Mr. Speaker, Your Standing Committee on Government Operations is pleased to provide its Report on Bill 85, United Nations Declaration on the Rights of Indigenous Peoples Implementation Act, and commends it to the House. Mr. Speaker, I'll read the first three pages of the report and then deem the rest read.
Introduction and Background
Bill 85, United Nations Declaration on the Rights of Indigenous Peoples Implementation Act (Bill 85) received second reading on March 30, 2023, and was referred to the Standing Committee on Government Operations for review. The United Nations Declaration on the Rights of Indigenous Peoples is a comprehensive international human rights instrument. The Declaration sets out the minimum standards to ensure the survival, dignity, and well-being of Indigenous peoples.
Bill 85 follows the Calls to Action from the Truth and Reconciliation Commission of Canada and calls for justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls, which calls on all levels of government to implement the Declaration. In 2019, the Legislative Assembly established a mandate for the Government of the Northwest Territories directing it to prioritize this work. The Legislative Assembly then set up a Special Committee on Reconciliation and Indigenous Affairs to seek and encourage discussions on implementing the Declaration within the Northwest Territories. SCRIA delivered an interim "what we heard" report and a final report with recommendations.
Bill 85 is a historic piece of legislation. It is the third of its kind in Canada, following similar legislation in British Columbia and at the federal level through the Government of Canada. The bill was developed in partnership between the GNWT and Indigenous governments or Organizations through a working group of officials. The bill is also linked to a separate Memorandum of Understanding that lays out a collaborative approach to implement the Declaration. As of May 2023, the GNWT and 10 of 15 IGOs had signed the MOU.
Bill 85 affirms that the declaration applies in the Northwest Territories. The GNWT will have to take "all reasonable measures" to ensure its laws, and their interpretation and application, are consistent with the declaration. Bill 85 also provides a framework for the GNWT and IGOs to collaborate and cooperate on implementing the declaration. Among other things, this framework:
- Requires a "statement of consistency" to be released with most new legislation, to explain whether new laws are consistent with the Declaration;
- Sets up an action plan committee, with Members from the GNWT and IGOs, to co-develop a work plan on making existing laws and policies consistent with the Declaration; and
- Affirms the authority of the GNWT to enter into shared decision-making agreements with IGOs.
This report summarizes committee's review of Bill 85, starting with our engagement with IGOs, the GNWT, and the public. This report also describes committee's efforts to strengthen Bill 85, including 13 motions to amend the bill - ten of which were adopted at the clause-by-clause review - and eight recommendations.
In April 2023, the committee received a public briefing from the Premier and her staff on Bill 85. The Premier's presentation is included in Appendix A.
Between May 2023 and July 2023, committee engaged the public. Our approach to engagement is described in Appendix B. Committee hosted six public meetings in Fort Simpson - Lidlii Kue, Fort Smith - Thebacha, Yellowknife - Sombak'e, Tuktoyaktuk, Inuvik, and Deline. Committee also set out to travel to Hay River, which the Hay River and area Metis Local 51 had also specifically requested. When this summer's wildfires disrupted our public engagement plans, committee held a virtual public briefing with Metis Local 51 instead. About 50 people from across the Northwest Territories participated in these meetings.
Committee also sought written submissions on Bill 85. We sent over 100 targeted engagement letters to IGOs, local governments, advocacy associations, and non-profit organizations. Committee received detailed submissions from:
- The First Nations Child & Family Caring Society;
- The First Nations Financial Management Board;
- The City of Yellowknife; and
- The Hay River and area Metis Local 51.
These four submissions are included in Appendix C. The Gwich'in Tribal Council also provided a confidential submission to facilitate committee's discussion and review.
Committee appreciates everyone who offered their feedback at public meetings and in written submissions. Their participation demonstrates a commitment to promote the inherent rights of Dene, Metis, and Inuvialuit peoples in the Northwest Territories. Most participants welcomed Bill 85 as a positive step to advance Indigenous peoples' rights and offered thoughtful ideas to improve the bill, the action plan, and the GNWT's approach to implementing the Declaration more generally. The important themes, and committee's thoughts on those themes, were:
1. Honouring existing treaties. Work to implement the declaration must respect the provisions of existing treaties and agreements. Cede and surrender clauses should be removed from existing land claims agreements.
