Thank you, Mr. Speaker. I wish to present to the Assembly, Committee Report 22-17(5), Standing Committee on Government Operations Report on the Review of the Office of the Northwest Territories Languages Commissioner Annual Reports for 2011-2012, 2012-2013 and 2013-2014.
Thank you, Mr. Dolynny. The motion is in order. To the motion.
Question.
Question has been called. Motion is carried.
---Carried
It is the mandate of the Standing Committee on Government Operations to meet annually with the statutory officers of the Legislative Assembly of the Northwest Territories to publicly review the annual reports of the statutory officers.
The Northwest Territories Languages Commissioner’s Annual Report for 2011-2012 was prepared when Ms. Sarah Jerome was the Languages Commissioner for the Northwest Territories. Although the report was signed off on October 1, 2012, it was not tabled until June 4, 2014 [TD 106-17(5)], after Ms. Jerome’s term was completed on May 10, 2013. This prevented the Standing Committee on Government Operations from meeting with Ms. Jerome to discuss her report.
There was a vacancy in the office from May 10 to December 1, 2013, when Ms. Snookie Catholique’s term as the new Northwest Territories Languages Commissioner took effect. The annual report for 2012-2013, prepared in the absence of a Languages Commissioner, constitutes a summary review of the operational budget for the office.
The Office of the Northwest Territories Official Languages Commissioner Annual Report, 2013-2014 was signed off by Ms. Catholique on October 1, 2014, and tabled on November 5, 2014 [TD 181-17(5)]. The departure of the Languages Commissioner from office, coupled with logistical challenges presented by the demands on the standing committee’s schedule, rendered it impossible for the standing committee to meet with the Languages Commissioner to discuss the 2013-2014 report.
Owing to the unusual circumstances surrounding the production and tabling of these three reports, the standing committee opted not to conduct public reviews. The standing committee is confident that, with the appointment of a new Languages Commissioner, routine reviews of the annual reports of that office will resume during the 18th Legislative Assembly.
Mr. Dolynny.
Thank you, Mr. Speaker. I move, seconded by the honourable Member for Frame Lake, that Committee Report 22-17(5) be received and adopted by this Assembly. Thank you, Mr. Speaker.
Thank you, Mr. Speaker. The motion is in order. To the motion.
Question.
Question has been called. Motion is carried.
---Carried
Mr. Dolynny.
Thank you, Mr. Speaker. I wish to report to the Assembly Committee Report 23-17(5), Standing Committee on Government Operations Report on Transition Matters.
Thank you, Mr. Dolynny. The motions is in order. To the motion.
Question.
Question has been called. Motion is carried.
--Carried
Over the course of the 17th Legislative Assembly, the Standing Committee on Government Operations (SCOGO or “the committee”) has conducted a number of reviews and issued 19 reports containing a number of recommendations to the Government of the Northwest Territories (GNWT). In many instances, the GNWT has agreed with our recommendations and made commitments which it has not yet fulfilled. The intent of this report on transition matters is to advise members of the incoming Standing Committee on Government Operations of the 18th Legislative Assembly on the status of work in progress.
The Standing Committee on Government Operations plays an important oversight role with respect to government operations. Its mandate includes the:
review of the departmental performance, budgets and multi-year business plans of the departments of Aboriginal Affairs and Intergovernmental Relations, the Executive, Finance and Human Resources and their boards and agencies;
consideration of bills sponsored by these departments;
statutory review of the Official Languages Act;
review of the annual and special reports of the statutory officers of the Legislative Assembly, including the Languages Commissioner, the Information and Privacy Commissioner, the Equal Pay Commissioner and the Human Rights Commission;
examination of the reports on the annual financial statements and public accounts of the GNWT and the reports of the Auditor General; and
consideration of any other matter referred by the House.
The Official Languages Act requires the committee to review the legislation at five-year intervals. In its report, the standing committee found that Education, Culture and Employment failed to respond fully to the findings of the 2009 review. The committee also found that the department’s model for the delivery of official languages programming and services differed from that recommended by the standing committee of the 16th Assembly, without adequate public explanation for its “new approach.”
The committee is particularly troubled by the fact that the department has, since 2006, been knowingly operating the Official Languages Board and the Aboriginal Languages Revitalization Board in contravention of its own legislation and has yet to revise its legislative proposal to remedy this.
The committee is also concerned about the funding model for Aboriginal language revitalization and how the department intends to ensure accountability for the funding provided to language communities.
The department’s response to the standing committee’s report on the 2014 review was tabled in the final session of the 17th Assembly and was reviewed by the committee. The incoming committee is encouraged to monitor the department’s implementation of the committee’s recommendations and to ensure that the department responds fully to the recommendations of the next review to take place towards the end of the 18th Assembly.
The Office of the Auditor General of Canada (OAG) is the Auditor General for the Northwest Territories. The committee reviewed the following reports of the Auditor General during the 17th Legislative Assembly:
2012
Status Report to the NWT Legislative Assembly (following up on recommendations made in previous audits)
2013
Report on Northwest Territories Income Security Programs: Department of Education, Culture and Employment
2014
Report on Child and Family Services: Department of Health and Social Services and Health and Social Services Authorities
2015
Report on Corrections in the Northwest Territories: Department of Justice
For each of these performance audits, the committee tabled a report of its own. These reports contain 69 recommendations to the relevant government departments. Progress on the recommendations is being monitored by the Standing Committee on Social Programs (SCOSP), whose mandate includes oversight of the departments of Justice, Education, Culture and Employment and Health and Social Services. The incoming SCOSP is encouraged, in particular, to watch for the implementation of a renewed strategic approach by the Department of Justice, referenced in their Corrections Action Plan and their response to recommendation 6 of the committee’s Report on the Review of the OAG’s Report on Corrections.
The departments tabled their responses to the Committee reports in the fall Session of each year following the presentation of the Auditor General’s report.
