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This is from 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 report.

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Motion that Committee Report 20-18(3) be Deemed Read and Printed in Hansard in its Entirety, Carried
Reports Of Standing And Special Committees

The Speaker Jackson Lafferty

The Member is seeking unanimous consent to waive rule 100(4) and have Committee Report 20-18(3), Report on the Review of the 2017-2018 Northwest Territories Human Rights Commission Annual Report, moved into Committee of the Whole for consideration later today.

---Unanimous consent granted

Committee Report 20-18(3), Report on the Review of the 2017-2018 Northwest Territories Human Rights Commission Annual Report, is now moved to Committee of the Whole for further consideration later today. Reports of standing and special committees. Member for Kam Lake.

Committee Report 21-18(3): Report on the Review of the 2015-2016 and 2016-2017 Annual Reports for the Office of the Languages Commissioner for the Northwest territories
Reports Of Standing And Special Committees

Kieron Testart Kam Lake

Thank you, Mr. Speaker. Your Standing Committee on Government Operations is pleased to provide its Report on the Review of the 2015-2016 and 2016-2017 Annual Reports for the Office of the Languages Commissioner for the Northwest Territories and commends it to the House.

On October 17, 2017, the Standing Committee on Government Operations conducted a public review of the Office of the Languages Commissioner for the Northwest Territories Annual Report 2015-2016, which was tabled in the Legislative Assembly on February 8, 2019.

On February 8, 2018, the committee held a public review of the Office of the Languages Commissioner for the Northwest Territories Annual Report 2016-2017, which was tabled in the Legislative Assembly on October 20, 2017.

Both of these reviews are summarized in this report, and now, Mr. Speaker, I move, seconded by the honourable Member for Hay River North, that Committee Report 21-18(3) be deemed read and printed in Hansard in its entirety. Thank you, Mr. Speaker.

Committee Report 21-18(3): Report on the Review of the 2015-2016 and 2016-2017 Annual Reports for the Office of the Languages Commissioner for the Northwest territories
Reports Of Standing And Special Committees

The Speaker Jackson Lafferty

Masi. The Member is seeking unanimous consent to have Committee Report 21-18(3), Report on the Review of the 2015-2016 and 2016-2017 Annual Reports for the Office of the Languages Commissioner for the Northwest Territories, deemed read and printed in Hansard in its entirety.

---Unanimous consent granted

INTRODUCTION

The Northwest Territories' Official Languages Act ("the act") was first passed in 1984 and came into force in 1988. This legislation establishes Chipewyan, Cree, English, French, Gwich'in, Innuinaqtun, Inuktitut, Inuvialuktun, North Slavey, South Slavey, and Tlicho as the 11 official languages of the Northwest Territories and, under section 5, provides that they "have equality of status and equal rights and privileges as to their use in all government institutions" to the extent and in the manner provided [for] in this Act and any regulations under this act."

The act, which is jointly administered by the Department of Education, Culture and Employment and the Legislative Assembly, sets out the responsibilities of the Minister Responsible for Official Languages. The Minister has the overall responsibility for the act and for the general direction and coordination of government policies and programs related to Official Languages. The Minister must:

  • Encourage the maintenance and revitalization of Indigenous languages;
  • Consider advice and recommendations from the Official Languages Board (OLB) and the Aboriginal Languages Revitalization Board (ALRB);
  • Oversee the development of policies and regulations needed to implement the act;
  • Promote official languages education in schools, post-secondary, adult education, and literacy training programs;
  • Promote the use of official languages in the administration and delivery of programs and services by government institutions; and
  • Prepare an annual report on official languages to be tabled in the Legislative Assembly.

The Official Languages Act also establishes the Office of the Languages Commissioner ("the commissioner") and provides for the commissioner's appointment, for a four-year term, as an independent officer of the Legislative Assembly. That appointment is currently held by Ms. Shannon Gullberg, whose current appointment became effective on October 8, 2015. Ms. Gullberg previously served as the Languages Commissioner from 2004 to 2008.

The act requires the commissioner to file an annual report on her activities and authorizes her to include recommendations for amending the legislation that are considered desirable or necessary in order to give effect to its spirit and intent.

On October 17, 2017, the Standing Committee on Government Operations ("the committee") conducted a public review of the Office of the Languages Commissioner for the Northwest Territories Annual Report 2015-2016, which was tabled in the Legislative Assembly on February 8, 2017.

On February 8, 2018, the committee held a public review of the Office of the Languages Commissioner for the Northwest Territories Annual Report 2016-2017, which was tabled in the Legislative Assembly on October 20, 2017.

Both of these reviews are summarized in this report.

THE ROLE OF THE LANGUAGES COMMISSIONER

The specific duties and responsibilities of the Languages Commissioner are set out in the Official Languages Act. The Languages Commissioner is appointed, at pleasure, by the commissioner of the Northwest Territories on the recommendation of the Legislative Assembly and can only be removed or suspended "for cause or incapacity." This enables the Languages Commissioner to make independent decisions free from any political influence.

The Languages Commissioner's is responsible to:

  • Ensure that the rights, status, and privileges of all official languages are recognized;
  • Ensure sure that government institutions comply with the spirit and intent of the act;
  • Investigate complaints of the public related to the government's provision of language services mandated by the act;
  • Investigate language issues on her own initiative; and
  • Provide an annual report to the Speaker, which may include proposed changes to the act.

The act gives the commissioner the discretion to refuse or cease to investigate a complaint. Under section 32(2) of the OLA, the commissioner is also granted the discretion to appear before the Supreme Court of the Northwest Territories on behalf of a complainant.

THE LANGUAGES COMMISSIONER'S ACTIVITIES

2015-2016

The Languages Commissioner received nine complaints during the 2015-2016 fiscal year. One originated from the public sector and eight from the private sector. Seven involved Indigenous languages, two involved French. Four complaints originated in Yellowknife, one each in Inuvik, Aklavik, and Fort Resolution, and two came from outside of the NWT. The subjects of the complaints were as follows:

  • one complaint, on behalf of a number of community residents, dealt with the receipt of health centre services in an Indigenous language;
  • two complaints related to the refusal of the Vital Statistics Registry to allow parents to register baby names using Dene fonts;
  • one related to the availability of interpreter-translators and one related to their competency;
  • one dealt with the lack of emphasis on Indigenous language use in the GNWT workplace, and one with the competency of Indigenous language teachers in schools; and
  • one dealt with the use of Indigenous languages by a federally regulated industry and was, thus, outside of the commissioner's jurisdiction.

