In the Northwest Territories (N.W.T.) the federal government through the Department of Indian Affairs and Northern Development (DIAND), is responsible for the management of water, hydrocarbon and mineral resources, as well as for the administration of most Crown land. As such, DIAND is responsible for the administration of the Territorial Lands Act, and its regulations.
The Territorial Lands Act gives the Governor-in-Council the authority to “… make regulations for the leasing of mining rights in, under or on territorial lands and the payment of royalties therefor,…”. In the N.W.T., the Canada Mining Regulations provide for the disposition of mineral rights for most minerals, other than industrial and quarry minerals, coal, petroleum and related hydrocarbons, in return for the payment of a royalty to the Crown.
The February 27, 1995 federal budget directed DIAND to proceed with a comprehensive review and amendments to northern natural resource management legislation in order “to increase revenues and ensure a fair return to the Crown.” The advent of diamond mining in the N.W.T., and the need of diamond mine developers to have a clear picture of the mining royalty regime prior to making production decisions, has meant that the royalty regime in the N.W.T. is one of the first aspects of northern mineral legislation to be reviewed.
DIAND and mining companies operating in the N.W.T. have frequently disagreed over the interpretation of various royalty provisions in the Canada Mining Regulations. These disagreements point to the need for a broad review of the mining royalty regime that goes beyond the level of revenue generated, to clarify, where necessary, and to simplify, where possible, the interpretation and administration of the legislation. DIAND’s experience with the insolvency of Curragh Inc. points to the need for additional provisions in the Canada Mining Regulations related to collection and enforcement. The March 1995 amendments to the Income Tax Act providing for the deductibility of contributions to a mining Reclamation trust suggest the need to revise the royalty regime to ensure that such contributions are recognized for the purposes of calculating mining royalties.
2. OBJECTIVES FOR A MINING ROYALTY REGIME IN THE N.W.T.
The objectives in revising the royalty provisions of the Canada Mining Regulations are to ensure that the mining royalty regime:
generates a fair return to the Crown from the extraction of Crown minerals;
allows a fair return to the private sector developers of Crown minerals;
maintains a level of income tax/mining royalty which is competitive with other Canadian and international jurisdictions;
treats equitably mines of different levels of profitability; and
is clear, straightforward and simple to interpret and administer.
3. EXISTING N.W.T. MINING ROYALTY REGIME
The Canada Mining Regulations require each mine to pay an annual royalty to the Crown based upon the value of output of the mine. The value of output for this purpose is defined as the market value of the mine’s production less allowable deductions for such items as:
transportation, smelting and refining costs;
mine and mill operating costs;
exploration and development costs at the mine;
depreciation of the buildings, plant, equipment and machinery used in production at the mine (an allowance of up to 15% of the cost of depreciable assets not to exceed 100% of the original cost of the assets);
amortization of preproduction exploration and development costs (an allowance of up to 15% of such costs incurred prior to commercial production not to exceed 100% of these costs);
exploration expenses incurred elsewhere in the N.W.T. up to 10% of market value of production; and
if the production is further processed in the N.W.T., a processing allowance of 8% of the cost of processing assets to a maximum of 65% of the value of output.
Royalty is levied on this value of output on the following scale
$10,000 to $1 million: 3%
$1 million to $5 million: 5%
with the rate increasing 1% for each additional $5 million in value of output to a maximum of 12% at a value of output of $35 million and above.
No royalties are required to be paid for the first 3 years after the start of commercial production.
4. ROYALTY SHARING UNDER COMPREHENSIVE LAND CLAIM AGREEMENTS
Comprehensive Land Claim Settlements with the Gwich’in, the Sahtu Dene and Metis and the Inuit of the Nunavut Settlement Area provide for these Aboriginal groups to receive a share of the resource royalties, including those from mining, from Crown Land in the N.W.T.
The Gwich’in and the Sahtu Dene and Metis each receive 7.5% of the first $2 million and 1.5% of any additional amounts of resource royalties from the Mackenzie Valley Claim Area.
The Inuit of the Nunavut Settlement Area receive 50% of the first $2 million and 5% of any additional amounts of resource royalties from the Nunavut Settlement Area.
Where DIAND collects royalty on a mineral right under the Canada Mining Regulations which is located on Aboriginal owned subsurface, the Crown remits 100% of the royalty to the Aboriginal group owning the subsurface of the land.
