This is page numbers 4571 - 4620 of the Hansard for the 18th Assembly, 3rd 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.

Topics

Committee Report 9-18(3): Report on the Review of Bill 18, An Act to Amend the Cities, Towns and Villages Act
Reports Of Standing And Special Committees

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The Speaker Jackson Lafferty

Masi. Member for Kam Lake.

Motion to Receive Committee Report 9-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

October 30th, 2018

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Kieron Testart Kam Lake

Thank you, Mr. Speaker. Mr. Speaker, I move, seconded by the honourable Member for Hay River North, that Committee Report 9-18(3) be received by the Assembly and moved into Committee of the Whole for further consideration. Thank you, Mr. Speaker.

Motion to Receive Committee Report 9-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

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The Speaker Jackson Lafferty

Masi. The motion is on the floor. To the motion.

Motion to Receive Committee Report 9-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

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Some Hon. Members

Question.

Motion to Receive Committee Report 9-18(3) and Move Into Committee of the Whole, Carried
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The Speaker Jackson Lafferty

Question has been called. The motion is carried.

---Carried

Member for Kam Lake.

Motion to Receive Committee Report 9-18(3) and Move Into Committee of the Whole, Carried
Reports Of Standing And Special Committees

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Kieron Testart Kam Lake

Thank you, Mr. Speaker. Mr. Speaker, I seek unanimous consent to waive Rule 100(4) and move Committee Report 9-18(3) into Committee of the Whole for consideration later today. Thank you, Mr. Speaker.

Motion to Receive Committee Report 9-18(3) and Move Into Committee of the Whole, Carried
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The Speaker Jackson Lafferty

Masi. The Member is seeking unanimous consent to waive the rule to allow the bill to move to Committee of the Whole.

---Unanimous consent granted

Bill 18, An Act to Amend the Cities, Towns, and Villages Act, is now referred to Committee of the Whole for further consideration. The report of the review of Bill 18 is now referred to Committee of the Whole. Masi. Reports of standing and special committees. Member for Kam Lake.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
Reports Of Standing And Special Committees

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Kieron Testart Kam Lake

Thank you, Mr. Speaker. Here we go again.

Mr. Speaker, your Standing Committee on Government Operations is pleased to provide its Report on the Review of Bill 20: Ombudsperson Act and commends it to the House.

Introduction

Bill 20, sponsored by the Minister responsible for Public Engagement and Transparency, provides for the appointment of an Ombudsperson as an officer of the Legislative Assembly of the Northwest Territories. The bill establishes the mandate of the Ombudsperson to investigate complaints about the administrative fairness of Government of the Northwest Territories' practices, in order to promote fair, reasonable and equitable government administration.

Some of the key matters addressed by the Bill include:

  • Requiring that the Commissioner, on the recommendation of the Legislative Assembly, appoint an Ombudsperson;
  • Conferring powers and duties on the Ombudsperson for the purpose of fulfilling their mandate;
  • Setting out which GNWT departments, boards and agencies, collectively referred to in the bill as "authorities," will be subject to the Ombudsperson's jurisdiction;
  • Setting out how members of the public may make complaints to the Ombudsperson; and
  • Setting out how investigations are to be conducted by the Ombudsperson.

Bill 20 received second reading in the Legislative Assembly on June 1, 2018, and was referred to the Standing Committee on Government Operations ("the committee") for review. The committee is pleased to report on its review of Bill 20: Ombudsperson Act.

A Note About the Title "Ombudsperson"

For many years, the word "Ombudsman" has been commonly used in English-speaking countries to describe the role of the person who oversees the administrative fairness of government practices. However, because the term is not gender neutral, its use has become increasing less acceptable. In an effort to arrive at the most appropriate and workable title for the Northwest Territories' Ombudsperson, committee considered titles used in other Canadian jurisdictions.

Six of 10 provinces and territories still use the term "Ombudsman." Each of the remaining four jurisdictions use a different title. In Newfoundland and Labrador, the person is called the "Citizen's Representative," and in Quebec, the "Public Protector." Only one Canadian jurisdiction, British Columbia, uses the term "Ombudsperson," as proposed in Bill 20.

Committee supports the use of a gender neutral title, but Members find the term "Ombudsperson" awkward and difficult to pronounce. For that reason, committee decided to follow the lead of New Brunswick which, in 2017, changed their legislation so that the title of their Ombudsman is now, simply, the "Ombud."

Committee proposed this change during the clause by clause review of Bill 20, covered in more detail later in this report. The Minister responsible for Public Engagement and Transparency concurred with the committee's motion to amend the title of the bill. While Bill 20 has not yet received assent, we anticipate this change will be adopted. For this reason, we have opted to use the term Ombud for the remainder of this report, except where another term is used in a direct quote.

