This is page numbers 6187 - 6288 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 public.

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Committee Report 33-18(3): Report on Bill 34: Mineral Resources Act
Reports Of Special And Standing Committees

Page 6196

The Speaker Jackson Lafferty

Introduction

Bill 34: Mineral Resources Act (MRA) is stand-alone legislation to govern mineral rights administration in the Northwest Territories. The bill proposes to manage mineral interests in the Northwest Territories (NWT) within the existing co-management of land, water, and resources. The existing legislative framework includes the Northwest Territories Lands Act, which governs surface use; the Mackenzie Valley Resource Management Act (MVRMA), which manages environmental and socio-economic impacts; and the Mine Health and Safety Act (MHSA), which sets occupational health and safety standards. Bill 34 proposes that the modern comprehensive land rights agreements existing in the NWT take precedence over the MRA where applicable, and the regulatory framework for the Inuvialuit Settlement Region will not be impacted.

Committee commends the department for taking this first step towards the creation of modern legislation and improvement of transparency of mineral resource exploration, development and production in the Northwest Territories. Mineral resources are currently administered by the Mining Regulations under the authority of the Northwest Territories Lands Act. The Government of the Northwest Territories inherited the Mining Regulations from the federal government with Devolution in 2014.

Bill 34 received second reading and was referred to the committee on February 22, 2019. Public hearings were conducted during May and June 2019, and the clause-by-clause review was held on August 15, 2019. During the review, the committee passed 40 amendments to address concerns identified by Indigenous governments, stakeholders and committee.

The work of the standing committee to amend Bill 34 is set out in this report, provides rationale for the motions brought forward by committee and recommends several courses of action. Motions are listed in order of their appearance in the bill in Appendix 2, and are referred to in this report by the number assigned.

The responsiveness shown by departmental staff has impressed committee members and the committee thanks the department for the level of cooperation shown during the review process of Bill 34.

Co-Development of Legislation

The department of Industry, Tourism and Investment employed a co-development process in the creation of Bill 34. This process aligns with the legal requirements of the Devolution Agreement, the Intergovernmental Agreement and constitutionally protected rights of land claims, and accords with the requirements of section 35 of the Constitution Act (1982).

Submissions received from Indigenous governments and organizations stressed the importance of using a co-development approach, and requested that this process be respected and supported.

Committee is very supportive of the co-development process that is being created post-devolution. As committee learned during the public hearings and through written submissions, the department created Technical Advisory Panels which acted like working groups on specific topics, allowing Indigenous organizations as well as the department to have those with the best expertise participate.

It is the committee's understanding that the department has committed to take the same approach and work with Technical Advisory Panels to co-develop regulations enabled by Bill 34. The committee understands that this process can be time-consuming, resource-intensive, and potentially frustrating for all parties involved. Patience and negotiation skills are required from all participants. Paramountcy of self-government and lands rights agreements is understood and accepted.

Public Consultation

The committee held public hearings in Inuvik, Norman Wells, and Yellowknife. Scheduled hearings for Fort Simpson and Behchoko were cancelled on request of these communities. The Tlicho Government made arrangements for a separate appearance before committee in Yellowknife. Numerous representatives of Indigenous governments, non-governmental organizations, and individuals made public presentations to the committee, either in person or via written submission. Written submissions are attached as Appendix 3.

Committee received written submissions from Indigenous governments and stakeholders, including:

  • Alternatives North, Ecology North, Canadian Parks and Wilderness Society NWT Chapter, joint submission
  • Council of Canadians
  • Dehcho First Nations
  • De Beers Canada Inc.
  • The Information and Privacy Commissioner of the Northwest Territories
  • Katlodeche First Nation
  • Nickerson, Dave
  • North Slave Metis Alliance
  • NWT Metis Nation
  • NWT Association of Communities
  • NWT Chamber of Commerce
  • NWT and Nunavut Chamber of Mines
  • Pocklington, Mark
  • Sahtu Secretariat Incorporated
  • Slack, Todd
  • Tlicho Government
  • Vail, Nancy

The standing committee heard from many reviewers that Bill 34 successfully implements the shared goal of the creating a legislative framework that encourages positive relationships between regulators, developers, the Government of the Northwest Territories, and Indigenous governments by fostering early engagement and a greater commitment to transparency and accountability. Indigenous governments and organizations expressed broad support for the bill while emphasizing that the collaborative process of co-developing this bill serves to reinforce inter-governmental relationships and "sets a national example for how reconciliation can be achieved".

Committee also heard that Bill 34 requires further work to improve its transparency and accountability fully modernize the mineral tenure system, and maximize benefits for the Northwest Territories.

Most parties were supportive of the bill overall, however, had difficulties comprehending several sections, where details are left to regulations. Since the regulations have not been drafted yet, and supporting policy documents are not available, this absence in reference was noted to have created great uncertainty for everyone.

Committee thanks every individual and organization who attended these meetings to share their views on Bill 34.

The committee appreciates the plain language materials supplied by the Minister's office for the public hearings.

What We Heard

This part of the report is organized around the key themes or subject areas raised during the committee's public hearings and in the written submissions received.

Purpose Statement

Committee heard from some reviewers that Bill 34 should include a preamble. Bill 34 includes a purpose statement which identifies the bill's goals and principles. Committee discussed both tools as they can be of value to legislation by assisting to describe the intent of the legislation and help with judicial interpretation. Preambles and purpose statements differ, in that a preamble to bill does not form part of the bill, and therefore is not a legislative requirement once a bill is passed. A purpose statement, on the other hand, forms part of the bill and is likely to be more practical in its application, than a preamble, which tends to be aspirational in nature. In the case of Bill 34, a purpose statement is already present.

Transparency and Public Registry

Transparency is a broadly accepted feature of good governance that is intended to work in balance with privacy such as proprietary and competitive information, and security. The GNWT's Open Government Policy commits government to make government data, information and decision-making accessible in a way that is responsive to the needs and expectations of NWT residents; and "access to government data, information and dialogue should be timely, simple, and available across multiple platforms."

Committee received several submissions which commented on the proposed management of information, expressed a desire for an "open by default" design that guarantees open access to information and transparent decision making, and proposed guaranteed online accessibility and prescription of the information required to be made public.

Currently, the Mining Recorder's Office, as the administrator of mineral tenure in the Northwest Territories, maintains a registry. The registry links to a map application and visually presents the areas where individuals or companies have mineral interests in the territories. This Mineral Tenure Map Viewer is accessible online.

Committee heard concerns from the public that there needs to be clarity on the type and scope of information that will be made public. Many asked in their submissions to improve the transparency of government decisions by setting out where the notices should be published, considering that the Gazette cannot be considered widely used. While the views of what should be included on a public registry did differ, there was broad consensus that making the registry, or portions of it public would contribute to more clarity.

