This is page numbers 1341 - 1373 of the Hansard for the 12th Assembly, 7th Session. The original version can be accessed on the Legislative Assembly's website or by contacting the Legislative Assembly Library. The word of the day was chairman.

Topics

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

Law Clerk Ms. Macpherson

Thank you, Mr. Chairman. That's a significant question. I'm not sure that anybody could say, with any degree of certainty, the scope and extent, for example, of the rights under section 35, aboriginal rights. That section, as the Member has pointed out, says that nothing is meant to take away from the existence of aboriginal rights; but without knowing what the scope of aboriginal rights is, it's very difficult to look at the Education Act and see if there's anything in there that infringes on aboriginal rights.

I can say that the preamble is expressly worded, that the preamble is worded very cautiously so as to ensure that nothing in the preamble is meant to take away from those rights. In other words, those rights are being recognized but they're not being defined or elaborated upon in the Education Act. Thank you, Mr. Chairman.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

The Chair Tony Whitford

Thank you, Ms. MacPherson. Mr. Antoine.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

Jim Antoine Nahendeh

My concern, Mr. Chairman, with the Education Act is that the legal opinion has not really looked at the aboriginal treaty rights which exist under the Canadian Constitution and pertain to this act. It has not done that. We are going forward to pass this Education Act without having a really close look at this act. It might be infringing on the treaty and aboriginal rights of the people in the north. To go ahead and move it at this time is a very serious concern for me.

There are legal people who specialize in aboriginal and treaty rights. If we could have the legal opinions of these types of experts to help us look at this Education Act in light of the Canadian constitutional protection that we have as aboriginal people, I think that would be the way to go with this act. I have serious concerns about that. The more I talk to people who have expertise in this area, the more concerned I am. Thank you, Mr. Chairman.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

The Chair Tony Whitford

Thank you, Mr. Antoine. Ms. MacPherson.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

Law Clerk Ms. Macpherson

Thank you, Mr. Chairman. Perhaps if I can just add; I don't see anything in this act which attempts to limit or abrogate aboriginal rights. This is a law that is meant to be a law of general application in the fact that it would impose certain rights and obligations on all of the citizens of the Northwest Territories. It is very conceivable that there are aboriginal rights that go beyond the Education Act which haven't been defined yet.

In other words, there are certain educational rights that are given under this act, but there is nothing in this act that says that is the extent of education rights for aboriginal people. So, from that perspective, the act has been reviewed. It hasn't been reviewed to see if this act complies with those further aboriginal or treaty rights, because I am not quite sure that anybody, at this stage, could give a definitive opinion in that area given the uncertainty both in the law and in negotiations on that issue. Thank you, Mr. Chairman.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

The Chair Tony Whitford

Thank you, Ms. MacPherson. Mr. Antoine.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

Jim Antoine Nahendeh

Thank you, Mr. Chairman. The little confusion that we had here earlier with the preamble -- and we deal with it at the end of all the clauses -- causes me great concern because the only thing in this whole act that mentions my concern, which is treaty and aboriginal rights, is in the preamble. All it says is, "recognizing the rights and freedoms of aboriginal people in the Northwest Territories as set out in section 35 of the Constitution Act of 1982."

That is where my concern is. From my understanding, the preamble is not part of the act. So, even though it may say these things in the preamble, it's not in the act. What I understand is that once this act gets into place, it is going to be about a year or so before any of the regulations that would drive this bill will be developed. If it is not in the act, it's up to the interpretation of the department to develop the regulations based on treaty and aboriginal rights. Is my understanding correct that the preamble is not part of the act and that, if regulations are being developed once this act is passed, it will take about a year or so and the preamble doesn't necessarily help in the development of the regulations? Thank you, Mr. Chairman.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

The Chair Tony Whitford

Thank you, Mr. Antoine. I shall refer to Ms. MacPherson for comment.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

Law Clerk Ms. Macpherson

Thank you, Mr. Chairman. The preamble is a part of the act and it would be used, for example, by the courts to assist the court in interpreting the act if there were ever any question about what the act attempted to do. So if there was a section that was unclear or ambiguous or capable of more than one interpretation, the courts would look to the preamble to see the intention of this Legislature when they passed the act and to assist the court in the interpretation of the act. So the preamble, while not containing substantiative rights or substantiative law, is very much an aid to interpretation by the courts. Thank you, Mr. Chairman.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

The Chair Tony Whitford

Thank you, Ms. MacPherson. Mr. Antoine.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

Jim Antoine Nahendeh

Thank you, Mr. Chairman. What legal status does this preamble have in terms of challenge, like a court challenge, for this act? Thank you.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

The Chair Tony Whitford

Thank you, Mr. Antoine. Ms. MacPherson.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1365

Law Clerk Ms. Macpherson

I am a bit unclear, Mr. Chairman, as to the question. The preamble will be used to assist the court if there were ever a challenge to the act. For example, if somebody challenged the act on the sections dealing with religious education and the court wanted to find out what this Legislature meant in section 77, it could look to

the preamble to garner the intention of the Legislature. So, in terms of the status, it is a part of the law. It will, if it's passed through this House and the act is proclaimed into force, form a part of the Education Act and will be a part of the law that comprises the Education Act. Thank you, Mr. Chairman.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1366

The Chair Tony Whitford

Thank you, Ms. MacPherson. Clause 2. General comments. Mr. Koe.

Committee Motion 69-12(7): To Amend Clause 1 Of Bill 25, Carried
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 1366

Fred Koe Inuvik

Mr. Chairman, my colleague initially asked unanimous consent to go back to general comments, so I assume we are still on general comments.