During the fiscal year, the commissioner received 11 inquiries; six involved official languages or the act generally; one involved French; two involved Indigenous official languages; two related to the expansion of languages rights; and one involved reviewing and providing input on the languages policy of a private organization.

Location of inquiry: eight came from Yellowknife; one each originated from Inuvik and Fort Smith; one came from outside the NWT.

The commissioner reviewed two complaints regarding the use of Dene fonts in names. She found that the NWT's Vital Statistics Act is similar to most other Canadian jurisdictions in limiting the registration of birth names to Roman orthography. She expressed the view that, as a quasi-constitutional act, the Official Languages Act takes precedence over the Vital Statistics Act, insofar as that act may attempt to limit language rights. She expressed the view that the issues related to Dene fonts for names are not insurmountable and need to be dealt with on a national level and that double-sided identification may offer a solution. At the time the report was written, the commissioner was awaiting a response from the Department of Health and Social Services.

Regarding languages when accessing basic needs such as housing, the commissioner noted that she reviewed a complaint that a housing application form was not available in French. She found that Housing Authorities are absent from the list of government institutions detailed in the Official Languages Act, Government Institution Regulations. Nonetheless, the NWT Housing Corporation took swift action once the concerns of the member of the public were brought forward, which the commissioner commended.

2016-2017

The Languages Commissioner received two complaints in 2016-2017, as compared with nine during the previous year. Both originated from public sector employees in Hay River and related to Indigenous language rights. One complaint raised issues related to human resources and union-management labour relations matters. Consequently, and the complainant was directed to other resources. The other complaint dealt with interpretation-translation services in health care settings, particularly for patients who are required to travel to other communities for services. The commissioner concluded that "the complainant was satisfied that the issues being identified would be dealt with in the context of a broader investigation into health care services in the Northwest Territories" being undertaken by the commissioner.

The commissioner received six inquiries in 2016-2017, as compared with 11 in the previous year. All six originated from the private sector, with two coming from Yellowknife, one from Lutsel K'e, one from Norman Wells, and two from outside the NWT. Of these six inquiries, three involved Indigenous official languages generally, one involved French, one involved North Slavey, and one involved Michif, which is not an NWT official language.

In addition to the Michif inquiry, two involved the health of all Indigenous official languages and statistics related to those languages; one involved the availability of funding for translation services in North Slavey; one related to French language resources; and one related to funding for attendance at a language conference.

The commissioner noted the following common themes in discussion with people during outreach activities:

  • Lack of funding for language projects and participation in language conferences;
  • Concern with the lack or calibre of Indigenous languages education;
  • Lack of access to or formal training of interpreters-translators; and
  • Lack of standardization of languages.

The commissioner indicated that, in 2016-2017, she had initiated an investigation into language services at the Legislative Assembly and that her report on this investigation will be completed in the near future.

The commissioner provided a positive update that arose as the result of two complaints, received in the previous year, regarding the GNWT's refusal to allow the registration, under the Vital Statistics Act, of baby names with Dene fonts. The commissioner reported that the Vital Statistics Act was amended in October 2016 to remove the requirement of names to be written in Roman orthography; to allow registration under a single name, in accordance with a child's culture; and to allow a person to amend the designation of sex without undergoing gender reassignment surgery.

She further noted the additional work required to implement these changes:

  • The GNWT needs to ensure it has the technology to produce birth registrations in Dene fonts using the correct symbols and diacritical marks;
  • There is a need for greater standardization of Indigenous languages to ensure written documents are accurate and consistent; and
  • More work is needed with other governments to ensure the use of Indigenous languages does not create a barrier for those seeking passports and other important documents.

PUBLIC HEARINGS

2015-2016

As noted in the introduction, committee held a public hearing on the Languages Commissioner's 2015-2016 Annual Report on October 17, 2017.

The review commenced with the commissioner thanking the Minister of Health and Social Services for his work to resolve the issue involving the use of Dene fonts on birth certificates, but noting her sense that the public service sees "language roadblocks" with respect to the provision of services. She feels that this would be best resolved by the development of an Official Languages Act that is northern-based, not the current one which is based on the federal model and uses outdated concepts such as "significant demand" and "nature of the office" which are difficult concepts to put into practice. She noted her optimism at signals coming from the federal government, which has indicated its intention to make Indigenous languages official at the federal level.

The commissioner noted that she had traveled to Inuvik, Aklavik, and Kakisa and was encouraged by the fact that the communities had welcomed her visit and that she had received an invitation to return from the Gwich'in Tribal Council.

When asked what part of the act she would most like to see changed, the commissioner replied, "section 11 is the most critical," elaborating that this is the section of the act that sets out how members of the public can communicate in the official languages with GNWT headquarters, versus regional or community offices. She noted that this is the section of the act incorporating the concepts of "significant demand" and "nature of the office" which, in her view, have the impact of isolating dying languages such as Gwich'in by relegating them to use in specific designated areas.

2016-2017

As noted in the introduction, committee held a public hearing on the Languages Commissioner's 2016-2017 Annual Report on February 8, 2018.

The review commenced with a discussion of how the Languages Commissioner works with Indigenous governments and community leaders to build on momentum with respect to language preservation occurring at the community level, for example, in the community of Deline, which is known for its accomplishments in the area of language preservation. The commissioner replied that Deline was on her list of upcoming trips, in part because of the phenomenal things happening there. She noted that she has given some thought to her role in the context of self-government and noted that "acting in silos will not help the preservation of languages."

When asked about the drop in the number of complaints from the previous year, the commissioner said that she is not sure there is a specific reason, but that she has been more stringent than previous Commissioners in defining a complaint. She noted that, generally, most of the concerns she hears are related to the provision of translation in the health and social services sector. Noting that not much has changed in this area since she last served as Languages Commissioner in 2008, the commissioner indicated that she had undertaken an investigation on her own initiative regarding these concerns and was working on her report, which would be provided to the Speaker of the Legislative Assembly.