Committee believes the creation of a public registry component is the best and simplest way to ensure information is accessible, available, and can be achieved without extra cost or workload. Motions 2, 3, 4, 5, and 39 are concerned with the creation of the public registry component and require making a substantial amount of information publicly accessible, and that the information should be made available by posting it on a website or through another online electronic publication that is available in the Northwest Territories.

Committee holds the view that clarity is important to achieve balance between confidentiality and disclosure of information. In consideration of the Access To Information and Protection of Privacy Act, committee moved motion 45 to bring forward protection for proprietary information, agreements with governments and traditional knowledge in the public component of the registry, and allows for the protection of such information for more than 15 years. The Minister may direct that information falling into these categories not be disclosed. Building in these protections for limited categories of information, in the discretion of the Minister, was felt necessary because of the proactive requirement to disclose a broad range of information.

Annual Report Requirement

A commitment to improve accountability and transparency is one of the key priorities of the 18th Legislative Assembly. Public information is expected to be clear, concise, and easily understood. Committee agreed with comments received that making information available will increase public confidence in the regulatory process.

Having the information, year over year, compiled in one place, proves of interest and value in the context of accountable and transparent governance. The value of an annual report is the ability to have flexibility around how information is presented so as to allow the reader to put it clearly in context.

Currently, the Mining Recorder does not prepare an annual report and is not being required to do so by legislation. The committee is of the view that the requirement for the preparation of an annual report should be set out in legislation. Therefore, committee moved motion 44 to create a new subsection in Bill 34. The amendment requires the Minister to report on a number of prescribed activities such as all licences issued for each instrument and notices given, and to table this report before the Legislative Assembly. The motion was concurred with by the Minster and Bill 34 will be amended accordingly.

A private member motion proposed that the annual report, in addition to the elements proposed in the committee motion, contain information on inspections, investigations, and seizures. The Minister concurred with the motion. A similar amendment to the same reporting effect had been made and was accepted under to Bill 46: Public Land Act.

Prospecting Training Requirements

The Prospector's Licence is required under the Mining Regulations to prospect and to attain any type of mineral instrument in the Northwest Territories. Bill 34 proposes the ability for the Minister to require that individuals take awareness courses and other training before a Prospector's Licence is issued. The purpose is to offer awareness and refresher training to ensure prospectors and exploration proponents are informed before activities are commenced.

Committee commends the department for this step in the modernization of the rules for exploration in the Northwest Territories. Committee understands that the details for such a training program for Prospector Licence applicants are proposed to be set out in regulations.

Committee was advised that the content will focus on awareness of context to the Northwest Territories, and that the department intends to determine the final curriculum and timing in collaboration with Intergovernmental Council Secretariat, Indigenous governments and organizations, industry representatives and other stakeholders where necessary.

Committee heard from some that they wish to be involved in the curriculum development for the new training. Committee believes it is important to ensure partners with subject matter expertise are engaged in the design of the curriculum development and makes the following recommendation:

Recommendation 1

The Standing Committee on Economic Development and Environment recommends that the Government of the Northwest Territories develop the curriculum for Prospector Training, working with Aurora College, the Mine Training Society, and in consultation with industry experts who can offer expertise in the applied content subject matter.

Designation of a Restricted Area

Under clause 22 of Bill 34, the Minister has the authority to designate lands to be temporarily removed from issuance of mineral interests for up to one year, with a further one year extension. The restriction prohibits acquisition of subsurface interests and does not prevent surface access. The Minister is able to designate lands as restricted where such lands are applied for on the grounds of unique cultural, geological or ecological significance, and where the Minister considers that the designation is required urgently and for a temporary period.

Committee received several submissions from Indigenous governments and organizations who welcomed this ability to designate restricted areas as a useful tool to protect Indigenous and Aboriginal and treaty rights from infringement in the short term. In the long term, this mechanism was seen as a tool that can help avoid conflicts that could impact on exploration or mining projects.

Committee identified an issue determining a gap in the process and suggested that during the time before a final decision is made, additional rules are applied. The designation of an area as restricted is intended to allow removal of an area temporarily based on proposal. The time between the proposal and the Minister's decision leaves a gap before protection as a designated restricted area is in place. A similar gap in protection had already been identified and included in Bill 38: Protected Areas Act. Considering that this gap should be closed, committee suggested addition of a sub-clause that would ensure interim protection while the decision to designate an area as restricted is pending, and that the Minister's decision be final, and therefore proposed motion 13.

One submission expressed the desire that the Minister should publish the full text of any written decision made on the designation of an area as restricted. While committee agreed that the public should be informed of the Minister making such a decision, we determined that there is need for protection of confidential or sensitive information. Therefore, committee proposed that the designation of an area require that the Minister provide written reasons for his or her decisions, and moved motion 14. Minister Schuman concurred with motions 13 and 14 and Bill 34 will be amended accordingly.

Committee agrees that providing the Minister with discretion to restrict the disposal of interests in minerals in specific areas will provide a flexible and responsive mechanism to address conflicts that might otherwise arise over important geological and ecological sites or cultural areas and artefacts. However, committee finds that municipalities should be given a similar consideration in the application of this tool.

Consideration of Municipalities

Bill 34 provides that Indigenous governments and organizations are to be provided with notice of staking or mineral leases within or adjacent to their boundaries. Committee contemplated a provision to give similar notice to local governments and municipal corporations. Research provided to committee identified that two jurisdictions in Canada have moved, or are in preparation to move toward, notification of municipalities when resource development is proposed.

Committee holds the view that municipal boundaries need to be respected and that community government should be given the same tools to be informed. Committee discussed that notice to municipalities should also be included in the section on regulation making with respect to the requirement for public notice and notice to Indigenous governments and organizations.

Clauses 24, 28, 41 and 42 could also require giving notice to municipalities. In the past, claim staking within municipal boundaries has been an issue when minerals were staked under an active gravel pit in Inuvik. In Resolution RA-19-11-02, the NWT Association of Communities requested of the GNWT that mineral staking be not allowed without approval of the municipality. Committee was informed that the department believes this to be an access issue that would not fall under Bill 34. The department suggested that if one were to see the issue as quarry rights versus mineral rights, then the issue is with the Quarry Regulations and not a municipal issue.

Committee believes that municipal governments should be recognized as a legitimate order of government and entitled to notice, to avoid land use conflicts. Committee subsequently proposed amendments to this effect in several sections of Bill 34. In motion 22, we asked the Minister to give early notice of application to record a mineral claim to municipalities and the public. In motion 24 we asked to include municipalities in receiving notification on intended work. The Minister did not concur.

