This is page numbers 6417 - 6500 of the Hansard for the 19th Assembly, 2nd 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 indigenous.

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Clerk Of The House Mr. Glen Rutland

Mr. Speaker, I have a Return to Written Question No. 66-19(2) asked by the Member for Great Slave on June. 1, 2023, regarding the Government of the Northwest Territories', or GNWT, intervention of Federal Bill C-92. I appreciate the opportunity to provide further context and clarification on this important matter.

The Member inquired about the legal basis and rationale for the Government of the Northwest Territories intervening in this case before the Supreme Court of Canada.

It is important to note that while the Quebec Court of Appeal has deemed the majority of the federal act constitutional, it has identified Sections 21 and 22(3) as being ultra vires of the Constitution of Canada. It is precisely this limited legal question that prompted the Northwest Territories' intervention.

Sections 21 and 22(3) of the federal act grant Indigenous law the same authority as federal law and establish paramountcy of Indigenous law over provincial and territorial laws in cases of conflict. Our intervention seeks to bring to the Supreme Court's attention the federal government's failure to consider the fundamental differences in jurisdiction and power between territories and provinces.

The GNWT believes it is important for the Supreme Court to fully understand the potential unintended consequences stemming from the federal act. These concerns include the inadvertent alteration of the NWT's legislative authority, ambiguity surrounding the scope and application of Indigenous laws, and the creation of a power imbalance between various Indigenous laws enacted by Indigenous governments in the NWT. Such impacts could lead to a situation where Indigenous laws not only supersede conflicting aspects of NWT laws, but also potentially replace them as federal laws, even in the absence of any conflict.

The Member also inquired how the GNWT justifies its intervention in this matter considering our support of the Inuvialuit Regional Corporation's child welfare law.

While it may appear that our intervention and support for the Inuvialuit Regional Corporation's child welfare law are contradictory, the Attorney General intervened in the Supreme Court of Canada case, not to argue against the inherent right of self-government over child and family services, but to provide the court necessary context as to how the federal act impacts the territories differently than the provinces.

Our intervention in the Supreme Court case is driven by our responsibility to uphold the jurisdictional and legislative autonomy for the Northwest Territories. While the GNWT supports the recognition of Indigenous rights, concerns were raised with the mechanics of the federal act. The concerns stem from the lack of clarity on how Indigenous laws are meant to interact with laws made under the jurisdictions provided through another federal act, the Northwest Territories Act. This is where the NWT's concerns and perspectives were different from the interventions made by Attorneys General from the provinces.

Regardless of the decision to come from the Supreme Court of Canada, the GNWT has continued to work with the Inuvialuit Regional Corporation on the implementation of their law to the greatest extent possible. The Inuvialuit Regional Corporation's child welfare law reflects the unique needs and aspirations of their community, and our support is grounded in the principles of self-determination and recognition of Indigenous jurisdiction within the NWT.

The Member has also asked what direct engagement and consultations the GNWT undertook with the Inuvialuit Regional Corporation, or other Indigenous governments, prior to making the decision to intervene.

The GNWT recognizes the importance of engaging and consulting with Indigenous governments and organizations in matters that affect their jurisdictions and interests. In the case the Attorney General has sole responsibility that is independent from the rest of the GNWT in regard to legal matters and the decision to intervene.

Additionally, the Member noted the frustration and disappointment by both the Inuvialuit Regional Corporation and federal government with the GNWT's intervention. The Member asked about the steps taken to engage with the Inuvialuit Regional Corporation and Canada on the position taken by the government.

The Government of Canada specifically recognized the NWT's position in support of the inherent right to self-government in its written submissions when it referenced that the NWT recognized the validity of section 18 of the federal act.

Lastly, the Member questioned how the GNWT reconciles its intervention in this case with the commitment to implementing the United Nations Declaration on the Rights of Indigenous Peoples, specifically Articles 21 and 22.

The GNWT fully acknowledges and embraces the principles enshrined in the UN Declaration, including the rights of Indigenous peoples to self-determination, autonomy, and the preservation of their distinct legal systems. We are committed to upholding these principles and implementing them in a manner that respects and protects the rights and interests of Indigenous peoples in the NWT.

