In the Legislative Assembly on October 24th, 1994. See this topic in context.

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The Chair John Ningark

Madam Premier, the Minister of Health and Social Services, do you have an introduction to the bill? Madam Minister.

Introductory Remarks By Minister Of Health And Social Services

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Nellie Cournoyea Nunakput

Yes, Mr. Chairman, I have some opening remarks to the bill and, as well, the Minister of Justice also has some remarks, as we are in partnership on the Guardianship and Trusteeship Act.

Mr. Chairman, I am pleased to present Bill 3, the Guardianship and Trusteeship Act, for your consideration.

The Department of Health and Social Services is responsible for the guardianship provisions of this bill. These provisions allow the Supreme Court of the Northwest Territories to appoint a guardian for adults who are unable to make decisions about their health and well-being. The bill clearly defines specific situations in which the appointment of a guardian may be made. Respect for human dignity is the key principle underlying this bill. The guardianship process proposed by the bill has been designed to be as efficient, simple and economical as possible.

The bill was developed in consultation with many interested community and professional groups. The Standing Committee on Legislation has completed its public review of the bill and has considered concerns expressed by the public. In its report, the Standing Committee on Legislation concluded that this bill is one of the most progressive pieces of legislation of its kind in Canada, as noted by the chairman of the standing committee. The committee recommended that the bill be amended to give preferential consideration to the appointment of family members as guardians.

I support this recommendation and will bring forward a motion to address this issue. Thank you.

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The Chair John Ningark

Thank you, Madam Premier. I would now like to recognize the Minister of Justice, Mr. Kakfwi.

Introductory Remarks By Minister Of Justice

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Stephen Kakfwi

Stephen Kakfwi Sahtu

Thank you, Mr. Chairman. I am also pleased to present the guardianship and trusteeship bill for your consideration.

The trusteeship provisions of this bill are the ones that I am responsible for, as Minister of Justice. The provisions in this bill regarding trusteeship provide for the appointment of trustees to act on behalf of persons who are not capable of making decisions regarding their finances.

At the present time, there is no legislation which sets out the rules under which trustees may be appointed to represent such persons. It is possible to apply to the court for that authority under the "common law," but that is a confusing process since there are no definite guidelines. This legislation will make it much easier for persons to apply to the court for appointment as the trustee of a family member or close friend.

This bill has been on the drawing board for several years and has undergone numerous changes. Originally, the bill was only intended to deal with guardianship issues, but it was later amended to include provisions with respect to trusteeship, which is the reason that I, as Minister of Justice, am co-sponsoring this bill. The public trustee is within my department and will administer the financial affairs of represented persons when there is no family member or close friend who is able or willing to do so.

As the Premier has mentioned in the context of guardianship, this bill has also been drafted to minimize the intrusiveness of trusteeship and to ensure respect for human dignity. A trustee will only be appointed for a person if the appointment will be of substantial benefit to the person. There will be no appointments made simply because a person is incapable of making financial decisions.

Across the country, there has been increasing pressure to find new ways to deal with abuse, neglect and self-neglect and to develop more options to ensure that there is less intervention and greater self-determination for all Canadians. Within the last two years, the provinces of British Columbia and Ontario have enacted wide-ranging legislation in this area. Their legislation has been considered in the drafting of this bill.

The Standing Committee on Legislation has considered the bill and I believe they found it to be a most progressive piece of legislation. However, there were some recommendations. One of them was that the bill be amended to give preferential consideration to the appointment of family members as guardians and trustees. As Ministers, we agreed with the requested amendment and I will be bringing forward the necessary motions to amend the relevant trusteeship provisions of the bill. Thank you, Mr. Chairman.

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The Chair John Ningark

Thank you, Mr. Minister. In keeping with the procedures, I will now go to the chairman of the Standing Committee on Legislation. Point of order, Mr. Zoe.

Point Of Order

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Henry Zoe

Henry Zoe North Slave

Point of order, Mr. Chairman. For Members on this side of the House, the reprint of Bill 3 is not complete. I would kindly request the chair that we take a few minutes break to get our staff to give us proper copies of the reprint of Bill 3.

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The Chair John Ningark

Do we agree that we take a few minutes break until the reprint is completed and Members are given a copy?

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Some Hon. Members

Agreed.