Committee proposed motion 12, to provide municipalities with a tool to request protection for areas of municipal significance such as important infrastructure. Committee heard from the department that notice giving to municipalities for reasons to protect municipal infrastructure would not be consistent with the intent of the tool of designated areas and not in scope with Bill 34. The Minister did not concur and Bill 34 was not amended to include this requirement.

Committee urges the government to investigate and identify how to prevent this type of land use conflict on municipal lands, and makes the following recommendation:

Recommendation 2

The Standing Committee on Economic Development and Environment recommends that the Government of the Northwest Territories work with the NWT Association for Communities and municipal governments in the Northwest Territories to develop solutions to resolve the challenges of rights issuance that overlaps municipal boundaries, in order to better protect municipal infrastructure and ensure public interest is protected. Efforts should also be directed at protection of lands and waters where critical municipal infrastructure is located or planned.

Zones

Under Bill 34, the Minister will be able to create zones that can allow for distinct processes, incentives, or the implementation of other tools on a local and regional level to encourage mineral exploration and development, at the request of Indigenous governments or on the Minister's own initiative. Zones may establish additional terms for a specific area beyond the exclusive right to prospect. These terms will be determined through discussion between Indigenous governments and organizations and the department.

Several questions were raised about the use of the term "favourable" and others wanted to see more clarity on what activities are to be expected to be allowed in the zones. Others were concerned about how the Minister plans to make the establishment of zones known, and other submissions saw zones as an incentive for investment. Committee also heard concerns about zones represent a mixing of the objectives to regulate and promote mining at the same time.

The department informed committee that a zone may be defined by a sponsoring Indigenous government or organizations and is used to draw special attention and encouragement for interested prospectors and exploration companies to explore a specific area. The specific attributes to zones will be determined by regulation. Zones which under the current system are created through prospecting permits, are intended to modernize the system by replacing the existing prospecting permit and allowing for greater flexibility in terms of setting "favourable" terms.

Committee determined that Bill 34 is unclear about the design and application of the concept of zones, and sought additional information from the department. The department confirmed that the purpose of zones is to attract investment in exploration by identifying desired geographic areas, and that it is important to note that zones cannot change the environmental protection and regulatory requirements that would apply under other legislation.

The committee appreciates the discussions held with ITI staff to attempt to find a reasonable compromise on bounds to the Minister's discretion in setting zones.

Committee heard concern expressed in some submissions about the degree of power and discretion the Minister has under the applicable sections of the bill, and a desire for assurances that there be quality control in the process.

Committee identified that the concept of a zone in Bill 34 has been left very broad and would benefit from application of baseline criteria for the purpose of quality control and increased clarity. Committee proposed the following criteria that provide more clarity on the concept of zones:

  • Have the establishment of zones decided by the Commissioner in Executive Council, where all the interests of various Ministries can be considered, rather than the Minister developing the regulations herself/himself;
  • Prohibit use of royalties as an incentive;
  • Make zones for a time-limited period (Committee suggested 15 years based on that time-limit established for Significant Discovery Licences under Bill 36: Petroleum Resources Act);
  • Require the Minister to provide written reasons when establishing a zone;
  • Ensure that information provided in confidence remains confidential;
  • Has rules for an option for renewal;
  • Permits the interesting party the choice under which regulations to apply for mineral instruments; and
  • Provides an opportunity for the public to comment on draft regulations.

Committee developed and moved motions 19, 20, and 21 to affect this change and incorporate them into the bill. Committee moved motion 41 to give decision making powers over creating regulations on the establishment of zones to Cabinet, thereby increasing the accountability and transparency of the process. Minister Schumann concurred with these four motions. The Minister did not concur with a motion that would incorporate amendments to require public notice and an opportunity for public comment.

Mineral Rights Review Board

Bill 34 had proposed to create a Mining Rights Panel as part of the bill's dispute resolution mechanisms, together with the Supervising Mining Recorder and the process proposed under Part 5. Its purpose is to replace section 84 of the Mining Regulations and does not intend to deal with disputes that fall under enforcement or decisions on actions under the Minister's discretion.

Committee received concerns on the number and qualifications of panel members, the length of term, and the decision-making process. Committee heard that the panel members should have additional expertise of areas such as experience in co-management systems and Indigenous government rights. After discussion, committee agreed that these areas of expertise would be expected from panel members as they are core knowledge of governance in the Northwest Territories.

Committee had serious concern with the proposal of the panel being comprised of at least three individuals with one person hearing the mining dispute. Given the possible significance of mining disputes, committee finds that dispute resolution should be fair and accountable, and should not rely on one person only.

Detailed discussions with committee led the department to reconsider the approach to the panel and several changes were proposed. The name of the dispute resolution body was changed to Mineral Rights Review Board, with members holding office for a term of up to three years, with possible reappointments for two terms, a chairperson who is not a member of the board, to be designated for no more than three consecutive years. Committee moved motions 5, 6, 7, 8, 9, and 10 to include this amendment into the bill. Motion 8 was moved with the intent to strike the right balance in appointment and length of term in consideration of the possible capacity issues and challenges to find board members. Motion 9, similarly, has the purpose is to avoid stagnation of board membership.

Committee moved motion 11 with the intent to require that the board prepare and table an annual report. Minister Schumann concurred with these six amendments.

Royalties

Committee received several submissions on Part 6 of Bill 34. Some expressed that they support the creation of royalties with the rates applied through regulations as in the current system. Others commented that there is no requirement for public process and urge that all partners be included in discussions over future regulations and review of royalties. One submission recommended focusing on corporate income tax and increasing the transparency on the gross revenues generated by each mine.

Committee was informed by the department on plans for a fiscal review of mining. The department is expecting to complete phase one of a comprehensive review of the Northwest Territories mining fiscal regime during fall of 2019. The second phase will include an analysis of NWT specific taxes to see how these impact the competitive position of the NWT in respect to other jurisdictions.

Committee commends the department for its effort to commence a review of the existing royalty system. Committee supports a review of the royalties system carried out by an independent body that is external to government, and therefore, makes the following recommendation.

Recommendation 3

The Standing Committee on Economic Development and Environment recommends that the Government of the Northwest Territories appoint an independent panel to undertake a review of the system for charging royalties to mining, petroleum and natural gas companies operating in the Northwest Territories. This review should include a comparison of the NWT's system with that used in other jurisdictions and should make recommendations on system improvement, while providing opportunities for public input

In order to provide clarity and transparency on reporting revenues from mineral extraction, committee suggests that the department consider using best practices models for reporting, and consider, for example the international "Extractive Industries Transparency Initiative," or the Canadian "Towards Sustainable Mining" commitment of the Mining Association of Canada and its principles. Both initiatives require that member companies agree to and comply with principles and protocols concerning reporting, publication and verification of company payments and government revenues.

