Notification of Mineral Claims
What is being proposed?
The proposed Mineral Resources Act would require notification to interested parties, including but not limited to Indigenous governments and organizations, at the time a Mineral Claim application is submitted.
How will this be done?
It is anticipated that this notification requirement will be sent using an online subscription system once online map staking is implemented.
The exact information included in a notification will be finalized in the regulations when they are developed.
Anyone interested in a particular area of the NWT could subscribe to the online map staking system to receive notifications whenever a claim application within that area is submitted.
The proponents applying for a Mineral Claim would receive the contact information of interested parties who were notified of their mineral claims to help facilitate early engagement between parties.
Before the online map staking system is instituted, notification will need to occur at the time of application for a claim. The notification would then be provided to the Indigenous government(s) with settlement or traditional territory within which the application lies.
Rationale
This provision is designed to make sure the mineral exploration process gets off on the right foot.
Indigenous governments want to know when people are staking claims in their traditional territory.
Environmental non-government organizations, those with cabins in the area, and members of the general public may also be interested.
Mineral explorers have an interest in these relationships starting on a positive note. Notification is one way to help achieve these goals.
Indigenous Engagement Work Credits
What is being proposed?
The Bill proposes that, for the first time, engagement with Indigenous governments and organizations throughout the exploration process would be incentivized in the way Mineral Claims are managed.
This would occur through the work requirements for Mineral Claims.
How will this be done?
As part of annual work reporting on a Mineral Claim, explorers will be able to include Indigenous engagement activities as eligible work on their Mineral Claim.
This would be received by the Mining Recorder’s Office in the ordinary course of business.
Activities which could qualify as Indigenous engagement will be set out when supporting regulations are developed. That information will be communicated to stakeholders and the public.
Rationale
This provision responds to three core principles:
- Engaging with Indigenous communities while taking part in mineral exploration is helpful for everyone.
- Engagement is an activity which costs money for explorers.
- The territorial government should recognize these costs while Mineral Claims are maintained.
Incentivizing engagement through work requirements is a way to encourage explorers to prioritize spending on these activities. This is in the best interest of all parties — Indigenous governments, communities, public government, and those looking to do business here.
Notices of Intended Work on Claims and Leases
What is being proposed?
The Bill empowers the Minister to require explorers to submit a form, likely annually, with basic information on the intended exploration work that is planned for the Mineral Claims and Mineral Leases that year.
Regulations would set out the details of this requirement and could allow the information in the notices to be circulated to those subscribed to the Online Map Staking system when it is launched.
The information would not necessarily include specific details — just a general overview of what kinds of work the company plans to do.
How will this be done?
This information would be collected by the Mining Recorder’s Office. The intent is that it would be a simple form which could be submitted online.
It would then be circulated to the relevant Indigenous governments and organizations based on the settled Land Claim area or traditional territories within which the Mineral Claim or Mineral Lease lies.
Rationale
The provision seeks to address two items:
- To provide an opportunity for the territorial government to “check-in” on exploration activities underway.
- Indigenous governments and organizations should have information about work being done in their traditional territory as part of ongoing engagement.
The intended outcome is improved relationships between all parties involved, and for the territorial government to add the value by distributing the information to the appropriate parties.
Awareness Training for Explorers
What is being proposed?
This Bill would enable the territorial government to require training for Prospectors Licence applicants in the Northwest Territories.
The intent is that the training could include things like geological information, cultural awareness, legislative awareness, historical context, and local expectations within the territory.
How will this be done?
The exact content of the training could be set out in regulations, but count on these basics:
- Any information provided to Prospectors Licence applicants would be developed or chosen with appropriate advice from relevant groups.
- The distributed information would be designed with consideration of the realities of doing business in the NWT — and in the mining and exploration industry more broadly.
Rationale
It is recognized that some explorers come to the NWT without a good handle on local history, Indigenous groups, or the basic expectations for explorers doing business here.
This provision is meant to help those who explore understand the context in which they are doing business. The intent is to help explorers be successful and reduce possible friction between explorers and residents of the NWT.
Temporarily Restricted Areas
What is being proposed?
To address lands where there is, for example, a strong cultural or ecological reason not to stake claims, the Bill enables the Minister to temporarily stop issuing new mineral interests in certain areas. Such restrictions may involve engagement by the Minister with Indigenous governments.
These size-limited areas could be withdrawn from staking consideration for a maximum of one year. There will be an option to add up-to one more year if the issue is not yet resolved.
The legislation identifies that the land must have potentially unique cultural, historical archaeological, ecological, or geological significance to be considered and that it may only be used temporarily as a way to bridge the gap until a more appropriate protection can be obtained. One example would be through a land withdrawal.
This legislation only applies to the mineral interests, not surface rights or activities.
How will this be done?
The Minister might receive requests from an Indigenous government, group or community, or be made aware of potential issues which have not yet been resolved in particular areas of land, by departmental employees.
Once any necessary engagement with Indigenous governments and organizations is completed, the Minister would issue a notice that the area would become restricted for a set period of one year or less.
The Mining Recorder’s Office would then no longer be allowed to issue any new mineral interests in that area.
The size that a temporary restricted area will be limited within the regulations. Indigenous governments and organizations and stakeholders will be kept up-to-date on their development.