5. METHODOLOGY FOR COMPARATIVE ANALYSIS
In Canada, mining projects are generally subject to three levels of taxation on profits: a mining royalty/tax/duty1 which is levied by the level of government which owns the resource, the provincial governments in the provinces and the federal government in the N.W.T. and Yukon; a provincial/territorial income tax levied by the provincial and territorial governments; and federal income tax levied by the federal government.
Given the objectives of the review of the mining royalty regime, the first step was to compare the effective rate of mining royalty, as well as the combined effective rate of mining royalty and income taxes, in the N.W.T. with other major mining jurisdictions in Canada (British Columbia, Manitoba, Ontario, Quebec and Newfoundland), as well as a number of international jurisdictions (Alaska, South Africa, Western Australia and Chile). For Quebec the mining duty rules for mines north of 55 degrees latitude have been used, as the operating environment in this part of the province is similar to that found in the N.W.T.
Computer based spreadsheet models were used to compare the impact of the taxation rules for each of these jurisdictions on four specific mine models. The parameters for these four mine models are:
Higher Profit Base Metal Mine (Open-pit, pre-tax Internal Rate of Return(IRR) of 25%, 3,000 tonnes per day(tpd), 15 year mine life, average annual revenue of $225 million, total capital investment $400 million)
Lower Profit Base Metal Mine (Open-pit, pre-tax IRR of 13%, 3,000 tpd, 15 year mine life, average annual revenue of $150 million, total capital investment $400 million)
Higher Profit Gold Mine (Underground, pre-tax IRR of 25%, 2,000 tpd, 22 year mine life, average annual revenue of $135 million, total capital investment $300 million)
Lower Profit Gold Mine (Underground, pre-tax IRR of 13%, 2,000 tpd, 22 year mine life, average annual revenue of $100 million, total capital investment $300 million)
A diamond mine model has not been included because there is no information on diamond mining in Canada that is not commercially confidential. A hypothetical diamond mine could resemble any of the above four models depending upon the size, mining method and the structure of capital and operating costs.
For each model, the debt/equity ratio used was 1:1, the interest rate on debt was 10% and on mining reclamation trust balances 6%, and the inflation rate applied to revenues and operating costs was 3%.
Each model was assumed to be a stand-alone mining project. The base metal mine models were assumed to produce and sell concentrate, whereas the precious metal mine models were assumed to produce and sell dore bar. The taxation rules of each jurisdiction were applied on this basis. As such, the results of these models do not take into account the tax benefits in certain jurisdictions of being able to consolidate a number of mines for tax purposes and of further processing incentives for smelting and refining. In these situations the effective rate of mining royalty could vary significantly from those generated by these models.
The effective rate of mining royalty has been calculated by the discounted cash flow IRR method – the IRR of cash flow before mining royalty and income taxes less the IRR of cash flow after mining royalty but before income taxes as a percentage of the IRR of cash flow before mining royalty and income taxes.
The combined effective rate of mining royalty and income tax has been calculated using the same IRR method as was used to calculate the effective mining royalty rate – the IRR of cash flow before mining royalty and income taxes less the IRR of cash flow after mining royalty and income taxes as a percentage of the IRR of cash flow before mining royalty and income taxes.
6. COMPARATIVE ANALYSIS OF EFFECTIVE ROYALTY AND TAX RATES
Effective Mining Royalty Rates
Table 6.1 shows the effective rates of mining royalty on specific projects for the existing mining royalty regime in the N.W.T. as well as the mining royalty regimes of five major Canadian mining provinces.
CURRENT EFFECTIVE MINING ROYALTY RATES BY IRR N.W.T. AND SELECTED PROVINCES
High Profit Base Metal
Low Profit Gold
High Profit Gold
B.C. 5.9% 5.6% 4.6% 3.6%
Manitoba 7.4% 6.4% 6.7% 7.2%
Ontario 11.3% 13.4% 8.5% 7.8%
Quebec 6.0% 7.2% 2.8% 2.4%
Nfld. 5.7% 9.9% 5.8% 8.2%
Average 7.3% 8.5% 5.7% 5.8%
N.W.T. 3.5% 3.5% 3.1% 2.7%
Based upon the results of these four mine models, with the exception of the gold mine models for the Quebec mining duty regime, the current mining royalty regime in the N.W.T. produces a lower effective rate than the mining royalty regimes in the other major Canadian mining jurisdictions analyzed.