Recommendation 4

The Standing Committee on Economic Development and Environment recommends that the Government of the Northwest Territories assess, develop and adopt a set of principles, tools and indicators to drive performance and ensure greater transparency and accountability, such as those contained in the Extractive Industries Transparency Initiative (EITI), or the 'Towards Sustainable Mining' (TSM) commitment of the Mining Association of Canada.

Statistical Returns

Bill 34 creates the legislative requirement for mine operators to annually file a statistical report with the Government of the Northwest Territories. Statistical returns are generally based on surveys used by government to collect data for the purpose of strategic planning. Types of information generally include reporting on production and sales, and type of mineral produced. Committee strongly believes that such detailed reporting helps improve economic forecasting and grow understanding of the NWT's geology and economy. The Mining Regulations currently provide detailed royalty reporting requirements for mines and not statistical returns.

Committee further discussed the use of discretion in the disclosure of information contained in a statistical return, and questioned the rationale for the timing of disclosure at 15 years after filing of the report. The department had concerns that the potential content of statistical returns may contain commercially sensitive information and therefore intends to avoid mandatory disclosure of information in the required statistical returns.

Committee holds the view that improved clarity and balance between confidentiality and disclosure of information can be achieved by allowing disclosure of a statistical return after 15 years or sooner, if the lease holders agree, and not allowing disclosure if the information could reasonably be expected to prejudice the commercial interest of the operator. Committee moved motion 27 to this effect and to amend the bill accordingly.

Regulation-Making

Bill 34 provides the Minister the authority to make regulations such as defining words, when to give notices, and many actions addressed in this legislation. Committee heard that government should develop regulations in collaboration and allow public review of proposed regulations.

Committee wanted to require that Indigenous governments and organizations are engaged in regulation-making and proposed motion 42 to this effect, but the Minister did not concur and the bill was not amended to include this requirement.

Committee moved motion 43, asking that Cabinet publish proposed regulations in the Northwest Territories Gazette, allow that presentations be made to the Minister and require that the proposed regulations be published once. The Minister did not concur with the motion committee had prepared and therefore Bill 34 was not amended to include this requirement.

Committee is of the view that government should be open and transparent in developing regulations and take into consideration that seeking public input on proposed regulations has evolved as a common practice in Canada.

Recommendation 5

The Standing Committee on Economic Development and Environment recommends that the Government of the Northwest Territories develop an implementation plan for the Mineral Resources Act that identifies short and longer-term objectives, such as the development of regulations, and which identifies how key stakeholders will be engaged. The standing committee further recommends that the GNWT return to the appropriate standing committee in the 19th Legislative Assembly with a copy of the draft implementation plan for committee input.

Drill Core

The collection and analysis of drill core obtained from mining exploration programs are the principal components of core storage programs in Canada. Core preservation is costly but allows for future study and saves duplication of expenditures. Bill 34 makes it an offence to tamper with, transport, dispose of or damage drill core, cutting or sample.

Committee heard that it is important that the Government of the Northwest Territories be able to protect drill core. Committee members are of the view that drill core should not be abandoned and left on unused or terminated exploration sites, and moved motion 25 to this effect.

Committee identified that there exists a gap in the regulations in regards to the requirement of removing drill core. Currently, none of the regulations under the Mackenzie Valley Resource Management Act or under Government of the Northwest Territories legislation (e.g. Waters Act, Environmental Protection Act, or Northwest Territories Land Act) or regulations appear to contain requirements to remove drill core after exploration. Committee therefore makes the following recommendation:

Recommendation 6

The Standing Committee on Economic Development and Environment recommends that the previously noted implementation plan identify how the regulatory gap related to the matter of removing drill core be resolved.

Bill 34 further provides the Minister with the discretion to determine that drill core is abandoned and to take possession of the core samples. Drill core provides a source for contribution to the geoscience knowledge of a region and to geological knowledge in general. It is in the public interest to retain this information to help build our geological knowledge base. The Northwest Territories Geological Survey Geological Materials Storage Warehouse and viewing facility allows clients to access and study GNWT's core and rock collections.

Committee holds the view that government, once it has possession of drill core, make the core accessible to the public. Therefore, committee moved motion 26 to amend Bill 34. The Minister concurred with both amendments concerning drill core.

Offences and Punishment

Bill 34 sets out a section on offences and punishment, in which failure to comply with the act or regulations is made an offence punishable on summary conviction. Unless otherwise provided, a corporation is liable to a fine not over $1 million; for any other person the maximum fine is $100,000. Committee heard that imprisonment should be included, given some of the serious matters regulated by Bill 34. It was pointed out that other Northwest Territories' legislation with similar offences sections, include imprisonment as punishment.

Committee moved motion 36 to add imprisonment to ensure consistency with the prevailing approach to enforcement and deterrence and the Minister concurred.

Departmental Employees

Departmental employees are prohibited to hold interests in minerals in respect of lands under the control of the Commissioner if they are for exploration or mining purposes. Bill 34 contemplates the ability of a deputy minister to waive this prohibition.

Committee had serious concerns of how the government would maintain the public's confidence in the integrity of the system, when departmental employees could hold mineral interests in lands while at the same time being involved in the administration of those mineral interests. Committee held discussions with the department on how section 23 would prevent the potential use or trade of insider knowledge by employees or family members of employees.

Committee agreed with the department that the prohibition exists under the Public Service Act, and the GNWT employee Code of Conduct to use or benefit from insider knowledge. However, committee is of the view that to better protect employees and provide guidance on how employees should conduct themselves, a general prohibition in the statute should be inserted. Therefore, committee moved motion 15, including those who hold interests to the existing prohibition, and motion 16, inserting an express prohibition on sharing insider knowledge for personal benefit or the benefit of another person. In total, committee moved four motions to amend clause 23 and the Minister concurred.

"Bad Actor"

Committee heard representations from the public to include in Bill 34 what has become known as the concept of "Bad Actor" provisions. "Bad Actor" provisions proposed to committee exist in Montana (USA) since 1989. The Montana provisions prevent those with serious infractions or who owe money to the State from applying for further mining authorizations.

The goal is to have a measure that will help protect the Government of the Northwest Territories and taxpayers from rule-breakers that have taken advantage of the system before. A "Bad Actor" clause in resource legislation would send the signal that the NWT is serious about protecting its properties and identifies "bad" conduct, especially in light of a number of serious public liabilities, most notably, Giant Mine.

Clause 106 provides the Minister with the authority to suspend, cancel and prohibit authorizations, and prohibit new authorizations. The intent is to capture applications by corporations who have officers or directors who (a) have previously been convicted of an offence under this act or regulations, or (b) have been previously associated with a company as a director or officer which company has been convicted of an offence under this act or regulations.

