Hon. Dennis Glen Patterson: Honourable senators, I rise today on behalf of my group, the Canadian Senators Group. We have several concerns about the annual Statutes Repeal Act motion, which we believe goes to the heart of our duty as senators to protect the rights of Parliament and keep the government accountable to the legislative branch.

The Statutes Repeal Act began as a Senate initiative led by the late former senator Tommy Banks. Every year, Parliament passes bills that have a coming-into-force date that is left to the government to determine. The reasons for this, as we know, are that sometimes the government needs to draft supporting regulations or complete final consultations with stakeholders. But what happens if a government doesn’t bring an act of Parliament into force, either in whole or in part?

When Parliament enacts a statute, it is not a suggestion. Governments can’t pick and choose which parts of laws to enact or hold back entirely and indefinitely. All bills that receive Royal Assent must eventually come into force or be repealed.

This is exactly what the Statutes Repeal Act is designed to do. It is, we believe, an important accountability mechanism to ensure that the will of Parliament is fulfilled. It ensures that no current or future government can ignore legislation duly passed through our rigorous legislative process. The act requires the government to table a report to Parliament each year, listing all parts of statutes that have not been brought into force after nine years.

This year’s report of the Statutes Repeal Act, which this motion deals with, is the twelfth annual report. We see in it many of the same provisions that were listed in the first annual report, which was tabled over a decade ago. This begs the question: What has the government been doing over the past 12 years to bring these provisions into force? In some cases, decades have gone by and parts of acts of Parliament are still sitting idle. In most cases, we don’t really know what, if anything, the government is doing to bring them into force. When the Statutes Repeal Act motion was brought before this chamber last year, Senator Downe asked Senator Gagné about deferred provisions related to Canadian Armed Forces benefits, which were enacted in 2003. This same provision is before us again this year, but we have no further information about what has been done to complete the necessary regulations.

There are other provisions that we’re being asked to extend for another year that are even older. Part II of the Parliamentary Employment and Staff Relations Act was enacted in 1985. The government has asked to defer its coming into force once again because it needs to — listen to this carefully — follow “appropriate policy work and consultation with parliamentary stakeholders.” After 37 years, one begins to wonder if this policy work has ever started or if the government is just, dare I say, kicking the ball down the road.

The same could be said for many of the other statutes for which we are being asked to defer a coming-into-force date for another year through this motion. For example, reading through the government’s explanations for the deferrals in this motion, we see that an amendment to the Bank Act, passed by Parliament in 2005, still needs regulations developed before it can be brought into force. An important change to Canada’s anti-spam legislation, passed by Parliament in 2010, apparently needs more consultation with industry stakeholders.

We are concerned that this important accountability exercise will become an automated parliamentary routine unless we exercise a more robust oversight role. If our government is going to continue to not enforce the will of Parliament year after year after year, it needs to provide better explanations.

I note that the Standing Orders of the Australian Senate requires the government to not only table in Parliament which laws have not come into force but to also include “a statement of reasons for their non-proclamation and a timetable for their operation.” In other words, it’s not sufficient for the government to simply say that certain laws have not yet come into force. It must also explain when the will of Parliament will be respected.

Honourable senators, when the Statutes Repeal Act motion comes before us again next year — as it surely will — we will likely see many of the same bills listed in this year’s motion deferred again. I suggest that, before agreeing to it, we take some time to get answers from the government about the status of the consultations or of the regulation drafting. We might want to refer the motion to a committee to get these answers directly. For the Statutes Repeal Act to work as it was intended when it was passed by this chamber, we need to keep tabs on the status of the unenforced laws we agreed to defer year after year.

As our late dear former colleague Senator Tommy Banks said when he introduced the bill:

 . . . Parliament is not a function of the government . . . . When Parliament expresses its will it is a form of instruction . . . to the ministry, to say what it wants the ministry to do and it is the business of the executive to do it.

