Senator Plett: Last year — and Senator Housakos referred to this earlier in his question — the Prime Minister told a fellow MP, a member of the Jewish faith, that she stands with swastikas. An actual Nazi SS officer is lauded in the House of Commons during the visit of the Ukrainian president, and the Prime Minister and his government take no responsibility — he blames Parliament, blames Canada.

Canadians are increasingly fed up with this behaviour. Is there anyone left in the Trudeau government who accepts responsibility or who acts with common sense?

Senator Gold, these are not my words; these are Minister Miller’s words. Do you think it is befitting of a minister to call the leader of the official opposition “a snake-oil salesman” or “a classless jackass”?

Senator Plett: That truly is a shameful answer. Every guest has to be vetted by protocol and security.

Leader, power and responsibility go together. If the Prime Minister wants to have the power, he must also take on the responsibility. If he wants to travel all over the world and meet other heads of state, he is responsible, leader, for Canada’s reputation.

Last week, he presided over Canada’s greatest diplomatic blunder. He should have apologized two days ago, leader, when this came to light; he didn’t. Today, he finally came out from under the rock where he has been hiding for the last two days, and he said that Parliament apologizes — he did not say, “I apologize.” Parliament apologizes, not him.

Senator Gold, when will the Prime Minister finally grow up, accept his responsibility for once and apologize — not on behalf of only Canada and Parliament, but on behalf of himself?

Senator Plett: Yes. I think, Your Honour, there was an agreement that we finish a question when we start.

Senator Plett: No. There is a supplementary question. It is part of a question.

Senator Plett: Thank you, Your Honour.

You’re right, leader; there is a difference. One was a Conservative and the other one was a Liberal.

There is an obvious double standard here. The Prime Minister, Minister Miller, and the rest of the Trudeau government are very quick to shake their fingers in disapproval at the opposition and at Canadians in general, yet nothing is ever their fault. The Prime Minister takes no blame for anything.

Senator Housakos: He will next election.

Hon. Donald Neil Plett (Leader of the Opposition): Senator Gold, my question concerns — as I’m sure you expected — the address to Parliament by Ukrainian President Zelenskyy last Friday.

Senator Gold, someone was there who should never have been there and who should never have been invited. One of two things happened: Either the Trudeau government’s entire protocol, intelligence and security apparatus vetted this person and showed gross incompetence in doing their jobs or the outgoing Speaker of the House of Commons was able to invite someone to be with the president of a country at war without any vetting at all, which is also gross incompetence on the part this government.

Senator Gold, which of those two is it?

Hon. Donald Neil Plett (Leader of the Opposition): Leader, last spring, I was admonished for saying the Prime Minister and his former Minister, Marco Mendicino lied to Canadians about the prison transfer of Paul Bernardo. I was prevented from using the word that best describes this Prime Minister.

Last week, Senator Gold, you scolded me for using the term “made-up rapporteur,” saying it was an insult, even though the Prime Minister made up the former governor general’s job and title.

Leader, the Minister of Immigration, Refugees and Citizenship has recently used language online and in an interview to describe his colleague — the Leader of the Official Opposition, Pierre Poilievre — that he definitely cannot repeat in Parliament, yet no one from your government has condemned Minister Miller or said he should apologize.

Why is that, leader? Is that a double standard?

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, I rise today to speak to second reading of Bill S-13, an Act to amend the Interpretation Act and to make related amendments to other Acts.

It has been a few months since Senator LaBoucane-Benson spoke to this legislation on June 20, so allow me to provide you with a bit of an overview to refresh your memory.

Bill S-13 will, first of all, amend the Interpretation Act to include a non-derogation clause on upholding the Aboriginal and treaty rights found in section 35 of the Constitution Act, 1982. That clause will read as follows:

Every enactment is to be construed as upholding the Aboriginal and treaty rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

In addition to establishing a blanket non-derogation clause, or NDC, Bill S-13 will remove the existing non-derogation clauses from 26 different pieces of legislation. Only three existing laws with non-derogation clauses will retain those NDCs.

On the surface, the government’s rationale for this legislation is, by and large, solid.

First of all, the legislation will provide a uniform standard for the interpretation of all federal legislation. By including a blanket non-derogation clause in the Interpretation Act, all federal laws will be read as including an NDC.

Second, the legislation will create a standardized non-derogation clause.

NDCs have been added to legislation in an ad hoc manner for decades. They first began to show up in a small number of federal laws in the 1970s and early 1980s — although at that time they obviously did not reference the Constitution Act, 1982. After the patriation of the Constitution Act and the adoption of the Charter of Rights and Freedoms of 1982, NDCs once again started to be included in federal legislation in 1986.

Over the years, the wording of these NDCs has changed. And while nobody has advocated that NDCs should be used to either extend or diminish existing rights, the arguments have gone back and forth regarding whether that might be the real-world outcome.

For example, when the Standing Senate Committee on Legal and Constitutional Affairs studied this issue between 2003 and 2007, they noted in their report that they “. . . heard significantly divergent testimony from government and non-government witnesses with respect to the purpose and effect of non-derogation clauses.”

