Thank you, Mr. Chairman. I've had a chance to meet with both Ministers sponsoring this bill, Mr. Chairman, and they are proposing amendments that are achieving a similar purpose of the one I had introduced. Therefore, I will withdraw my amendment.

Having withdrawn my motion, Mr. Chairman, and since we are on clause 1 and I need some time to explain what has happened, I would like to return briefly to general comments, with the unanimous consent of the House.

Agreed.

---Agreed

Thank you, Mr. Chairman. Members will recall that I had proposed an amendment to this act to include a definition of assisted or supported decision-making. It was my intention to introduce two consequential amendments to effect the idea that an individual could make a decision on their own, or they could get some assistance in doing that. That has now been withdrawn, so there is no debate on that issue any more.

My proposal, however, is still something that is active since we would like to make it clear that an individual does have the right to make decisions and, whenever we can, we should maximize the possibility of that individual making decisions, even though it may mean seeking other people's support and help in making it.

The reason I believe this kind of discussion should take place in this House is that it seems to me that any act, whatever act we propose and pass in this House, which gives direct power over somebody else's life goes to the very heart of our own democracy and offers the biggest challenge, in my opinion, to how we protect individual rights.

This act, in my view, should include the recognition that an individual can be helped or supported in making a decision. And, even if they got help in making it, it would still be their own decision. I was asked by the Minister sponsoring this bill if I would consider an alternative way of achieving that purpose, of maximizing the individual's right to make their own decision, even if they have to seek help in making it.

It may not be as strong as what I proposed and it may be buried in the act rather than highlighted in the act. I know, however, that judges often examine debates in Hansard in order to interpret the spirit as well as the letter of the law. That is the purpose of my general comments today. I thought it was very important that we have on record some discussion on this aspect of the bill, so that whenever it would come to court, the judge could look at the Hansard and know this is really what the Members intended. He would be guided by the spirit of whatever discussion we have here.

My main concern, Mr. Chairman, is that the main focus of this act is on guardianship and trusteeship. I don't have to go into great detail with Members on the origins of the words "guardian" and "trustee," but anyone who watches the late night movies are familiar with the concept of being locked up and having a trustee who looks after all the other prisoners. I know the words have lost that meaning today. They mean something else. But it really means an authority figure who is placed to control somebody's life, rather than a person who may be represented by somebody else.

The act seems to me to be more concerned with the third party rather than with the individual, who should be the focus of the bill, in my opinion. It is designed more for the system than it is for the individual.

Hear, hear.

I recognize that the system has needs too, but if that becomes paramount in any system, that the focus is on trusteeship and on guardianship, then I believe we are sending the wrong message to the people who sent us here to pass acts for the people we represent.

I appreciate that the effort to put focus on the represented person rather than on guardianship or trusteeship raises many questions of labelling. That has been a major issue for people in this country, but when you have unfortunate peoples, we tend to give them unfortunate names. Very often they cause damage. Whether the person is called senile, handicapped or vulnerable, this problem is perhaps unavoidable. However, Mr. Chairman, I did raise this in committee and I did say that I would have preferred some other way of naming this act, rather than to focus on guardianship and trusteeship. My own particular preference would have been Represented Persons Act. I will give my reasons for this.

All of us in this House have had the experience of putting ourselves into someone else's hands; when we put our trust, for example, in a lawyer, an accountant, a surgeon or even a priest. All of us, to some degree, have had a feeling of helplessness. I recall when we first took our seats in this Assembly, we were all lost to some degree. We put ourselves into the hands of Mr. Hamilton or more experienced Members in this Assembly in order to guide us through some difficult days.

Even today, after seven years in this House, I went to see Mr. Hamilton to ask what I do if I want to make general comments because we are already in clause 1. If I wait until the government's amendments come in and I want to say more than what is in the amendment, I won't be able to do it. I would be called by the chair. The simple solution is to get a return to general comments, so that I can make a broader statement about the concerns I have. So even after seven years, not being as quick thinking as I was seven years ago, I still went to check with the Clerk to see what I should do to help to support me in making my decision.

