This is page numbers 661 - 692 of the Hansard for the 13th 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 yellowknife.

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Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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Roy Erasmus Yellowknife North

Thank you. Madam Chairperson, in the recent court case brought forward by the Friends of Democracy, Justice de Weerdt made a comment -- I do not have it here -- which inferred that in dealing with or defining Charter rights, they

did not have to be read in concert with section 25 of the Canadian Charter and section 35 of the Constitution Act. This is simply not the proper way to look at the Charter and the Constitution. While this might not be what he meant, it may be that he meant that in this instance he had not been supplied with enough information or evidence that this should apply. It may be left to interpretation that the Charter sections, like the right to vote and those types of things, are not to be read together with section 25 and section 35. We feel that it is very important for this to be clarified, and since the government did not appeal Justice de Weerdt's decision, they have no right to appeal to the Supreme Court in order to clarify this particular area. They would have to ask for a legal reference, and the only way it can be done is through the federal government. This government would have to ask the federal government to do it. This is what this is trying to do. This is trying to clarify this area of the law in the Northwest Territories and probably all over Canada, because I do not know if there have been any Supreme Court of Canada decisions exactly on this point.

Madam Chairperson, this is the intent of this motion. This was one of the large fears or a great deal of the impetus, I think, in appealing Justice de Weerdt's decision as well by the Aboriginal Summit members who did. I think that people are afraid that this particular court case will sit there, and whether or not this is what Justice de Weerdt intended, it is open for interpretation the way I explained. We would like to have that clarified. Thank you.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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The Chair

The Chair Jane Groenewegen

Thank you, Mr. Erasmus. To the motion. Mr. Ootes.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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Jake Ootes

Jake Ootes Yellowknife Centre

Thank you, Madam Chairperson. The Government of the Northwest Territories decided not to appeal Justice de Weerdt's decision, and it was based on recommendations by its advice received from the Department of Justice. I can support this motion because I believe that clarity to this situation would be of value for all concerned down the road. The motion is a situation where it urges the federal government to commence a legal reference. Based on that, I do want to point out that this government had advice that it should not appeal to the court with de Weerdt's decision. There is some concern as to the success of it. However, as I said, I will support this particular motion. Thank you.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 685

The Chair

The Chair Jane Groenewegen

Thank you, Mr. Ootes. To the motion. Mr. Henry.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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Seamus Henry Yellowknife South

Thank you, Madam Chairperson. Madam Chairperson, the Chairman of Government Operations in his opening comments, I believe, stated that for most of the motions there would not be a cost involved. I believe that the Government of the Northwest Territories has spent a considerable number of dollars on court cases, especially over this particular issue. If the mover of the motion could clarify in his closing comments on this particular motion that indeed he is not intending the Government of the Northwest Territories to be spending money on this, I certainly could find the will to support this motion, and I do believe it would add clarity to the issue. If there is a stone unturned to ensure that democratic rights and each person's rights are made known to them, I certainly have no problem in encouraging that. If the mover of the motion could clarify that the expenditures on behalf of this motion would be federally incurred, I would appreciate that. Thank you, Madam Chairperson.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 685

The Chair

The Chair Jane Groenewegen

Thank you, Mr. Henry. To the motion. Mr. Antoine.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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Jim Antoine Nahendeh

Thank you, Madam Chairperson. Madam Chairperson, this recommendation requests the government to pursue the issue of a legal reference to the Supreme Court of Canada on a matter that has already been decided by a lower court. Frankly, given the complex legal issues involved in putting such a reference before the Supreme Court of Canada, we have only had the opportunity to do a cursory review of the recommendations in the short time available. Our earlier reviews raise more questions than answers. Madam Chairperson, if this motion passes, we will provide a more formal and detailed response to Members of this House after we have the opportunity to do a thorough legal review.

While I have the opportunity, I would note for the record that this government has already invested a great deal of time and financial resources on this matter. In addition to our own costs, we have agreed to contribute funding to both aboriginal intervenors and the Friends of Democracy from both the original hearing and the appeal. We did so in the belief that both sides of this debate deserve a full and fair hearing. Mahsi.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 685

The Chair

The Chair Jane Groenewegen

Thank you, Mr. Antoine. To the motion. Mr. Erasmus.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 685

Roy Erasmus Yellowknife North

Thank you, Madam Chairperson. I am not really sure what the Premier said. I heard the part about spending a lot of money. I guess they are going to get more legal advice. Anyway, I hope it is not equivalent to the legal advice that said that the Summit members would be able to get leave to appeal, because that was dead wrong.