Background

Together with Nunavut and Prince Edward Island, the Northwest Territories is one of only three Canadian jurisdictions without an Office of the Ombud to which members of the public may direct complaints about the fairness of their treatment by government.

The idea of creating an Ombud office in the Northwest Territories has been raised from time to time in the Legislative Assembly dating, at least, as far back as the 12th Assembly. In March 2013, a motion was passed in the Legislative Assembly, referring the proposal to establish an Ombud office in the Northwest Territories to the Standing Committee on Government Operations for research, analysis and review. That direction from the House culminated in a Report on Establishing an Office of the Ombudsman for the Northwest Territories, which was tabled in the Assembly just over a year later, in June 2014.

Building on the foundation set by this report, some Members of the 18th Legislative Assembly advocated to include Ombud legislation in the Government of the Northwest Territories mandate. As a result, the mandate contains commitment 5.3.11 to "develop legislation within two years to establish an independent parliamentary office of the Ombudsman."

The introduction of Bill 20 in the House, albeit a little behind schedule, fulfills the GNWT's commitment to bring forward this legislation. Committee thanks the Minister responsible for Public Engagement and his Cabinet colleagues for fulfilling this important promise.

The Public Review of Bill 20

To commence its consultation on Bill 20, the committee wrote to invite input from a broad array of over eighty stakeholders, potential interest groups and organizations in the Northwest Territories such as municipal governments, Chambers of Commerce, non-governmental organizations and professional societies. Committee also wrote to Indigenous governments in the Northwest Territories to seek their input and, in particular, to canvass their interest in accessing the services of the Ombud on a cost-sharing basis, in a manner similar to that provided for in the Yukon Ombudsman Act. This proposal is discussed in greater detail later in this report and with respect to Motion 7.

The committee held seven public hearings on Bill 20 in Inuvik, Norman Wells, Fort Resolution, Hay River, Behchoko, Ndilo, and Yellowknife. As well, committee received eight written submissions, from the Yellowknife Chamber of Commerce, the Tlicho Government, the K'atlodeeche First Nation, former Member of the Legislative Assembly Ms. Wendy Bisaro, Mr. Colin Baile, the NWT Seniors' Society, the NWT branch of the Canadian Bar Association, and the City of Yellowknife. All submissions received by the committee are appended to this report.

The committee would like to thank the communities who welcomed us on our travels and everyone who provided input on Bill 20.

Mr. Speaker, I will now ask that the honourable Member for Hay River North continue the reading of this report. Thank you, Mr. Speaker.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
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The Speaker Jackson Lafferty

Masi. Member for Hay River North.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
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R.J. Simpson Hay River North

Thank you, Mr. Speaker.

What We Heard

Support for a Northwest Territories Ombud

The committee heard a great deal of support for the establishment of an Ombud in the Northwest Territories. Many people commented that this is something they have long waited for.

  • Mr. Colin Baile said, "It was in the early 1990s I first addressed, before a committee of this house, the need for then Ombudsman legislation. As this committee is aware, we are one or only two jurisdictions without such legislation. Ombudsperson legislation, at its core, is not intended to reprimand government, but rather to assist individuals with resolving disputes they may have with government and how they have been treated during that interaction. By using a restorative approach, individuals can have their faith restored in the public sector and government can be assisted in providing and promoting fair, accountable, and transparent services."
  • The Northwest Territories Branch of the Canadian Bar Association said, "The establishment of an Ombudsperson for the Northwest Territories is a welcome development. The Office will provide residents of the Northwest Territories with an important means of having concerns with government fairly investigated and addressed."
  • Ms. Wendy Bisaro, a former MLA and advocate for the establishment of an Ombudsperson in the Northwest Territories, told the committee, "It has long been a belief of mine that the NWT needs an Ombudsman. That legislation has finally come forward suggests that the benefits of an Ombudsman for our Territory have been recognized, thankfully."
  • Ms. Georgina Franki of Behchoko said, "It has been a long time coming. As a Northerner and Indigenous woman, we need help with someone to speak on behalf of some who can't speak."
  • Mr. Todd McCauley of Norman Wells said this: "is a major step forward and needed in the NWT."

This does not mean to suggest that committee did not hear dissenting voices. However, they were in a very small minority.

  • Ms. Jane Groenewegen, also a former MLA, expressed the view that the NWT is highly governed and there is easy access to Members of the Legislative Assembly, Ministers, plus a Conflict of Interest Commissioner, a Languages Commissioner, a Human Rights Commissioner, a Rental Officer, and an Employment Standards Officer. She said that the Legislative Assembly's library is full of statutory officers' reports with recommendations that have not been acted on.