Regarding our intervention in this specific case, the GNWT spoke in support of the inherent right to self-government and that it includes child and family services. Our focus, however, is on the constitutional implications of sections 21 and 22(3) of the act, which undermine the jurisdictional and legislative authority of the GNWT.

Our intervention is driven by the necessity to safeguard the autonomy and jurisdictional rights of the NWT, while ensuring that the rights of Indigenous peoples are respected and upheld within the framework of Canadian law. It is essential to recognize that our intervention does not contradict or undermine our commitment to implementing the UN Declaration.

We are actively working in partnership with Indigenous governments, organizations, and stakeholders in implementing the UN Declaration in the Territory, which includes advancing Bill 85: United Nations Declaration on the Rights of Indigenous Peoples Implementation Act, currently before the Legislative Assembly. Our approach centers around open dialogue, engagement, and consensus-building to ensure that the implementation approach aligns with the diverse needs and aspirations of Indigenous communities.

Articles 21 and 22 of the UN Declaration, which emphasize the importance of Indigenous peoples' self-determination, governance, and legal systems, are integral to our commitment to implementing the UN Declaration. We recognize the significance of these articles and their alignment with our broader objectives of recognizing and respecting the jurisdictional authority and self-determination of Indigenous peoples in the NWT. Thank you, Mr. Speaker.

Clerk Of The House Mr. Glen Rutland

Mr. Speaker, I have a Return to Written Question No. 67-19(2) asked by the Member for Tu Nedhe-Wiilideh on June 1st, 2023, regarding unresolved matters of Federal Indian Day Schools. Thank you, Mr. Speaker.

The Member stated that on April 1, 1969, the Roman Catholic and Anglican churches. Relinquished control of the Federal Indian Day schools and transferred the program to the Northwest Territories. There were 29 Federal Indian Day schools in the NWT where Indigenous children and youth were subjected to physical, emotional, and sexual abuse and cultural genocide. The Member asked if the Premier can provide in detail the steps the Government of the Northwest Territories has taken to formally acknowledge and document these abuses.

The GNWT has compiled a complete history of schools, residences, and other western educational institutions in the NWT in its publication, Report on the History of NWT Educational Facilities. The GNWT will continue to engage with Indigenous governments and communities to learn more about how they choose to proceed with the investigation of this still-upsetting chapter in their past and how they believe the GNWT can assist them.

The Member stated that survivors want an opportunity to share their experiences and stories and preserve these for historical records. The Member asked if the Premier can describe in detail what the GNWT has done to set up a commission to listen to these experiences and stories, and establish an archive for on-going learning and research, similar to the Truth and Reconciliation Commission of Canada.

The GNWT remains open to engagement with Indigenous governments and communities to formulate an acceptable approach to manage this difficult part of their history. The GNWT continues to collaborate with the Indigenous leadership as a Member of the Council of Leaders and is dedicated to offering help however it can.

The Member stated that the Prime Minister of Canada and the Pope formally apologized to residential school survivors and acknowledged the inter-generational damage caused by residential schools. The Member asked what the rationale is for the Premier not apologizing for the GNWT's role in its abuses and cultural genocide of Indigenous children and youth with Federal Indian Day schools.

There is still more work to be done in order to address reconciliation in the Northwest Territories, but we are making progress. Although the journey will be lengthy and occasionally challenging, we are dedicated to seeing it through.

The Member also asked what position would the GNWT take on a class action lawsuit brought forward by survivors of the federal Indian Day Schools.

The GNWT recognizes that class action approval has been filed this year for a lawsuit against the Government of Manitoba as one of the respondents by former residential school students. The GNWT also recognizes the 2006 Indian Residential Schools Settlement Agreement, the 2019 Federal Indian Day School Class Action Settlement as well as the Indian Residential Schools Day Scholars Settlement of 2021.

While these lawsuits and settlements recognized the damage caused by residential schools, the agreements desired a fair, comprehensive, and lasting resolution of the legacy of these schools by compensating the survivors and their descendants. The GNWT reaffirms its dedication to work with the Indigenous leadership and offer assistance to its Members. Thank you, Mr. Speaker.