Indigenous groups saw the inclusion of NDCs:

. . . as a minimum stipulation that the law should be interpreted so as not to negatively affect their constitutional Aboriginal and treaty rights.

On the other hand, Justice officials “. . . considered these clauses largely superfluous reminders of section 35 of the Constitution Act, 1982.”

The committee noted that as the wording of the NDCs began to be changed, Indigenous groups became concerned that because of the lack of consistency in the wording:

. . . the courts would or could attribute different interpretations to differently worded non-derogation clauses in order to make sense of the differences in various statutes.

As a result of this testimony, the Senate Legal Committee recommended that the government introduce a standardized non‑derogation clause, which is what Bill S-13 will do.

The third component of the government’s rationale for this bill is that amending the Interpretation Act to include a blanket NDC will remove “. . . the need for Indigenous peoples to press for NDCs whenever the government introduces legislation.”

There are clear advantages to this. However, I would note there is also a counter-argument for what has been called “continual reiteration” of non-derogation clauses rather than utilizing a single statement. Since the non-derogation clause primarily serves as a reminder of existing rights and does not confer any new rights, repeating a standardized non-derogation in every piece of legislation may be more effective than a single iteration, which is soon out of sight and out of mind.

The fourth part of the government’s rationale is that including an NDC in the Interpretation Act helps to fulfill an obligation under the United Nations Declaration on the Rights of Indigenous Peoples which requires that measures be taken to ensure the consistency of laws with the UN Declaration on the Rights of Indigenous Peoples.

Colleagues, in principle, I believe that we can all support these objectives. As noted in both the 2007 Senate report and the government’s 2022 What We Have Learned report, Indigenous peoples have been asking that the federal Interpretation Act be amended to include an NDC for many years.

However, rather than being celebrated, it is my view that this legislation should be recognized for what it is: an acknowledgement of the repeated and systemic failure of Canadian governments to honour Aboriginal and treaty rights.

How else do we explain such a bill? First, we had the treaties. Then the treaties were followed by court decisions that insisted those treaties must be honoured. Then we introduced the Charter of Rights, which affirmed that treaty rights are actual rights and must be respected. Following that, Parliament adopted the United Nations Declaration on the Rights of Indigenous Peoples Act, which requires that:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

And yet, in spite of all these measures, we somehow still need a blanket non-derogation clause. I can’t help but think that if the Government of Canada simply started honouring Aboriginal and treaty rights, we would no longer need to repeatedly layer statutory declarations on top of each other in order to try to compel the government to do what it agreed to do in the first place.

Do not misunderstand me; I do not blame our Indigenous peoples for wanting this non-derogation clause. I blame the government that it is needed at all. I support this bill in principle, but I am not convinced that a fifth “for greater certainty” layer is going to provide any more certainty to Indigenous peoples than the previous four layers.

Let me illustrate my concern with a simple example: Right now, the Standing Senate Committee on National Security, Defence and Veterans Affairs is studying Bill C-21, An Act to amend certain Acts and to make certain consequential amendments (firearms), otherwise known as the gun control bill. This legislation will enact significant changes that will have serious detrimental impacts on law-abiding gun owners in Canada, including the treaty rights of Indigenous peoples. Yet, in spite of this, the government completely failed to consult with Indigenous peoples, and is instead charging ahead. I noted this in my speech on Bill C-21 when I mentioned the following question that was posed to the officials during my critic’s briefing on the bill: “With whom did you consult?” When the officials were asked to describe their process of consulting with Indigenous peoples, they turned and looked for answers from the representative who was from Minister Mendicino’s office. Departmental officials did say they had consulted on the previous bill — Bill C-21 — which died on the Order Paper, but they engaged in no such consultation with Indigenous peoples in advance of introducing this bill, which has different provisions from the previous bill.

Subsequent to my critic’s briefing, officials sent my office a list of meetings they held with Indigenous groups after the bill was introduced. In other words, those were meetings held between January and May of this year. But that, colleagues, was months after Bill C-21 had been introduced, and only occurred after public opposition to the government’s amendments had arisen. As on so many other occasions, Indigenous peoples were only an afterthought. That makes a mockery out of the claim that when it comes to Indigenous peoples, it is “nothing about us without us.” Even though Indigenous peoples have treaty rights, even though the courts have upheld these rights, even though the Charter affirms these rights and even though the United Nations Declaration on the Rights of Indigenous Peoples Act passed by Parliament compels the government to consult with Indigenous peoples in order to “. . . obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them,” the government is still failing to consult and respect Indigenous rights.

Now we have Bill S-13 in front of us, which says that Bill C-21 should:

 . . . be construed as upholding the Aboriginal and treaty rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

Yet, Bill C-21 does nothing of the sort. We may as well pass a law that says, “Plumbers should be construed as lawyers.” I think they would make better lawyers. Saying it is so does not make it so.

Colleagues, I support the intent of this legislation, but I question the value it will bring when we have a government that has repeatedly demonstrated it will flout the law whenever that might be to its advantage. I hope this legislation will be very carefully studied at committee to ensure that it has the support of Indigenous peoples — that the government claims it does — and that it will achieve the objectives it is designed to achieve.

Thank you.