When asked about the nature of the complaint originating from outside of the Northwest Territories, the commissioner advised committee that this complaint came from a former NWT resident who was seeking services outside of the NWT.

The commissioner was asked about the inquiry she received about Michif, a Metis language spoken by the grandfather of a committee member. The commissioner indicated that the inquiry reminded her of the importance of considering whether the 11 languages designated as official languages under the act are the only ones that should be included. She observed that there would be costs associated with such a change, just as there would be costs associated with her recommendation to require contractors providing services on behalf of the GNWT to provide those services in official languages, noting that language preservation "cannot be all about the costs."

RECOMMENDATIONS OF THE LANGUAGES COMMISSIONER

In each of the commissioner's annual reports, she has made recommendations for the consideration of the Legislative Assembly. The recommendations from both reports are amalgamated below and have been numbered for the purposes of this report. The Standing Committee's response to each of the recommendations is set out below:

Recommendation 1:

"That the Legislative Assembly develop a formal process for responding back to the Languages Commissioner on recommendations presented by the Office. The process should include that the response be in writing addressed to the Languages Commissioner, with specific timeline for response."

Committee Response 1:

The Legislative Assembly's formal process for responding to the Languages Commissioner's annual reports is set out in Section 23 of the Official Languages Act and Rules 100(1)-(5) of the Rules of the Legislative Assembly. The same process is used to respond to recommendations from all statutory officers of the Legislative Assembly. Where the standing committee makes recommendations to the Government of Northwest Territories, it will continue to request that government provide a formal response to the standing committee's recommendations within 120 days.

Recommendation 2:

"That the Legislative Assembly and government officials carefully review the 2016 Census, once results are available, with a critical eye on language issues in the Northwest Territories."

Committee Response 2:

The Department of Education, Culture and Employment's NWT Aboriginal Languages Framework: A Shared Responsibility, references statistics from the 2011 Census. The standing committee trusts that the department will make use of the most current available statistical information in any updates to this document or any future plans that replace it.

The standing committee notes that the 19th Legislative Assembly will be required to undertake a statutory review of the Official Languages Act. The committee will be tabling a transition report offering suggestions to its successor committee in the incoming 19th Legislative Assembly. Through this report, Committee will encourage its successor committee to incorporate an analysis of the 2016 census data into its Official Languages Act review.

Recommendation 3:

"That the Legislative Assembly review, on a regular basis, the structure and resources for the proper functioning of the Office of the Languages Commissioner."

Committee Response 3:

The Board of Management of the Legislative Assembly annually considers the resources required for the functioning of all statutory offices reporting to the Legislative Assembly, including the Office of the Languages Commissioner for the Northwest Territories, during preparation of the Assembly's business plan and main estimates.

Recommendations 4 through 11:

Recommendations 4 through 11 involve amendments to the Official Languages Act, its regulations, or supporting policy documents. Committee's response follows those recommendations:

Recommendation 4:

"That the Legislative Assembly review the preamble to the Official Languages Act to determine if it accurately reflects the language rights set out in the act, including the status of Aboriginal languages and any language of work rights."

Recommendation 5:

"That the Legislative Assembly should amend the Government Institution Regulations to add housing authorities to the list of bodies bound by the Official Languages Act. It should also review the Government Institution Regulations to ensure the adequately cover those institutions that should be subject to the provisions of the Official Languages Act."

Recommendation 6:

"That the Official Languages Act of the Northwest Territories be amended to include a provision that binds all contractors with the Government of the Northwest Territories. Suggested wording is: Every government institution has the duty to ensure that, where services are provided or made available by another person or organization on its behalf, any member of the public in the Northwest Territories or elsewhere can communicate with and obtain those services from that person or organization in any particular Official Language in any case where those services, if provided by the institution, would be required to be provided in that Official Language."

Recommendation 7:

"That the Legislative Assembly reconsider what languages should be given the status of "Official Languages" of the Northwest Territories and provided with the protection of the provisions of the Official Languages Act" (p. 20).

Recommendation 8:

"That section 6 of the Official Languages Act be amended to read: Everyone has the right to use any official language in the debates and proceedings of the Legislative Assembly, and every Member of the Legislative Assembly has the right to translation of those debates in another official language."

Recommendation 9:

"That section 11 of the Official Languages Act be amended such that, instead of language rights based on the concepts of 'significant demand' and 'nature of the office,' language rights in the area of communication with the public are based on the following principles: That the approach be simple and holistic, with accessibility of services to the public being the focus; In order to understand and benefit from the government's programs and services, the public requires information in the official languages; A government's provision of services in its official languages recognizes and supports the efforts of communities in maintaining and developing those languages."

Recommendation 10:

"That, in consultation with stakeholders and service providers, consideration be given to expanding section 11 of the Official Languages Act to deal with the issue of communicating with service providers when receiving services outside the jurisdiction."

Recommendation 11:

"That the Legislative Assembly and the GNWT, in consultation with stakeholders, review the Official Languages Policy and Guidelines: To ensure the Official Languages Policy and Guidelines are consistent with the Official Languages Act; To include a definition of active offer that refers to a series of measures that are taken to ensure that language services in the various official languages are clearly communicated to the public and include a number of measures that will be taken to ensure that language rights are visible, available at all times, easily accessible and of high quality; That the issue of dissemination of information and materials to the public, including forms, notices, and public information material, be reviewed."

Committee Responses 4-11:

As required by section 35(1) of the Official Languages Act, a Standing Committee of the 19th Legislative Assembly will be required to undertake a review of the Official Languages Act. This review "shall include an examination of the administration and implementation of the act, the effectiveness of its provisions, the achievement of the objectives stated in its preamble, and may include any recommendations for changes to the act." In its transition report, the Standing Committee on Government Operations will encourage the standing committee tasked with this review to consider each of the recommendations for changes to the act or its supporting policy documents, made by the Languages Commissioner in the context of that review.