Committee specifically clarified the provision under (b) so that a company that employs an individual as officer or director, who has committed an offence while employed at another corporation, may be rejected issuance of authorization. Committee passed motion 38 to clarify this provision and the Minister concurred.

Requirements Relating to Benefits (Part 5)

During the public hearings, committee noted some level of confusion between agreements, terminology and purpose of Part 5 of the bill that relates to benefits. Socio-Economic Agreements, which are agreements between the Government of the Northwest Territories and mineral development companies, and Impact and Benefit Agreements, Partnership Agreements, and the proposed term of benefit agreements. In the submissions received, preferences for one or the other term were mentioned in several cases, most often referring to Impact and benefit agreements.

Committee also heard that the provision of public benefits as set out in clause 51 of the bill is particularly vague, without an actual trigger and any specifics as to what might be expected. One submission suggested tying benefits to commercial production and providing a non-inclusive list of benefits based on the most recent socio-economic agreement for the NICO Fortune Project.

Mineral industry stakeholders proposed that Part 5 of Bill 34 be removed and Bill 34 be advanced without it. Industry expressed serious concerns about the proposal to legislate benefit agreements, in particular because these are private agreements negotiated between Indigenous parties and mining companies, and without involvement of public government. Industry expressed that Part 5 could be perceived as government intervention, and that mining companies may fear this may lead to court challenges and discourage investment in projects in the Northwest Territories.

Industry asked to be involved in the further development of Part 5 to improve it and reduce the uncertainty that it now creates as perceived by the mining sector. Industry further noted that agreements are a common practice for the mineral industries and that they likely will continue without being legislated.

Committee notes the following input received on this matter from mineral industry stakeholders:

De Beers - "The legislation indicates that all lease holders must negotiate these benefit agreements if a) the Minister considers it appropriate, b) if a production project for the mineral lease meets the prescribed threshold and c) when also in accordance with the regulations. The circumstances under which the Minster would consider it appropriate are not defined. The prescribed threshold and the regulations are also not yet defined. These aspects matter hugely but without understanding the limits of each, it is difficult to support the enabling legislation."

NWT & Nunavut Chamber of Mines - "Send Part 5 back for further study and more comprehensive discussion with industry and investors to reduce its risks, and to consider other approaches to provide benefits to people and communities. Pre-eminent among these innovations is our recommendation to share other mineral industry revenues with Indigenous governments on whose land exploration and mining occur."

Committee received considerable comments from Indigenous governments and organizations, commenting that Bill 34 is an important step forward from the existing Mining Regulations. Submissions from several Indigenous governments and organizations made it very clear that they are in support of Bill 34 in the way it has been referred to the standing committee.

Committee also heard that clause 52 of Bill 34 is the most critical component of the bill from an Indigenous government perspective. The requirement for a benefits agreement between a developer and Indigenous governments, although common in today's age, are not required in legislation anywhere in Canada.

Committee notes the following input received on clause 52:

K'atlodeeche First Nation - "To be clear, KFN believes that Part 5 is a fundamental component of the overall integrity of Bill 34 and should not be amended or delayed from moving forward."

Dehcho First Nation - "We also strongly support the requirement for benefit agreements to be concluded with affected Indigenous governments before a mine can go into commercial production."

NWT Metis Nation - "We are very concerned that the conditions for the requirement of an IBA are punted to regulations. Ideally, the MRA would contain more prescriptive language for the process on substance of IBA requirement."

North Slave Metis Alliance - "NSMA is supportive of the concept of the legislated requirement that a holder of a mineral lease enter into benefit agreements with Indigenous governments and organizations."

Sahtu Secretariat Incorporated - "The SSI supports the provisions of Bill 34, in particular, the SSI confirms its support for specific provisions of Bill 34 that address issues that it raised, including: [...] b) the requirement for a mineral lease holder to enter into a benefit agreement with the affected Indigenous group or organization; [...]"

Tlicho Government - Tlicho Government has no specific comment on the Mineral Resources Act that require the attention of SCEDE as it reviews this draft legislation. Tlicho Government does emphasize, however, that many of the key aspect of this legislation, including the operationalization of benefits agreements and issues around access to land and notification of staking, will be further developed in the yet-to-be-drafted regulations. These are critical pieces of the legislative framework and, as such, Tlicho Government emphasizes its point above that the inclusion of provisions in the legislation that require IGO engagement around the development of regulations under the act is imperative."

Committee members found Part 5 very vague. Being provided with limited clarity, committee considered it difficult to understand and debate what each section is intending to achieve. Some motions were moved by a member of the committee to attempt to clarify expectations in relation to triggers and benefits. These motions were carried by committee; the Minister did not concur.

Clause-by-Clause Review of Bill 34

The clause-by-clause review of the bill had been scheduled for August 13, 2019, however, was postponed on short notice and on request by committee. Due to the large number of bills under review at the end of this Assembly, and the Committee Room already being reserved for review of another bill, this short-term change resulted in a change of location for this review.

On August 15, 2019, the clause-by-clause review of Bill 34 was held in the Great Hall of the Legislative Assembly, from 7:00 p.m. to 11:30 p.m.

At this meeting, the committee moved 46 separate motions to amend Bill 34. These motions are set out in Appendix 1.

Minister Schumann concurred with 40 of the committee's motions. The Minister also concurred with a private Member's motion that proposed, in complement to committee's motion 44, to add detail to the annual reporting requirement.

The committee thanks the Honourable Wally Schumann, Minister of Industry, Tourism and Investment, and members of his staff, for their appearance before the committee.

Conclusion

The committee commends the Minister for his willingness to work with committee to further amend Bill 34 in response to public interest and working collaboratively with committee on the amendments.

The committee thanks all those who took the time to appear before committee to share their thoughts on this legislation.

Following the clause-by-clause review, motions were carried to report Bill 34: Mineral Resources Act, as amended and reprinted, as ready for consideration in Committee of the Whole.

Rule 100(5) of the Rules of the Legislative Assembly of the Northwest Territories requires Cabinet, in response to a motion by Committee, to table a comprehensive response that addresses the committee report and any related motions adopted by the House. As required by this rule, committee usually includes a recommendation in each report, which is moved as a motion in the House, requesting a response from government within 120 days. Given that the 18th Legislative Assembly will dissolve prior to the conclusion of the 120-day time period allowed by the rules, committee has opted to forego this recommendation. Committee nonetheless requests, to the extent it is possible before the dissolution of the 18th Assembly and for the public record, that government provide a response to this recommendation, even of a preliminary nature, that committee may publicly disclose.

This concludes the standing committee's review of Bills 34.

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The Speaker Jackson Lafferty

Reports of standing and special committees. Member for Yellowknife North.