All of the Canadian jurisdictions analyzed have a mining royalty which is profit based.
Manitoba, Ontario, Quebec, Newfoundland and the N.W.T. levy a mining royalty against a mine-mouth value of the minerals produced after deduction of production costs and an allowance for return on the capital employed in further processing – concentrating, smelting and refining. In Ontario and Quebec, this processing allowance increases with the degree of further processing. Manitoba and Ontario both allow processing allowance to be claimed for processing assets located in other Canadian jurisdictions; whereas Quebec, Newfoundland and the N.W.T. limit claims for processing allowance to assets within the jurisdictions.
British Columbia has a two staged system. Stage I tax is a two percent levy on gross revenue less mine operating expenditures. Stage II tax is calculated on “net revenue”, which is essentially the cumulative profit derived from the mine after taking into account both operating and capital costs. British Columbia is unique in Canada in that it lumps all expenses, operating and capital into one pool for deduction purposes. These pooled expenses may be carried forward for use in succeeding years. Stage I tax paid is credited against Stage II tax payable. British Columbia does not have a processing allowance as a deduction in calculating mining tax.
None of these jurisdictions allow interest expense as a deduction for the purposes of calculating mining royalty. However, British Columbia does have an Investment Allowance which is an interest factor to reflect the cost of capital. The unclaimed balance of the expense pool is escalated annually by this Investment Allowance.
British Columbia, Newfoundland and the Canada Mining Regulations levy mining royalty on a mine by mine basis; whereas Ontario, Manitoba and Quebec consolidate all of a company’s operations in the jurisdiction into a single entity for mining royalty purposes. In jurisdictions which consolidate all of an operator’s mines for mining royalty purposes, the effective rate may vary significantly from the results of a stand-alone project model due to the ability of an operator to use losses from one mine to shelter profits from another mine in that jurisdiction.
All of the provinces examined levy mining royalty at a flat rate on profits after deductions. The N.W.T. levies mining royalty at a graduated rate which increases from 3% to 12% by 1% for each additional $5 million in profit. The graduate royalty rate in the N.W.T. results in an effective royalty rate that generally increases with both profitability and size. This factor explains much of the difference in the effective royalty rates between the smaller gold mine models and the larger base metal mine models of the same profitability.
None of the jurisdictions examined allow the carry-back of losses for mining royalty purposes. None of the jurisdictions, with the exception of British Columbia, allow for the carry-forward of losses for mining royalty purposes. British Columbia does allow the effective carry-forward of losses for mining tax purposes through its system of pooling together of capital and operating expenses.
All of the jurisdictions examined have incentives to encourage new mine investment. In British Columbia, a new mine or expansion of an existing mine qualifies for an additional Investment Allowance of 33% of preproduction development expenditures incurred between 1995 and 1999 on projects which commence production before the end of 1999. Manitoba has a mining tax holiday which is equal to the cost of depreciable assets and development prior to commercial production.
In Ontario, income from a new mine or major expansion of an existing mine is exempt from mining tax for the first 3 years of commercial production to a maximum exemption of $10 million. Quebec has a 10 year mining duty holiday equal to 20% of the capital cost of processing assets for new mines north of the 55th parallel. In Newfoundland, provincial income taxes are a credit against mining taxes payable for the first 10 years of commercial production. In the N.W.T., a new mine is not required to pay mining royalty for the first 3 years after commercial production.
Combined Effective Mining Royalty and Income Tax Rates
In the N.W.T., the federal government levies mining royalty and the territorial government levies a territorial corporate income tax, whereas in the provinces the provincial government levies both the mining royalty and provincial corporate income tax. This allows a provincial government the flexibility to adjust the general level of corporate income tax against the level of taxation applied to the mining industry depending upon the fiscal objectives of the province. Federal corporate income tax is levied at a constant rate in all jurisdictions. As a result, to accurately compare the levels of taxation on mining profits in different jurisdictions, the combined effective rate of federal and provincial/territorial income tax and mining royalty must be examined. This combined effective rate of taxes on mining profits must also be used as the basis for comparisons with foreign jurisdictions, as some foreign jurisdictions only levy a single level of tax on profits, whereas others have more than one level of taxation.
