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.
Thank you. And there's been comments about protecting, you know, other protecting governments. The legislation's not about protecting governments, it's about ensuring that workers get paid. And the GNWT is not an entity that we're worried about being insolvent. There's not a concern that the GNWT won't pay their bills. There's you know, we hear concerns from the Members about when the bills get paid, but the issue isn't that they won't get paid. Thank you.
Thank you. Member for Frame Lake.
Thanks, Madam Chair. So okay, I got an explanation as to why the Minister and Cabinet believe that this shouldn't apply to GNWT. Why does it apply, then, to municipal governments? Thank you.
Thank you. Minister.
Thank you. Municipal governments don't have the same powers of taxation. They don't have the same revenue as the GNWT. And there's chances that they could be in a situation where they can't pay workers. And we also have to look at the bill as a whole and what is the point of the bill if, you know, we add more and more and more exclusions, then are we really fulfilling the spirit of this legislation. Thank you.
Thank you. Member for Frame Lake.
Thanks, Madam Chair. Yeah, that's kind of my thoughts exactly. If this doesn't apply to GNWT, why are we doing it? Will this bill apply to Indigenous governments and will it allow seizure and sale of Indigenous owned lands? Thank you, Madam Chair.
Thank you. Minister.
Thank you. Indigenous governments are bound would be bound by this act as well. And I will say that if municipalities and Indigenous governments were in the same position as the GNWT, they would then have to comply with other they'd have to abide by the surety bond section of the act, which would mean that they would have to have contracts that are bondable, which would have an impact on could have an impact on their ability to get people to do work in certain regions of the territory as well. Thank you.
Thank you. Member for Frame Lake.
Okay, thanks, Madam Chair. I'll try the second part of my question again. Will this bill enable the seizure and sale of Indigenous owned lands? Thank you, Madam Chair.
Thank you. Minister.
Private lands can be seized and sold. Thank you.
Thank you. Member for Frame Lake.
Thanks, Madam Chair. So will that include settlement lands; you know, the Inuvialuit Regional Corporation, some of the Sahtu entities, the Gwich'in Tribal Council actually own some lands surface, subsurface, sometimes both for the same parcel. This bill would enable seizure and sale of those settlement lands? I just want to confirm how GNWT's going to interpret this bill. Thank you, Madam Chair.
Thank you. Minister.
Thank you. So I will hand it to Mr. Yap for a more detailed explanation. Thank you.
Mr. Yap.
Thank you, Madam Chair. To answer the Member's question, it really depends on the nature of the land in question and the terms of that land in the land claim or selfgovernment agreement. So depending on how that land is structured or the type of ownership, it may or may not be. Thank you, Madam Chair.
Thank you. Member for Frame Lake.
Yeah, okay, if I wasn't concerned before, now I really am. If GNWT's going to interpret this bill in a manner that may allow for seizure and sale of Indigenous settlement lands, I'm voting against it right now. This is just not right. And the department doesn't seem to have done the work to discuss this with Indigenous governments. This is not a good place to be. So I guess I let's start with what engagement was done with Indigenous governments on this bill? Thank you.
Thank you. Minister.
Thank you. And further to Mr. Yap's comments, this would not apply to settlement lands.
Engagement that was done with Indigenous governments occurred during the committee process actually. The chair referenced this. We reached out to a number of the Indigenous governments and organizations in the territory explaining the situation and requested feedback on potential inclusion of Indigenous governments or exclusion from the act. Thank you.
Thank you. Member for Frame Lake.
Okay, thanks. I don't know how do I get at this. The first answer I got was yes, it does apply or may and then it may apply in certain circumstances. And now it's not going to apply to settlement lands. So I kind of think I heard three different answers. And I'm not a lawyer, but I want to know how the government, GNWT's, going to interpret this, because I don't want this stuff to end up in the courts. I don't want workers to go unpaid because people there's some uncertainty as to the application of this bill. I don't want Indigenous governments to have to go to court to sort this stuff out. So I guess I just want a little more detail here and explanation as to why I got three different answers. Thanks, Madam Chair.
Thank you. Minister.
Thank you, Madam Chair. So there's settlement lands. There's other types of lands that might be owned by an Indigenous government. And the Member's probably I know the Member's more of an expert on land than I am. I know that's his background. He came here in 1985 to work on those types of issues, so. And I can perhaps hand it to Mr. Yap for some further explanation of how the land if the Member would like. I know we're on his clock here. So, yes, I see him shrugging. So to Mr. Yap. Thank you.
Mr. Yap.
In terms of how the GNWT would interpret it, it's not really a question for the GNWT to determine what land is sold or seized. That would be a question for the courts to determine. But I can say that settlement land would not be subject to seizure or sale because of the hierarchy of the laws and because it's done through a treaty process. There are different types of Indigenous governments and different terms of different land claim agreements. Some of them hold municipal lands. Some of them hold fee simple lands. Some of them hold lands that are owned by that may or may not be the holders of a current land claim agreement right now. So it really depends on what type of land. Thank you, Madam Chair.
Thank you. Are there any further general comments? Member for Yellowknife North.
Yeah, thank you, Madam Chair. I appreciate the Member finally getting there. Yeah, I just you I think if you applied to sell, you know, the Tlicho, Gwich'in, or Inuvialuit, or Sahtu settlement lands under a constitutionallyprotected agreement, you just can't. That's pretty clear to me. But it's less clear to me whether how, you know that's kind of just a backstop saying you can't sell them. How is the government interpreting this applying to them? So this is passed. Someone doesn't get paid on a Tlicho project on their lands and goes to file a lien, is land titles going to accept a lien on those lands? Thank you.
Thank you. Mr. Yap.
Thank you, Madam Chair. Yes, the land titles office would accept the submission of a claim of a lien because it's just a claim except in the situation where it is a stricter title that's already been issued where it clearly states one of the basis for the title that it is settlement lands. Thank you, Madam Chair.
Thank you. Member for Yellowknife North.
Thank you. And just so I'm also abundantly clear about the binding the government part, I understand we're not selling public land or government land but if someone builds a health centre and doesn't get paid and it's on public land, assuming the Public Land Act has been implemented, and they go to file a lien, would they accept the claim of lien or would that be a no? Thank you.