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Cory Vanthuyne Yellowknife North

Thank you, Mr. Speaker. I move, seconded by the honourable Member for Hay River North, that Committee Report 33-18(3), Standing Committee on Economic Development and Environment Report on Bill 34, Mineral Resources Act, be received by the Assembly and moved into Committee of the Whole for further consideration. Thank you, Mr. Speaker.

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The Speaker Jackson Lafferty

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

---Carried

Committee Report 33-18(3) on Bill 34 has now moved to Committee of the Whole for further consideration. Reports of standing and special committees. Member for Yellowknife North.

Motion that Committee Report 33-18(3) be Moved to Committee of the Whole, Carried
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Cory Vanthuyne Yellowknife North

Thank you, Mr. Speaker. I seek unanimous consent to waive Rule 101(4) and to have Committee Report 33-18(3) moved into Committee of the Whole for consideration later today. Thank you, Mr. Speaker.

Motion that Committee Report 33-18(3) be Moved to Committee of the Whole, Carried
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The Speaker Jackson Lafferty

Masi. The Member is seeking unanimous consent to waive Rule 100(4) and have the Committee Report 33-18(3) moved into Committee of the Whole for later consideration today. Are there any nays? There are no nays.

---Unanimous consent granted

The Committee Report 33-18(3) is now moved to Committee of the Whole for further consideration later today. Reports of standing and special committees. Member for Nahendeh.

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Shane Thompson Nahendeh

Thank you, Mr. Speaker. The other side of this.

Introduction

Bill 45: Corrections Act, sponsored by the Department of Justice, received second reading in the Legislative Assembly on March 11, 2019, and was referred to the Standing Committee on Social Development (committee) for review, the results of which are reported below.

Bill 45 is intended to repeal and replace the existing Corrections Act. The bill intends to focus less on punishment and more on the rehabilitation and reintegration of offenders into their communities, and to reflect various operational improvements in the Northwest Territories' (NWT) corrections system.

What We Heard and What We Did

Public Review of Bill 45

To assist in our review of Bill 45, committee invited input from an extensive list of stakeholders, including community governments, and Indigenous organizations, as well as individuals and non-governmental organizations specializing in civil liberties, criminal law, or corrections.

Between May 13 and May 17, 2019, committee traveled to the communities of Fort Smith, Hay River, Fort Providence, Behchoko, Inuvik, and Tuktoyaktuk to hold public hearings on Bill 45, followed by a public hearing in Yellowknife on May 23, 2019. In addition to these meetings, committee received five written submissions on Bill 45, copies of which are attached in Appendix B.

General Comments

Upon first review, committee was concerned Bill 45 did not adequately reflect the unique cultural background, historic legacy, and experience of offenders in the NWT and the reforms expected in the current era of Truth and Reconciliation and after 40 years of evolving approaches in the field of corrections.

The bill did not appear as thorough as recent comprehensive reforms elsewhere in Canada, including in Newfoundland and Labrador, Ontario, and most recently Nunavut. These acts, while not yet in force, went much further than Bill 45 in aspiring to provide for the rehabilitation and reintegration of inmates so that they may go on to lead productive lives, inmates and victims may heal, and residents and communities may be safer.

Committee also heard that aspects of Bill 45, specifically its provisions relating to the confinement of inmates, were not reflective of recent case law. Principles of procedural fairness were also absent from the bill, including a mechanism for inmate complaints. Other submissions advised that international standards relating to incarceration should be incorporated into Bill 45.

Committee was concerned about not only the content of Bill 45, as outlined below, but also how the bill was developed. The department of Justice received limited input into Bill 45, resulting in a bill that was framed from the perspective of the persons operating and administering the corrections system rather than that of persons who are directly impacted by the system, including inmates, victims, and Indigenous peoples. A lack of engagement by members of the public and Indigenous and other organizations does not equal a lack of concern, committee believes, and this was reflected in the submissions committee received.

In addition, with substantive details missing from Bill 45, the structure of the bill was a concern for committee, as well as experts. While the department planned to address these details in regulations and policies, matters such as separate confinement, the use of force and discipline, or corrective measures are not merely operational or practical details. Instead, they relate to essential rights and responsibilities that should be subject to the full legislative process, including public debate, consultation, and accountability for elected officials.

On bringing our concerns to the Minister of Justice, departmental and committee officials commenced a collaborative effort to develop several substantive amendments, including reducing the bill's reliance on regulations, policies, and procedures and capturing substantive rights and responsibilities in the bill. We can say with confidence that our combined efforts have resulted in a vastly improved bill, one that looks much less like a framework for operations and much more like a modern framework for legal obligations and protections reflective of the NWT.

At this time, Mr. Speaker, I'd like to turn the report over to the honourable Member for Deh Cho.

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The Speaker Jackson Lafferty

Masi. Member for Deh Cho.

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Michael Nadli Deh Cho

Mahsi, Mr. Speaker.

Purpose and Principles

On reviewing Bill 45, it was not clear to committee what the bill was trying to achieve. In collaboration with the Minister, committee developed Motion 3 in Appendix A to articulate clear aspirations for the NWT correctional system and to establish principles for guiding the Correctional Service.

Community Advisory Boards

Sections 4 and 5 of Bill 45 authorized the Director of Corrections to establish community advisory boards and appoint members (CAB). Among other things, CABs are meant to provide observations and advice on the day-to-day operations of correctional centres and liaise between facilities and the public to facilitate responsiveness to inmates' needs.

It appeared to committee that appointments to CABs by the Director of Corrections, a member of the public service, may have the unintentional effect of compromising their independence. For that reason, committee felt it would be more appropriate for the Minister to establish CABs and appoint their members, as reflected in Motions 5 and 6 in Appendix A. Committee suggests that membership of CABs be determined using an existing model, such as that used for Regional Wellness Councils.

Correctional Centres

Corrections Staff

Section 10 authorizes the Director of Corrections to adopt a code of professional conduct for all staff members. Committee and the Minister agreed that the adoption of a code of professional conduct should be an obligation rather than a discretionary power, as reflected in Motion 7 in Appendix A. We also agreed that the guiding principles created under Motion 3 should highlight the importance of staff training and the importance of a positive work environment.

Committee heard concerns from the public about the suitability of personnel working in the corrections system. Non-Indigenous persons working in front-line service positions may lack an understanding of the experience of Indigenous people, including the legacy of the residential school system, and a resident made the point that inmates should be working with people they can trust.

Committee believes that the personnel working in our corrections institutions should have the background and skills necessary to be able to address the challenges and needs underlying the unique circumstances of their inmates. We encourage the department to offer the relevant training anticipated under Bill 45 to its corrections staff on an ongoing basis. We also urge the department to increase its efforts towards filling corrections positions with candidates who reflect the demographics of the inmates they oversee.