Mr. Chairman, even in the seating arrangements in this House, especially in the seating arrangements of Cabinet, there have been traditional ways over the years of getting support to Ministers, when they need it, by making sure they sit next to someone who will be ready and able at a second's notice to put them on the right track if they are momentarily a bit perplexed in trying to respond to an issue or a question.

Mr. Chairman, I raised the issue of supported decision-making in committee, but was told that my concerns were already covered in the act. I found it very difficult to propose changes since, as I have said, the focus of the bill is on guardianship and trusteeship; not so much on the individual's needs. I turn now, Mr. Chairman, to something which Members may want to reflect upon. Maybe I am exaggerating and maybe I am taking this issue further than it needs to be taking. This says a lot about the way we operate here.

The major criticism of this Assembly is that it is a continuation of the old tradition of paternalism and colonialism, where Big Daddy will look after you. We will take away your freedom and there is some great big bloated uterus on the banks of the Ottawa River that will make sure that everything you do will be done right because there are smart people who know better than us about the way we do things.

The major criticism I have heard from aboriginal people is that they are a colonized people and they want control over their own lives. I, therefore, find it incredible that a public government, which wishes to break with the past, wants to highlight guardianship and trusteeship. Those things are needed. I am not arguing about the need to have something in place that will achieve the purpose. I have made this point with Mr. Kakfwi and the Premier. I believe they are both very sensitive to this concern. I am surprised that the talented people who drafted this bill were not alerted to the larger implications of highlighting the business of guardianship and trusteeship.

Hear, hear.

It sends the wrong message to the people who we serve. I know there is a tradition, Mr. Chairman, in this Assembly that all issues are resolved in committee. I have been a loyal and active Member of Mr. Gargan's committee. I believe that it has been a very effective committee under Mr. Gargan's chairmanship. We have achieved good things: for example, with the Mining Safety Act. A lot of work was done to resolve the problems.

I believe, however, that the bill we have in front of us should be discussed further in this House, so that our concerns are recorded in Hansard. Then the judge who looks at this can see that this is the spirit in which we would like to have this act dealt with.

Mr. Chairman, I do not oppose this bill. I do not oppose the idea that we need to have an act to achieve the purposes outlined by government. I would just like Members to spend a little more time on this bill and see whether, even at this late stage, we can make it a far better bill. Maybe it will just be minor changes. I have said that what the government proposes will achieve some of the things by broadening the idea of competence; by including some concept of assisted decision-making. It is the type of bill, Mr. Chairman, that raises fundamental issues about our northern society and how it is governed. For that reason, although we do good work in committee and resolve many of the issues that are brought to us, this is the kind of thing we should talk about because it tells a lot about our system to the people we serve. Thank you.

Thank you, Mr. Chairman. Mr. Chairman, I am aware that this legislation has been called for many years because of the vacuum that was in place and that there were situations that had to be addressed that couldn't be addressed because of the lack of legislation. One of the principal driving forces behind this legislation was the rather narrow concern to protect people working in the field from liability for their actions.

Mr. Chairman, I just want to put on the record that, although I am not opposed to the legislation going forward for reasons I have just indicated, I, too, having studied the bill somewhat, not having been able to participate in the hearings of the Standing Committee on Legislation, I have a very strong feeling of unease that there is too much "big brother" in this legislation and too little respect for the dignity of the individual.

I believe that enlightened jurisdictions in Canada, who have had experience with this issue for many years, have made considerable progress in establishing the presumption that guardianship should be avoided wherever possible; in establishing the presumption that a person has the right to make decisions for themselves; as an operative presumption, which can only be set aside under the gravest of circumstances and after all other possible alternative measures have been considered.

Mr. Chairman, looking at the bill, I don't see the philosophy of maximum support for independent decision-making present in this bill. I wonder whether we have let the lawyers and the professionals take over this process and develop something that will be a very elegant process for professionals working in the established bureaucratic and legal system, and perhaps is not as sensitive as it might be to the needs of the individual, particularly recognizing that many of the people who will be affected by this legislation are aboriginal people whose first language is not English, who are not familiar with the legal system and who may find life in an institution, for example, quite different from the way they have lived their lives and the values and traditions that have governed them for most of their lives.