Recommendations 12 through 18:

Recommendations 12 through 18 involve matters of departmental administration that fall squarely within the mandate of the Minister of Education, Culture and Employment. Committee's response follows those recommendations:

Recommendation 12:

"That the Legislative Assembly and the Minister Responsible for Official Languages ensure that the focus for both the Francophone Affairs Secretariat and the Aboriginal Languages Secretariat be on service to the public and that there be continued consultation with language communities to seek input on the best way to provide such services."

Recommendation 13:

"That the Legislative Assembly and GNWT officials consider language rights and issues as national concerns and actively work with other jurisdictions in Canada in the development and advancement of language rights. This includes, to the greatest extent possible, sharing experiences regarding official language legislation and issues, and becoming active participants in federal government initiatives to create new language legislation including the proposed federal Canadian Indigenous Languages Act."

Recommendation 14:

"That the Legislative Assembly and GNWT officials take steps to ensure the health of all Official Languages in the Northwest Territories including: ensuring that all action items in the Aboriginal Language Action Plan and Strategic Plan on French Language Communication Services are taken; and ensuring all steps are taken in conjunction with community leaders."

Recommendation 15:

"That GNWT officials, in conjunction with Aurora College, interpreters/translators, community leaders and other stakeholders, consider the development of a new interpreter/translator program. This program should include: development of standards for interpreter/translators; certification of interpreter/translators; and specialized training for interpretation/translation in certain domains, such as the courts and health.

Recommendation 16:

"That GNWT officials give serious consideration to reopening the Language Bureau to provide interpretation/translation support and services to the Legislative Assembly, the GNWT and its boards and agencies."

Recommendation 17:

"That, in this digital age, the GNWT takes steps to develop its technological capabilities to support and expand Official Language promotion, preservation and communication activities."

Recommendation 18:

"That the GNWT continue to work with Aboriginal language groups to develop standardized orthographies for Aboriginal official languages."

Committee Responses 12 through 18:

Management and administration of the Francophone Affairs Secretariat and what is now called the Indigenous Languages and Education Secretariat falls squarely within the mandate of the Minister of Education, Culture and Employment, as does the responsibility for intergovernmental relationships with offices in other jurisdictions having responsibility for language rights and services, including those at the community level.

The department is also directly responsible for ensuring the commitments made in its strategic planning documents are met. Committee expects that any decisions having to do with the Aurora College curriculum would have to be made within the context of the college's transition to a polytechnic institution. Any decision to reopen the languages bureau could be proposed by the Minister and resourced by the Legislative Assembly during the business planning process.

The standing committee encourages the Languages Commissioner to raise any concerns or suggestions for improvement related to program delivery and intergovernmental work on language matters directly with the Minister. Committee further encourages the Languages Commissioner to keep committee apprised of this dialogue in order to ensure that committee is aware of any progress made or lessons learned that may inform the upcoming review of the Official Languages Act.

CONCLUSION

During the 18th Legislative Assembly the Government of the Northwest Territories brought forward bills making important, substantive changes to both the Human Rights Act and the Access to Information and Protection of Privacy Act. Both of these acts provide for statutory officers reporting to the Legislative Assembly; namely, the Human Rights Commission and the Information and Privacy Commissioner respectively. While the committee is pleased that this work that has been done, committee acknowledges that it has, in some respects, diverted attention from committee's oversight role with respect to the Official Languages Act, which resulted in the delayed delivery of this report.

Committee notes that upcoming review of the Official Languages Act, which must be undertaken early in the term of the 19th Legislative Assembly, will ensure that this important statute also gets the attention it deserves.

Committee would like to take this opportunity to thank Commissioner Gullberg for her thoughtful reports and her appearances before the committee and for her commitment to the use and preservation of all of the Northwest Territories' official languages.

Committee Report 21-18(3): Report on the Review of the 2015-2016 and 2016-2017 Annual Reports for the Office of the Languages Commissioner for the Northwest territories
Reports Of Standing And Special Committees

The Speaker Jackson Lafferty

Masi. Reports of standing and special committees. Member for Kam Lake.

Committee Report 21-18(3): Report on the Review of the 2015-2016 and 2016-2017 Annual Reports for the Office of the Languages Commissioner for the Northwest territories
Reports Of Standing And Special Committees

Kieron Testart Kam Lake

Thank you, Mr. Speaker. I move, seconded by the honourable Member for Hay River North, that Committee Report 21-18(3), Report on the Review of the 2015-2016 and 2016-2017 Annual Reports of the Office of the Languages Commissioner for the Northwest Territories, be received by the Assembly, and Mr. Speaker, I seek unanimous consent to waive rule 100(4) and have Committee Report 21-18(3) moved into Committee of the Whole for further consideration today. Thank you, Mr. Speaker.

Committee Report 21-18(3): Report on the Review of the 2015-2016 and 2016-2017 Annual Reports for the Office of the Languages Commissioner for the Northwest territories
Reports Of Standing And Special Committees

The Speaker Jackson Lafferty

Masi. The Member is seeking unanimous consent to waive rule 100(4) and have Committee Report 21-18(3), Report on the Review of the 2015-2016 and 2016-2017 Annual Reports of the Office of The Languages Commissioner for the Northwest Territories, moved into Committee of the Whole for further consideration later today.

---Unanimous consent granted

Committee Report 21-18(3), Report on the Review of the 2015-2016 and 2016-2017 Annual Reports of the Office of The Languages Commissioner for the Northwest Territories, is now moved into Committee of the Whole for further consideration later today. Masi. Reports of standing and special committees. Member for Kam Lake.

Motion that Committee Report 22-18(3) be Deemed Read and Printed in Hansard in its Entirety, Carried
Reports Of Standing And Special Committees

Kieron Testart Kam Lake

Thank you, Mr. Speaker. Your Standing Committee on Government Operations is pleased to provide its Report on the Review of the 2016-2017 and 2017-2018 Annual Reports of the Information and Privacy Commissioner of the Northwest Territories and commends it to the House.

On February 22, 2018, the Standing Committee on Government Operations conducted a public review of the 2016-2017 annual report of the Information and Privacy Commissioner, which was tabled in the Legislative Assembly on October 3, 2017.

On January 15, 2019, the committee held a public review of the Information and Privacy Commissioner's 2017-2018 annual report, which was tabled in the Legislative Assembly on October 29, 2018. Both of these reviews are summarized in this report.