The Speaker

The Speaker Frederick Blake Jr.

Thank you, Mr. Clerk. Returns to written questions.

Colleagues, we will take a short recess.

---SHORT RECESS

The Speaker

The Speaker Frederick Blake Jr.

Replies to Commissioner's address. Petitions. Reports of committees on the review of the bills.

Bill 65: Builders' Lien Act
Reports Of Committees On The Review Of Bills

Page 6431

Caitlin Cleveland

Caitlin Cleveland Kam Lake

Mr. Speaker, your committee would like to report on its consideration of Bill 65, Builders' Lien Act.

Bill 65 received second reading in the Legislative Assembly on November 3rd, 2022, and was referred to the Standing Committee on Social Development for review. On January 18th, 2023, the standing committee held a public hearing with the Minister of Justice. At the public hearing, the Minister made a commitment to conduct further engagement with the public. Following this, committee sought an extension of the review period under Rule 8.3(2). Over the next several months, committee engaged extensively with the department to consider several potential amendments. Committee acknowledges significant progress was made but could not agree on a path forward on several key areas of this bill.

Mr. Speaker, on June 29th, 2023, committee held a clause by clause with the Minister at which time committee passed a motion to report the bill as not ready to proceed. Thank you, Mr. Speaker.

Bill 65: Builders' Lien Act
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The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Kam Lake. Reports of committees on the review of bills. Member for Deh Cho.

Bill 74: Forest Act
Reports Of Committees On The Review Of Bills

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Ronald Bonnetrouge

Ronald Bonnetrouge Deh Cho

Mahsi, Mr. Speaker. Your committee would like to report on its consideration of Bill 74, Forest Act.

Bill 74 is unique because it is the first bill to be developed collaboratively with the Indigenous governments and co-management bodies. That means the bill is also the first legislation to be reviewed under the process convention for the introduction, consideration, and enactment of bills drafted pursuant to the intergovernmental council legislative development protocol.

Bill 74 received second reading in the Legislative Assembly on March 9, 2023, and was referred to the Standing Committee on Economic Development and Environment for review. Also, on March 9, 2023, committee received approval from the House to extend its review of the bill from the standard 120 days to 180 days to allow for more collaboration with Indigenous governments. The standing committee held a public briefing on this bill with the Minister of Environment and Climate Change and an intergovernmental council representative on April 28th, 2023. Following that, committee held four public hearings around the territory and received six written submissions.

After careful consideration of feedback received, committee negotiated numerous motions with the departmental staff and the Indigenous governments that were members of the technical working group to amend Bill 74 to address committee's concerns with the bill. The clause-by-clause review of Bill 74 took place on August 11th, 2023. Committee proposed 28 motions to amend the bill. The Minister concurred with 22 of those motions.

Mr. Speaker, the committee reports that Bill 74, forest Act, is ready for consideration in Committee of the Whole as amended and reprinted. Mahsi, Mr. Speaker.

Bill 74: Forest Act
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The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Deh Cho. Reports of committees on the review of bills. Member for Kam Lake.

Bill 75: Council for Women and Gender Diversity Act
Reports Of Committees On The Review Of Bills

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Caitlin Cleveland

Caitlin Cleveland Kam Lake

Thank you, Mr. Speaker. Mr. Speaker, your committee would like to report on its consideration of Bill 75, Council for Women and Gender Diversity Act.

Bill 75 received second reading in the Legislative Assembly on March 9th, 2023, and was referred to the Standing Committee on Social Development for review. On June 28th, 2023, the standing committee held a public hearing with the Minister responsible for the Status of Women. Also in attendance was the board of the Status of Women Council of the NWT. Committee received one written submission from the Northern Mosaic Network. Committee heard from stakeholders and was concerned about:

    • the need for collaboration among stakeholder entities to advance gender equality;
    • lack of definitions of key terms;
    • lack of preamble in the bill and concern that the purpose of the bill falls short on addressing key issues not limited to core funding mechanisms enshrined in legislation, appointment of council members and diversity of board representation
    • finally, there was desire to retain the original name of the act.

For these reasons, committee cannot support the bill at this time.