Questions on the Role of the Ombud

Committee encountered a lot of curiosity about how the Ombud's Office works and heard a lot of questions. The following is an example of some of the questions raised during the public consultation meetings on Bill 20:

  • How long will it take for the Ombud to Act on complaints?
  • Where will the Ombud be based?
  • Will there just be one person, or will the Ombud have staff?
  • How will we ensure good "bang for the buck" in establishing an Ombud?
  • Will the Ombud visit each community quarterly?
  • Who establishes the Ombud's priorities?
  • Will the Ombud deal with issues like nepotism?
  • Who pays the Ombud's salary and does the performance reviews?
  • Can the Ombud make recommendations to change legislation?
  • How does this proposed legislation compare with Ombud legislation in other provinces and territories?
  • What is the role of the Ombud with respect to Indigenous governments?

The level of interest and the very insightful questions from residents across the Northwest Territories suggest that a well-developed and targeted public awareness campaign must accompany the opening of the Ombud's office in the Northwest Territories, so that people are aware of the Ombud's role and purpose and the assistance they can expect to receive when they contact the Ombud.

Accordingly, the committee makes the following recommendation:

Recommendation 1

The Standing Committee on Government Operations recommends that the Minister responsible for Public Engagement and Transparency work closely with the Office of the Clerk of the Legislative Assembly and the newly appointed Ombud, to ensure the timely development and launch of a robust public awareness campaign to support the opening of the Office of the Ombud and increase residents' understanding of services the office provides, and how to access them.

The Ombud and MLAs - Distinguishing Between Their Roles

In his presentation at the Yellowknife public hearing, Mr. David Wasylciw talked about giving more consideration to the distinction between MLAs and the Ombud.

As well, in response to the committee's public hearing in Hay River on Bill 20, the Hay River Hub published an October 9, 2018 editorial titled, "GNWT doesn't need an Ombudsperson." The writer argues that, "one of the main reasons there's an Ombudsperson in other jurisdictions is the size and complexity of their governments and the remoteness of their politicians from the people." The article suggests that, because of our small population, NWT residents have greater access to territorial politicians and can "take their complaint right to the top of the territorial government."

It is true that the NWT residents do benefit from having political representatives who are accessible and approachable. It is also true that both MLAs and the Ombud can assist people who are having difficulty dealing with the territorial government. However, the tools at their disposal to provide this assistance are very different.

As Regular MLAs, we can rely on our access to and relationship with our Cabinet colleagues to raise issues of concern. We must also, however, rely on the political will of our colleagues to provide assistance with constituency complaints. MLAs have found that it may take months, even years, to get some resolution for their constituents. MLAs also frequently encounter "confidentiality" as a reason why a Minister cannot discuss a constituent's concern in sufficient detail for an MLA to broker a resolution.

The key distinction between an Ombud and an MLA, and one of the main reasons that other jurisdictions, including Yukon, have them, is that Ombuds have broad powers of investigation that MLAs do not. Upon receiving a complaint that the Ombud believes has merit, the Ombud may conduct an investigation. The tools at the Ombud's disposal to do such an investigation are quite powerful.

Clause 26 of Bill 20 gives the Ombud the power to make inquiries, receive confidential information and to hold hearings. The Ombud has the authority to enter any premises occupied by a government authority, talk in private with anyone there; require a person to provide information and produce documents, whether or not that person is still a member or employee of the authority; and to take possession of documents or things and produce copies of them. The Ombud also has the power to summon people and require them to give evidence under oath, if the Ombud believes they have information relevant to an investigation. These powers allow the Ombud to investigate and attempt to resolve matters even where there is no political will to do so.

As well, because the Ombud has the power to undertake investigations on his or her own initiative, the Ombud is uniquely positioned to look into systemic problems where administrative fairness may need improvement. This type of analysis and investigation goes well beyond the mandate, and authority, of an MLA.

Mr. Speaker, I would now like to turn the reading to the Member for Deh Cho.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
Reports Of Standing And Special Committees

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The Speaker Jackson Lafferty

Masi. Member for Deh Cho.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
Reports Of Standing And Special Committees

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Michael Nadli Deh Cho

Mahsi, Mr. Speaker.

The Independence of the Ombud's Office

In order to carry out such powers free from political influence, it is important that the Office of the Ombud be independent from the executive branch of government.