Committee agrees. Members have asked the Premier to not put cede and surrender clauses into land and resource agreements but have not received a commitment to take out such clauses from existing agreements.
2. Stronger language on Indigenous rights and roles. Bill 85 should ensure the action plan is drafted with IGOs "holding the pen" and is implemented in accordance with free, prior, and informed consent. The preamble should say the GNWT "will" implement the Declaration, rather than "should". The bill should cite substantive equality as a guiding principle.
Committee notes that the action plan must be prepared through the action plan committee, which we find is sufficient to ensure IGO participation in the drafting.
Regarding free, prior, and informed consent, committee is unclear on how the GNWT intends to interpret and implement FPIC. Clarity matters in this area because, as SCRIA observed, people have different views on what FPIC means and operationalizing consent was stressed as the most important mechanism to realize reconciliation. Committee is concerned at the risk of people being uncertain or disappointed in the absence of clear interpretation of FPIC. Committee is making a recommendation on this theme.
3. Specific action plan contents. The action plan should have to include specific measures to confirm rights, devolve jurisdiction, build institutional capacity, strengthen fiscal autonomy, set service standards, and facilitate nation-to-nation relationships. The action plan should also be an optional pathway to self-government.
Committee agrees and is making a recommendation on this theme.
4. Accountability. Bill 85 should include further accountability mechanisms beyond the annual report and the 5-year review.
Committee agrees and passed an amendment on this theme.
5. Funding support. The GNWT should set up a funding framework for the action plan committee and fund IGOs to build their capacity on implementing the Declaration.
Committee agrees and is making a recommendation on this theme.
6. Definition of "Indigenous Government or Organization." Some participants found that the bill's definition of IGO too open-ended while others felt the GNWT is failing to recognize all Indigenous groups in the Northwest Territories, specifically the Metis Local 51.
Committee agrees that the bill's definition of IGO is too open-ended. Committee was unclear whether the bill's definition could range from Indigenous governments to corporations and voluntary societies. Committee suggested an amendment to provide greater certainty that an IGO must be a rights-bearing organization as selected by Indigenous peoples to represent them. The government indicated it would not concur, and committee did not pursue the amendment at the clause-by-clause review.
Committee notes the lack of a consistent approach across government to this definition which was highlighted in the review of Bill 65, Builders' Lien Act. Committee believes the GNWT's inconsistent approach will cause problems in the future.
7. GNWT intervention in the federal court case. The GNWT's intervention in a federal court case to challenge whether Indigenous law can prevail over provincial and territorial law for child and family services is disappointing and contrary to the principles of the Declaration.
Committee also finds the GNWT's approach to the court case hard to reconcile with its commitment to implement the Declaration. We hope the forthcoming ruling will make this situation less likely in the future.
8. Institutional skepticism. Some participants were skeptical the GNWT would meaningfully implement the Declaration. Some participants were also concerned about a perceived lack transparency of the Council of Leaders, Article 46 of the Declaration,38 and the trustworthiness of the United Nations more generally.
Committee notes these concerns which highlight the necessity for policy work to implement the Declaration to tangibly improve the well-being of Indigenous residents, individually and collectively. In Tuktoyaktuk, for example, residents wanted to know how Bill 85 would help revitalize Inuvialuktun and ensure access to basic dental services. Actions to implement the Declaration should start right away, and not be on hold until the action plan is finalized in two years.
A more detailed summary of these themes is included in Appendix D. Committee encourages the GNWT, IGOs, and the action plan committee to consider this input during the next steps to implement the Declaration.
Mr. Speaker, I move, seconded by the Member for Thebacha, that the remainder of Committee report 55-19(2), Standing Committee on Government Operations Report on the Review of Bill 85: United Nations Declaration on the Rights of Indigenous Peoples Implementation Act be deemed read and printed in Hansard in its entirety. Thank you, Mr. Speaker.