Now, Mr. Speaker, I move, seconded by the honourable Member for Hay River North, that Committee Report 22-18(3) be deemed read and printed in Hansard in its entirety. Thank you, Mr. Speaker.

Motion that Committee Report 22-18(3) be Deemed Read and Printed in Hansard in its Entirety, Carried
Reports Of Standing And Special Committees

The Speaker Jackson Lafferty

Masi. The motion is in order. The motion is non-debatable. All those in favour? All those opposed?

---Carried

Committee Report 22-18(3) is now deemed read and printed in its entirety.

Committee Report 22-18(3): Report on the Review of the 2016-2017 and 2017-2018 Annual Reports of the Information and Privacy Commissioner of the Northwest Territories
Reports Of Standing And Special Committees

The Speaker Jackson Lafferty

INTRODUCTION

The Access to Information and Protection of Privacy (ATIPP) Act came into force on December 31, 1996. The purpose of this legislation is to promote government accountability by balancing access to government information with the protection of individual privacy rights related to that information.

Under the act, the Information and Privacy Commissioner ("the IPC") is appointed for a five-year term as an independent officer of the Legislative Assembly. That appointment is currently held by Ms. Elaine Keenan Bengts. The act requires the IPC to file an annual report on her activities and authorizes her to include recommendations for amending the legislation to improve the act's efficiency and effectiveness.

On February 22, 2018, the Standing Committee on Government Operations ("the committee") conducted a public review of the 2016-2017 Annual Report of the Information and Privacy Commissioner, which was tabled in the Legislative Assembly on October 3, 2017.

On January 15, 2019, the committee held a public review of the IPC's 2017-2018 Annual Report, which was tabled in the Legislative Assembly on October 29, 2018.

Both of these reviews are summarized in this report.

THE ROLE OF THE INFORMATION AND PRIVACY COMMISSIONER

Access to Information and Protection of Privacy Act

The Office of the Information and Privacy Commissioner was established in 1997, following the enactment of the Access to Information and Protection of Privacy (ATIPP) Act. The ATIPP Act applies to the Government of the Northwest Territories (GNWT) and its departments, boards, and agencies, as set out in the ATIPP Regulations. The office provides independent oversight and enforcement of the government's responsibilities under the act.

The IPC is appointed as a statutory officer of the Legislative Assembly for a five-year term and can only be removed "for cause or incapacity," which affords her the ability to comment freely and directly. Ms. Keenan Bengts currently holds the office for a five-year term terminating on October 30, 2020.

The ATIPP Act enshrines two principles: 1) public records must be accessible to the public; and 2) personal information must be protected by public bodies. The act outlines the rules by which the public can obtain access to government-held records, and rules about the collection, use and disclosure of information by government, such that the privacy rights of individuals are protected and upheld.

Generally, the act requires that the government collect only information that is absolutely necessary for implementation of the program under which the information is collected. The Supreme Court of Canada has ruled that laws like ATIPP are "quasi-constitutional" laws that are held to be paramount to other laws, unless otherwise specified, and which define fundamental democratic rights.

The act is generally interpreted by the courts such that access to information is considered the standard and that any exceptions to this must be narrowly interpreted in a way to allow the greatest access possible. The right of access is not absolute, however. There are limited exceptions which protect individual privacy rights, proprietary business information, and Cabinet confidences and allow government employees to give frank and candid advice facilitating decision-making by political leaders.

The IPC reports to the Legislative Assembly of the Northwest Territories. The powers provided to the IPC under the ATIPP Act include the powers to investigate, mediate and resolve matters concerning access and privacy disputes and complaints; comment on the privacy implications of proposed legislation or government programs; undertake research into matters related to the purposes of the act; and educate the public about their rights.

Following on a comprehensive review of the ATIPP Act, undertaken by the Department of Justice between 2012 and 2016, Bill 29, An Act to Amend the Access to Information and Protection of Privacy Act was introduced in the Legislative Assembly in October 2018. This bill, which was extensively amended at the committee stage, received assent on June 6, 2019. As the new provisions are brought into force, certain aspects of the IPC's role and authorities will be changed and enhanced. For the purposes of the fiscal years examined in this report, however, the legislation as it was last amended in 2015 governed the IPC's activities.

Health Information Act

The new Health Information Act (HIA), which came into effect on October 1, 2015, governs the collection, use and disclosure of personal health information and provides for its protection. The legislation applies to all records containing health information that are under the control of a "health information custodian," as defined in the act, whether that custodian operates in the public or private sector.

The act sets out clear direction that medical practitioners are to have access to records only to the extent required in order to provide care. The act allows medical practitioners to assume that an individual who seeks health care has implicitly provided consent to the collection, use or disclosure of such personal health information as is necessary to provide the patient with appropriate care. This assumption of implicit consent is contingent upon the practitioner's belief that the patient is knowledgeable about how his or her personal information will be collected, used and disclosed.

The act gives patients the right to put conditions on who has access to their records. Where a patient expressly indicates that the practitioner may not rely on implied consent, the practitioner is then required to obtain the patient's written consent to collect, use or disclose the patient's health information. There are limited exceptions to this right, such as to facilitate the provision of emergency health care. Similarly, a patient may not prohibit the disclosure of personal health information by a health information custodian where that disclosure is authorized by the HIA or another enactment; for example, to the Workers' Safety and Compensation Commission.

The HIA gives patients the right to access their own health records. The process is similar to that contained in the ATIPP Act which governs access to personal information contained in government records. Unlike the ATIPP Act, however, which only permits recovery of photocopying costs, access by a patient to their medical records under the Health Information Act is subject to the payment of fees.

The act allows a person who believes their records have been improperly collected, used or disclosed to request the IPC to undertake a review. Rights of appeal under this Act are different than those under ATIPP. Appeal rights apply to both access to information and breach of privacy issues. As well, the IPC has the authority to appeal the decision of a health information custodian to the courts.

The act also imposes a positive duty on health information custodians to notify any individual whose medical records have been compromised. This "data breach notification" must also be given to the IPC, who may choose to investigate the breach.

THE INFORMATION AND PRIVACY COMMISSIONER'S ACTIVITIES

The Commissioner's Message

The Information and Privacy Commissioner often chooses to highlight topical aspects of her work in her annual "Commissioner's Message."

