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 clausebyclause 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.
Thank you, Member for Yellowknife North. Reports of Committees on the Review of Bills. Member for Deh Cho.
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.
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 wellbeing 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 codevelop a work plan on making existing laws and policies consistent with the Declaration; and
Affirms the authority of the GNWT to enter into shared decisionmaking 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 clausebyclause review – and eight recommendations.
In April 2023, the committee received a public briefing from the Premier and her staff on Bill 85. The Premier’s presentation is included in Appendix A.
Between May 2023 and July 2023, committee engaged the public. Our approach to engagement is described in Appendix B. Committee hosted six public meetings in Fort Simpson – Lidlii Kue, Fort Smith – Thebacha, Yellowknife – Sombak'e, Tuktoyaktuk, Inuvik, and Deline. Committee also set out to travel to Hay River, which the Hay River and area Metis Local 51 had also specifically requested. When this summer's wildfires disrupted our public engagement plans, committee held a virtual public briefing with Metis Local 51 instead. About 50 people from across the Northwest Territories participated in these meetings.
Committee also sought written submissions on Bill 85. We sent over 100 targeted engagement letters to IGOs, local governments, advocacy associations, and nonprofit 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:
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.
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.
Committee agrees and is making a recommendation on this theme.
Committee agrees and passed an amendment on this theme.
Committee agrees and is making a recommendation on this theme.
Committee agrees that the bill's definition of IGO is too openended. 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 rightsbearing 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 clausebyclause 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.
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.
Committee notes these concerns which highlight the necessity for policy work to implement the Declaration to tangibly improve the wellbeing 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 5519(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.
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.
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.
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.
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
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.
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.
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.
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 requires Private Members sponsoring a bill to table a statement without delay explaining whether the bill is consistent with the Declaration and section 35 rights.
Committee was displeased that Regular Members were not consulted on this proposal at any point before the Premier introduced the Bill. Committee discussed extensively whether the requirement infringes on Members’ privilege. Committee was advised that the answer is no – Members can still move ahead with Private Member’s Bills, even if they are deemed inconsistent with the Declaration or with section 35 rights. As a result, Committee did not further consider changing or removing the requirement from the Bill. However, Committee fears this requirement will have a chilling effect on Private Member’s Bills. Members already face significant barriers to developing a Private Member’s Bill. It is unclear whether and how Private Member’s Bills must realize free, prior and informed consent (FPIC) to be deemed consistent with the Declaration.
The GNWT’s lack of clarity about FPIC does not help. Realizing FPIC could be challenging given Members’ limited resources. Committee therefore recommends: Recommendation 8: That the Government of the Northwest Territories consult the Standing Committee on Accountability and Oversight when developing guidelines for statements of consistency required under the United Nations Declaration on the Rights of Indigenous Peoples Implementation Act.
At the September 20th, 2023, clause-by-clause review, Committee passed a motion to report Bill 85, as amended, to the Legislative Assembly as ready for consideration in Committee of the Whole. This concludes the Standing Committee on Government Operations’ review of Bill 85. Typically, Committee includes a recommendation in each report requesting a response from government within 120 days. The recommendation is then moved as a motion in the House and Cabinet is required to respond.
However, since the 19th Legislative Assembly will dissolve in less than 120 days, Committee has decided to leave out this recommendation and requests that the government provide a public response to this report, even of a preliminary nature, before the beginning of the 20th Assembly.
Mr. Speaker, I move, seconded by the Member for Thebacha, that Committee Report 5519(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 received by the Assembly and referred to Committee of the Whole. Thank you, Mr. Speaker.
Question has been called. All those in favour? All those opposed? Any abstentions? The motion is carried. The committee report is deemed read.
Bill 65: Builders’ Lien Act (Bill 65) received second reading on November 3, 2022 and was referred to the Standing Committee on Social Development (Committee) for review. The Department of Justice (Department) sponsored the Bill.