On September 21st, 2023, committee held a clause-by-clause review of the bill with the Minister at which time committee passed a motion to report the bill as not ready to proceed. Thank you, Mr. Speaker.

Bill 75: Council for Women and Gender Diversity Act
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The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Kam Lake. Reports of Committees on the Review of Bills. Member for Deh Cho.

Bill 78: Waste Reduction and Resource Recovery Act
Reports Of Committees On The Review Of Bills

Page 6431

Ronald Bonnetrouge

Ronald Bonnetrouge Deh Cho

Mahsi, Mr. Speaker. Your committee would like to report on its consideration of Bill 78, Waste Reduction and Resource Recovery Act.

Bill 78 received second reading in the Legislative Assembly on March 29, 2023, and was referred to the Standing Committee on Economic Development and Environment for review. On June 1st, 2023, the standing committee held a public hearing of the bill with the Minister of Environment and Climate Change. Committee held a clause-by-clause review of Bill 78 on July 5th, 2023. Committee proposed five motions to amend Bill 78 and was pleased that the Minister of Environment and Climate Change concurred with all five. The changes to Bill 78 were in regards to making more information publicly available and reinforcing the establishment of advisory committees.

Mr. Speaker, the committee reports that Bill 78, Waste Reduction and Resource Recovery Act, is ready for consideration in Committee of the Whole as amended and reprinted. Mahsi.

Bill 78: Waste Reduction and Resource Recovery Act
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The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Deh Cho. Reports of Committees on the Review of Bills. Member for Great Slave.

Bill 80: Dental Hygienists Profession Statutes Amendment Act
Reports Of Committees On The Review Of Bills

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Katrina Nokleby

Katrina Nokleby Great Slave

Thank you, Mr. Speaker. Your committee would like to report on its consideration of Bill 80, Dental Hygienists Profession Statutes Amendment Act.

Bill 80, a Private Member's bill advanced by the MLA for Kam Lake, received second reading in the Legislative Assembly on March 30th, 2023, and was referred to the Standing Committee on Social Development for review. The standing committee held a public hearing in Yellowknife on May 12th, 2023. Committee heard from two stakeholders and received two written submissions on the bill. On August 3rd, 2023, committee held a clause-by-clause review of the bill with the sponsoring Member and moved two motions to amend dates for implementing the regulation of dental hygienists.

Mr. Speaker, the committee reports that Bill 80, Dental Hygienists Profession Statues Amendment Act, is ready for consideration in Committee of the Whole as amended and reprinted. Thank you, Mr. Speaker.

Bill 80: Dental Hygienists Profession Statutes Amendment Act
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The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Great Slave. Reports of Committees on the Review of Bills. Member for Kam Lake.

Bill 81: An Act to Amend the Education Act, No. 2
Reports Of Committees On The Review Of Bills

Page 6432

Caitlin Cleveland

Caitlin Cleveland Kam Lake

Thank you, Mr. Speaker. Mr. Speaker, your committee would like to report on its consideration of Bill 81, An Act to Amend the Education Act, No. 2. Bill 81 received second reading in the Legislative Assembly on March 30th, 2023, and was referred to the Standing Committee on Social Development for review. The standing committee held a public hearing in Yellowknife on May 31st, 2023. Committee then travelled to Inuvik, Norman Wells, and Deline from June 6th to the 9th, 2023, for further engagement on the bill. Committee held a clause-by-clause review of the bill with the Minister of Education, Culture and Employment on August 15, 2023.

Mr. Speaker, the committee reports that Bill 81, An Act to Amend the Education Act, No. 2, is ready for consideration in Committee of the Whole as amended and reprinted. Thank you, Mr. Speaker.

Bill 81: An Act to Amend the Education Act, No. 2
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The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Kam Lake. Reports of Committees on the Review of Bills. Member for Deh Cho.

Ronald Bonnetrouge

Ronald Bonnetrouge Deh Cho

Mahsi, Mr. Speaker. Your committee would like to report on its consideration of Bill 84, An Act to Amend the Northwest Territories Business Development and Investment Corporation Act.