2016-2017

In her 2016-2017 Commissioner's Message, the IPC noted that it was her 20th anniversary as IPC of the Northwest Territories, which also meant that twenty years had passed since the coming-into-force of the ATIPP Act. She noted that advancements in technology over the past two decades are such that ATIPP operates in a very different environment than the one that existed when the legislation was first drafted.

She observed that her role as IPC started with a focus on access but, over time, privacy considerations took a primary role. Now, in the era of "big data" the focus is turning to access again, as the public continues to be concerned about the ability of governments to protect the personal information they collect, the value of information as an asset grows and the public demands that governments be accountable and transparent. This, she notes, makes strong ATIPP legislation "increasingly vital to the maintenance of our democratic ideals as the world changes in ways no one would have imagined in 1997."

With respect to the Health Information Act, the IPC indicated that she had completed her first three reviews. She opined that the act is dense, complicated and hard to interpret, meaning reviews take longer than under the ATIPP Act. She also observed that, again this year, health information custodians were far from compliant with the act and much work needs to be done in this area. The IPC expressed her concern that the information-technology system being used by the Health and Social Services Authorities still does not have the functionality to allow patients to control the access and use of their personal health information as mandated by the act.

2017-2018

For 2017-2018, the IPC's message focused on the initiative to update the ATIPP Act, led by the Department of Justice. She expressed frustration with the amount of time taken by the department to complete its review, which resulted in the "Northwest Territories...now [being] the last Canadian jurisdiction, but for Nunavut, to modernize its first-generation access and privacy legislation."

Modern legislation, the IPC observed, is not all that is required. "We need a real commitment to the spirit and intention of the act and this year, more than any other year, I have seen a marked decrease in the willingness of public bodies to hold up those ideals." The IPC noted that many times this year public bodies have refused to follow her recommendations, rejecting her analysis and application of the law. "Public bodies can easily avoid accountability when they refuse to follow recommendations made."

The IPC encouraged the Department of Justice to look to the ATIPP legislation passed by the Government of Newfoundland and Labrador in 2015. Under that legislation, "if a public body wishes to disregard those recommendations...it must ask the court for an order to allow it to do so. This change puts the onus on the public body, where it should be, to obtain court approval of its decision, rather than leaving it to the individual." She also raised the issue of bringing municipalities under ATIPP, noting that Nunavut recently amended its Act to accommodate the inclusion of municipalities, leaving the NWT as the only remaining Canadian jurisdiction that does not require municipal compliance with ATIPP.

Committee notes that these concerns were given careful consideration in the review of Bill 29, An Act to Amend the Access to Information and Protection of Privacy Act. The act has since been amended to require government compliance with the IPC's recommendations and to require municipal compliance with ATIPP, which will be phased-in through the regulations, allowing time for municipalities to prepare to meet their obligations under the act.

With respect to the Health Information Act, the IPC noted that the Minister of Health has issued a series of policies and procedures pursuant to the HIA, but that these were not accessible online and should be. She also again raised the issue of the apparent affinity of the health sector for outdated fax technology, which has resulted in data breaches that have been the subject of a number of media reports.

The IPC concludes her 2017-2018 Commissioner's Message by commenting on the work by her office to improve its website at www.atipp-nt.ca and by acknowledging an increase to her budget to hire a full time Deputy-IPC, to be shared with the Nunavut office.

The Year in Review

2016-2017

In 2016-2017, the IPC opened 61 new files (2015-2016 - 43) and issued 15 review recommendations (2015-2016 - nine) under the ATIPP Act. Of the 61 new files, 32 were related to access-to-information matters, 14 were related to breach-of-privacy matters, five were requests for comment or consultation by public bodies, and 10 were miscellaneous or administrative inquiries.

2016-2017 was the first full year of the Health Information Act being in force. The IPC opened eight new files, of which three were breach notifications from various branches of the amalgamated Health and Social Services Authority; two involved the submission of Privacy Impact Assessments (PIAs) per section 89(2) of the act; one was a comment to the Minister on the Department' of Health and Social Services' Mental Health Care Action Plan; and two were related to administrative matters. In addition, three formal reports containing recommendations were issued.

While her report had, in the previous year, been quite critical of the Department of Health and Social Services and its failure to address requirements under the new act, the IPC noted that things appear to be slowly improving. She observed some progress on the development of system-wide standards, policies and procedures as required by section 8 of the act. She noted a significant upturn in the number of breach notifications, suggesting a greater awareness of what constitutes a breach under the act, and further observed that these breaches are being properly handled with steps being taken to prevent reoccurrences. The IPC also reported that posters, informing patients of their rights under the Health Information Act, are starting to appear in Yellowknife clinics.

2017-2018

In 2017-2018, the IPC opened 53 new files and issued 18 review recommendations related to matters under ATIPP. Of the 53 new files, 24 were related to access matters, 17 were related to privacy matters, seven were requests for comment or consultation by public bodies, and five were miscellaneous or administrative inquiries.

One of the privacy-related files was initiated by the IPC with a view to engaging the City of Yellowknife in a discussion about access and privacy issues related to a matter that received media attention. The City did not reply to the IPC's invitation and no discussions took place, but the IPC again emphasized with Committee during the review the importance of bringing municipalities under ATIPP.

With respect to the Health Information Act, the IPC noted that the number of files "skyrocketed" from eight new files opened in the previous year to 33 new files opened in the second full year of the act being in force. The IPC views this as a positive indication that both the public and health information custodians are paying more attention to their rights and responsibilities under the act.

Of these 33 files: 22 were breach notifications received from the Department of Health and Social Services and the Northwest Territories Health and Social Services Authority pursuant to section 87 of the act; six were breach-of-privacy complaints received from the public; two were privacy impact assessments received pursuant to section 89(2) of the act; one was a request to review the response received to a request for access to personal health information pursuant to section 141; one was a review commenced on the IPC's own initiative pursuant to section 137(1); and one was an administrative file. No review reports were issued under the HIA in 2017-2018.

PUBLIC HEARINGS

2016-2017

As noted in the introduction, committee held a public hearing on the IPC's 2016-2017 Annual Report on February 22, 2018.