The OAG advises that, effective in 2016, performance audits to the Legislative Assembly will be tabled in the fall instead of spring. The next performance audit will, therefore, be tabled in the fall of 2016.
The Auditor General performs an annual financial audit of the public accounts of the GNWT. This year the committee completed its third annual review of the public accounts. Over the three-year period that this committee has undertaken reviews, Finance has made progress in completing the public accounts in a timely manner.
SCOGO participates in the Canadian Council of Public Accounts Committees (CCPAC). Members have found the annual conference held by the CCPAC to be very informative. The committee encourages members of its successor committee to take advantage of this networking and learning opportunity.
The standing committee also notes that the Northwest Territories has been selected as host for the 37th Annual CCPAC Conference, to be held in Yellowknife August 21-23, 2016. This is only the second time in the history of the conference that the event has been held in the Northwest Territories. The committee is confident that its successor committee will ensure that visiting Public Accounts committees from other Canadian and international jurisdictions have an informative and memorable visit.
The Legislative Assembly’s statutory officers include the Languages Commissioner, Information and Privacy Commissioner, Equal Pay Commissioner and Human Rights Commission.
In reviewing the annual reports of the Human Rights Commission and the Information and Privacy Commissioner, the committee made a number of recommendations and continues to monitor progress on the issues identified.
Vacancies in the office of Languages Commissioner have resulted in the committee’s inability to complete thorough reviews of the Languages Commissioner’s annual reports for the last three fiscal years. The standing committee is confident that with the appointment of a new Languages Commissioner, routine reviews of that office’s annual reports will resume during the 18th Assembly.
With respect to the Legislative Assembly’s statutory officers, the committee wishes to bring the following related matters to the attention of its successor committee:
With the exception of one year, the Information and Privacy Commissioner has, since 1997-1998, annually called for legislation to be passed or amended so that municipal governments are bound by access and privacy requirements similar to those binding the GNWT. This committee supports this recommendation, as did our predecessor committees in the 15th and 16th Legislative Assemblies. As well, the NWT Association of Communities expressed support for this initiative in a resolution passed in 2012, encouraging the government to commence consultations.
In May 2015 the GNWT provided the committee with a “What We Heard” report, summarizing the consultations. The GNWT has committed that the “final report will be completed in the fall of 2015 as a transitional issue for the consideration of the 18th Assembly.”
The standing committee strongly encourages its successor committee to follow up on this long-standing issue.
Next year will be the 20th anniversary of the ATIPP Act. It has long been a matter of concern for the committee and the Information and Privacy Commissioner that this act is outdated and requires modernization.
The committee is pleased that a review of the act will be completed in 2015-2016, according to the Department of Justice’s business plan. The committee encourages the GNWT to include a triggering provision requiring a mandatory statutory review, to ensure that the act is kept current in future years.
The committee encourages its successor committee to carefully monitor the department’s progress on this important initiative.
The NWT Human Rights Commission, established under the Human Rights Act, celebrated its 10th anniversary in 2014. The commission has conducted a comprehensive review of the act and will submit its recommendations early in the life of the 18th Assembly.
The committee stresses the importance of monitoring this work to its successor committee.
Establishing an office of the ombudsman for the Northwest Territories has been intermittently under discussion since the 12th Legislative Assembly. Most recently, three motions passed during the 17th Assembly have punctuated the dialogue. The first called on the GNWT to bring forward legislation establishing an ombudsman for the NWT. In response, the GNWT argued that the various appeal processes provided for in NWT legislation reduce the need for an ombudsman.
This prompted a second motion referring the matter to SCOGO for further research and analysis. In June 2014 the committee tabled its report, which found that the complexity of the appeal processes in NWT legislation make it difficult for members of the public to understand their rights and that an ombudsman provides a single point of contact for people who have difficulty dealing with the GNWT.
A final motion again called for legislation establishing an NWT ombudsman. The GNWT’s response was tabled in February 2015, concluding that the matter would be referred for consideration by the 18th Assembly.
The committee recommends that incoming SCOGO members urge their Caucus colleagues to set the creation of an ombudsman’s office as a priority for the 18th Assembly.
The Department of Finance has an ambitious legislative agenda. The department has advised the committee that it will be bringing forward legislative proposals for establishing a Public Private Partnerships (P3) Corporation Act and for amending the Tobacco Tax Act, the Petroleum Products Tax Act and existing Chartered Professional Accountant (CPA) legislation. The department will also propose amendments to liquor regulations to allow for direct sales from a manufacturing facility.
The incoming committee is encouraged to watch for these proposals.
A new Financial Administration Act was given assent on June 4, 2015, and comes into force on April 1, 2016. One of the key thrusts of this legislation is a movement away from the requirement for the GNWT to seek Legislative Assembly approval for expenditure decisions that have already been made, in favour of increased reporting requirements. The committee’s report provides a discussion of the key changes to the act.
The incoming committee is encouraged to monitor compliance with the new Financial Administration Act, particularly with respect to ensuring that government is meeting its new reporting requirements.
The GNWT introduced the Fiscal Responsibility Policy during the 16th Assembly. This policy is composed of the 1400 Section of the Financial Administration Manual and contains key rules that bind the government’s borrowing. Despite the significance of the policy and the GNWT's commitment to it, the policy was never formally approved by the Commissioner in Executive Council or signed by the Premier.
During its review of Bill 37, Financial Administration Act, the Minister clarified for the standing committee Finance’s interpretation that Section 13(2)(d) of the new act requires the Minister to bring forward the Fiscal Responsibility Policy for formal approval before the April 1, 2016, coming-into-force date. In addition, the Minister concurred with an amendment to Bill 37 to ensure that the Legislative Assembly or one of its standing committees is consulted before the Financial Management Board (FMB) approves or amends the Fiscal Responsibility Policy.