Mr. Chairman, I am anxious to hear the Minister's comments because I am sure he is sensitive to this issue and has undoubtedly considered it in bringing this legislation forward. If we agree that it is right that these drastic powers should be avoided wherever possible, if we agree that there should be a presumption in favour of the person's right to make decisions for themselves, then why should we not put that kind of a presumption right up front at the beginning of this legislation in a whereas clause that will spell out that this act should be interpreted in such a way as to respect the right of the individual to govern their own lives and the presumption that people can make their own decisions without interference by the state, in every possible circumstance.

I understand that representatives for the Association for Community Living made a suggestion to the drafters of this legislation that if we agree on these important principles, especially as they are applied in the cross-cultural situation, where we all know people can be vulnerable, why not put in a whereas clause that will make it clear and will set the stage for the application of this legislation. I understand that the association was told that we don't put whereas clauses in legislation. I know a piece of legislation where there is a whereas clause and that is the Official Languages Act of the Northwest Territories. That is one that has such a clause.

I was rather disappointed that it was dismissed as technically impossible when for one of the most culturally sensitive issues that has gone before our Legislature -- official languages -- it was felt appropriate and desirable to put in a whereas clause to set the tone for the legislation. I want to ask the Minister and endorse Mr. Lewis's comments, if this is the spirit with which we want to approach this legislation, would it not be appropriate to state that up front so that all the judges, lawyers and non-native social workers, who may be involved in this situation, will understand the fundamental concern of Members: that these powers are to be exercised with extreme caution?

I just want to cite one section that to me shows that big brother is alive and well in this legislation. I know this is general comments, but I was alarmed to see in section 11(2) that it is proposed, under powers of the guardian, that a court could give the guardian powers under 11(2)(e) and (f) to decide whether the represented person should work and, if so, the nature and type of work for whom he or she is to work. That is (e). Sub (f) is, "decide whether the represented person should participate in any educational, vocational or other training and, if so, the nature and extent of that training."

Mr. Chairman -- and this is for the Minister -- if a person is fit to work or go to school, isn't the person themselves fit to decide what course or job they take? To me, this is an indication that the state is intervening unnecessarily. Perhaps there is a good reason for this, but common sense would seem to me that if someone is capable of working, they should be capable of deciding what job they should take, and the same with training.

I have a question about the general character of this bill and, specifically, could you comfort us by devising a simple preamble to the bill that would clarify the rights of the individual being preeminent? Thank you, Mr. Chairman.

Mr. Chairman, I hope I wasn't that person Mr. Kakfwi referred to when he said that aboriginal people don't need to be lectured.

I took notice of Mr. Antoine's comments when the bill came up before, about his concern that we understand that our elders are often very independent-minded people, and that this is something we're proud of and we respect. I'm not trying to lecture anybody. But -- I'll say the phrase I joked about the other day -- with respect to the Minister's comments, he's saying to me oh, don't worry, we spell out all these powers for the guardian to choose a job, to choose a training program, to protect the individual from abuse by an employer or by an educational institution...so all these extensive powers are there so that the guardian will be able to exert tremendous control over that person's life. That is a paternalistic approach. It's like an approach to rearing one's child. You can take a very domineering approach of taking steps to control every minute of that child's life, or you can take another approach which is to provide the maximum support and information so that child can make decisions in their own best interests and stand and protect themselves because they're strong and independent. I guess I have yet to be satisfied that the paternalistic approach is the way to go.

