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 1364

The Chair

The Chair Tony Whitford

Thank you, Mr. Koe. I shall refer to Mr. Hamilton to explain the process.

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 1364

Clerk Of The House Mr. David Hamilton

Thank you, Mr. Chairman. The purpose of dealing with a preamble to a bill last is so that when all the clauses and any schedules to a bill have been agreed to, the preamble is considered. That allows that any amendments that may have been moved to the bill, could have an option of referring them into the preamble. So as you go through the bill, any amendments that are made in the bill that Members feel could be reflected in the preamble, then that is your opportunity to amend the preamble. The preamble to the bill can be amended.

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 1364

The Chair

The Chair Tony Whitford

Thank you, Mr. Hamilton. It's contained in Beauchesne's 705. Thank you. Clause 1, as amended. It's already been dealt with. I was going to go to clause 2 now, but...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 1364

Jim Antoine Nahendeh

Did you say clause 1, as amended?

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 1364

The Chair

The Chair Tony Whitford

Yes, I said clause 1, as amended, and we had agreement. Just to accommodate Mr. Koe, he had a concern that if it were passed he just wanted to express that concern and he did. But do you wish to express something on clause 1 which has already been agreed upon? 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 1364

Jim Antoine Nahendeh

Yes. My concern is similar to what Mr. Koe was saying regarding the preamble. It pertains to certain rights that we have regarding certain sections of the Constitution Act, 1982. I just wanted to ask legal counsel a question before we get into the body of the bill; the clauses.

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 1364

The Chair

The Chair Tony Whitford

Mr. Antoine, we've already done general comments. We've already concluded clause 1, as amended, and we're prepared to go to clause 2. Mr. Hamilton explained the process of the preamble and of how we arrived at its place in the bill. We're going to deal with clause 2, but if you wish to ask Ms. MacPherson a question, we can allow that. But we're going to be dealing with clause 2 in a moment. 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 1364

Jim Antoine Nahendeh

I wanted to ask a question. Are you allowing me to ask a question?

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 1364

The Chair

The Chair Tony Whitford

If it deals with clause 2, which we're going to be dealing with. 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 1364

Jim Antoine Nahendeh

I would like to ask consent to return to general comments so I could ask a question. 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 1364

The Chair

The Chair Tony Whitford

Thank you, Mr. Antoine. I shall ask the committee if there's agreement to return to general comments. Does the committee agree that we return to general comments?

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 1364

Some Hon. Members

Agreed.

---Agreed

General Comments

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 1364

The Chair

The Chair Tony Whitford

Thank you, 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 1364

Jim Antoine Nahendeh

Thank you, Mr. Chairman. I would like to thank my colleagues as well for allowing me to ask these questions. I wanted to ask some questions on the process that was outlined because Bill 25 has a preamble, and you're saying that we will deal with it after dealing with all the clauses. But I wanted to ask these questions upfront.

It was to deal with the Canadian Constitution of 1982. I'm interested in a number of sections in the Constitution: section 15; 22; 23; 25; and, 35. In these different sections, just for the record, I wanted to ask that these sections deal with quality rights. Section 15 states that every individual is equal under the law and has the right to protection and equal benefits of the law under discrimination; in particular, without discrimination based on race, national or ethnic origins, colour, religions, sex, age, or mental or physical disability. Subsection (1) does not preclude any law, program or activity that has as its objectives the amelioration of conditions of disadvantaged individuals or groups, including those who are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. That's one section under the equality rights.

The next section is the official languages of Canada. Section 22 states that nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed, either before or after the coming into force of this Charter, with respect to any language that is not English or French. That is the area that I'm interested in.

The other one is under the minority language educational rights, in section 23. Citizens of Canada;

-whose first language learned and still understood is that of English or French linguistic minority population of the province in which they reside;

-who have received their primary school instruction in Canada in English or French; and,

-reside in a province where the languages in which they received that instruction is the language of the English or French linguistic minority population of the province;

had the right to have their children receive primary and secondary school instruction in that language in that province.

Section 25, aboriginal rights and freedoms not affected under Charter. The guarantee in this Charter of certain rights and freedoms shall not be construed as to abrogate or derogate from any aboriginal treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada, including:

(a)the rights of freedoms that have been recognized by the Royal proclamation of October 7, 1763; and

(b)any rights of freedoms that now exist by way of land claims agreements or may be so acquired.

I'll go on to section 35; that the existing aboriginal treaty rights of the aboriginal people of Canada are hereby recognized and affirmed. In this act, aboriginal people of Canada include Indian, Inuit and Metis peoples of Canada.

Have the legal people for the Legislative Assembly examined these sections in the Canadian Constitution of 1982 to see whether this new Education Act is contrary to these sections in the Canadian Constitution? 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

The Chair Tony Whitford

Thank you, Mr. Antoine. You're directing that to our legal counsel, 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. 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

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

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

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

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

The Chair Tony Whitford

Thank you, Ms. MacPherson. Mr. Antoine.