind of given the heads up and listening. It seems to already occur. I don't see any issue with this motion of kind of formalizing what we already do. Thank you.
Thank you, Member. To the motion. Madam Premier.
Thank you, Madam Chair. And I'll start by saying I'm really glad that Ministers, including myself, are working with standing committee. That's what the goal is.
But I agree with the Member that the Government of the Northwest Territories is the public government and must remain accountable to the public. I commend the Member's commitment to accountability. That is why in our consensus government system, MLAs have significant authority when it comes to ministerial accountability. This will not change as a result of the United Nations Declaration of Indigenous Peoples Implementation. MLAs elect Ministers to represent all residents of the NWT. And I expect that all Ministers will work appropriately with MLAs and provide notice under our process conventions whenever required.
I also understand why notice for every shared decisionmaking negotiation is concerning to the Indigenous governments and organizations. If MLAs have concerns about the performance of a Minister, there are a number of ways these concerns can be raised, both directly with the Minister or in the Legislative Assembly. Shared decisionmaking will necessarily require a balancing of interests and is meant to help advance reconciliation. There may be authorizations that are straightforward and not at all controversial. There may also be others that Indigenous governments and organizations prefer not to be made immediately a public concern even before a Minister can give full and fair consideration to a proposal. That's why a blanket requirement to involve MLAs in each and every shared decisionmaking agreement that is proposed is not supported.
The Member is correct that there are not a lot of examples to draw experience from when it comes to shared decisionmaking. I look forward to seeing how such agreements may come forward in the context of the Northwest Territories. Perhaps with the benefit of experience, apprehension over the MLA's concern at the beginning of shared decisionmaking agreement negotiations would dissipate.
Madam Chair, Cabinet will not be supporting this motion. Thank you, Madam Chair.
Thank you. To the motion. I will go to the mover of the motion for any closing remarks. Member for Frame Lake.
Yeah, thanks, Madam Chair. I'm just not sure I have anything further to say. I'm really tired, I just yeah, I think this was a good discussion and debate. I don't expect that it's going to pass but I want to, I guess, get on the record that I think whoever's negotiating these agreements in the future and I don't think there's any reason to be afraid of them. Some people are going to say that about whatever I said but that's fine.
I guess two things: I think Ministers doing their job well in a consensus government system, they should be coming to standing committee. They shouldn't just wait for the committee to come and ask them. And they should be providing regular updates about what's how things are going, what they're doing. And I don't think it has to be for every single shared decisionmaking agreement. You know, delegating some administrative stuff, who cares. But if it's a cool subject matter like education, as my colleague from Yellowknife North said yeah, that's an important thing that might have implications for how we set up school boards and, you know, Yellowknife pays taxes, other communities don't. How's all that going to work? So for some of them, yeah, it's going to require more intensive work with standing committees. That can be done outside of the bill and probably should under the process conventions, but. So that's one point.
The second point, you know, if we really want to get at constitutional development, we should come to it with that mind. Shared decisionmaking agreements are good but what we really need to do is start to think about constitutional development and what is the government what is the Government of the Northwest Territories as a public government going to look like? So in any event, I offer that as a comment. We tried to get an Electoral Boundaries Commission to actually look at that question at one point, but we couldn't do it. But I think we do need to start to turn our mind to constitutional development in the Northwest Territories. And this bill, I think, might help facilitate that as well.
But in any event, I don't expect this is going to pass, but I do want Cabinet to take note of my comments and, whoever the next Minister is, to make sure that they come and work with Regular MLAs as these things are being negotiated. Thanks, Madam Chair.
Thank you, Member. To the motion.
Question.
Question has been called. All those in favour? All those opposed? Abstentions? The motion is defeated.
Defeated.
Agreed.
Clause 12, does committee agree?
Agreed.
Clause 13 to 15, does committee agree?
Agreed.
Schedule, does committee agree? Does committee agree on the schedule?
Agreed.
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?
Agreed.
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?
Agreed.
Thank you, Madam Premier. Thank you to the witnesses. Sergeantatarms, 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. Sergeantatarms, 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 30day 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 subconsultants 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 clausebyclause 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 incamera 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.
Yeah, thanks, Madam Chair. Well, my apologies to the Minister. My recollection was that that was said during the clausebyclause review and if my recollection is wrong, I sincerely apologize. But I guess I'd like to know, first off, just confirm with the Minister, will this bill apply to GNWT? Will it apply to Indigenous governments? Will it apply to municipal governments? What's the application of this bill. Thanks, Madam Chair.
Thank you, Member. Minister.
Thank you, Madam Chair. So this bill, the GNWT is exempt from provisions of this bill that other levels of government are not exempt from. And that's actually the current situation in the Northwest Territories right now under the current Mechanics' Lien Act. So this is a continuation of the status quo in terms of the application of the bill to governments. Thank you.
Thank you. Member for Frame Lake.
Thanks, Madam Chair. Well, I guess I'm not really in favour of continuing what is probably not a good situation. You know, GNWT is the major contracting authority here in the Northwest Territories. Why doesn't this bind the GNWT? Thank you, Madam Chair.
Thank you, Member. Minister.
