Contractors working on mining projects in the Northwest Territories or Nunavut may have more than one option when unpaid. While builder’s liens can apply broadly to improvements to land, miners liens are specifically designed for work connected to mines and can cover a wider range of work and property. A miners lien may attach not only to the land, but also to mine output, equipment, machinery and other property connected with the mine. The filing rules are also different, including a six-month registration deadline for miners liens compared with generally 60 days under the builder’s lien regime. Choosing the right lien can significantly affect what security is available and how a claim must be pursued.
Most contractors in the Northwest Territories or Nunavut will be familiar with the rights afforded to them under their Builders’ Lien Act or Mechanics Lien Act.1 Many will think of this as the default method of liening a property in the event of non-payment for work. However, for contractors working in the mining industry, an alternative lien scheme exists under the Northwest Territories and Nunavut Miners Lien Acts.
There are certainly similarities between the two schemes. Namely, both Acts allow an unpaid contractor to apply a registration which attaches to the owner’s interest in the property where the work was performed. While this basic function is common to both, the details, procedure, and effect of the two liens can be quite different.
Which Projects Are Covered?
The first difference between the schemes relates to the types of projects where they apply. Unquestionably, the Builders’ Lien Act has broader application, as it can be relied on for any project involving an “improvement” in respect of a piece of land. By contrast, the Miners Lien Act is confined to work in relation to mines.While the wording of s. 2 of the Miners Lien Act would seem to limit its application to quartz or placer mines, in practice, miners liens have been used in relation to other types of mines as well (including diamond mines2).
What Work Can Be Liened?
When it comes to the work that can be liened for, the Miners Lien Act has broader application. A person may register a lien if they provide any work or service on or in respect of a mine. By contrast, the Builders’Lien Act refers to specific types of work (e.g. work on a building or erection, placing machinery, or providing materials), which reflects the traditional principle that liens arise from increasing the value of the land in question.
What Does the Lien Attach To?
Perhaps the most significant distinction between the two schemes is the scope of what a lien attaches to. Like construction liens in other Canadian jurisdictions, a lien under the Builders’ Lien Act attaches to the land itself. By contrast, a lien under the Miners Lien Act is much broader. In addition to the land itself, the lien also attaches to all appurtenances to the mine; the minerals or ores produced from the mine; as well as the chattels, equipment, and machinery used in connection with the mine. Further, the Miners Lien Act grants a lien claimant a priority over prior mortgages and encumbrances as to ½ the output from the mine.
In addition to the substantive differences outlined above, the two statutory schemes have very different procedural requirements:
How Do the Filing + Enforcement Requirements Differ?
BUILDERS’ LIEN ACT
MINERS LIEN ACT
Deadline for Registration
The earlier of 60 days after the certificate of substantial performance or 60 days from the date the contract is completed, abandoned, or terminated
Six months from the last day on which the work or service or material was performed, placed or provided
Location for Registration
Land Titles Office
Mining Recorder’s Office
Deadline to take Enforcement Steps
90 days after the last day the lien could have been preserved
90 days after the lien was filed
Procedure for Commencing Action
Statement of Claim (typically)
Originating Notice with supporting Affidavit
Both of these schemes have numerous details and complexities that you will need to be aware of in advancing or defending a claim. If you’re working on a mining or construction project in the Northwest Territories or Nunavut and have questions about protecting or enforcing your right to payment, contact Danielle Mousseau, Matthew Turzansky or any member of Field Law’s Northern Group for assistance.
1 NOTE – Effective September 1, 2025, the NWT replaced its Mechanic’s Lien Act with a new Builder’s Lien Act. The Mechanic’s Lien Act remains in force in Nunavut.