Recommendation 1: That the Government of the Northwest Territories, in collaboration and cooperation with Indigenous Governments or Organizations, develop and release a clear statement on how it interprets and intends to apply free, prior, and informed consent. Recommendation 2: That the Government of the Northwest Territories, in collaboration and cooperation with Indigenous Governments or Organizations, include in the action plan developed under section 9 of Bill 85 specific measures to confirm rights, devolve jurisdiction, build institutional capacity, strengthen fiscal autonomy, set service standards, and facilitate nation-to-nation relationships, among others. This work should refer to the written submission of the First Nations Financial Management Board to Committee's review of Bill 85. Recommendation 3: That the Government of the Northwest Territories should set up a funding framework to support Indigenous Governments or Organizations' capacity to engage with work to implement the Declaration going forward.
Committee put forward 13 draft motions to amend Bill 85. These are included in Appendix E of this report. The GNWT shared each draft motion with Indigenous Government representatives; negotiated together toward a consensus position; and confirmed acceptance from leadership. 39 The GNWT indicated it only supported amendments where there is consensus from Indigenous Governments, citing the unique nature of Bill 85 and its focus on the rights of Indigenous peoples. Committee welcomed this approach, as Article 19 of the Declaration says that legislation that affects Indigenous peoples must have their free, prior and informed consent.
Committee engaged extensively with the GNWT on the amendments to find wording that everyone could support. Committee commends the Law Clerk, the Deputy Law Clerk, the legislative drafters, departmental staff, and Indigenous Government representatives for their effective collaboration, which was essential to progress on this Bill. The government ultimately concurred with 10 of the 13 of the motions to amend at the clause-by-clause review, held on September 20, 2023.
- Excluding powers of the territorial court
The definition of “statutory power of decision” to which shared decision-making agreements could apply originally included powers of the Territorial Court.
Committee found this inclusion highly problematic, as it infringes upon judicial independence. Committee put forward and adopted Motion #1 to exclude powers of the Territorial Court, the Supreme Court, or the Court of Appeal from the relevant definition.
- Clarifying timelines
Bill 85 required Ministers and Private Members to release the statement of consistency on new legislation “without delay.”
Committee was concerned this language was too vague. It allowed for situations where Members could lack access to the statement when voting on the principle of a bill at 2nd reading, or when reviewing the bill after 2nd reading. Committee believes the need for flexibility to advance urgent bills - even if a statement of consistency is not ready - may be justified at 1st reading, but not at 2nd reading. Committee also notes that appropriation bills, which could be required to advance quickly, are not required to have a statement of consistency.
Committee put forward and adopted Motion #2 to address this issue. Committee was also concerned that Bill 85 did not include a deadline to complete the annual report.
Timely reporting is important because it provides relevant information Report on Bill 85: United Nations Declaration on the Rights of Indigenous Peoples Implementation Act to hold governments to account and make better decisions. Committee put forward and adopted Motion #6 to require the annual report to be completed within 90 days after the end of each fiscal year. Several IGOs welcomed the added clarity. This timeline matches the standard set in BC's and Canada's legislation.
Unlike these jurisdictions, the Northwest Territories requires the Minister to co-develop the annual report with the Action Plan Committee.49 Committee encourages the GNWT and IGOs to collaborate on meeting the deadline.
- Keeping Regular Members informed
Committee wanted to ensure that Regular Members are adequately informed of developments at the Action Plan Committee. This awareness matters because of the Action Plan Committee's position to influence the GNWT's agenda for legislative and policy work that Regular Members review and scrutinize. Committee does not trust Cabinet to provide timely, comprehensive, and detailed updates regarding the Action Plan Committee's work. Committee wanted to require the Action Plan Committee to include a representative chosen by Regular Members who could relay information back to them. This approach worked well in several similar instances during the 19th Assembly.