In her opening remarks, the IPC noted that both the ATIPP Act and the HIA set out timelines within which she must complete any reviews of government decisions made under the respective acts. She indicated that the increase in her workload precipitated by the coming into force of the HIA was creating additional pressure on her office which would need to be resolved either through increased resourcing or changes to the timelines under the legislation.

Committee took note of this observation, which was raised in the context of Committee's review of Bill 29. Under ATIPP, the IPC has six months (180 days) to complete a review. Bill 29 proposed to reduce this timeline to two months (60 days). Cognizant of the government's rationale for reducing the IPC's timeline in an effort to respond to public calls for a more expedient ATIPP process, committee nonetheless felt that the proposed reduction to the IPC's timeline was too severe. In response, committee moved a motion, which was passed with concurrence of the Minister, to set the IPC's timeline for reviews at three months (90 days).

During the review, the IPC was asked about privacy impact assessments (PIAs) and how they are undertaken by the government. The IPC replied that a PIA is a tool to assist in highlighting the privacy impacts of a particular policy or project. It requires government to consider, in advance, what personal information is proposed to be collected, the purpose for which it will be used, how long it will be retained and how it will be protected. The IPC advised committee that she has been given the opportunity to review three PIAs completed by government and expressed her view that such assessments should be mandatory.

Committee also touched on the subject of the implementation of the HIA, asking the IPC for her comments on how this work has been proceeding. She replied that it is her understanding that the Department of Health and Social Services has hired a privacy coordinator and has created a set of policies to help staff to understand and comply with their responsibilities under the act. The IPC offered that she views these developments positively.

When asked what she thinks people need to know about their rights under the Health Information Act, the IPC replied that people should be aware that they have a right to see their medical files and that they have a right to deny access to their records under certain conditions.

The IPC was also asked for her comments on the concept of "implied consent" which is contained in the legislation. Consent is dealt with under Part 3 of the act, which provides that consent to the collection, use and disclosure of a patient's medical records can be "express" or "implied" provided that it is "knowledgeable." This allows a health care provider to assume that, by seeking medical treatment, a person has implied that they consent to the collection, use and disclosure of their information, unless they provide express (i.e. written) instructions stating otherwise. The IPC replied that implied consent is a difficult concept to put into practice, making this part of the act one that needs to be fixed.

The review concluded with a discussion of the practical application of a patient's right to direct who may or may not have access to their medical records. The IPC told Committee that she would like to see the GNWT upgrade the functionality of its health information-technology systems to allow "masking" of certain medical records, such that a health care provider would be prevented from accessing a record if such access was expressly prohibited by the patient.

When asked if the GNWT was meeting its responsibilities under the act, the IPC replied "simply put, no" but allowed that it took some time for the GNWT to become compliant when ATIPP was first introduced too.

2017-2018

As noted in the introduction, committee held a public hearing on the IPC's 2017-2018 Annual Report on January 15, 2019.

Committee's review commenced with a broad question to the IPC. Noting that the government espouses the principles of openness and transparency, to the extent that a minister has been made responsible for Public Engagement and Transparency, a Committee member asked the IPC how this seeming commitment aligns with her experience.

The IPC replied that, for the most part, she senses a healthy respect for the act and its purposes, noting that there are still pockets within government where there are problems with ATIPP compliance, and expressing concern about what she perceives as a growing trend towards not accepting or only partially accepting her recommendations.

This led to a discussion about how access and privacy legislation works in other jurisdictions and the approach recently adopted by Newfoundland in its ATIPP legislation. The IPC advised committee that, in some provinces, such as Ontario, Alberta, British Columbia and Prince Edward Island, her counterpart has the authority to make orders on access and privacy matters that are binding on government. In the Northwest Territories, the IPC has the authority to make public recommendations, but these recommendations are not binding on government.

In the NWT, a person who is dissatisfied with the government's response on both access- and privacy-related matters may ask the IPC to undertake a review. If the IPC finds in favour of the applicant, and recommends the same to government, government may disagree with the IPC's recommendations. For access-related matters, this leaves a person with the option to appeal the government's decision to the Supreme Court of the Northwest Territories; a daunting and expensive option for most citizens. For privacy-related matters, even this appeal option is not available, making the government's decision final.

The IPC advised Committee that the "Newfoundland model" places the onus on government so that it must go to court for permission to disregard the IPC's recommendations. Committee subsequently did research and gave a great deal of consideration to this model during its review of Bill 29. In discussions with the Department of Justice during the review of the bill, committee came to the determination that, rather than adopt the Newfoundland model, the ATIPP Act should be amended to provide the IPC with full order-making power. This power will take effect when the associated provisions in the amended legislation come into force.

Amendments made to the ATIPP Act will also require future compliance by municipalities. The IPC was asked to share her thoughts on Nunavut's experience. She noted that, although Nunavut has included municipalities under their ATIPP legislation, those sections of the act have yet to come into force. For both Nunavut and the Northwest Territories, the IPC suggested that it will be easier to implement privacy protections, which primarily require that the appropriate policies are put in place to ensure adequate protections. For access requests, municipalities are facing much larger hurdles, as most will need to put records management systems in place and will need to catalogue historical records so that they may be accessed using that system. She noted that training will be required, and that it may be necessary to put in place restrictions on access to historical information.

The remainder of the public hearing focused largely on the Health Information Act. In her opening remarks, the IPC commented on spike in the number of matters dealt with under the HIA:

"Of the 33 files opened, the vast majority (22) were breach notifications received from the Department of Health and Social Services or another health information custodian under the mandatory breach notification sections of the act. Most of the reported breaches were relatively minor, but each such report has added to our ability to address gaps and holes in the systems and procedures and to adjust practices so as to prevent future breaches. The Department and the NWT Health and Social Services Authority have created a resource in which they summarize each of the incidents that arises and are incorporating these examples into their training materials. This will undoubtedly help to reduce the number of similar breaches going forward."

While Committee was encouraged by the IPC's assessment, Members were concerned about the impact of major breaches, given that, in the weeks preceding the public hearing, a great deal of media attention was focused on a story about health records that had been found in the salvage area of the dump in Fort Simpson.