Volunteers

Section 17 of Bill 45 allowed the Director of Corrections to appoint volunteers to provide or assist in the provision of correctional services for offenders, inadvertently excluding other inmates such as those remanded in custody from working with volunteers. Motion 11 in Appendix A remedies this error.

Probation Officers

Section 16 sets out the duties and responsibilities of probation officers, mostly in relation to their role with respect to the courts and in correctional centres. The Canadian Bar Association Northwest Territories Branch - Criminal Justice Section (CBA-NT) recommended Bill 45 detail the specific responsibilities of probation officers vis-a-vis their clients. Motion 10 in Appendix A elaborates on the role of probation officers in assisting offenders post-release.

Programs and Services

The public expressed their support for programming and services that reflect local culture, languages, and experiences to support the reintegration of inmates into their families and communities. Residents told committee that inmates should be able to interact with people they can trust, and on-the-land programs should be a priority.

Committee felt Bill 45 should go further to account for these concerns. Among other improvements, Motion 14 clarifies that programs and services may be offered in a facility, a community, or on the land. This motion, developed in collaboration with the Minister, also provides for the services of an Indigenous elder or spiritual advisor to support the healing, rehabilitation, and reintegration of inmates. In addition, Motion 19 amends section 30 of the bill to allow for the eventual possibility that communications between an inmate and Indigenous elder or spiritual advisor under Motion 14 could be made privileged.

Mr. Speaker, I now pass on the reading of the following section to my honourable colleague from Yellowknife Centre.

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The Speaker Jackson Lafferty

Masi. Member for Yellowknife Centre.

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Julie Green Yellowknife Centre

Mahsi, Mr. Speaker.

Recommendation 1

The Standing Committee on Social Development recommends that the department of Justice explore the possibility of allowing for private interviews between an inmate and a facility's Indigenous elder or spiritual advisor, subject to reasonable restrictions.

Residents told committee that programming should be available to all inmates, including those remanded in custody, who make up more than half the inmate population in the NWT. Remanded persons, including those who are eventually convicted, are frequently released without having accessed rehabilitative programs. Even of those who are sentenced, the Auditor General of Canada found that, for inmates with sentences of less than 120 days, only 36 percent had access to general rehabilitation programs, and none had access to offence-specific programs. For those with sentences longer than 120 days, 87 percent had access to general rehabilitation programs, but only 63 percent had access to offence-specific programs.

In an effort to promote the uptake of programming by remanded persons, committee worked with the Minister to develop Motion 14 in Appendix A. This motion amends the programs and services provisions in section 21 of the bill to make a distinction between general programs aimed at all inmates and rehabilitation programs targeted at convicted offenders. Motion 14 specifies that all inmates are entitled to participate in these various programs and services.

Committee would like to see the correctional needs and appropriate programs to meet those needs as set out in section 29 of the bill identified for every inmate rather than only for offenders, to ensure their time in custody is as constructive as possible. Further, needs-based assessments should be delivered in a timely manner. While we recognize that it may be a challenge to engage remanded individuals in programming, as they are presumed innocent and cannot be compelled to participate, committee recommends that the department provide adequate incentives to promote the development and betterment of all inmates.

Recommendation 2

The Standing Committee on Social Development recommends that the Department of Justice conduct needs-based assessments for all inmates, that the assessments be conducted in a manner that is timely relative to an inmate's release eligibility, that the assessments take into account Gladue and other factors such as an inmate's disabilities, and that the department explore additional measures to encourage all inmates to participate in suitable programming, including offering new incentives.

Living Conditions

Section 26 of Bill 45 contained few references to living conditions, and experts advised committee that Bill 45 did not go far enough to ensure that inmates receive living conditions reflective of Canadian human rights standards. Committee and the Minister developed Motion 15 in Appendix A to establish minimum living conditions and standards and to ensure inmates have the rights to peaceful assembly and religious expression, subject to reasonable limits.

Motion 24, discussed below, prohibits the deprivation of food, water, and healthcare as punishment for disciplinary offences.

Inmate Communications

Committee heard that Bill 45 should include provisions requiring corrections centres to guarantee inmates reasonable access to adequate means of communications with the outside world, as reflected in Motion 15. In addition, committee worked with the Minister on Motion 19 to expand the list of individuals with which an inmate may engage in "privileged communication" under subsection 30(1). The list would include individuals with the Office of the Ombud, the Human Rights Commission, and the Human Rights Adjudication Panel, as well as other prescribed persons.

Work Programs

Residents told committee they want to see corrections centres offering work programs, and for these work programs to operate in communities. Committee recognizes the challenges that work programs pose for the department, including in relation to high risk offenders, but committee sees the value in providing inmates with work skills and reacquainting them with society to assist in their rehabilitation and reintegration.

Recommendation 3

The Standing Committee on Social Development recommends that the Department of Justice prioritize work programs that are responsive to community needs, subject to necessary safety and security restrictions.

Mr. Speaker, I now turn the report over to the Member for Mackenzie Delta.

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The Speaker Jackson Lafferty

Masi. Member for Mackenzie Delta.

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Frederick Blake Jr. Mackenzie Delta

Thank you, Mr. Speaker.

Services at Correctional Centres

Section 50 of Bill 45 authorized the Minister to provide inmates with services for personal phone calls, entertainment, canteen, and other services. Motion 28 clarifies that the Minister is required to provide these services in all correctional facilities, subject to reasonable restrictions on individual inmates.

Rules and Information for Inmates

Bill 45 requires the person in charge to make rules respecting inmate conduct, inmate activities, and other matters. Motion 16 replaces section 27 of Bill 45 with a new section to provide that, on an inmate's admission to a facility and in a form he or she understands, the person in charge must inform the inmate of the institution's rules and the inmate's rights and responsibilities, to assist the inmate with adapting to his or her surroundings.

Security Assessments

Knowing an inmate's risks is essential to effective safety, security, rehabilitation, and reintegration. Motions 17 and 18 in Appendix A clarify the distinction between the security classification process and the enhanced supervision program used by the Correctional Service. The security classification process is used for assessing and reassessing inmates and determining the level of security required for an inmate and their appropriate placement within a facility. Inmates may be assigned to an enhanced supervision program, where they may be assigned to a specific level of security, access restrictions, and other conditions of confinement.

Committee received several suggestions to make the risk assessment process as it relates to security classification effective and fair to Indigenous inmates.

Recommendation 4

The Standing Committee on Social Development recommends that the security assessment tools used by the Correctional Service be objective, structured, and empirically defensible, and that a risk assessment tool that considers the unique realities of Indigenous inmates be developed and used.