The incoming committee should expect to review the new Fiscal Responsibility Policy very early in its term.
The committee is pleased that the department is responsive to the observation made by the OAG that the lack of a comprehensive risk management framework was an issue for the GNWT. However, the committee is concerned about the lack of transparency with respect to the work the government is doing in this area. The committee has not been provided a copy of the framework document, if one exists, and the department has declined to share copies of the departmental risk assessment profiles when they are completed.
The committee feels that some of the confusion surrounding this work could be addressed by determining with the Department of Finance what role, if any, the standing committee has in this work and what some of the public deliverables are with respect to enterprise risk management. Enterprise risk management is both a process and a series of outputs. The standing committee must have access to outputs and the information they contain, if it is to have any meaningful oversight role with respect to the process.
The incoming committee is strongly encouraged to explore this further with the department.
The new Financial Administration Act is intended to increase fiscal accountability by giving the FMB authority to establish a framework for planning by and accountability of government and public agencies. The act requires that the Planning and Accountability Framework be tabled in the Legislative Assembly at the earliest opportunity after being established and after any amendments.
The act ensures that the Legislative Assembly or one of its standing committees is consulted before the FMB approves or amends the Planning and Accountability Framework; therefore, the incoming committee should expect to review this document.
The standing committee is concerned with the lack of transparency and public accountability with respect to the Internal Audit Bureau (IAB). In its Report on the Review of the 2013-14 Public Accounts, the committee recommended that, “in the interests of transparency and accountability, the Department of Finance share the findings and recommendations of the Internal Audit Bureau with the committee in confidence, particularly where the Government of the Northwest Territories relies on those findings and recommendations as substantiation for actions taken.”
The department replied that the “Internal Audit Bureau provides independent assurance and advice to senior officials within the GNWT, whereas the OAG performs the same role for GNWT elected representatives to the Legislative Assembly. Therefore, disclosure to the committee of IAB findings and recommendations related to a particular audit would only be appropriate if it formed an integral part of a department's response on a particular question that committee had related to the public accounts.”
The committee is dissatisfied with this response, as it fails to take into account the standing committee’ oversight role. The committee feels strongly that there should be full disclosure and encourages the incoming committee to seek it from the next government.
The standing committee has repeatedly challenged the department to find ways to increase the NWT’s own-source revenues. Some of the suggestions made by the committee include maximizing self-reporting taxes, adding an upper bracket to the NWT’s tax regime and making innovative changes to the resource royalty regime.
The committee urges its successor committee to continue to press the department to find ways to generate additional revenues for the GNWT.
These confidential reports provide the Committee with useful information for understanding the status of the department’s work with respect to the negotiation of land, resources and self-government agreements. Although these reports are quarterly, the committee has received fewer than four reports in the last four years and the most recent report was received late.
The incoming committee is encouraged to pursue the timely submission of these reports from the department.
In its review of the department’s 2015-2016 Business Plan, the committee acknowledged the positive public response to the department’s flagship program placing 18 government services officers (GSOs) in smaller communities. The committee urged the department to take the necessary steps to create at least one or two more GSO positions in 2015-2016 and to confirm the overall rollout plan for this initiative, which would see a GSO in each of the 23 small communities.
The committee hopes that its successor committee will continue to pressure the government for full implementation of this program in all small communities.
In May 2013 SCOGO issued a news release calling on the GNWT to increase the funding to the $350,000 Non-Governmental Organization (NGO) Stabilization Fund. The committee was concerned that the total funding available to NGOs had not increased since the program’s first full year of operation in 2010-2011. The committee was also concerned about the need to provide clearer information to applicants, overly-restrictive screening criteria, prioritization of projects and the transfer of fund administration from the Department of Executive to the Department of Municipal and Community Affairs.
Oversight of the NGO Stabilization Fund now falls to the Standing Committee on Economic Development and Infrastructure (SCEDI). The committee encourages the incoming Members of SCEDI in the 18th Assembly to continue to monitor the disposition of this fund.
In the 2013 calendar year, 6.4 percent of the GNWT’s employees were directly appointed to their positions in the public service. In its review of the 2015-2016 Business Plans, the standing committee expressed concern that this tool is being used too liberally by government.
Whenever a direct appointment takes place, potential applicants for that job are deprived of a fair competition for the job. The committee called upon the Minister to work with his Cabinet colleagues to review and strengthen the guidelines governing the use of direct appointments and to require stronger reasons for their use.
The department’s response indicated that Cabinet supports and will continue to use direct appointments to the GNWT public service. The committee is disappointed by this response and urges the incoming committee to follow up with the GNWT to minimize the use of direct appointments wherever possible.
The standing committee is also concerned with the management practice of accessing unspent funds from vacant positions to use in other ways. The committee worries that this provides a disincentive to managers to keep positions fully staffed and has the potential to enable the use of funds for expenditures for which they were not appropriated.
The committee has called on the Department of Human Resources to demonstrate leadership in this area, to reduce and eliminate the practice of artificially maintaining vacancies as a means for increasing funding flexibility. The committee recommends that its successor committee be vigilant in monitoring this issue.
The standing committee was expecting a legislative proposal from the department to develop safe disclosure (whistleblower) legislation to protect those who come forward with information regarding government impropriety or illegal activities. The committee was displeased with the department’s decision to suspend work on this initiative pending the results of SCOGO’s work on establishing an ombudsman.
In the absence of any discussion between the committee and the department on the relationship between these two initiatives, the committee views this delay as unfortunate. The establishment of an NWT Ombudsman might enhance the implementation of safe disclosure legislation by providing a system for independent investigation of questionable government activities, but it does not replace the statutory protection that would be provided to whistleblowers under appropriate legislation.
The committee sees no valid reason to delay this work and encourages its successor committee to ensure that this initiative is back on track.
