Commentary: Plan Nord 2.0 and the creation of Socit du Plan Nord

On Sept. 30, 2014, the Quebec government, through its Minister of Energy and Natural Resources and Minister responsible for the Northern Plan, Pierre Arcand, tabled Bill 11, entitled the Act respecting the Société du Plan Nord.

The tabling of Bill 11, together with other recently announced measures, clearly shows that the Quebec government is preparing the most favourable conditions for the province to fully benefit from an eventual recovery of global mining activity.

Let us examine the mission, policy directions and objectives of the Société du Plan Nord (SPN) as provided in Bill 11, and then describe its governance structure and analyze its financing structure.

The SPN is an organization whose mission is to coordinate the integrated and coherent development of Northern Quebec — defined as all of the province located north of the 49th parallel and north of the St. Lawrence River and Gulf of St. Lawrence — in accordance with the government’s policy directions and in keeping with the principle of sustainable development.

After consulting with its partners, SPN must first establish a strategic plan, which must be submitted for government approval, after consultations with the ministers whose responsibilities are related to sectorial activities carried out in the territory covered by the Northern Plan.

Following the approval of its strategic plan, SPN will annually send to the government for approval its operating and capital plans.

Under Bill 11, SPN is given considerable powers to carry out its mission. It may: coordinate and contribute financially or otherwise to implementing its mission and policy directions, with regard to infrastructure, coordinate infrastructure projects and engage in infrastructure development and operation, alone or in partnership — including as a rail carrier — and set the fees payable for using infrastructure under its authority; contribute to maximizing the economic spinoffs with respect to natural resources, with regard to research and development carry out studies and conduct activities to acquire knowledge of the area covered by the Northern Plan; assist and support local and Native communities in their development projects, and advise the Quebec government on any matter the latter submits to it; and carry out any other mandate that the government deems appropriate to provide.

Bill 11 also provides an expropriation mechanism whereby SPN may acquire any property that it cannot otherwise acquire.

Furthermore, three important provisions warrant mention here.

First, to resolve conflicts that may arise concerning the use of infrastructures, the bill stipulates that “any person may use a government-designated infrastructure for which construction began after [the act], and that is located on public land in the area covered by the Northern Plan.” The bill provides for mediation and arbitration in the event that the parties concerned cannot reach an agreement regarding the sharing of the infrastructure construction, maintenance and operating costs.

Second, for the sake of legislative coherence, the contracts awarded by SPN and its subsidiaries are subject to the act respecting contracting by public bodies.

Lastly, SPN must set up a marketing office whose object is to serve as a liaison between Quebec suppliers and ordering parties.

Governance

Under Bill 11, the SPN is administered by a board of directors composed of nine to 15 members, including the chair, president and CEO. Most of the directors must qualify as independent in the opinion of the government. They are appointed for a term of up to four years, except for the chair, who is appointed by the government for a term of up to five years.

If the bill is adopted, Robert Sauvé, currently Associate Secretary General at the Ministère du Conseil exécutif, responsible for the Secrétariat au Plan Nord, will be SPN’s first president and CEO.

The board establishes a governance, ethics and human resources committee and an audit committee, each of which is composed of a majority of independent directors.

The bill also provides for the establishment of an “Assembly of Partners” whose members are appointed by SPN so that they are representative of the local and Native communities in the area covered by the Northern Plan, and the main sectors of activity concerned. The Assembly of Partners’ role is to provide an opinion on matters submitted by the Minister or SPN, and it may advise and make recommendations to the Minister or SPN on its own initiative. The opinion of the Assembly of Partners is not binding on the SPN board. The chair, president and CEO of SPN may participate in the meetings of the Assembly of Partners as observers. As previously mentioned, the Assembly of Partners must be consulted on SPN’s strategic plan.

With the authorization of the Quebec government, SPN may establish subsidiaries whose objects are limited to exercising activities that the SPN is authorized to exercise.

Transitional provisions provide a mechanism for the transfer of employees assigned to the Secrétariat au Plan Nord to SPN.

Financing

Bill 11 provides that SPN is a joint-stock company whose shares are allotted to the Minister of Finance — its initial patrimony consisting of the property transferred to it by the Quebec government.

The bill provides three sources of financing for SPN: the sums it collects for using the infrastructures under its authority; the sums it receives under any agreement entered into with a government department and that are allocated to the activities of the government department; but mainly, the sums allocated to it from the Northern Plan Fund.

For fiscal 2014–15 only, Minister Leitao’s budget of June 4, 2014, provides $63 million to finance major road infrastructure in the area covered by the Northern Plan, including extending Road 138 and repairing Road 389 in the Côte-Nord region and the James Bay Road.

In addition, the act to establish the Northern Plan Fund is itself amended by Bill 11. As a result of this amendment, the fund will exclusively finance SPN’s administration, its activities that concern financial assistance for strategic infrastructure, measures promoting the development of the Northern Plan area, research and development, knowledge acquisition, protection of the territory and social measures that meet the needs of the area’s population.

Note that the Northern Plan Fund is composed primarily of  funds transferred periodically by the Quebec government out of the income tax and the public utility tax payable, the amount of which is determined according to activities carried out in the area covered by the Northern Plan to develop its natural resources and finance infrastructure, up to a sum of $170 million; $10 million paid annually by Hydro-Québec; and the sums transferred to it by a minister or a budget-funded body out of the appropriations allocated for that purpose.

These provisions should ensure stable, predictable funding of SPN’s operations.

Conclusion

Bill 11 is presented in the wake of a series of measures to prepare and position Quebec so that it can fully benefit from an eventual recovery in global mining activity.

These measures include new budget funding, i.e., a $25-million investment to carry out a feasibility study on building a rail line from Sept-Îles to the Labrador Trough and a $50-million investme
nt in Gaz Métro LNG for expanding its liquefied natural gas plant, which will supply certain projects located in the area covered by the Northern Plan, including Stornoway Diamond’s Renard project.

Some challenges remain — including the future of uranium mining and the delineation of protected areas in the area covered by the Northern Plan — but progress has recently been made in Quebec. Settling the mining royalties issue and updating the Mining Act are two prime examples.

With the recently announced measures, in connection with the Northern Plan, including Bill 11, we can finally look to the future with renewed optimism. This will be confirmed when global mining activities recover.

— Based in Montreal, Jean Masson is a partner at international business law and litigation firm Fasken Martineau. His practices include government relations & ethics, and corporate social responsibility law, with a focus on mining and infrastructure and public-private partnerships. Fasken has nine offices with more than 770 lawyers across Canada and in the U.K., France and South Africa. For more information, visit www.fasken.com.