Searches

The Information and Privacy Commissioner outlined several privacy-related concerns with Bill 45 for committee. A specific area of concern we shared with the Information and Privacy Commissioner was the lack of detail in Bill 45's search provisions. We agreed with the Information and Privacy Commissioner that sections 33 through 35 of the bill did not do enough to protect the privacy and dignity of those subject to search. For this reason, committee worked with the Minister to develop Motions 21, 22 and 23, set out in Appendix A, to specify that strip searches of inmates, staff, and visitors must be conducted by staff of the same gender and in a place and manner that respects the person's dignity.

Use of Force

Section 19 of Bill 45 included broad parameters for the use of force on inmates, authorizing certain persons to use a "reasonable degree and means of force on any inmate" to prevent injury or death, prevent property damage, prevent an inmate from escaping, and maintain inmate custody and control. Committee agreed with a submission that more detail around the use of force was needed. Motion 17, developed in collaboration with the Minister and set out in Appendix A, serves to replace section 19 in Bill 45. This motion clarifies that de-escalation techniques must be employed where possible and force may be used only as a last resort. The means and the amount of force must be reasonable and not excessive, and they must have regard to the nature of the threat posed and other circumstances of the particular case.

Also contained in Motion 17 are clear restrictions on the use of physical restraints. Section 19 left decisions, such as the devices that may be used to physically restrain an inmate and the manner and circumstances in which they may be used, to the discretion of a sole individual. Due to the highly intrusive nature of these devices and the risk they pose for causing injury, pain, and humiliation to inmates, committee believes the circumstances in which physical restraints may be used, such as the length of time and procedures for their use, should be prescribed in regulations and subject to independent scrutiny. As an additional safeguard, Motion 24 specifically prohibits the use of restraint devices as punishment for disciplinary offences.

In those instances where force is used, Motion 17 requires corrections employees to report the pertinent details of the incident to senior staff.

Mr. Speaker, I will now pass this on to the Member for Yellowknife Centre. Thank you.

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The Speaker Jackson Lafferty

Masi. Member for Yellowknife Centre.

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Julie Green Yellowknife Centre

Mahsi, Mr. Speaker.

Adjudicators

While committee was pleased to see the introduction in Bill 45 of concepts such as community advisory boards, an Investigations and Standards Office, and adjudicators, experts in the fields of corrections and civil liberties shared our concerns that the oversight structures established in Bill 45 were not fully impartial or independent. While we recognize the need to ensure a measure of corrections expertise in the bill's oversight processes, we believe the degree of impartiality and independence necessary for serious and high risk matters such as separate confinement or disciplinary segregation must be higher than that initially established in Bill 45. To that end, Motion 26 in Appendix A enhances the independence of adjudicators by having the Minister rather than the Director of Corrections appoint adjudicators and prohibiting the appointment of corrections staff as adjudicators.

Committee had concerns about the independence held by the Director of Investigations and Standards, as a member of the public service pursuant to section 2 of the bill with the power to review the decisions of adjudicators under section 38. Elsewhere, public officers in a similar role appear to have more independence than anticipated for the Director of Investigations and Standards under Bill 45.

Committee encourages the department to continually underscore the independence of the Director of Investigations and Standards and the adjudicators.

Separate Confinement

Several submissions advised committee that they believed the separate confinement provisions set out in sections 32 and 40 of Bill 45 were vague and not consistent with recent case law. The separate confinement provisions appeared to permit prolonged, indefinite confinement and failed to distinguish between the confinement practices envisioned under Bill 45 and the practice of solitary confinement.

A matter as serious and high-risk as confinement requires substantive treatment in legislation, including hard caps on duration, provisions for independent adjudication, and guaranteed access to programs and services, with more specific, operational details going into regulations.

Motion 2 in Appendix A creates a category of confinement referred to as "separate confinement," referring to the holding of an inmate apart from other inmates for the purposes of safety and security rather than for disciplinary or corrective purposes. Motion 20 further clarifies the meaning of separate confinement, specifying that inmates in separate confinement get to maintain their living conditions and standards as well as access to programs and services, adapted to the circumstances of separate confinement. Motion 20 also clarifies the decision-making process in relation to separate confinement and the role of the adjudicator in the case of separate confinements exceeding 96 hours. Motion 27 sets out a process for those adjudicative reviews including inmates' procedural rights.

Discipline or Corrective Measures

The CBA-NT advised committee that they believed the process set out in section 38 of Bill 45 with respect to the imposition of discipline or corrective measures against an inmate violated the inmate's rights to procedural fairness. Improvements to section 38 by way of Motion 24, developed in collaboration with the Minister and set out in Appendix A, include:

  • making a distinction between disciplinary segregation and separate confinement;
  • setting parameters around the use of discipline and corrective measures, including providing for the use of informal resolutions and setting hard caps on consecutive and aggregate days in disciplinary segregation;
  • changing the powers of the Director of Investigations and Standards with respect to an appeal of an adjudicator's decision to impose a disciplinary or corrective measure so that he or she may confirm, quash or reduce but not increase that disciplinary or corrective measure; and
  • establishing additional obligations and rights with respect to disciplinary hearings.

Complaints

The CBA-NT pointed out that Bill 45 failed to establish a clear grievance procedure or guidance on how complaints will be handled. Committee collaborated with the Minister to develop Motion 30, set out in Appendix A, to enshrine a fair and expeditious grievance mechanism to adjudicate grievances raised by inmates, offenders or persons on probation, conditional sentence or judicial interim release.

Victims

Section 11 of Bill 45 required the Director of Corrections to establish, administer and maintain a victim notification program consistent with the principles of the Canadian Victims Bill of Rights.

In reviewing Bill 45, committee determined Bill 45's provisions related to the notification of victims could be strengthened to protect victims of crime. For this reason, committee collaborated with the Minister to develop Motion 8, set out in Appendix A, to provide clear obligations on the part of the corrections system and clear entitlements on the part of victims or their designates to have access to certain information about their perpetrators, such as the date of their release from custody, where the disclosure would benefit the victim and their interest in disclosure outweighs any invasion of privacy that could result from the disclosure.

While the notification of the public in similar circumstances will continue to be under the purview of the Royal Canadian Mounted Police, committee shares the concern we have heard about the risks faced by victims whose perpetrators have not been convicted.

Recommendation 5

The Standing Committee on Social Development recommends that the department of Justice invest adequate resources into Victim Services to ensure public awareness of these programs and that Victim Services staff are in a position to inform victims of details pertinent to their well-being and safety, including cases where a person remanded in custody is released by the courts.

Motion 8 also authorizes the Minister to establish programs that employ restorative justice principles, such as victim-offender mediation, to help address root causes of violence, reduce recidivism, and support healing.

Mr. Speaker, I'd like to turn the reading of the report over to the Member of Nahendeh. Mahsi.