This would not affect any Mineral Claims or Mineral Leases already recorded and meeting their requirements — it would only affect newly-issued ones.
Rationale
Sometimes, new information comes up which may be relevant to areas of land within the Northwest Territories which may not have been known before.
This measure is designed to respond to that reality, and provide a temporary buffer for the territorial government, Indigenous governments, and any other level of government to come to a suitable resolution which provides certainty to all involved.
The term limits are short specifically because of the fact it is meant to be a temporary bridge. There are existing ways that areas become restricted from prospecting over the long-term — such as designating them that way through land use planning or withdrawal.
It would avoid scenarios where a Mineral Claim or Mineral Lease may be recorded as these issues are being worked through — then starting a wider conflict which is not in the interests of anyone involved.
There are measures to predictably solve disputes related to three critical provisions within this proposed Mineral Resources Act:
- Benefits Agreement negotiations between Indigenous governments and mining companies
- Disputes over claim staking
- All other general disputes under the Act
For certainty, the proposed Act explicitly states that if land claim, self-government, or settlement agreements already have dispute resolution mechanisms in-place which address these kinds of conflicts, those processes will take precedent over the ones established under this Act.
BENEFITS AGREEMENT NEGOTIATIONS
Dispute Resolution Body Solution
For Benefits Agreements with Indigenous governments, the Act would empower the Minister responsible to convene an independent panel to resolve disputes related to negotiating Benefits Agreements. This could also be delegated to an existing panel or board.
Indigenous governments and mining companies will be expected to exhaust all other avenues for resolving the dispute before resorting to this panel.
Exceptional Circumstances
The proposal also includes a clause which would allow the Minister to waive the requirement of a Benefits Agreement under exceptional circumstances. It is hoped and expected that this would not need to be used, and only exists as an emergency measure.
DISPUTES OVER CLAIM STAKING
The tried-and-tested dispute resolution mechanism from today will remain in-place. The Mining Recorder’s Office — led by the Supervising Mining Recorder,
who today is the Director of Mineral and Petroleum Resources for the Department of Industry, Tourism and Investment — will weigh all information available and issue a decision in disputes over Mineral Claims.
GENERAL DISPUTES
The proposed Act allows the Minister to create what is called a Mining Rights Panel. This panel would have varied expertise. It would be in-place to provide
independent dispute resolution for any other disputes which arise from the Act which do not fall under the first two categories.
How will this be done?
BENEFITS AGREEMENT NEGOTIATIONS
Dispute Resolution Body Solution
The specifics will be laid out in regulations. However, there are some basics which can be counted upon:
- The dispute resolution body would not be used for disputes over the implementation of Benefits Agreements. It would only be able to be used for disputes about negotiating them.
- Indigenous governments and mining companies will be expected to exhaust all other avenues for resolving the dispute before resorting to this panel.
- It is intended that this panel would have access to a collection of historical information on agreements which have been negotiated.
- Dispute resolutions would need to be completed in a set amount of time.
- The dispute resolution body could set the terms of a Benefit Agreement or determine that a project could proceed without a Benefit Agreement.
DISPUTES OVER CLAIM-STAKING
The Mining Recorder’s Office will take all information available about the mineral claims which are disputed, and the Supervising Mining Recorder will then issue a decision. This decision will be binding.
GENERAL DISPUTES
The Act proposes that the independent panel would be drawn from people who are not employees of the Department of Industry, Tourism and Investment. They would also be required to have strong expertise in one-or-more of these areas:
- Law
- Administering royalties for mining
- Mineral rights
- Mineral resources
The Minister would select a list of people with these qualifications to serve on the panel. Then, when a dispute arises, the Minister would select one person from that list to resolve the dispute.
That person would then be allowed to collect all the necessary evidence to investigate and resolve the dispute. They would also be able to refer questions to the Supreme Court of the
Northwest Territories to be answered to inform their deliberations.
Once a decision is made, it is binding.
The Minister would have no authority to partake in the resolution process beyond selecting the person(s) from the panel to resolve it.
Rationale
BENEFITS AGREEMENT NEGOTIATIONS
Dispute Resolution Body Solution
This independent body would act at arms-length from government, which would help address any perceptions of bias in this sensitive process.
Requiring parties to try all other options before accessing this dispute resolution tool ensures it will not be overused.
The body will only resolve disputes about negotiation because any agreement reached becomes a private contract. The parties who have signed the agreement are expected to have anticipated possible conflicts in implementation and put appropriate ways to deal with them in the agreement. If that process fails, the courts would be the appropriate place to settle them.
Exceptional Circumstances
At this time, it is not anticipated this measure would need to be used at all. However, this legislation is designed to anticipate any situations which could arise in the future — not just ones the NWT has experienced already.
As this measure is a first for Canada, the Government of the Northwest Territories needs to consider unanticipated situations. This measure gives the Executive Council the ability to act if something drastic occurs.
DISPUTES OVER CLAIM STAKING
The current process works well, so there is no reason to change it. The Mining Recorder’s Office collects all the information which would be necessary to resolve disputes over Mineral Claims, so the Supervising Mining Recorder is in a good position to make those decisions.
GENERAL DISPUTES
An independent panel as conceptualized by the Mining Rights Panel will remove any perception of bias from the government’s side if disputes arise, while ensuring a predictable process.