The GNWT was open to an amendment to address Committee's concerns. Committee put forward Motion #3, which required the Action Plan Committee to include a representative chosen by Regular Members. The motion also allowed the Action Plan Committee to restrict that representative from being a Regular Member as well as their rights of participation. Some IGOs were opposed in principle to allowing a Regular Member to act as a permanent observer on the Action Plan Committee. They were concerned that the political nature of a Regular Member could undermine a body that they expect to be non-political. The GNWT and IGOs proposed a compromise that would prohibit the representative from being a Regular Member. Committee could not accept this proposal because Bill 85 does not similarly prohibit the GNWT or IGOs from choosing political figures. Committee wanted to ensure if the Action Plan Committee ever became a more political body, the law would not prohibit Regular Members from choosing a representative from among themselves. Committee and the GNWT were ultimately unable to find a compromise. Committee therefore recommends:
That the Government of the Northwest Territories, in consultation with the Standing Committee on Accountability and Oversight and Indigenous Governments or Organizations, set up a mechanism that ensures Regular Members can access timely, comprehensive, and detailed information about the Action Plan Committee's work. Report on Bill 85: United Nations Declaration on the Rights of Indigenous Peoples Implementation Act
- Promoting transparency
Committee felt that Bill 85 did not go far enough to promote the transparency of work to implement the Declaration. Transparency matters because it makes governments more accountable to each other and to residents. In this context, it can also strengthen the credibility of governments in doing this work. Committee was not satisfied with Bill 85's vague requirement for the action plan to follow a “transparent process.”
The bill lacked specific requirements to ensure key documents would be publicly disclosed. Committee addressed transparency issues through five motions to amend. Four of the motions we put forward and adopted required the public disclosure of:
- The action plan - in Motion #5 (subclause 9(4));
- The annual report - in Motion #7;
- The examination of the consistency of proposed regulations with the Declaration and section 35 rights - in Motion #10B; and
- The results of the five-year review of the act - in Motion #13 (subclause 13(3)). to require public disclosure of the results of the five-year review of the act.
Committee put forward and adopted a fifth motion, Motion #8B, requiring the GNWT to notify Regular Members when it authorizes negotiations on a shared decision making agreement. The motion also requires the timely public disclosure of any finalized agreements on a website.
The motion represents a compromise. Committee would have preferred a requirement to disclose authorizations to negotiate to the public, not only to Regular Members. The GNWT opposed that proposal, citing concerns about violating Cabinet Confidences. The GNWT also wanted to maintain confidentiality to allow flexibility for negotiations to evolve.
Committee was not convinced these concerns outweigh the public interest in knowing, and notes that British Columbia requires some public disclosure in this area.
Committee therefore recommends:
Recommendation 5: That the Government of the Northwest Territories should, without delay, make all authorizations provided to a Minister to negotiate or enter into a shared decision-making agreement under the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act publicly available by publishing it on a government-maintained website.
- Ensuring public engagement
Committee was disappointed that Bill 85, as originally drafted, was mostly silent on how the public would be engaged. Committee believes the GNWT should directly involve its public while developing and reviewing the action plan itself. The public's Report on Bill 85: United Nations Declaration on the Rights of Indigenous Peoples Implementation Act concerns and aspirations should be consistently considered and directly reflected in the GNWT's position on the action plan.56 Some Indigenous residents do not have a relationship with an IGO, so their only way to be involved is through the GNWT. Public engagement can also improve the quality of decisions and build confidence and trust in public government.
IGOs were concerned that legislative requirements for public engagement could be confused with the GNWT's constitutional or legal duty for Aboriginal consultation. Committee acknowledges this concern but notes that the GNWT considers public engagement and Aboriginal consultation as distinct processes.
Committee put forward and adopted two motions to require the GNWT to engage the public on two items:
- The action plan - Motion #5 (subclause 9(3)); and
- The five-year review - Motion #13 (subclause 13(2)).
Committee also considered a third amendment to require the GNWT to engage the public on shared decision-making agreements in draft form. IGOs strongly opposed this idea, citing its incompatibility with Nation-to-Nation negotiations, emphasizing the rarity of public involvement in such negotiations, and asserting that it would lead to needless delays without meaningfully enhancing transparency, as final agreements will be made public. Committee accepted these concerns. However, Committee was uncomfortable with the lack of any GNWT accountability before entering these agreements. The GNWT is the public government of the Northwest Territories and must be accountable to its public. As a compromise, Committee put forward Motion #8A, which would require the GNWT to engage with Regular Members before entering a shared decision making agreement.
The GNWT rejected the motion, citing continued IGO concerns.
Committee therefore recommends:
Recommendation 6: That the Government of the Northwest Territories provide notice to and seek comments from the Standing Committee of Accountability and Oversight before entering into a shared decision-making agreement under the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act.