On January 18, 2023, Committee held a public hearing on Bill 65. Committee heard comments focused on why the Builders’ Lien Act, as drafted, does not apply to the Government of the Northwest Territories (GNWT), but does apply to municipalities, and does not consider Indigenous governments at all. There were also questions on how provisions related to lands owned by those entities would work, particularly the provisions on seizure and sale. Committee had previously raised similar concerns, particularly concerning types of lands subject to the Bill and the extent to which GNWT engaged with Indigenous and municipal governments in developing the Bill.
During the public hearing, Committee expressed concerns regarding the lack of consultation done on behalf of the Department prior to Bill 65’s introduction. In response, the Minister of Justice made a commitment to Committee to conduct further engagement with the public. Following the public hearing, the Government House Leader formally requested that Committee seek an extension of the review period under Rule 8.3(2). The Department needed further time to engage in discussions with Indigenous governments, municipalities, and industry about Committee’s concerns. Committee agreed and successfully sought an extension.
Over the course of reviewing the Bill, Committee considered several potential amendments and engaged extensively with the Department on amending the Bill to better reflect concerns related to land interests and exemptions from seizure and sale. Six months were dedicated to Committee and Departmental staff working together and negotiating on potential amendments. However, while Committee acknowledges that significant progress was made, in the end, the Minister did not agree with Committee on a path forward on several key areas of the Bill. Committee therefore decided that the Bill as drafted is not ready to proceed. Committee decided it was better to urge the Department to work to improve the Bill and reintroduce it in the next Assembly with significant modifications to improve it, rather than to proceed with a fundamentally flawed Bill at this time.
Committee strongly supports the need for new builders’ lien legislation in the Northwest Territories. The existing Mechanics Lien Act has not changed substantially for decades. Since then, real property development, contractual arrangements and construction practices have changed considerably and continue to evolve. The central intent of such legislation is to ensure that contractors, subcontractors, and workers are paid for their work and materials. In recent years, other Canadian jurisdictions have updated their builders’ lien legislation, such as Ontario (2019), British Columbia (2020), and Alberta (2022).
However, Committee has concluded that Bill 65, as it is currently written, is not ready for passage in the Legislative Assembly. Committee believes the Department needs to approach this legislation differently and author a new Builders’ Lien Act within the first half of the 20th Assembly as a significant priority.
Committee sought public feedback on Bill 65 with a public notice and targeted engagement letters. Committee received written submissions from:
Mr. Dale Johnson of Clark Builders; and
Yellowknives Dene First Nation (YKDFN)
All written submissions are included in an Appendix to this report.
Additionally, during the public hearing on Bill 65, Committee heard remarks from the Minister of Justice and asked questions to departmental officials. Committee thanks Mr. Johnson and YKDFN for their engagement. Their participation helped inform Committee discussions on key issues for future consideration.
There are three main areas that Committee had concerns with regarding Bill 65.
The primary issue was determining which land interests held by different levels of government and Indigenous governments would be subject to seizure and sale, as that is the the ultimate remedy for a lien that ensures a contractor or subcontractor is paid for their services.
Second, the core structure of the Bill being such that exemptions from seizure and sale are made on the basis of who owns a project, rather than what type of project it is.
Committee’s main concern with Bill 65 is how the Act would operate in regard to liens on construction projects within the context of several types of lands owned by multiple levels of government across the NWT. For example, of the lands to consider includes municipalities, lands withdrawn from disposition for the purpose of pending treaties, private land, and properties located within land, resources, and self-government agreement areas, among others. Given that within the NWT much land is either owned, or managed and administered by different levels of government, Committee considered it vital that the Act clearly state which types of lands may be subject to seizure and sale as a remedy for a lien on a project.
Ultimately, Committee did not want one level of government to be exempt from seizure and sale, while other levels of government would be subject to seizure and sale. From the start, it was Committee’s desire that all levels of government be treated the same under the Act. However, the Bill as drafted does not bind the GNWT, but it does bind municipalities, and it makes no reference to Indigenous governments. This latter point, of having no reference to Indigenous governments, was a major point of contention for Committee, as it provided the sense that the Bill had been drafted without the consideration of Indigenous governments.