During the 2015-2016 Business Plan review, the committee noted that six of the eight key sub-strategies in the Workforce Planning Strategy are directly related to matters of recruitment. The committee is also concerned that the department has not done enough work in the area of succession planning. The committee has urged the department to increase its focus on retention activities as a means for stabilizing the NWT workforce.
The committee encourages its successor committee to continue to pay close attention to the department’s efforts to recruit and retain a qualified and stable NWT workforce.
This concludes the Standing Committee on Government Operations Report on Transition Matters. Members respectfully suggest that our successor committee consider requesting updates on the above matters from committee staff and government and wish them the utmost success in fulfilling their mandate.
Mr. Dolynny.
Thank you, Mr. Speaker. I move, seconded by the honourable Member for Frame Lake, that Committee Report 23-17(5) be received and adopted by this Assembly. Thank you, Mr. Speaker.
Thank you, Mr. Speaker. The motion is in order. To the motion.
Question.
Question has been called. Motion is carried.
---Carried
Mr. Yakeleya.
Thank you, Mr. Speaker. I have a report by the Special Committee on Transition Matters – Passing the Mace: Recommendations to the 18th Legislative Assembly.
Transition is when one group of people willfully hands over political power to another group of people.
This year the Northwest Territories (NWT) will transition from the 17th Legislative Assembly to the 18th Legislative Assembly. This process will begin with the dissolution of the 17th Assembly on October 25th, followed by polling day for the General Election on November 23rd and the appointment of a new government soon thereafter.
The purpose of this joint committee – the first of its kind – was to improve the transition process by providing the best advice of one Assembly to the next Assembly.
The committee was mandated to describe the fiscal and decision-making context for the next Assembly, to make recommendations on how the transition process and the practice of consensus government could be improved, and to recommend priority policy issues for the next Assembly.
The recommendations of this committee are not binding, but are for the consideration of members of the 18th Assembly.
This chapter provides background information about the NWT economic outlook and the implications for GNWT revenues, including:
a discussion of the NWT economy in a Canadian and global context and NWT linkages with the domestic and international economies;
a summary of the current state of the NWT economy and prospects for future economic growth; and
a description of how government revenues are affected by economic growth.
The NWT economy was severely affected by the global economic and financial crisis in 2008 and not all aspects of the economy have returned to pre-recession levels.
The NWT economic outlook over the next five years is mixed at best. Although some regions are benefitting from resource projects, economic activity in other areas has either slowed considerably or declined.
Over the next five to 15 years, the data suggests a protracted decline in resource production. Existing diamond mines are maturing and identified potential mining operations will not replace the economic activity of current operations. Resource exploration, which is necessary for further development, is also slowing down.
Growing the NWT economy requires transformational investments such as the Mackenzie Valley Fibre Optic Link, the Mackenzie Valley Highway and addressing our energy cost and supply challenges. These strategic investments and other initiatives to lower costs for residents and businesses are vital for the long-term growth and sustainability of the NWT economy.
Finalizing remaining land claims would provide greater certainty on land ownership, clarify the terms of engagement among stakeholders for land access, and potentially make more land available for regional and community economic development.
The slow-growing economy produces a flat revenue outlook, which in turn means less fiscal resources to sustain programs and services at current levels.
This chapter describes major changes in the decision-making environment that may affect the consideration of future priorities by the 18th Legislative Assembly, including:
•
the roles and responsibilities of public decision-makers in the NWT other than the territorial government;
•
how the territorial government makes decisions; and
•
some emerging trends in citizen expectations of government.
Territorial government is not the only policy-maker in the NWT. Other major public decision-makers include the Government of Canada, regional Aboriginal governments, community governments, co-management boards and territorial boards; and courts of law are significant independent decision-makers in their own right. It is also important to continue to think about how all of these decision-makers fit together in governing the NWT.
Recognizing that there are other important public policy-makers in the NWT, the territorial government has the broadest mandate for policy-making within our borders. Our consensus government uses processes similar to those found in provincial capitals or in Ottawa, but without political parties or majority governments. The Executive Council is in place to provide leadership on policy initiatives and direct the civil service, while Regular Members are expected to help guide policy direction and hold the executive to account. It is the Executive Council that prepares and proposes budgets, but the Legislative Assembly ultimately approves spending in law.
Modern technology and increased connectivity throughout the territory has resulted in numerous approaches to public participation in policy-making. For many, information is delivered with the speed of Google, goods delivered with the choice and efficiency of Amazon, and messages responded to instantly through Twitter or Facebook. As for government, it has a public duty to check that the information it sends is accurate, the goods it delivers are safe and accessible, and dialogue with the public is fair and inclusive. At the same time, increasingly, citizens expect government to work in cooperation with other groups and associations to develop public policy.
The committee recommends that the incoming 18th Assembly retain the current four-year fixed date election schedule.
The committee recommends that the incoming 18th Assembly continue to elect members of the Executive Council.
The committee supports having regional balance on Cabinet, but does not make any recommendation on the way the 18th Assembly should arrive at regional balance on Cabinet.
The committee recommends that the outgoing 17th Legislative Assembly establish a process convention on priority setting and reporting and that the incoming 18th Assembly endorse this convention.
The committee recommends that the outgoing 17th Assembly establish a process convention on priority setting and reporting and that the incoming 18th Assembly endorse this convention.
The committee recommends that the incoming 18th Assembly conduct concurrent reviews of departmental business plans as well as amend sitting hours and the Orders of the Day during the budget session.
The committee recommends that the 18th Assembly also establish a Special Committee on Transition Matters during the last year of its legislative term.
Because of the long-term nature of our work, many of the priorities of the 18th Assembly will be similar to those of the 17th and earlier Assemblies. This committee wishes to highlight five key areas that Members of the 18th Assembly should consider when discussing priorities.
They are not intended to be an inventory of everything government does, nor a catalogue of specific projects that individual Members are passionate about. Not all members of this committee agree on the relative importance of each priority, and they are presented in no particular order. Not everyone will agree that these should be the priorities of the 18th Assembly. This is a good thing.