Table 6.2 shows the combined effective rates on the four mine models of the income tax and mining royalty regimes for the N.W.T. and the five major mining provinces analyzed.
CURRENT COMBINED EFFECTIVE MINING ROYALTY AND INCOME TAX RATES BY IRR N.W.T. AND SELECTED PROVINCES
High Profit Base Metal
Low Profit Gold
High Profit Gold
B.C. 29.1% 34.6% 23.1% 25.4%
Manitoba 29.4% 31.6% 24.9% 28.8%
Ontario 31.3% 36.7% 24.4% 26.0%
Quebec 26.1% 30.8% 19.1% 21.4%
Nfld. 23.9% 30.9% 20.6% 25.6%
Average 28.0% 32.9% 22.4% 25.5%
N.W.T. 20.5% 22.1% 16.8% 18.1%
Manitoba, Newfoundland and the N.W.T. levy provincial/territorial income tax on the federal taxable income allocated to that jurisdiction. British Columbia, Ontario and Quebec have corporate income tax regimes which differ slightly from the federal rules. For example, British Columbia allows mining taxes paid as a deduction for calculating provincial income tax rather than using a resource allowance as is the case under federal income tax rules. Provincial/territorial corporate income tax rates among the jurisdictions examined range from 8.9% for Quebec to 17% for Manitoba. British Columbia, Manitoba, Ontario and Quebec also have provincial capital taxes which have been included in calculation of provincial income taxes.
The low effective rate of mining royalty in the N.W.T., combined with a relatively low rate of territorial corporate income tax has meant that the combined effective rate of the income tax and mining royalty regime in the N.W.T. is lower than those in the other Canadian jurisdictions analyzed.
Table 6.3 show the combined effective rates of the income tax and mining royalty regimes for the N.W.T. and four selected international jurisdictions which compete with the N.W.T. for mining investment.
CURRENT COMBINED EFFECTIVE MINING ROYALTY AND INCOME TAX RATES BY IRR N.W.T. AND SELECTED FOREIGN JURISDICTIONS
High Profit Base Metal
Low Profit Gold
High Profit Gold
Africa 24.1% 27.2% 20.3% 21.0%
Australia 26.8% 32.7% 25.0% 32.9%
Alaska 16.4% 18.7% 18.4% 29.1%
Chile 22.0% 22.4% 19.0% 16.8%
Fixed@42% 27.1% 27.6% 23.4% 20.8%
N.W.T. 20.5% 22.1% 16.8% 18.1%
South Africa has different income tax regimes for gold and other businesses, but does not levy a mining royalty. The general income tax system treats all expenses in the same way and is applied to all industries, including mining.
In Western Australia, the Australian federal government levies income tax and the state government levies a mining royalty which is different for each commodity. Mining royalty is generally levied on gross revenue less smelting/refining and transportation costs. Mining royalty is a deduction for the purposes of calculating federal income taxes. The effect of this system is to significantly increase effective tax rates as profitability declines.
For Alaska, the mine models were assumed to be located on state land, which accounts for half of the land open to mining in the state. All mines in the state are subject to federal income tax, federal alternative minimum tax, Alaska state income tax, Alaska state alternative minimum tax and mining licence tax. Those mines located on state land are also subject to a production royalty, which differs according to the commodity. Each of these taxes is calculated on a different base. State income taxes, mining licence tax and production royalties are deductible in calculating federal income tax. For state income taxes only the production royalty is allowed as a deduction. The structure of the federal and state alternative minimum taxes is largely responsible for the fact that the effective tax rates on the higher profit mine models is lower than for the lower profit mine models.
In Chile, mining operations are subject to income tax but not mining tax/royalty. A foreign company investing in Chile has a choice of paying income tax at the regular rate or entering into a contract with the state which fixes the income tax rate at 42% for 10-20 years.
Table 6.3 shows that for the base metal mine models, only the Alaskan income tax and mining royalty regime gives an effective rate lower than in the N.W.T. In the case of the high profit gold mine model, the effective rate of the income tax and mining royalty regime in the N.W.T. is the lowest of the jurisdictions examined. In the case, of the low profit gold mine model, only the Chilean income tax and mining royalty regime results in a lower effective rate.