---Agreed

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The Chair John Ningark

We will take 15 minutes. Thank you.

---SHORT RECESS

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The Chair John Ningark

Thank you. The committee will come back to order. With the concurrence of the committee, would the appropriate Minister, Stephen Kakfwi, bring in his witnesses?

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Some Hon. Members

Agreed.

---Agreed

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The Chair John Ningark

I will ask the Sergeant-at-Arms to bring in the witnesses, please.

For the record, I would like to ask the honourable Minister to introduce the witnesses to the committee.

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Stephen Kakfwi

Stephen Kakfwi Sahtu

Mr. Chairman, on my right is the assistant deputy minister from Health and Social Services, Penny Ballantyne and on my left, Mr. Shawn Flynn, from the legislation division. On his left is Larry Pontus, the public trustee from the Department of Justice.

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The Chair John Ningark

Thank you. For the record, I would like to inform committee Members that Mr. Kakfwi, Minister of Justice and Madam Premier, Minister of Health and Social Services, will be able to answer your questions because this particular bill deals with both departments. Do we have any general comments? Mr. Lewis.

General Comments

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Brian Lewis Yellowknife Centre

Thank you, Mr. Chairman. The issue of guardianship and the need for dependent adults to have some way to make important decisions about their life has been with us for a long time. As Mr. Gargan has reported to the House, we have received information from several groups that indicated to us which way we should go.

Very often, it was a difficult to sort through the maze of sometimes conflicting opinions about how guardianship and trusteeship should operate in the Northwest Territories. During the review, Mr. Chairman, and even prior to this review when the bill first came into this House, I expressed some concerns that I have, because I've taken a personal interest in this particular subject for at least 10 years.

In making the comments I am about to make, Mr. Chairman, I wouldn't want to convey the opinion that we have not made substantial progress in the way this bill has been developed and brought to this stage in the House where we are about to go through each of the clauses. My major interest in such issues stems from a lifetime concern, as a professional person for the most part, in trying to give people the skills so they would be independent.

I saw that as the biggest problem facing the Northwest Territories, the degree of independence that societies, individuals, children in families, and kids in school strive to achieve. The whole process is to make you independent. However, some people in our societies are just not able to get that independence. That should be the principle that guides us all; how can we find ways of liberating people so they can be as independent as we can possibly make them. That has been my interest for most of my working life. Most of the work I have done has been directed at finding ways of making people independent, so they can stand up on their own feet.

I recognize, however, that there are groups of people in our society who need a lot of help; that can't be sovereign, independent people in the way we normally use that word. When we got the bill to examine, Mr. Chairman, it struck me that we could have done more with this bill to recognize that fundamental principle. We don't go as far as we can in recognizing that every individual, however frail or fragile they are, may have a spark and may, as much as possible, make decisions about themselves.

Because a bill that is sponsored by the government very often has been pushed this way and that way before it gets to us, very often it is very difficult to see which way you can change the bill, which operates from a certain set of principles and standards. It becomes very difficult for an individual Member to sort through all the research that has been done by government and all the information available from the provinces to make sure that what we do here is consistent with our own needs, but also with what is consistent, in some degree, with our society at large.

So, I was not able to get all the information I needed in committee in order to bring that kind of perspective to this piece of legislation. We said in our report that it is a progressive piece of legislation. In a sense, it is much better than anything we've got right now. It is better than several other pieces of legislation that exist in the country which are outdated and passed many, many decades ago.

What I want to do is make sure that what we do right now, we do in the spirit of recognizing that what we do now may not be changed for the next 20 years; that what we do now should be as good as we can possibly make it. I worked very carefully to see if there is some way -- even at this late stage and even though it is in the House now and we are going clause by clause -- we could recognize that if there is anything this Legislature is all about, it is to find ways, as much as possible, to help people make their own decisions and not have others make them for them; recognizing that there are still some cases where that would not be possible. We should find some way of introducing, even at this late stage, some words which recognize that we want to support whatever spark exists among people, so they can think and act for themselves. I have talked to ordinary Members about it and we have discussed it in committee. Our problem was we never knew what mechanism to use. We don't have the resources of government, as individual Members. It is very difficult for us to have the kind of expertise available to us that government lawyers would provide.

