On June 29, 2013, the Department of Aboriginal Affairs and Northern Development Canada (“AANDC”) published a notice of proposed changes to the Northwest Territories and Nunavut Mining Regulations (the “Current Regulations”) in the Canada Gazette and is seeking public comment during a sixty (60) day period ending on August 28, 2013.
In an effort to modernize the current mineral tenure framework in the Northwest Territories (“NWT”) and Nunavut, AANDC has proposed to split the Current Regulations into two distinct regulations: the Northwest Territories Mining Regulations (“NWT Regulations”), which would apply to Crown lands in NWT; and the Nunavut Mining Regulations (“Nunavut Regulations”), which would apply to Crown lands in Nunavut. According to AANDC, the proposed changes, which would create legislative and administrative separation between the two jurisdictions, are necessary:
- to facilitate the development of a new online mineral tenure acquisition system in Nunavut, currently scheduled to be implemented in November 2014; and
- to prepare for the devolution of responsibilities over lands and resources from the federal government to the NWT territorial government (“NWT Devolution”), with such devolution set to occur on April 1, 2014.
Although the proposed changes represent a considerable overhaul of the Current Regulations, the bulk of these changes are administrative in nature and do not present many substantive changes that would materially affect the nature of rights that would have otherwise been granted under the Current Regulations. In addition, save for a few exceptions, the text of the proposed NWT Regulations and the Nunavut Regulations (together, the “Proposed Regulations”) is identical.
Some of the more substantive changes include the following:
- eliminating any potential gaps in tenure by changing the mineral lease application deadline from the 10th anniversary to the 9th anniversary of the claim (compare s. 58 of the Current Regulations with s. 57(2)(b) of each of the Proposed Regulations);
- changing the annual application period for prospecting permits from between December 1 to December 31 of each year to a much longer period of between February 1 to the last business day in November (compare s. 29(4) of the Current Regulations with s. 9(2)(b) of each of the Proposed Regulations);
- eliminating s. 48 of the Current Regulations dealing with safety issues covered by other legislation;
- repealing dispute resolution provisions that address access disputes between surface rights holders and prospectors. In the future, those disputes will be governed under the Nunavut Waters and Nunavut Surface Rights Tribunal Act in Nunavut and the Northwest Territories Surface Rights Board Act (compare s. 70 of the Current Regulations with s. 6(b) of each of the Proposed Regulations);
- clarifying cancellation provisions for mineral claims and leases, including permitting a claim holder to cancel their claim at any time by submitting a cancellation request to the Mining Recorder along with the prescribed fee (see ss. 41, 50-52, 59-61, 63, and 82 of each of the Proposed Regulations);
- re-iterating the Minister’s ability to delay re-opening of lands for staking and prospecting where the Minister of AANDC has reasonable grounds to believe that there is un-remedied environmental damage (see s. 53 of each of the Proposed Regulations);
- establishing provisions for requesting a suspension of payment and work requirements in the event that a claim holder company has received a court order under the Companies’ Creditors Arrangement Act (see s. 48 of each of the Proposed Regulations);
- simplifying provisions granting claim holders extensions on time to meet work requirements and limiting the number of extensions to 3 during the 10-year term of the claim (compare s. 44 of the Current Regulations to s. 47 of each of the Proposed Regulations).
In addition, the proposed changes remove a number of administrative burdens, including:
- moving toward electronic filings (e.g., stakeholders will be able to file reports of work and provide raw data to AANDC electronically);
- eliminating the requirement for duplicate documents and reports (e.g. duplicate copies of lease documents will no longer be needed to transfer a lease and work reports and supporting documentation will no longer be required to be submitted in duplicate);
- eliminating certain required records and details (e.g. certain accounting and personnel records are no longer required);
- simplifying reporting (e.g. if the report deals only with excavation, sampling or the examination of outcrops and surficial deposits — or any combination of them — and the cost of the work is less than $10,000, stakeholder may submit a simplified report);
- eliminating inspection requirements (i.e. stakeholders will no longer be required to prepare for inspection).
However, under the proposed changes, stakeholders would be required to provide a regional geological map and a list of geographic coordinates to locate work sites in a report.
For a full summary and listing of the proposed changes, please see AANDC’s Regulatory Impact Analysis Statement.
It is important to note that, despite all these changes, provisions respecting royalties and fees will remain substantially the same.
AANDC plans to implement the Proposed Regulations on April 1, 2014, at the same time as NWT Devolution. AANDC will be accepting public comment on the Proposed Regulations until August 28, 2013.