I would like to ask again whether the Minister has considered the suggestion of a preamble in this bill -- and I realize this is perhaps a late suggestion, I have not had the opportunity of participating through the Standing Committee on Finance, but I have done a little bit of research and talked to people who are concerned about these issues -- that if there's a concern about paternalism, perceived or real, would it hurt to lay out at the beginning of the act a presumption about the presumed independence, and the presumption that there should be the maximum support for independent decision-making and avoidance of guardianship so that everybody who is involved with administering these sections, including judges, will understand that the intention of the Legislature was to respect the right of individuals to make independent decisions, or to be supported to make independent decisions before the heavy arm of the state intervenes? I would like to ask the Minister again -- and the Minister is telling the House that the concerns have been addressed in the bill, the safeguards are there -- why don't we put it up front in a preamble? We weren't afraid to do it in the Official Languages Act; why don't we do it in this act so it will set the tone and provide clarification that these powers and this paternalism is to be exercised with the greatest of caution and the maximum respect to the individual and that person's right to make supported or independent decisions for themselves? Thank you.

I'm going to try for a third time. Mr. Chairman, the Minister is assuring me that the information throughout respects the dignity of the individual. My question is, if that is the tone of the legislation, if it is the spirit of the legislation, if the presumption is that the individual shall be presumed to have the right to make independent decisions or supported decisions wherever possible, then why not put it in the preamble of the legislation and spell it out?

So, that those of us who haven't read all the detail and those of us who are not familiar with every nuance of every clause can know, up front, at the beginning of the legislation, that this is what it's all about: that the Northwest Territories is not retreating to the past for its model, is not resurrecting colonial models and principles of the past, but instead is presenting a balanced process that is not going to be paternalistic or like big brother?

I think that is the way to do it. It would certainly satisfy me because I think these preambles do assist courts to understand how they should rule when there are difficult judgements to be made; when there are cross-cultural situations; when there are professionals making judgements about, for example aboriginal elders who may not fully understand the language, let alone the process of the law. Why not spell it out in the preamble, as was recommended by the only association I know that exists to protect and represent people in this category? Why can't we have a preamble in there?

If it is apparent throughout the act, then why not state it up front, at the beginning of the act, like we do in the Official Languages Act? It would give me great comfort if that was there. I would like to know if it was considered, or if it could be considered. Thank you.

Mr. Chairman, I have spoken to people who have been involved in the long process that the Minister refers to and I've been told the Association for Community Living suggested, on this fundamental and philosophical issue we are talking about for the respect for the dignity of the individual, that a preamble could provide the comfort that those who are concerned about this issue seek.

I'm further told that the Minister's legal advisor said no, that it was out of the question because we don't do preambles in legislation in the Northwest Territories. Yet, I know that the Official Languages Act has a preamble. I'm not just coming up with an off-the-wall suggestion here, Mr. Chairman. I'm trying to understand why what I thought was a reasonable suggestion was apparently rejected out of hand as being unprecedented, while I know that it is not unprecedented.

I'm just trying to find out whether this suggestion was ever considered seriously. Was it rejected because the particular legislative draftsman wasn't aware of the fact that preambles have been used even in the Northwest Territories to set the tone of a piece of legislation? What's the background on this? Was there a good reason for rejecting that suggestion or not? Thank you.

Mr. Chairman, the Minister of Justice and I are sponsoring the bill. In relation to the comfort clause and as to the point the Member is making, the legislation was put together embodying the concerns that were raised. It was assumed, after the long consultation, that the comforts of taking care of individuals were embodied in the legislation.

The other issue to carefully consider away from them and us, is by and large if it's an aboriginal person and that person requires a guardian, the chances are the guardian would be an aboriginal person. It's not intended in this legislation to have a guardian who is not of the family or close to, or anything else like that. The guardian would more than likely, more apt to be, for an aboriginal person, an aboriginal person.

The legislation in itself has gone through the necessary procedures more than any other legislation, and the question of where is this comfort, it's to be embodied in the legislation. I just wanted to make that point.

I call the House back to order. Item 20, report of committee of the whole. The honourable Member for Yellowknife South, Mr. Whitford. Point of privilege, Mr. Patterson.

Point Of Privilege

Thank you. I will report on your point of privilege once I have reviewed Hansard, Mr. Patterson. Item 20, report of committee of the whole. The honourable Member for Yellowknife South, Mr. Whitford.