On the spending of money, I do not imagine that this government would not be able to spend any money, because they would have to make legal presentations if this was going to proceed. I suspect they would anyway because they have a fiduciary obligation to protect the interests of aboriginal people, and they could not leave such a ruling that is so -- I cannot find the right word. It is not really clear, I guess. It is not clearly worded. It is an obligation on this government to clarify this issue because we do have a fiduciary obligation to protect the interests of aboriginal people. We cannot allow future lower courts to follow an improper interpretation of Justice de Weerdt's comments, if it is improper. It is very easy to take it that way, that those sections should not be read together. I cannot say that voting in favour of this motion would not incur money, because I do not see how they could do it unless they urge the federal government to do it, but then they did not make any presentation themselves. I would expect that we would make a presentation but it would likely cost money. Thank you.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 685

The Chair

The Chair Jane Groenewegen

Thank you, Mr. Erasmus. Mr. Morin.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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Don Morin Tu Nedhe

Thank you, Madam Chairperson. Indeed this motion would cost the territorial government dollars for sure, but it is money well invested. The aboriginal governments cannot do this. Only this government can do this and with the federal government. If you believe in aboriginal people's rights, then

there should be no question that you would do that. It is publicly stated that this government supports the inherent right of self-government, that it supports aboriginal governments. Well, it should appeal to the federal government to take this issue and this question to court on behalf of the aboriginal people. There is too much of a cloud being left out there hanging over aboriginal people's heads because of a court decision made in the Northwest Territories. To clarify the issue, to be responsible as a government, you should go to the federal government. I have no doubt in my mind there will be a thousand reasons from the Justice department why you should not. Then it boils down to making a political decision again, your decision. It is a political decision. That is what you are, is politicians. You have to make a decision on whether you are going to represent all the people or just accept it and represent a few.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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The Chair

The Chair Jane Groenewegen

Thank you, Mr. Morin. I have Mr. Krutko to the motion.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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David Krutko

David Krutko Mackenzie Delta

I, too, support the motion on the principle that, because of the de Weerdt decision, basically there is a real cloud over exactly what the clarification or definition is of the section 35 rights for a lot of the land claim agreements and self-government agreements in regard to section 25 and how aboriginal people have special rights in regard to the Constitution of Canada. Also through those rights flow the treaties which presently exist in the Northwest Territories. We have land claim agreements which have been basically settled under section 35. Also, the self-government agreements, once they are concluded, will have to be protected somehow through the Constitution. I think if you only read it in the context of the Charter of Rights, there is definitely a grey area that is going to be there because there will be aboriginal institutions established through land claim agreements and there will be institutions established through the self-government agreements. There will be the question about delivering programs and services and whose rights override other people's rights.

I think if you use the precedent that has been set in this court case, there is no real protection there for aboriginal people if this is the reading of the law as it stands right now. I strongly encourage the government to move on this as soon as possible and get the clarity that everybody wants in the North, to see exactly what is meant by aboriginal treaty rights and also what protection aboriginal people have with the land claim agreements and self-government agreements they are going to negotiate. I, for one, feel that it is imperative that this not only needs clarity for the Northwest Territories but for other places in Canada, including the Yukon and the provinces, where there are now aboriginal claims being settled. I think this could have a long-term implication if it is not clarified as soon as possible. Thank you.

Committee Motion 35-13(7): Supreme Court Legal Preference To Clarify Sections Of The Constitution And Charter Of Rights
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 686

The Chair

The Chair Jane Groenewegen

Thank you, Mr. Krutko. To the Motion. Question has been called. All those in favour of the motion? All those opposed? Thank you. The motion is carried. Mr. Krutko.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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David Krutko

David Krutko Mackenzie Delta

I move that this committee recommends that the government introduce legislation to amend the Legislative Assembly and Executive Council Act to provide that the Executive Council of the Northwest Territories consists of six members;

And further, that the amendment to the Legislative Assembly and Executive Council Act require that there be regional representation on Cabinet as follows:

- two Cabinet Members selected from the constituencies of Nunakput, Inuvik West, Inuvik East, Mackenzie Delta, Sahtu, North Slave;

- two Cabinet Members selected from the constituencies of Nahendeh, Deh Cho, Hay River North, Hay River South, Thebacha, Tu Nedhe and,

- two Cabinet Members selected from the constituency of Yellowknife;

and furthermore, that the government introduce the amendments to the Legislative Assembly Executive Council Act to implement regional representation on Cabinet and to specify the size of Cabinet for passage before dissolution of the 13th Legislative Assembly.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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The Chair

The Chair Jane Groenewegen

Thank you. The motion is in order. To the motion. Mr. Ootes.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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Jake Ootes

Jake Ootes Yellowknife Centre

Thank you, Madam Chairperson. In principle I am not against the idea of establishing a recommendation to have the so-called 2-2-2 for our Executive Council. There is some concern in my mind that there may be a desire to have a Cabinet of larger size, and if this was a recommendation, even a strongly worded recommendation, then I could support it, but I cannot support a recommendation that would put this into legislation. I feel that we should not bind a future Legislature as to how it should govern itself or how it should be made up. As I say, I could accept this if this was a recommendation and I would support it, but because the motion is to change the Legislative Assembly and Executive Council Act, for that reason I cannot support the motion. Thank you.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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The Chair

The Chair Jane Groenewegen

Thank you, Mr. Ootes. To the motion. Mr. Antoine.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 686

Jim Antoine Nahendeh

Thank you, Madam Chairperson. Madam Chairperson, the committee proposes the implementation of legislative amendments to provide for regional representation on Cabinet. Cabinet concurs with the review of the committee that the regional representation based on the 2-2-2 model, set out in the committee report allows for a good balance between all regions of the Northwest Territories. Such a model would ensure that all regions have an adequate voice in decision-making at the Cabinet level. Traditionally, decisions concerning the size, composition and selection of Cabinet have fallen within the purview of incoming Members of the Legislative Assembly. In most jurisdictions, reference to the Premier and the Executive Council are not even set out in legislation. In our system, Madam Chairperson, this type of representation has always been established by convention.

Prior to division, this Legislative Assembly established a convention that ensured four Ministers would be elected from amongst the 14 Members of the western caucus and four Ministers from the ten Members of Nunavut caucus. This was a convention established and honoured through several Assemblies and the terms of office of many different Members. During the clause by clause review of this Bill in committee, it was suggested to me that the 2-2-2 model could not be established in this manner because no such convention exists at this time. Another argument put forward was that under the proposed electoral boundaries, one region could essentially control the Cabinet selection process. Cabinet has considered these arguments and those set out in the committee's report. In our view, the convention must begin somewhere, and a good place to start is the beginning of the 14th Assembly.

With respect to the argument that one region can control the selection process, this is of course possible. I would note that it was also possible during previous Assemblies for the western caucus to dominate the Cabinet selection process based purely on numbers. This never occurred. Madam Chairperson, whether this was the result of goodwill of Members or because in our system, Members are elected as individuals with individual political views, is a question open to debate. In truth, there was probably a little of both. We believe that future Members of the Legislative Assembly would continue to ensure that regional interests are represented in Cabinet. Members of Cabinet fully endorse the 2-2-2 model proposed by the committee and are of the view that such a model will be adopted as the convention for the Legislative Assembly of the Northwest Territories. Madam Chairperson, we believe that a political convention based on the 2-2-2 model of regional representation could be achieved through a formal motion of this House recommending this proposal to the 14th Assembly. This motion and the report of the Standing Committee could be provided to Members of the 14th Assembly in the transition report traditionally prepared for incoming Members. Madam Chairperson, the committee also proposed to enshrine the size of the Cabinet at six Members. We feel that this is a determination that incoming Members of the 14th Assembly should make. Mahsi Cho.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 687

The Chair

The Chair Jane Groenewegen

Thank you, Mr. Antoine. To the motion. Mr. Krutko and then Mr. Henry. Mr. Krutko.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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David Krutko

David Krutko Mackenzie Delta

Maybe go to Mr. Henry. I will do the closing comments.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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The Chair

The Chair Jane Groenewegen

Thank you. Mr. Henry.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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Seamus Henry Yellowknife South