Honourable senators, going forward, let’s do our due diligence and ensure that the will of Parliament is respected. Thank you.

Hon. Dennis Glen Patterson: Honourable senators, I rise today to express my concern regarding this report. I want to make it clear that my concern is not with the work of the Standing Senate Committee on Indigenous Peoples on which I sit.

I feel that, unfortunately, the report is no longer reflective of the entire picture with regard to Subdivisions A and B of Division 3 of Part 4 of Bill C-32. Division 3 deals with proposed changes to the First Nations Land Management Act.

At 7:30 p.m. on Thursday, November 17, this chamber passed an order of reference instructing the Indigenous Peoples Committee to conduct a pre-study of this division and report back on December 5.

We began the work immediately. We identified witnesses and requested their appearance before the committee. We heard from our first two witnesses — organizations who advocated for these changes — on November 22, and heard from Ministers Miller and Hajdu on November 30. We had to finalize drafting instructions right after the ministers’ appearance in order to have the report prepared, drafted and translated by the December 5 report-back date. This gave us a total of 12 business days to complete the study and report-back process.

Unfortunately, two of the First Nations we approached declined the invitation, and four others did not respond. Recognizing that time was tight and factoring in the necessary time for approvals and translation prior to our required tabling date, we did not have time to look for and approach other communities.

On December 1, the day after we finalized drafting instructions in committee, we received word from Manitoba Keewatinowi Okimakanak, or MKO, requesting to appear. We knew we didn’t have any time to hear from them as we were due to report the following Monday, but I did insist that we ask for a brief, and we suggested that a brief also be sent to the Senate National Finance Committee.

I know that Senator McCallum is planning to speak to those concerns as well, but I will say that in the brief we received this past Sunday, there was strong language about the gaps in enforcement of bylaws created using the authority granted to First Nations communities by the First Nations Land Management Act. Coordinating amendments to various related legislation was suggested by MKO in an effort to address these major concerns about enforcing the provisions of the new First Nations Land Management Act.

Colleagues, I am using this opportunity to speak to this report today to highlight why our newer approach to examining legislation should be a major concern to all. There has been a trend, I believe, in the last two sessions to rush through legislation. Everything is somehow a priority that always needs to be passed by a certain date, and the use of pre-studies — a tool once reserved for extremely complex legislation and budgets — is now becoming a norm.

There is logic behind the use of consecutive studies of legislation by us and the other place. Namely, concurrent studies lead to major gaps in testimony, and do not maximize the time available for interested stakeholders to appear on pieces of legislation that they may have expertise on.

MKO is not just another First Nations band. MKO represents 26 First Nations communities in northern Manitoba that span some two thirds of the province. The four MKO First Nations with land codes include an original signatory agreement First Nation, and have some of the longest practical experience implementing the First Nations Land Management Act. It is some of that practical experience that informed the brief they submitted. However, due to self-imposed deadlines, we did not have enough time to accommodate them at the Indigenous Peoples Committee. In fact, in speaking with MKO, they had only learned of the study early last week, and they immediately requested to appear before the Senate committee and the committee in the other place that was studying this bill.

Colleagues, it is my hope that the Finance Committee will be able to give some time to MKO’s Grand Chief, who is currently in Ottawa for another event. However, I know that they, too, are short on time.

I rose today because I’m frustrated by the number of times we have had to miss important testimony or cut back our witness lists because we have such tight timelines. While 12 business days may sound like a lot of time to some, those with knowledge of Senate procedures will know it is barely enough time once you start factoring in witness response times and the time required for translation.

Especially when we are dealing with Indigenous or grassroots organizations that often already face capacity issues, we need to give as much notice as possible to prospective witnesses. We need to slow down and make sure we are properly reviewing legislation, taking the time to hear from as many people and as many different perspectives as possible.

It’s time for the Senate to take back control over our schedule and our affairs, instead of being completely beholden to government ministers who are unaware of our procedures, timings and the various priorities we are juggling.

Thank you.