- Enhancing accountability and oversight
Committee was concerned that Bill 85 does not do enough to make the GNWT accountable for implementing the Declaration.
The First Nations Child & Family Caring Society also recommended further accountability mechanisms. Committee also notes that the Truth and Reconciliation Commission of Canada concluded that Report on Bill 85: United Nations Declaration on the Rights of Indigenous Peoples Implementation Act “all levels of government must make a new commitment to reconciliation and accountability” [emphasis added].
SCRIA's final report highlighted the need for effective oversight, monitoring, and accountability. SCRIA recommended that the legislation “include a mechanism that will monitor how the law is being implemented.” Committee agreed and put forward and adopted Motion #11, which basically implements SCRIA's recommendation. The Action Plan Committee, which will develop the independent oversight mechanism should draw inspiration from SCRIA's final report and federal Bill C-29: An Act to provide for the establishment of a national council for reconciliation.
Committee also identified a deficiency in the independence of the five-year review. Making the Action Plan Committee responsible for the review could create a conflict because this body also develops the action plan.
While the Action Plan Committee is suitable for oversight in many ways, Committee put forward Motion #15, calling for an independent person or entity chosen by the Action Plan Committee to lead the review. The GNWT rejected this motion, citing concerns from IGOs. As a result, Committee put forward and adopted a compromise amendment
- Motion #13 (subclause 13(1)).
The motion explicitly states that the Action Plan Committee may choose an independent person or entity to lead the review. The GNWT did not object, considering the motion redundant.
Because we exhausted legislative options to ensure an independent review, Committee recommends:
Recommendation 7: That the Government of the Northwest Territories, in its capacity as a member of the Action Plan Committee, advocate for the Action Plan Committee to choose an independent person or entity to lead the five-year review of the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act.
- Clarifying the relationship between the legislation and the MOU
Bill 85 mentions the Memorandum of Understanding (MOU) in two spots. Committee found these references problematic because they may allow the MOU - a nonlegislative instrument - to require the GNWT to do things without oversight from the Assembly. Committee was particularly concerned that the reference in Section 10(2)(e) could enable changes to action plan priorities without legislative oversight. Committee brought these concerns to the GNWT, but we were not satisfied with their response. Committee therefore sought to clarify the relationship between the two documents. We put forward and adopted Motion #12, which addresses situations where the MOU is in a conflict with the proposed Act and ensures the act will prevail. The GNWT did not object, perceiving the motion as unnecessary. Committee welcomed the greater certainty. Report on Bill 85: United Nations Declaration on the Rights of Indigenous Peoples Implementation Act
Bill 85 and Private Member's Bills
Bill 85 requires Private Members sponsoring a bill to table a statement without delay explaining whether the bill is consistent with the Declaration and section 35 rights.
Committee was displeased that Regular Members were not consulted on this proposal at any point before the Premier introduced the Bill. Committee discussed extensively whether the requirement infringes on Members' privilege. Committee was advised that the answer is no - Members can still move ahead with Private Member's Bills, even if they are deemed inconsistent with the Declaration or with section 35 rights. As a result, Committee did not further consider changing or removing the requirement from the Bill. However, Committee fears this requirement will have a chilling effect on Private Member's Bills. Members already face significant barriers to developing a Private Member's Bill. It is unclear whether and how Private Member's Bills must realize free, prior and informed consent (FPIC) to be deemed consistent with the Declaration.
The GNWT's lack of clarity about FPIC does not help. Realizing FPIC could be challenging given Members' limited resources. Committee therefore recommends: Recommendation 8: That the Government of the Northwest Territories consult the Standing Committee on Accountability and Oversight when developing guidelines for statements of consistency required under the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act.
At the September 20th, 2023, clause-by-clause review, Committee passed a motion to report Bill 85, as amended, to the Legislative Assembly as ready for consideration in Committee of the Whole. This concludes the Standing Committee on Government Operations' review of Bill 85. Typically, Committee includes a recommendation in each report requesting a response from government within 120 days. The recommendation is then moved as a motion in the House and Cabinet is required to respond.
However, since the 19th Legislative Assembly will dissolve in less than 120 days, Committee has decided to leave out this recommendation and requests that the government provide a public response to this report, even of a preliminary nature, before the beginning of the 20th Assembly.