Committee had many discussions on this subject, including with the Government House Leader. Committee struggled with the notion that if Indigenous governments would be subject to the Bill, and would have their lands exempted from seizure and sale just like the GNWT or a municipal government, then how would an Indigenous government be defined? Committee proposed several draft motions to amend this aspect of the Bill, and considered many draft motions proposed by the Department. As these discussions progressed though, Members quickly realized that this topic raised bigger questions about defining an Indigenous government that could not and should not be answered within the context of this Bill.
Committee determined that it is inappropriate for both the legislative branch, as well as the executive branch of government to prescribe a definition on what an Indigenous government is within the context of Builders’ Lien legislation. Especially while there is another Bill before the Assembly concerning the United Nations Declaration on the Rights of Indigenous Peoples, which is an internationally recognized document that affirms the autonomy and self-determination of Indigenous peoples. Article 3 of the Declaration, which reads:
“Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”
With this consideration, Committee determined that the GNWT should not be the arbiter in defining what an Indigenous government is, as that is a matter that should be decided by Indigenous peoples and Indigenous governments themselves. Thus, Members concluded that while this is an important topic that is part of a larger discussion that should be had, it is not Committee’s place to legislate on this matter with this Bill.
Furthermore, Committee did consider several options as potential paths forward with this section of the Bill. Those included leaving the definition of Indigenous government undefined, identifying Indigenous governments through regulation, as well as utilizing the definition of Indigenous government from another Bill before the Assembly, which is Bill 85: United Nations Declaration on the Rights of Indigenous Peoples Implementation Act.
It was at this point where discussions broke down, as Committee did not consider this subject sufficiently addressed within the Bill as drafted. Thus, since a compromise could not be reached with the government on what specific language to use in the Act, Committee decided that Bill 65 is not ready to move forward.
Committee recognized that if Bill 65 was amended to bind the GNWT, along with municipalities and Indigenous governments, to be subject to liens but not to seizure and sale of land, then very little infrastructure in the NWT would be left to be subject to seizure and sale. Recognizing this, Committee determined that the Bill as drafted, which provides an exemption for seizure and sale on the basis of who owns a project, was problematic.
Therefore, following much consideration on this point, Committee determined that exemption for seizure and sale of land should instead apply to the type of project, rather than the owner of the project. Approaching the Bill this way would avoid the issue of having to define Indigenous governments altogether.
This approach to the Bill would ensure a better balance between protecting critical public infrastructure such as health centres, highways, or emergency services, etc., against the need to protect contractors, workers, and suppliers, which is the primary intent of the Bill. However, because this is such a substantial shift in how the Bill is structured, and since there is not enough time within the 19th Assembly to make this fundamental change to the Bill’s structure, Committee decided that the Bill should be re-drafted.
One aspect that was absent from Bill 65 is a section on prompt payment, which would provide assurances within a set timeline for contractors and subcontractors to issue invoices for their work, and for owners to pay invoices for services rendered. A prompt payment system would also create a dispute resolution mechanism by providing a framework for resolving disputes between parties. Committee is aware of several jurisdictions that have codified prompt payment systems into legislation, with the most recent jurisdictions whose amendments and regulations came into force being Alberta (2022), Saskatchewan (2022), and Ontario (2019).
Committee did ask the Government House Leader if this system was considered, and the response was that the Department made a conscious choice not to include this provision at this time. However, the government indicated that it is open to adding this provision in the future. The government also considered adjudication provisions, but chose not include it in the Bill, as the government considers the issue of payment schedules as a matter for the Supreme Court, under debtor/creditor law.
Committee heard prompt payment as a vital concern of the construction industry. Therefore, Committee considered the absence of a prompt payment system as a significant missing aspect within Bill 65 and Committee would like to see the inclusion of such a provision within future lien legislation introduced by the government.
On June 29, 2023, Committee held a clause-by-clause review. Committee passed a motion to report Bill 65 to the Legislative Assembly as not ready for consideration in Committee of the Whole.
Committee strongly recommends the Department to work on re-introducing Builders’ Lien legislation that addresses the fundamental flaws with Bill 65 as a top priority for the next Assembly.