Based upon the above analysis, it is clear that there is room to increase the effective rate of mining royalty, without unduly compromising the attractiveness of the N.W.T. as a jurisdiction for mining exploration and development.
7. RATIONALE FOR RETAINING THE STRUCTURE OF THE EXISTING MINING ROYALTY REGIME
Given the above analysis, it is clear that the existing mining royalty regime in the N.W.T. provides the Crown with less than a fair return in the Canadian context. Furthermore, the number of disagreements over interpretation of certain provisions of the legislation indicate that the existing regime could be made clearer, more straightforward and simpler to interpret and administer. On this basis, the federal government is faced with a choice of either changing the current royalty regime or replacing it.
Single Mining Royalty vs. Alternatives
A number of provincial mining royalty and foreign tax regimes were reviewed for possible alternatives to the current royalty regime in the N.W.T. In this review, three broad categories of mining taxation structures were examined: project specific taxation through contract, as in the case of the Argyle Diamond mine in Australia; mineral specific mining taxation, as in Saskatchewan, Alaska and Australia; and a single regime that applies to all hard rock mining, as in the N.W.T.
Project specific taxation was rejected as an option. Such a system provides no certainty to potential mine developers. The level of taxation would be subject to negotiation once the mining company had found a deposit, and therefore would depend upon the expected profitability of the project and the political climate at the time. Moreover, the division of taxation powers between various levels of government would make any such agreement a complex and time consuming endeavour. A project specific agreement on royalty alone would only deal with a relatively small portion of the total taxes levied on a mining project.
Separate royalty regimes for different minerals, as has been suggested in the case of diamonds, was also rejected on the basis of equity. Diamond mining is not so significantly different from a technical perspective as to warrant a different structure of royalty. Moreover, there is no justification to levy a different level of royalty on two mines of equal profitability just because they happen to produce different minerals.
On the basis of the above considerations, the mining royalty regime will continue to apply to all minerals regulated by the Canada Mining Regulations, including diamonds. This will ensure that all mines which make the same amount of profit will pay the same amount of royalty regardless of the mineral they produce.
Current Mining Royalty Structure vs. Alternatives
Having decided to retain a single mining royalty regime for all hard rock minerals, the next step was to decide whether to modify the existing royalty regime or replace it with a new regime in order to meet the objectives set out above.
In this context, one alternative that was examined was a two-tiered system with a levy on gross revenue, as in Saskatchewan (uranium), New Brunswick and Australia. This was rejected because our research indicated that while a two tiered mining royalty regime does provide government with a more stable stream of revenue, it imposes an unreasonable royalty burden on mines which are unprofitable during the trough of the metals price cycle.
Other provincial mining royalty regimes were analyzed as alternatives to the existing regime. In this respect, the only provincial mining royalty regime which is significantly different from that in the Canada Mining Regulations is that in British Columbia. The other provinces maintain a more traditional mining royalty levied against a mine-mouth value of the minerals produced after deduction of production costs and a processing allowance. It was decided to maintain the more traditional structure of the mining royalty regime in the N.W.T. rather than replace it with a completely new regime based on the British Columbia model. The objectives for the mining royalty review can be effectively met by revising the existing regime on the basis of ideas borrowed from a number of other jurisdictions. This not only maintains a certain continuity to the mining royalty regime, but also avoids the administrative complexities of implementing a completely new regime.
In addition, the current mining royalty regime in the N.W.T. also has the advantage of providing an incentive for profitable mines to pay some royalty each year if they plan to minimize the royalty paid over the life of the project, without forcing mines to pay royalty when they are not profitable. Under the current system processing allowance cannot be carried forward, while depreciation can be carried forward indefinitely. This provides an incentive for profitable mines to claim the maximum available processing allowance rather than using depreciation. Because the processing allowance claimed is limited to 65% of profit prior to the processing allowance, if a mine is going to claim the maximum available processing allowance, it will automatically pay some royalty.
On the basis of the above considerations, it has been decided to retain the basic structure of the existing mining royalty regime with modifications to meet the federal government’s objectives.