•
Reverse the social ills that hold our people down, particularly low education levels, addictions and poor mental health.
•
Strengthen and diversify our economy in anticipation of impending diamond mine closures.
•
Complete devolution of land and resources and implement a regulatory system that reflects the values of our residents and partner governments.
•
Rein in the increasing cost of living, particularly energy, housing and food.
•
Plan for and adapt to a changing climate in the North.
Thank you, Mr. Yakeleya. Mr. Yakeleya.
I move, seconded by the honourable Member for Kam Lake, that Committee Report 24-17(5), be received and adopted by this Assembly.
Thank you, Mr. Yakeleya. The motion is in order. To the motion.
Question.
Question has been called. The motion is carried.
---Carried
Committee Report 24-17(5) is received and adopted by this Assembly. Thank you, Mr. Yakeleya. Item 13, reports of committees on the review of bills. Mr. Moses.
Thank you, Mr. Speaker. I wish to report to the Assembly that the Standing Committee on Social Programs has reviewed Bill 55, Mental Health Act, and wishes to report that Bill 55 as amended and reprinted is ready for consideration in Committee of the Whole.
Thank you, Mr. Moses. Bill 55 as amended and reprinted is ready for consideration in Committee of the Whole. Mr. Moses.
Mr. Speaker. I seek unanimous consent to waive Rule 75(5) to have Bill 55, Mental Health Act, moved into Committee of the Whole for consideration later today.
---Unanimous consent granted
Mr. Moses.
Thank you, Mr. Speaker. I request unanimous consent to return to item 12 on the Order Paper.
---Unanimous consent granted
Thank you, Mr. Speaker, and thank you, colleagues.
Bill 55, Mental Health Act, will replace the existing Mental Health Act, which is out of step with national and international standards. Notably, the new act will authorize the use of community-based psychiatric treatment and provide better protection for patient rights by establishing a review board for hearing complaints.
The Standing Committee on Social Programs thanks the Minister of Health and Social Services for introducing Bill 55 within the life of the 17th Legislative Assembly. This is a significant achievement. The bill was referred to the committee on June 2, 2015. The public hearing with the Minister was held on August 24, 2015. The clause-by-clause review was held on October 5, 2015. With the Minister’s agreement, 27 motions to amend Bill 55 were passed at the clause-by-clause review. These amendments are discussed below, along with a large number of recommended actions.
During its review, the committee heard from well over 100 residents and stakeholders. Public meetings were held in Yellowknife, Inuvik, Norman Wells, Tulita, Fort Smith, Fort Resolution, Hay River, Kakisa and Fort Providence. Seventeen written submissions were received from the Northwest Territories chapter of the Canadian Bar Association; Elaine Keenan Bengts, the Northwest Territories Information and Privacy Commissioner; the Status of Women Council of the NWT; Jane Arychuk, president of Aurora College; the Union of Northern Workers; the British Columbia Civil Liberties Association; Chief Joachim Bonnetrouge of the Deh Gah Got’ie First Nation; James and Connie Boraski and Ian Henderson; an advocate for the rights of persons with disabilities; a social worker in private practice; and a handful of GNWT employees, community advocates and private residents.
Bill 55 generated a vast amount of commentary and criticism. More than 50 potential amendments were brought forward for consideration, along with roughly twice that number of recommended actions. During the review the committee simultaneously laboured over the intricacies of legal terminology and kept the big picture in view, enumerating recommended actions that, if implemented, will usher in a healthier future for the people of the Northwest Territories.
In the community visits, discussion about the proposed legislation was often eclipsed by testimonies of struggle to overcome trauma, abuse, addictions, family violence and community dysfunction. The people’s pain was plain to see and seemed to stem from a few primary sources: the colonial history of the Northwest Territories, the legacy of residential schools, and failures in the provision of mental health service.
Like the existing Mental Health Act, the new act will focus primarily on treatment of people with psychiatric disorders. Each year in the Northwest Territories, roughly 200 patients are involuntarily admitted into our territory’s four designated facilities, located in Yellowknife, Fort Smith, Hay River and Inuvik. Like the existing act, Bill 55 is silent on the topic of addictions and substance abuse, even though these problems often coexist with psychiatric disorders. Indeed, it is ironic that, despite its official title, the bill defines a mental disorder but does not define mental health. In any case, the reality is that mental health and mental illness exist on a continuum. Likewise, mental health services include a spectrum of activities from prevention and early intervention to therapeutic counselling and in-patient hospital care. So, in the words of one NWT resident, “What we need is a companion act for the Mental Health Act. This here is a Mental Illness Act. We need a Mental Wellness Act. There’s a bit of funding here and there, but it’s really just a patchwork of services.” For all intents and purposes, the Mental Health and Addictions Action Plan may be thought of as that companion act, and to that end, the committee is calling for substantial enhancements to it.
At the public hearing, the Minister admitted, “There are gaps in our current mental health system and residents are falling through the cracks; it is clear that change is urgently needed. This legislation will fill in those gaps and modernize the current mental health framework.” The committee agrees that there are gaps in the system, but does not agree that new legislation will address them all. In fact, this sort of claim only generates false expectations. As legislation goes, Bill 55 is better than the existing act. But by itself, new legislation offers no guarantee of better services. Accordingly, if this report contains a primary take-home message, it is that new legislation is not the cure-all solution. By way of illustration, the committee learned that the department’s implementation plans include spending an additional $500,000 annually on new positions at headquarters, with no new allocations for services in the communities. Under such circumstances, the scope of positive change will be modest at best. Overall, stronger political will, more effective leadership and substantial new funding will be required if mental health services are going to be delivered when and where people need them.
At this time, I would like to pass the reading of the report over to my colleague Mr. Yakeleya.