  • The NWT Seniors' Society noted that, "the Act supports a term of five years for the Ombudsperson that exceeds the mandate of any Legislative Assembly. This helps to ensure the work of the Office is not unduly influenced by the Legislative Assembly once appointed." They further stressed that the provisions relating to suspension or removal of the Ombud should show that a substantive majority was in favour and not a simple majority. "This is to assure that the Ombudsperson is independent and cannot be removed at the whim of a few due to a decision that may be unpopular."
  • The NWT Branch of the Canadian Bar Association also noted that, "the Ombudsperson should have independence through security of tenure."
  • Mr. Colin Baile objected to clause 17, which specifies that the Ombud's jurisdiction does not extend to the Legislative Assembly and its standing committees. He argues that, "To exclude the entire legislative branch of government, including Members, management, and staff, is disrespectful of the act's intention and sends the message that the Legislative Assembly and its staff are above such investigation."

The committee respectfully disagrees with this view. In Canadian jurisdictions, the Ombud functions as a statutory officer of the legislative branch of government, so that the office may have independence from the executive branch. While not all jurisdictions have a provision similar to clause 17, which is also found in Manitoba's Ombudsman Act, this does not mean that the Legislative Assembly, its committees, and staff in other jurisdictions are within the scope of their respective Ombuds. One must look to the definitions, schedules and provisions in each province or territory's Ombud legislation to determine which departments, agencies, and organizations of the public sector are subject to the Ombud's oversight. Committee is aware of no Canadian province or territory that permits Ombud oversight of the legislative branch of government.

The Importance of Hiring the Right Person for the Job

Committee heard from a number of people that, in order for the Northwest Territories' first Ombud to be effective, it is important that the right person be hired for the job.

  • Mr. Colin Baile noted that, "The Ombudsperson is most often the only or last means of resolving disputes with government agencies. The trust placed in the Ombudsperson by the public, and the statutory authority given that individual by the Legislative Assembly carries great responsibility and expectation."
  • Former MLA Ms. Jane Groenewegen said that the new Ombud should have a good understanding of the government and its processes and urged committee, "Don't set the standard too low."
  • Mr. Eric Braathen expressed the view that the appointee should be a long-time Northerner with extensive knowledge of the Government of the Northwest Territories.

Conditions of Employment for the Ombud

Clause 9 of Bill 20 provides that the Ombud is entitled to pay and benefits. Ms. Bisaro questioned what is meant by "benefits" and asked whether it included access to a pension plan. Mr. David Wasylciw expressed the opinion that the Ombud's salary should be tied to the GNWT's pay structure and made public in the Act.

The Office of the Clerk advised the committee that none of the legislation establishing statutory officers makes any reference to employee benefits. This is intentional, so as not to create an employee-employer relationship with these independent offices. Committee further heard that not specifying the nature of the salary or benefits allows greater flexibility for the Speaker in tailoring a contract that best meets the needs of the incumbent. Committee is comfortable with this approach and, therefore, does not propose any amendments to Clause 9 of Bill 20.

Clause 10 provides that, with the approval of the Speaker, the Ombudsman or Ombud may engage in outside employment. Both Mr. Baile and the Northwest Territories Chapter of the Canadian Bar Association questioned why the act would allow the Ombud to do so when this is not allowed in other jurisdictions, and suggested that, if outside employment is to be permitted, it should be done with the endorsement of the Conflict of Interest Commissioner.

Allowing one individual to potentially hold one or more offices with Ombud-like powers provides the Legislative Assembly's Board of Management and/or the Office of the Speaker, with the greatest flexibility in how its statutory appointments are filled, and recognizes that in a remote jurisdiction, such as ours, it might not be advisable to exclude potentially qualified candidates by being overly restrictive.

Committee received input from the Office of the Clerk of the Legislative Assembly, advising that the Conflict Commissioner has jurisdiction over current and former Members of the Legislative Assembly only and that none of the other legislation for statutory officers requires the approval or endorsement of the Conflict Commissioner. Committee is satisfied that the matter of potential conflicts of interest can be adequately handled by the Speaker, acting on the advice of the clerk and law clerk. As a result, committee is not seeking any amendments to this provision in Bill 20.

Mr. Speaker, I now pass the floor onto my colleague from the Sahtu, Mr. McNeely. Mahsi.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
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The Speaker Jackson Lafferty

Masi. Member for Sahtu.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
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Daniel McNeely Sahtu

Calls for the Inclusion of Municipalities

The committee heard a number of calls for municipalities to be included under the Ombud's jurisdiction.