Thank you, Madam Chairperson and thank you, Mr. Krutko. Madam Chairperson, I will not be able to support this motion. As I look across the room presently, I see Mr. Kakfwi, who is from Sahtu, Mr. Steen from Nunakput, and Mr. Roland from Inuvik. I believe these gentlemen have represented their constituents and all people of the Northwest Territories fairly and equally. I think under the present situation it would be wrong to not have these people in the government just because three of them happen to be from an area where it says by legislation we can only have two. I think they have represented the people of the Northwest Territories fairly and equally. From that perspective, I would be more interested in the Members of this Legislature electing the best people they can, the fairest people they can to represent all people in the Northwest Territories. From that perspective, I understand where some of the committee Members are coming from. It is a lot more difficult to change legislation than it is to convention, but in the situation where there may be a requirement for an increase to cabinet, I think it ties the hands of future governments to have some flexibility in this regard. So from that perspective, I will not be supporting the motion. Thank you, Madam Chairperson.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

Page 687

The Chair

The Chair Jane Groenewegen

Thank you. Mr. Morin.

Committee Motion 36-13(7): Regional Representation On Cabinet (2-2-2 Proposal)
Item 19: Consideration In Committee Of The Whole Of Bills And Other Matters

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Don Morin Tu Nedhe

Thank you, Madam Chairperson. It was interesting to listen to the father of open government, public government, open decision-making, bring it to the public forum, Mr. Ootes, talk about keeping the decision-making behind closed doors. That is what convention is, when you talk about convention. Everybody here fully knows what happens when the 14th Legislative Assembly comes back in. They are all going to gather up in the caucus room and make the deal up there. The public is not going to hear the debate or anything. They are going to come out, and we might have an eight Member Cabinet, a seven Member Cabinet, or a six Member Cabinet. No one knows, and not one person of the public will be able to hear any of that debate because it will be carried out in the caucus room.

It is interesting to sit here and listen to the government pass the buck to the next government. We agree, good principle, but we will not make a decision. We do not want to bind into the next Legislative Assembly. Well, why do we not all go home now? What are you drawing the pay cheques for? You have legislation on the floor right now that is going to bind the next Legislative Assembly. Not much substance, but an interesting comment. The reason our committee made this motion is to ensure that there is a public process. This only binds the 14th Assembly until they choose to change it. They can change it. They can come right into this Legislative Assembly and put a motion on the floor and say, no, we change our minds, the 13th Assembly, Members of the 13th Assembly were not quite in their right minds when they were thinking of this. They can do that. There is going to be 19 of them, five more of them. The majority of them will come from Yellowknife, but that will happen in the public.

Passing the buck to the 14th Assembly is totally unacceptable. Either you agree with it or you do not. It is very straightforward. You agree with the principle of regional representation into Cabinet, then put it in legislation. If you do not, then do not put the legislation forward. You are the government. You are the one that is going to be answerable to the people. This is a fair split. Six from the north, six from the south, and seven from Yellowknife. Nobody can have a constitutional challenge on that one. What it does, it is part of a political solution. Your government has talked about political solutions. Was that just talk? That is what I am starting to think, just plain talk, no substance to back it up. Was anybody really interested in a political solution?

I have seen Mr. Henry, I have seen Mr. Ootes stand up in this House and say we want a political solution. They did not even have the decency to go listen to the people to get a political solution. Then they sit there and say, well, committee report is this and this, it costs too much money. But at least we went out and looked for a political solution and were willing to take the political lumps that we will take when the voters go to the polls. Whether they are going to vote for you or not, at least you stand up and stand for what you represent. Everybody knew in this Assembly how much the previous convention was manipulated, how much it was. Everybody knows that. That is just a convention.

This committee motion would impel them to do something at least. It would make them do it in public. You are going to have 19 Members. The bigger communities are going to control this Assembly, control the Caucus. Is that what you want to come back to, without some legislation in there to protect our regions, to protect our smaller communities, or are we willing to sell those guys out too?

By moving ahead without coming ahead without coming up with political solutions, this government and this Legislative Assembly is not going to be known for the good things it has done. It is going to be known as a government in the Legislative Assembly that has torn the Western Territories apart. So I urge you to quit sitting on your hands, quit hiding behind your seats and at least get out there and do something so that we can have a public process. Everybody talks about it, but no one wants to do it. That is the bottom line. Thank you.