However, I have worked with our legal counsel and I believe there are some words we have come up with that may be able to convince Members that, even at this late stage, we could still make some small changes that would make this the best legislation that exists in this country. Also, it would confirm that what we do in the Northwest Territories has always been to try to find ways of making people independent, stand on their feet and to act for themselves where possible.

So, Mr. Chairman, I have said what I want to say and any further elaboration would be redundant and would probably irritate people. So when the time comes, I will be introducing some amendments to this act and I would urge Members to think carefully about the proposed changes and not to automatically say we have done all this work. This is the chamber where we make decisions and we should be open-minded about any possibility for change, even at this late date, because it has been very difficult to come up with something that would be acceptable to the Government of the Northwest Territories. Thank you, Mr. Chairman.

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The Chair John Ningark

Thank you, Mr. Lewis. General comments on the bill. Mr. Kakfwi.

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Stephen Kakfwi

Stephen Kakfwi Sahtu

Mr. Chairman, I just wanted to comment on the remarks made by Mr. Lewis. The suggestions or proposed amendments are always welcome. I hope that they have been done with some considerable thought and some work, so they aren't frivolous amendments; that is there is some opinion by some trained lawyer to suggest they are necessary and they add substance to the bill. That is the only suggestion I wanted to make. Thank you.

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The Chair John Ningark

Any further general comments on the bill? Mr. Koe.

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Fred Koe Inuvik

Mahsi, Mr. Chairman. I have a few comments. I am very supportive of this bill. It has been a long time coming, not only for the people it is intended to protect, but also for other people who work with elders and disabled people. They are put into positions of trustees and guardians, but up until the passage of this bill, have no legal authority to act in those positions. In many cases, they are forced to because there is no one else around. They are either in a home or some kind of recovery place. Employees are forced to sign documents, either for medical or financial reasons. In many cases, it is not legal because they have no legal jurisdiction.

So I am very much in favour of this bill and look forward to seeing Mr. Lewis's amendments. I fully support the passage of this bill. Thank you.

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The Chair John Ningark

Thank you. General comments. Mr. Kenoayoak Pudlat.

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Kenoayoak Pudlat Baffin South

(Translation) Thank you, Mr. Chairman. As Members of the Legislative Assembly we have dealt with this bill. I know the comments are true and with our elders, youth and people, we often forget who the real trustees and guardians are. I will be in support of the amendment to the act.

I know that elders and the young people need guardians. We have to administer it. We know they will need guardians. I know people will be more aware of this issue if this bill is to be enacted. For example, many people can't do anything because they aren't aware of what they should and shouldn't do. We have to take care of our people, especially our elders, and the people who can't take care of themselves. I just wanted to state that I will be in full support of this bill. I would also like to hear what Mr. Lewis will have to say about the amendments. Thank you, Mr. Chairman.

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The Chair John Ningark

Mr. Zoe.

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Henry Zoe

Henry Zoe North Slave

Thank you, Mr. Chairman. I, too, am in support of this bill. It is overdue. I have a number of constituents who fall into this guardian and trustee area. I believe this is a step in the right direction, but nevertheless, I agree with my colleague from Yellowknife Centre. The principle of trying to make one individual as independent as possible is the right way of looking at this legislation. I will be quite interested to see what type of minor amendments the Member is going to make to the bill. But, in general, I am in support of this particular bill. Mahsi.

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The Chair John Ningark

Qujannamiik. Any further general comments on Bill 3? Mr. Patterson.

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Dennis Patterson Iqaluit

I am going to say I am going to be brief and I am actually going to be brief. The bill is long overdue. Thank you.

---Laughter

---Applause

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The Chair John Ningark

Thank you. General comments. Mr. Antoine.

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Jim Antoine Nahendeh

Mahsi, Mr. Chairman. This bill is a very important bill. The type of things this bill is intended to do are already being done, especially taking care of our elders in the communities. This bill will recognize the role of people who are guardians and have the trustee relationship with many of our elders. This is a very important bill.

I am just concerned that this bill might infringe on the rights of the elders. There are many of them who are very independently-minded people and there are a few elders I am aware of in the communities who we feel should come under this kind of help, but they refuse. If they refuse, I hope, under this bill, they will still be able to keep their independence even though some of us in positions of authority -- like leaders and chiefs and so forth -- might think they should have protection.