Thank you, Mr. Speaker. Thank you, Mr. Moses.
In an eloquent statement at the public meeting in Fort Providence, Chief Joachim Bonnetrouge said, “The Mental Health Act should be written for the people it serves.” The committee wholeheartedly agreed and made a point of incorporating provisions on Aboriginal culture and the role that elders play in promoting mental and emotional wellness.
The preamble to the current act, which was not carried over into Bill 55, recognizes the many cultures of the peoples of the Northwest Territories and stipulates that an elder must be consulted when an assessment is being made about the mental state of an Aboriginal person. The committee asked why the preamble had been removed, and the department responded by citing concerns that it might be used to interpret the legislation in outdated or unintended ways. The committee disagreed with this logic, asserting that respect for culture is never out of date. The department also noted that the Official Languages Act, which came into force after the current Mental Health Act, carries obligations to provide interpretation services and deliver services in a culturally sensitive manner. Accordingly, the department argued that any mention of culture in the new Mental Health Act is unnecessary. Once again, the committee strongly disagreed. Sidestepping the problem of the preamble’s ambiguous legal status, the committee sought instead to incorporate a number of legally binding principles, including the principle of respecting people’s culture, language and religious upbringing. Another culturally relevant addition to Bill 55 is the requirement that the chair of the review board appoint an elder as a cultural advisor if an applicant requests it.
As mentioned, the committee introduced a motion to incorporate legally binding principles that will assist in the interpretation and administration of the act. These principles respond to a wide range of stakeholder concerns. The first asserts that there are to be no unreasonable delays in making or carrying out decisions affecting a person under the act. The second asserts that decisions under the act should respect a person’s cultural, linguistic and religious upbringing. The third states that least restrictive measures should be used, taking into consideration the safety of the patient and other people. The fourth speaks to the importance of family and community involvement in the care of people with mental health issues. The fifth speaks to the matter of mental competence, asserting that patients should be supported in making their own decisions for as long possible. The sixth and final principle pertains to personal privacy, underscoring the fact that information about a person’s mental health is, whether we like it or not, fraught with stigma and should be handled with the utmost respect for privacy. At the clause-by-clause review, the Minister concurred with this motion and confirmed that these principles are consistent with the intent of the legislation.
Over the course of the review, dozens of people described their lack of trust in the government’s provision of mental health services. Fighting back tears, one community advocate bravely asserted, “Silence means approval, so I can’t be silent.” In another troubling case, a young man who suffered a brain injury following a motor vehicle accident has been placed in the North Slave Correctional Facility because there is no suitable care facility in his home community. The man’s father is overwrought with frustration because service gaps have effectively led to his son’s criminalization rather than his rehabilitation.
Accounts like these line up with the data the committee received on the Community Counselling Program. Over the past five years, roughly 30 percent of its front-line positions have been vacant for 12 months or longer. Three of these so-called permanent positions in Wekweeti, Aklavik and Fort Resolution respectively, have been vacant for five consecutive years. With such inconsistent coverage, the number of resulting service failures is virtually incalculable. All too often, residents have no one to approach for guidance, counselling or after-care. All too often, referrals for other mental health services simply do not happen. This is unacceptable. The department must renew its efforts to recruit and retain qualified workers.
On a positive note, community-based services, when available, can make a significant difference. One resident described going through a bad patch of depression and anxiety attacks. "I went to the doctor and got pills, even though I’m not much of a pill-popper. But there was a mental health worker and for three years I got counselling. She really helped me a lot.” The committee is therefore calling for substantial enhancements to the Mental Health and Addictions Action Plan, as indicated in the following recommended actions.
Mr. Speaker, I will now turn the report over to Madam Groenewegen to continue reading.
Thank you, Mr. Yakeleya. Mrs. Groenewegen.
Thank you, Mr. Speaker. Bill 55 includes new provisions for “assisted community treatment,” also known as “ACT.” Essentially, this is mandatory outpatient treatment, where psychiatric care is provided while the patient is living in the community. For each patient, a treatment plan is created where the patient, health and social services professionals and family members or other support persons agree to implement and monitor the plan.
Ideally, community treatment reduces the traumatic impact of hospitalization and helps the patient reintegrate into the community following a period of hospitalization. However, as the committee discovered, there are potential shortcomings associated with this type of psychiatric care. First, despite its widespread use in other Canadian jurisdictions, community-based treatment appears to be controversial. A 2012 review of Ontario’s legislation found inconclusive evidence on the benefits of community treatment. Second, because the department has no plans to bolster resources in the communities, this option will only be available where sufficient resources already exist: in Yellowknife and, potentially, regional centres. Patients from small communities will either have to forfeit this treatment option or live away from home. Third, community-based treatment may inadvertently expose patients to criminalization if the treatment plan goes awry or the patient is not adequately monitored. Fourth, people who agree to monitor an ACT patient may be exposed to legal liabilities. Fifth, people who agree to monitor an ACT patient may experience burnout as the burden of care is handed over to family members and other unpaid caregivers. For all of these reasons, the committee cannot fully endorse the provisions pertaining to assisted community treatment.
On a per capita basis, the homeless population in the Northwest Territories is sizable, and appears to be growing. A significant number of homeless people are struggling with mental illness. The prevailing approach to homelessness and mental illness is to rely on emergency health care and on shelters for emergency housing. In the long run, this approach is costly and ineffective. As an alternative, “Housing First” is an evidence-based intervention model whereby permanent housing and wrap-around supports are provided to individuals who are homeless and living with a serious mental illness. Canada’s At Home/Chez Soi initiative was a five-year, five-city Housing First demonstration project. It examined quality of life, community functioning, recovery, employment, and related outcomes. Overall, it demonstrated that the Housing First model can be implemented successfully in combination with assisted community treatment. The committee believes that aggressive action should be taken to address homelessness, especially through the use of Housing First initiatives.