8. PROPOSED CHANGES TO THE MINING ROYALTY REGIME
In examining options for modifying the existing mining royalty regime, the mining tax/duty regimes of most of the provinces were reviewed for provisions that could serve as the basis for changes to the royalty regime in the Canada Mining Regulations. A number of possible changes to the regime were modelled both separately and in combination: various royalty holidays as an alternative to the current 3 year royalty free period, different depreciation rates, different processing allowance structures and maximum royalty rates from the current level up to 24%.
Elimination of 3 Year Royalty Free Period
The most straight forward and equitable way of significantly increasing the effective royalty rate would be the elimination of the three year royalty free period. This type of calender based incentive provides significantly more benefit to higher profit mines than lower profit mines. Moreover, the revenue loss to the federal government of such an incentive is unsupportable given the current difficult fiscal situation of the federal government. Therefore, the 3 year royalty free period would be eliminated.
Accelerated Depreciation and Preproduction Allowances
However, to recognize the high risk nature of mining, the annual maximum allowances for depreciation and preproduction costs would be increased from 15% to 100% of the original cost of the assets. This would give a mine the option to completely recover its capital investment for mining royalty purposes prior to actually paying any royalty.
Expansion of Asset Base For Depreciation Allowance
At the moment only the cost of buildings, plant, machinery and equipment used directly in production is eligible for the depreciation allowance. The definition of assets eligible for depreciation allowance will also be broadened to include all buildings, plant, machinery and equipment used in the operation of the mine. This will make capital expenditures on the camps and dedicated town sites that are necessary for the operation of mines in remote areas eligible for the depreciation allowance.
Narrowing of Asset Base for Processing Allowance
The definition of assets for the calculation of processing allowance would be narrowed to those assets used directly in processing and that were purchased prior to commercial production or as part of a major expansion. This would exclude replacement costs and those assets used indirectly in processing from the processing allowance asset base.
Increase in Maximum Royalty Rate
In order to ensure that the Crown receives a fair return on its mineral resources from larger and higher profit operations, the maximum royalty rate would be increased from 12% to 14%. At present, the 12% rate applies to profits of $35 million and above. Under this proposal, profits from $35 million to $40 million would remain subject to the 12% rate, profits between $40 million and $45 million would be subject to a 13% rate and profits of $45 million and above would be subject to a rate of 14%.
Increase in Initial Royalty Rate
The royalty rate on profits between $10,000 and $1 million would also be increased from 3% to 5%, the same rate as currently on profits between $1 million and $5 million.
Deductibility of Mining Reclamation Trust Contributions
Contributions to a mining reclamation trust that qualifies for the purposes of the Income Tax Act will be deductible for royalty calculation purposes in order to recognize the cost of providing this form of security for reclamation obligations under federal legislation in the N.W.T.
Royalty Payable in Quarterly Instalments
Currently, mining royalty becomes payable no later than 10 months after the end of the fiscal year of a mine. In contrast, most provincial mining tax, mining duty and royalty regimes, as well as federal and provincial income tax regimes require the payment of quarterly or monthly instalments of the tax, royalty or mining duty owed. It is proposed that operators be required to make quarterly instalments based upon the lesser of an estimate for the year and the amount paid in the previous year. Interest would become payable on the difference between the instalment paid and one quarter of the royalty owing for the year.
Royalty Related Lease Conditions
A number of specific conditions would be added to the section of the Canada Mining Regulations which deals with mineral leases in order to enable the Crown to enforce the payment of the mining royalties. These conditions would include making the assets of the mine security for amounts of royalty outstanding for new leases, allowing the Minister to cancel a lease for non-payment of royalties and prohibiting the transfer of a lease where there were assessed royalties outstanding without the provision of adequate security to the Minister.
Diamond Valuation Requirement
The royalty provisions would also be amended to require the valuation of diamond production by a federal government appointed valuer prior to sale or export from Canada. Unlike most minerals where the value for royalty purposes can be easily determined based upon quantity and a price quoted on a recognized commodities exchange, the price of diamonds varies according to both quantity and quality. Moreover, as diamonds do not usually trade on open markets, the determination of price is a specialized task. As a result, the governments of most diamond-producing countries generally insist on valuing diamond production prior to sale or export.
1 In the N.W.T., the federal government levies a “mining royalty”, in Quebec, the provincial government levies a “mining duty” and British Columbia, Manitoba, Ontario and Newfoundland levy a “mining tax”. Henceforth, the term “mining royalty” will be used to refer to this type of levy.