Bill 84 received second reading in the Legislative Assembly on March 30th, 2023, and was referred to the Standing Committee on Economic Development and Environment for review. Committee proceeded by distributing stakeholder letters and holding a public hearing in Yellowknife on May 10th, 2023, where committee heard from members of the public and from the Minister of Industry, Tourism and Investment, alongside the chief executive officer of the Business Development and Investment Corporation. Committee had concerns about the corporation's board composition and developed an amendment to address this. Through public engagement, committee also heard concerns from stakeholders about the rebranding efforts. What committee found was a lack of clear public information about the rebranding efforts of the corporation. This, in combination with a board that needs better representation of the entire territory, led committee to its final decision about the readiness of Bill 84 to continue in the legislative process.

Mr. Speaker, committee reports that Bill 84, An Act to Amend the Northwest Territories Business Development and Investment Corporation Act, is not ready for consideration in Committee of the Whole. Mahsi.

The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Deh Cho. Reports of Committees on the Review of Bills. Member for Yellowknife North.

Rylund Johnson

Rylund Johnson Yellowknife North

Thank you, Mr. Speaker. Your committee would like to report on its consideration of Bill 85, United Nations Declaration on the Rights of Indigenous Peoples Implementation Act.

Bill 85 received second reading in the Legislative Assembly on March 30th, 2023, and was referred to the Standing Committee on Government Operations for review. On September 20th, 2023, the committee held a public hearing with the Minister of Executive and Indigenous Affairs on this bill and completed its clause-by-clause review.

Mr. Speaker, the committee reports that Bill 85, United Nations Declaration on the Rights of Indigenous Peoples Implementation Act is ready for consideration in Committee of the Whole as amended and reprinted. Thank you, Mr. Speaker.

The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Yellowknife North. Reports of Committees on the Review of Bills. Member for Deh Cho.

Bill 93: Practice of Engineering, Geoscience and Applied Science Technology Act
Reports Of Committees On The Review Of Bills

September 27th, 2023

Page 6432

Ronald Bonnetrouge

Ronald Bonnetrouge Deh Cho

Mahsi, Mr. Speaker. Your committee would like to report on its consideration of Bill 93, Practice of Engineering, Geoscience and Applied Science Technology Act.

Bill 93 received second reading in the Legislative Assembly on June 2nd, 2023, and was referred to the Standing Committee on Economic Development and Environment for review. The standing committee held a public hearing on July 18th, 2023, where it heard from the Minister of Infrastructure and the Northwest Territories Association of Professional Engineers and Geoscientists. The Standing Committee completed its clause-by-clause review on July 25th, 2023, where it proposed one amendment regarding publishing more information online. The Minister concurred with committee's amendment.

Mr. Speaker, the committee reports that Bill 93, Practice of Engineering, Geoscience and Applied Science Technology Act, is ready for consideration in Committee of the Whole as amended and reprinted. Mahsi.

The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Deh Cho. Reports of Committees on the Review of Bills. Member for Kam Lake.

Bill 94: Miscellaneous Statute Law Amendment Act 2023
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Page 6432

Caitlin Cleveland

Caitlin Cleveland Kam Lake

Thank you, Mr. Speaker. Mr. Speaker, your committee would like to report on its consideration of Bill 94, Miscellaneous Statute Law Amendment Act 2023.

Bill 94 received second reading in the Legislative Assembly on June 2nd, 2023, and was referred to the Standing Committee on Social Development for review. On June 29th, 2023, the standing committee held a clause-by-clause reading with the Minister of Justice.

Mr. Speaker, the committee reports that Bill 94, Miscellaneous Statute Law Amendment Act 2023, is ready for consideration in Committee of the Whole. Thank you, Mr. Speaker.

Bill 94: Miscellaneous Statute Law Amendment Act 2023
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The Speaker

The Speaker Frederick Blake Jr.

Thank you, Member for Kam Lake. Reports of Committees on the Review of Bills. Reports of standing and special committees. Member for Yellowknife North.

Rylund Johnson

Rylund Johnson Yellowknife North

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.

Public Engagement

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.

---Carried

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.

Amendments

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.

  1. 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.

  1. 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.

  1. 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:

Recommendation 4:

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

  1. 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.

  1. 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.

  1. 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.

  1. 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.

Conclusion

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.