In response to a question, the IPC advised the committee that these records were subject to the requirements of the HIA, even though they were created before the passage of the legislation. She also advised committee that the Department of Health and Social Services would be undertaking its own investigation and that they were already considering where else they should be looking for similar medical files that may have been in storage for many years in regional offices. She added that she would be making her own recommendations and that the records in question had been transferred to her possession and would remain in her possession.

Committee asked about the continued use of fax machines by health centres, which have been a source of many past privacy breaches. The IPC replied that she had nothing new to report with respect to any progress made by the Department of Health and Social Services to enable the masking of medical records. The IPC noted that the reluctance of the medical profession to move to newer technology is an issue nationwide and that a move to the use of encrypted data will require a change in the way the medical profession does business.

The hearing concluded with a committee member making the observation that the IPC has three lesson plans on her website designed to teach students about the importance of privacy and their privacy rights under law. The IPC advised that the material was developed by a committee of IPC's from across Canada.

Committee encourages the Department of Education, Culture and Employment to have a look at this material and consider making it available to students.

CONCLUSION

In this final report on the review of the annual reports of the Information and Privacy Commissioner, during the 18th Legislative Assembly, the Standing Committee on Government Operations would like to thank Commissioner Bengts for her unwavering and enthusiastic commitment to access and privacy matters affecting the citizens of the Northwest Territories.

Committee is especially appreciative of the Commissioner's efforts on the review of Bill 29, An Act to Amend the Access to Information and Protection of Privacy Act. The IPC's experience and insight were instrumental in assisting the committee to make amendments to the act that have produced one of the most progressive access and privacy laws in Canada.

Committee Report 22-18(3): Report on the Review of the 2016-2017 and 2017-2018 Annual Reports of the Information and Privacy Commissioner of the Northwest Territories
Reports Of Standing And Special Committees

The Speaker Jackson Lafferty

Reports of standing and special committees. Member for Kam Lake.

Motion to have Committee Report 22-18(3) moved to Committee of the Whole for Further Consideration, Carried
Reports Of Standing And Special Committees

August 12th, 2019

Kieron Testart Kam Lake

Thank you, Mr. Speaker. I move, seconded by the honourable Member for Hay River North, that Committee Report 22-18(3): Standing Committee on Government Operations Report on the Review of the 2016-2017 and 2017-2018 Annual Reports of the Information and Privacy Commissioner of the Northwest Territories be received by the Assembly. Mr. Speaker, I seek unanimous consent to waive Rule 100(4) and have Committee Report 22-18(3) moved to Committee of the Whole for further consideration today. Thank you, Mr. Speaker.

Motion to have Committee Report 22-18(3) moved to Committee of the Whole for Further Consideration, Carried
Reports Of Standing And Special Committees

The Speaker Jackson Lafferty

Masi. The Member is seeking unanimous consent to waive Rule 100(4) and have the Committee Report 22-18(3) moved to Committee of the Whole for further consideration later on today. Are there any nays? There are no nays. Committee Report 22-18(3) is now moved to Committee of the Whole for further consideration later today.

Reports of standing and special committees. Member for Nahendeh.

Committee Report 24-18(3): Report on the Review of Bill 40: Smoking Control and Reduction Act and Bill 41: Tobacco and Vapour Products Control Act
Reports Of Standing And Special Committees

Shane Thompson Nahendeh

Thank you, Mr. Speaker. Your Standing Committee on Social Development is pleased to provide its report on the review of Bill 40: Smoking Control and Reduction Act and Bill 41: Tobacco and Paper Product Controls Act. Thank you, Mr. Speaker.

Committee Report 24-18(3): Report on the Review of Bill 40: Smoking Control and Reduction Act and Bill 41: Tobacco and Vapour Products Control Act
Reports Of Standing And Special Committees

The Speaker Jackson Lafferty

Masi. Reports of standing and special committees. Member for Nahendeh.

Committee Report 24-18(3): Report on the Review of Bill 40: Smoking Control and Reduction Act and Bill 41: Tobacco and Vapour Products Control Act
Reports Of Standing And Special Committees

Shane Thompson Nahendeh

Thank you, Mr. Speaker.

INTRODUCTION

Bill 40: Smoking Control and Reduction Act and Bill 41: Tobacco and Vapour Products Control Act, sponsored by the Department of Health and Social Services, each received Second Reading in the Legislative Assembly on February 28, 2019. The bills were referred to the Standing Committee on Social Development, committee, for review, the results of which are reported below.

BACKGROUND

Bill 40: Smoking Control and Reduction Act

Bill 40 is intended to repeal and replace our existing Cannabis Smoking Control Act as well as replace certain provisions under the existing Tobacco Control Act.

In summary, Bill 40 proposed to:

  • create prohibitions and offences, including in respect of smoking in a public place and in a motor vehicle while another person who is a minor is present in the motor vehicle;
  • impose requirements in respect of the display of signs, including signs respecting the health risks associated with smoking;
  • provide for the enforcement of the bill and any regulations made under it;
  • authorize the making of regulations; and
  • consequentially amend the Cannabis Products Act.

Bill 41: Tobacco and Vapour Products Control Act

Bill 41 is intended to repeal and replace our existing Tobacco Control Act.

In summary, Bill 41 proposed to:

  • create prohibitions and offences, including in respect of the sale, supply, and display of tobacco products, vapour products, accessories, or prescribed substances or products;
  • impose requirements in respect of the display of signs respecting the legal age to purchase such products, accessories, or substances;
  • impose an automatic prohibition in respect of the sale or storage of such products, accessories, or substances in a place in which at least two sales offences have been committed within a five-year period, and imposes requirements in respect of the display of signs respecting the automatic prohibition in the place;
  • provide for the enforcement of the bill and any regulations made under it;
  • authorize the making of regulations; and
  • consequentially amend the Tobacco Tax Act.

Vapour products, sometimes referred to as e-cigarettes, vapes, vapour devices, or vaporizers, are battery-operated devices that heat and vaporize a liquid so that users may inhale, "vape," to imitate the smoking experience. The heated liquid, usually propylene or vegetable glycol based, can be combined with other ingredients and flavours, and vaping products can be available with or without nicotine.

Mr. Speaker, I would like to turn it over to the honourable Member for Deh Cho.