At this time, I’d like to turn the reading of the report to Mr. Dolynny.
Thank you, Mrs. Groenewegen. Mr. Dolynny.
Thank you, Mr. Speaker. Thank you, Mrs. Groenewegen. During the committee’s travel in the communities, residents described their despair and helplessness in the face of suicide. They want clearer direction in how to support people who are at risk and what to do when something goes terribly wrong. The facts and statistics for the Northwest Territories show an obvious need to strengthen suicide prevention efforts. According to the 2011 Northwest Territories Health Status Report, the annual suicide rate in the Northwest Territories is 65 percent higher than the national rate. The same report indicates that the suicide rate in small communities is several times higher than the national average. The chief coroner for the Northwest Territories reported that the suicide rate for 2014 rose substantially over previous years. Furthermore, Statistics Canada data for 2010 show that the suicide rate among youth in the Inuit homelands – which include the Inuvialuit of the western Arctic – is up to 30 times higher than that of youth in other parts of Canada.
According to the latest national and international evidence, suicide is largely preventable. For this reason, suicide prevention efforts should be strengthened and include training in Mental Health First Aid for community leaders and GNWT employees. The government also should investigate methods used in Québec, where an aggressive provincial strategy has led to dramatic declines in the rate of suicide.
With respect to Bill 55, the committee sought to introduce provisions to better ensure that people who have attempted suicide, or threatened to do so, receive proper assessments and follow-up care. A new provision pertains to cases where a person has recently caused, threatened, or attempted self-harm. It will ensure that the person undergoes further assessment to determine whether an involuntary admission is necessary. The Minister agreed to the motion and assured the committee that education and training will be provided to health professionals so that the new provision is correctly administered. The Minister also explained that involuntary psychiatric assessments are completed by a trained psychiatrist or physician and is comprehensive in nature, including an investigation into the presenting concern, the history of the concern, a mental-status exam, a physical exam, personal history, direct observations, and consultation with other professionals.
The committee also drafted a motion to establish self-harm as a criterion for involuntary admission, under the proposed Section 13. However, after reviewing the draft motion, the Minister indicated that he could not concur with it. He explained that recent harm is not a guarantee that a person will harm themselves or others in the near future and, further, that an involuntary admission solely on this basis could result in a challenge under the Canadian Charter of Rights and Freedoms. Moreover, while the legislation in some other jurisdictions includes recent harm as a criterion for involuntary admission, it indicates that the risk of future harm must also be present. Persuaded by this reasoning, the committee chose not to introduce the motion.
During its review of Bill 55, the committee learned that suicide is the second-leading cause of death among Canadian youth and that roughly 20 percent of Canadian youth have a mental health issue. Moreover, in about 70 percent of cases, mental health problems emerge before a person reaches the age of 18. These facts came to light in a 2006 report by the Standing Senate Committee on Social Affairs, Science and Technology. The ground-breaking report called the treatment of children and youth the worst part of the mental health system in Canada. The report made such an impact that all Canadian provinces subsequently developed stand-alone mental health strategies for youth and adolescents. The Northwest Territories has not yet followed suit. However, as he indicated at the clause-by-clause review, the Minister will be recommending that such a strategy be undertaken in the 18th Assembly.
Through you, Mr. Speaker, I’d like to turn it over to my colleague Ms. Bisaro. Thank you.
Thank you, Mr. Dolynny. Ms. Bisaro.
Thank you, Mr. Speaker. Under the current Mental Health Act, the courts are the only recourse for people who wish to have a decision reviewed or appealed. This approach is expensive, inefficient and out of step with best practices elsewhere in Canada. The new act will enhance patient rights by establishing a quasi-judicial review board for hearing complaints. Applications to the review board may pertain to such matters as involuntary admissions, findings of mental competence or objections to treatment. Every application will be handled by a three-person review panel consisting of a lawyer, medical doctor and lay person. In response to a stakeholder query, the committee confirmed that members of the review board will be paid for their services.
To enhance patient rights, the committee sought two changes pertaining to the review board. The first change requires the chair of the review board to appoint an elder as a cultural advisor where an applicant requests it. The purpose is to ensure that matters are handled in a culturally sensitive manner. The Minister concurred with this motion, but noted that the review panel already includes a lay person who will play a patient-advocate role and that the panel has the ability to call an elder as a witness at a hearing. The Minister cautioned that providing patients with the option to request a cultural advisor may result in delays or increased operational costs. The committee therefore agreed to the inclusion of a notwithstanding clause that will allow the review panel to continue its proceedings if, in rare circumstances, a suitable cultural advisor cannot be found. A second change pertaining to the review board provisions requires that the composition of the review board reflect the diversity and gender balance of the population.
The committee contemplated ways of enhancing patient rights in other ways too. Initially, it drafted a motion to allow a voluntary patient who disagrees with a doctor’s discharge decision to remain in the designated facility until the case has been considered by a review panel. However, the Minister explained that an order from a review panel would likely result in undue delays and hardship for the patient and unnecessary operational costs. He subsequently proposed to grant every patient – voluntary and involuntary alike – the right to a second medical opinion. The committee accepted this line of reasoning and introduced a motion to that effect. At the request of the Minister, a companion motion was introduced to ensure that notice of the patient’s right to a second opinion is conspicuously posted.
The committee also introduced a motion to facilitate greater involvement on the part of family members and other support persons. Recognizing that a patient’s right to privacy imposes certain justifiable constraints and, further, that some patients do not want their family involved, the committee introduced a motion that will impose a duty on the attending doctor to ask a voluntary patient if he or she would like someone to be notified of their circumstances. A companion motion was introduced to ensure that the doctor makes reasonable efforts to notify the person, and the Minister concurred with these motions at the clause-by-clause review.