  • The City of Yellowknife submitted that the Ombud's jurisdiction should be expanded to include municipalities, noting that "Our Council strongly supports accountability and transparency in local government and having municipalities bound by the Ombudsperson Act provides an impartial and independent review process to ensure the fairness of municipal processes, decisions and actions."
  • The Yellowknife Chamber of Commerce noted, "We are excited to see Bill 20: the Ombudsperson Act moving forward. However, the act is missing a key component. It fails to provide the Ombudsperson with jurisdiction over municipalities, something that exists in most other Canadian provinces/territories, including Nova Scotia, New Brunswick, Ontario, Saskatchewan, Manitoba, British Columbia, Alberta, and Yukon."
  • The NWT Branch of the Canadian Bar Association stated, "The purposes of the Ombudsperson Act would be more fully served if the Office's jurisdiction extended to the acts or omissions of professional organizations and municipalities created under territorial legislation."

Committee considered two different approaches to this objective. The first option would be to include municipalities as "authorities" under the schedule to the Act.

This would give the Ombud the same jurisdiction over municipalities as over GNWT departments, boards, and agencies.

  • Mr. Colin Baile expressed support for this approach, noting that "municipalities should be added as an authority in the schedule," and acting that if this was not possible on the coming into force date of the Act, then it should be "on a set schedule of one year hence."

Committee considered the potential workload for the Ombud under this approach. Committee also considered that there have long been calls for municipalities to be brought under the Access to Information and Protection of Privacy (ATIPP) Act and the concerns municipalities have raised about their capacity to manage this change.

Committee ultimately determined that fully including municipalities under the Ombud's jurisdiction at this time had too much potential to overwhelm the resources of the new Ombud's office and could place onerous obligations on municipalities that already have limited capacity and will be dealing with upcoming changes to ATIPP legislation.

Committee opted for an approach that would allow municipalities to contract the services of the Ombud on a cost recovery basis. This is reflected in Motion 7 below. Committee notes, for the record, that the full inclusion of municipalities under the Ombud's oversight is a logical next step and something that should be more fully considered once municipalities are included under ATIPP legislation.

The "Yukon Provision"

When the 17th Legislative Assembly's Standing Committee on Government Operations produced its June 2014 report on Establishing an Office of the Ombudsman for the Northwest Territories, the report indicated that Yukon's Ombudsman has the authority, on a cost recovery basis, to investigate and report back to the Yukon First Nation Government on any matter referred by that government. Committee wrote to Indigenous Governments in the Northwest Territories to canvass their interest in having access to the NWT Ombud under similar conditions.

Committee received correspondence from Mr. Peter Redvers, director of Lands, Resources, and Negotiations with the K'atlodeeche First Nation, indicating their support for this proposal.

Committee also received a letter from Grand Chief George Mackenzie, Tlicho Government. Grand Chief Mackenzie noted, as committee was aware, that the Tlicho Community Services Agency is listed in the schedule to Bill 20 and, hence, already under the jurisdiction of the Ombud. However, the Grand Chief pointed out, "the TCSA can have additional roles assigned or delegated to it by Tlicho government. As such, it would be of advantage to know about any issues concerning how clients are being treated in their dealings with the TCSA." Therefore, the Grand Chief noted, "Tlicho Government asks that consideration be given to formal notice to Tlicho Government of any investigations of TCSA by the Ombudsperson and the sharing of the Ombudsperson's report coming out of an investigation of the TCSA."

Clause 42 of Bill 20 provides that the Legislative Assembly may make general rules to guide the Ombud in the exercise of the duties of the Office. It further provides that the Ombud must establish certain policies and procedures and may establish others. Committee feels that the request by Tlicho government is best addressed thorough the establishment of rules and procedures guiding the Ombud's Office. Accordingly, committee makes the following recommendation.

Recommendation 2

The Standing Committee on Government Operations recommends that the Minister of Responsible for Public Engagement and Transparency work closely with the Office of the Clerk of the Legislative Assembly and the newly appointed Ombud, to ensure that appropriate procedures are established to advise Tlicho Government of any investigations by the Ombud of the Tlicho Community Services Agency and for the provision of the Ombud's report to Tlicho Government.

Motion 7, which amends Bill 20 to allow municipalities to refer matters to the Ombud for consideration on a cost-recovery basis, also allows for Indigenous governments in the Northwest Territories to do the same. The motion further provides that, in such instances, the provisions in Bill 20 requiring the Ombud to report to the GNWT and setting out how the GNWT must respond, do not apply. Instead, the Ombud's report will go directly and only to the government or municipality that first referred the matter.

I pass on to continue the report to the Member for Hay River North.

Committee Report 10-18(3): Report on the Review of Bill 20: Ombudsperson Act
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The Speaker Jackson Lafferty

Member for Hay River North.