I hope this bill will allow the protection of their independence, even though some of us may think they may need protection. I just wanted to make sure that the rights of the elders under this bill are protected once it is in force. This is a new bill and once it is implemented, if it is passed, there is still room for amendments if we see that the independence of elders is being infringed upon in the future. Thank you. Mahsi.

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The Chair John Ningark

Thank you. Further general comments on the bill. Mr. Gargan.

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Samuel Gargan Deh Cho

Mr. Chairman, one of the things that came out when we visited the Aven Centre in Yellowknife is that there is a certain group of elders who have, in their lifetime, experienced a lot of alcohol abuse. After a while, they can't distinguish between right and wrong and can't make the decisions required. So, a lot of elders are being looked after without any kind of act.

With regard to decisions about medication, and surgery, if that is required, I know the people who work at the Aven Centre have said that the act is required in order for them to make decisions when a situation arises that is life-threatening or when such decisions have to be made. It is difficult for them to make decisions without legislation like this. I think this addresses that.

There are 68 clauses in this. I would request that perhaps we start going clause by clause.

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The Chair John Ningark

Thank you. If there are no further general comments, does the committee agree that we go clause by clause in review of Bill 3? Mr. Zoe.

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Henry Zoe

Henry Zoe North Slave

Just before we go into clause-by-clause consideration, Mr. Chairman, I just wanted to make another point. To follow up on my colleague's comments, I understand that the bill in front of us would also give comfort to people who look after elders, like at the Aven Centre. Currently, if something goes wrong, they could be liable. This bill, if enacted, would assist people operating in elders' facilities.

Another point I wanted to make, Mr. Chairman, is with regard to family members. The current bill doesn't address this, but I note that in the special committee's report, it indicates that the government is planning to make amendments so that special consideration can be given to family members. I hope that is the case, and I am looking forward to the amendment that is coming forward from the government. Thank you.

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The Chair John Ningark

Thank you. Further general comments from the Minister? If not, does the committee agree that we go clause by clause?

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Some Hon. Members

Agreed.

---Agreed

Clause By Clause

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The Chair John Ningark

Thank you. Bill 3, reprint, Guardianship and Trusteeship Act. Clause 1. Mr. Zoe.

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Henry Zoe

Henry Zoe North Slave

Mr. Chairman, in the definition of "adult" in the Interpretation Act, if I recall right, the age of majority is 19. But, the department has made the age of majority, in this specific act, the age of 18. Could I ask for the rationale of making it 18 years of age, rather than 19? Thank you.

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The Chair John Ningark

Thank you. Mr. Minister.

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Stephen Kakfwi

Stephen Kakfwi Sahtu

Mr. Shawn Flynn will answer the question.

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The Chair John Ningark

Go ahead.

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Flynn

Thank you, Mr. Chairman. The reason it applies to people who are 18 years and older, instead of 19, is the Child Welfare Act applies to people who are younger than 18. Thank you.

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The Chair John Ningark

Thank you. Mr. Zoe, does that answer your question?

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Henry Zoe

Henry Zoe North Slave

Mr. Chairman, I don't quite understand the rationale. The Interpretation Act defines adults as persons who have attained the age of 19 years. If this specific clause wasn't in this bill, I would assume "adult" would be interpreted as 19 years. You changed it specifically to 18 years and I'm just wondering why. You said the Child Welfare Act only goes up to 18 years of age. But, this act is primarily for adults. I'm not too sure what the department is trying to say.

The drinking age is 19 and so forth. I would have assumed that this bill would recognize that if you are 19, you would be considered an adult.

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October 23rd, 1994

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The Chair John Ningark

Thank you. Mr. Minister.

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Stephen Kakfwi

Stephen Kakfwi Sahtu

Mr. Chairman, what would happen, basically, is that 18-year-olds would be exempt from either act. We want the new act to apply. If we don't include 18-year-olds, they would be left out. That's the thinking behind this particular definition.

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The Chair John Ningark

Thank you. Clause 1. Mr. Lewis.

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Brian Lewis Yellowknife Centre

Thank you, Mr. Chairman. This is one area that I believe could be improved and I do have a proposed amendment, if I may proceed, Mr. Chairman.

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The Chair John Ningark

Thank you, Mr. Lewis. Proceed, please.