In addition, the committee acted on recommendations from the Northwest Territories chapter of the Canadian Bar Association (CBA). The CBA explained that mentally ill people are criminalized whenever they come into conflict with the law and end up in correctional facilities instead of medical facilities. Individuals who suffer from psychiatric disorders, the CBA continued, are frequently subjected to apprehensions or periods of detention that are virtually identical to those resulting from criminal offences. To mitigate against these tendencies, the committee and the Minister settled on several additional provisions. First, a peace officer will be required to convey a person to a health facility without delay. Second, a peace officer will be required to inform the apprehended person, again without delay, of the reason for their detention and their right to legal counsel. Third, the peace officer will be required to facilitate the person’s access to legal counsel. Fourth, in the event of a necessary delay in conveying the person to a health facility, the patient will have the right to communicate with a family member, health professional or other person. Finally, in the event of a delay, the peace officer will be required to contact a health professional to discuss the person’s condition and circumstances. At the clause-by-clause review, the Minister indicated that these changes are consistent with Charter rights and the intent of the legislation.
With respect to the selection of substitute decision-makers, the committee acted on concerns of the Information and Privacy Commissioner and the Status of Women Council of the NWT. Because the original language in Bill 55 would only have allowed for an express wish to be considered after the selection process had begun, the committee introduced a change. It states that, notwithstanding the prioritized eligibility list set out in Section 30, if a medical doctor believes a patient is competent to participate in the selection of a substitute decision-maker, the patient’s express wish must be first in priority. The Minister concurred with this motion at the clause-by-clause review, but cautioned that the change will complicate the process of selecting a substitute decision-maker and place additional burdens on the department to establish practice standards and train health care providers.
The Information and Privacy Commissioner provided a lengthy submission on Bill 55. The committee asked the Minister to respond to it and then deliberated on the issues. First and foremost, the committee determined that privacy issues pertaining to the Mental Health Act will largely be governed by the Health Information Act.
Second, the committee observed that points of disagreement between the Minister and the Commissioner focused largely on whether privacy provisions should be contained in the statute or in regulations. Recognizing that regulations can be more easily changed and brought into force without the scrutiny of the Legislative Assembly, the committee nonetheless concluded that privacy protections will have the force of law in either case.
Third, the committee took up the Commissioner’s concern about the bill’s failure to prohibit board members from disclosing information obtained in their role as board members. A motion to establish a confidentiality clause was introduced at the clause-by-clause review with the Minister’s agreement.
Fourth, in reference to Section 56, which authorizes the creation of a registry of certificates issued under the act, the committee noted that the Health Information Act expressly permits the creation of such a registry. The Commissioner asked for a statutory amendment to clarify the registry’s purpose, but the committee concluded that regulations are an appropriate place to specify this. Moreover, the committee was satisfied with the Minister’s explanation that the registry will be used to keep track of the number of involuntary patients and thereby assist in long-term planning. The Minister also offered assurance that certificates will be securely filed and that only relevant information from certificates will be entered into the registry.
Fifth, in reference to the concern about law enforcement’s access to certificates—and, specifically, access to the sensitive information contained therein, the committee confirmed that federal legislation protects personal information and places obligations on RCMP officers to respect confidentiality. The Minister further indicated that unnecessary information will be redacted from certificates, a practice consistent with the department’s obligations under Section 28 of the Health Information Act. These matters will be prescribed in regulations, and the committee concluded that regulation-making authority relating to the apprehension of persons will include the authority to prescribe how information is shared.
Mr. Speaker, I would now like to turn the reading of the report over to my colleague Mr. Moses.
Thank you, Ms. Bisaro. Mr. Moses.
Thank you, Mr. Speaker. A large number of operational requirements will be laid out in regulations. For this reason, the department is being strongly urged to draft regulations in consultation with the Standing Committee on Social Programs, key stakeholders and members of the public. An area that will require careful scrutiny is the designation of authorized persons for apprehending, conveying or detaining individuals. Regulations should clearly establish who, and under what circumstances, these persons will be employed.
The committee was encouraged to learn that the Department of Health and Social Services is developing an agreement with the RCMP regarding its role under the new act. That said, the committee is concerned about the risk of improperly trained persons being called upon in communities or situations in which there is no RCMP presence.
With the Minister’s agreement, the committee introduced a motion to define a "peace officer" within the act, stipulating that it should mean a member of the RCMP or a prescribed person or class of persons. The Minister agreed that the definition of a peace officer in the Criminal Code of Canada is quite broad, and confirmed that the original intent of the legislation was to define a peace officer as the RCMP. A companion motion was introduced which provides regulation-making authority to prescribe other classes of persons or alter the definition of a peace officer in the future.
The department was asked to clarify whether the medical records of a patient who is transferred to another facility will be sent along with the patient so as to prevent unnecessary repetition of requests for the patient’s medical history. Departmental staff confirmed that the under subsection 96(2), the relevant records of a patient who is transferred to another facility, whether inside or outside of the Northwest Territories, must be transferred to the receiving facility. However, to strengthen this requirement, the committee introduced a motion to ensure that the receiving facility receives the records as soon as possible. The Minister concurred with this motion.
A number of additional motions were passed at the clause-by-clause review. A pair of motions was passed to ensure that patients will not be provided with the home address of the chairperson of the review board. A motion, which was introduced at the Minister’s request, replaces a phrase in subsection 84(1), and clarifies that documents being served on a patient can only be served on the public trustee and endorsed with the name of the facility if the person is an involuntary patient and has been found mentally incompetent to manage his or her estate. Finally, to correct a handful of minor drafting errors, several technical motions were passed during the clause-by-clause review.
That the Government of the Northwest Territories provide a comprehensive response to this report for consideration by the Legislative Assembly in June 2016.
The Standing Committee on Social Programs thanks all stakeholders who provided comments on Bill 55 or attended public meetings.
The committee advises that it supports Bill 55 as amended and reprinted and presents it for consideration to Committee of the Whole.
