Hon. Hassan Yussuff: Honourable senators, let me first thank my colleague and friend Senator Boisvenu for his intervention and his work on the committee in regard to Bill C-21.

You wouldn’t be surprised, colleagues, that I would ask you not to accept the amendment.

I like Indigenous people enormously. I’m glad to see my friends have new-found respect for Indigenous people.

The reality is that this amendment was tabled at the committee and it rejected the amendment, but I want to speak specifically in regard to the amendment. I think I included this in my speech earlier, but I will restate it for colleagues before we have an opportunity to vote on the amendment:

While Bill C-21 will not abrogate or derogate from the rights of Indigenous Peoples as affirmed in the Constitution, the Government of Canada must meaningfully consult with Indigenous Peoples.

Should proposed regulations have the potential to adversely impact potential or established treaty rights, the Government of Canada must satisfy its duty to consult, and where appropriate, accommodate those rights.

Public Safety Canada will work collaboratively with Indigenous partners throughout the development, management and review of regulations.

This is the assurance we have from the minister.

Section 35 is enshrined in the bill to give it meaning and ensure that if the government doesn’t do its job, somebody can go before the courts and take the government to task. The government recognized the importance of consulting, but it has also recognized the fact that Indigenous people have certain rights in this country that we must oblige ourselves to respect in that regard.

Colleagues, I can go on at length, but I spoke, I think, very well. We did, of course, convey this, as a committee, in the observation in regard to the bill, and the minister wrote to us to address this exact issue in the context of consultation going forward in regard to any regulation that might adversely impact Aboriginal people with respect to the implementation of this bill.

As we know, regulations within the Crown are always something that they do. They have an obligation to publish those regulations, get comments and respond to them, but I think section 35 obligated them to go even further than that, and that’s enshrined in the bill.

Honourable colleagues, I would ask you to reject the amendment because it was dismissed at committee.

Thank you, and let’s recognize what has also been enshrined in the legislation under Bill C-21.

The Hon. the Speaker: Senator Patterson, you had a supplementary?

Senator D. Patterson: If I may, Your Honour, yes. Thank you.

Senator Yussuff, you’ve talked about the importance of the reference to section 35 in the bill and the need to follow the law. Would you agree that without an amendment like this, which requires the minister to undertake consultations if their rights are affected — their subsistence hunting rights are impacted by the implementation of this bill — what Inuit will be left with is a requirement to hire lawyers, go to court and incur expenses to enforce consultation with them that this amendment would require without having to go through litigation, hire lawyers and pursue their rights in a court of law as you have described?

Hon. Jim Quinn: Would you take another question, senator?

First, I want to say that I appreciate you bringing the bill forward. I support the bill, but on the question of this amendment, I’m a bit confused, in a way, in that, as Senator Patterson said, the government has had many court cases that it has had to deal with because of oversights in consultations with First Nations. While section 35 is there and there is a duty to consult, that often is challenged in the courts and often results in lengthy, multi-year court cases at great expense to everyone.

This legislation is so fundamental in terms of Aboriginal rights, as you said, for sustenance hunting and things of that nature that wouldn’t it be an advantage to make sure that as officials look at the regulations, that there is not an “oops” moment and that they are absolutely sure that they must consult First Nations rather than, yes, section 35 is there, but that will lead to court cases that could go on for long periods of time?

Hon. Frances Lankin: I apologize, but I have to ask my question in English —

[English]

— because I’m not sufficiently fluent to do all this in French.

I agree with what you just said about the fact that section 35 requires more of the government than this particular amendment being put forward. I have another very significant concern, and I hope you — particularly because of your legal background — may be able to either assuage my concerns or agree that this is a concern.

The amendment that comes forward — and we’ve heard over and over, and I’m not sure why people are insisting on another amendment that accomplishes the same thing and even less; limits it. It is already in the legislation, and we’re looking to put another version of that in legislation.

My concern is that if anything does end up before the courts, the courts will be obligated to look at both of the clauses and understand whether this clause from the amendment, in fact, narrows the other reference to section 35. We are all agreeing that we want this to happen and we want this government or a future government to take — and I wish that the former Harper government and the former years of the Trudeau government had taken — more care with respect to consultation. Do you share the concern that having two competing clauses that speak to the same issue necessitates those in the judicial field to weigh what the importance is and to understand and second-guess why this Senate put forward two similar amendments that potentially are not accomplishing the same thing at the end, as was the point you made in your speech?

[Translation]

The Hon. the Speaker: Senator Dupuis, will you take a question?

Hon. Tony Dean: Honourable senators, I am standing up to add some thoughts to those we’ve heard over the last 10 or 15 minutes. I start by thanking Senator Boisvenu for his statement and his proposed amendment. I also look to my colleagues, including Senator Lankin and Senator Dupuis, who artfully put that amendment into context, and that, to me, seems pretty definitive and determinative. So thank you for that, Senator Dupuis.

Indigenous consultation and engagement, we all agree, is hugely important. I’m sure we all agree as well that those of us who have engaged in this practice, or attempted to, will know that it is an enormously complex and challenging and worthwhile and constitutionally required practice. We have an extensive range, as most or all of you know, of governance arrangements across this country, as they vary by province and by geographic area and by the nature of the makeup of an extensive and unique fabric of the governance arrangements that are practised by our Indigenous colleagues, our Indigenous brothers and sisters.

That complexity takes nothing away from the constitutional right to consult. It, in fact, makes this more important. It is fair to acknowledge that our success in consultations and engagement with Indigenous people has been mixed, to put a positive blush on it. It’s work-in-progress; it’s work in process. And, absolutely, we haven’t got it right. An amendment to this bill isn’t going to get it right. The Constitution is clear in its requirements. We all know what is required of government.

But let me say this: Success has been mixed, but I don’t recall any other government at the federal or provincial level having put as much time, effort, money and resources into consultations with Indigenous people as the current government has. It’s fallen short, but it’s done a hell of a good job. It’s tried hard. It’s worked hard to the point of being criticized in some quarters, irresponsibly, that perhaps it’s gone too far. Of course it’s not gone too far. It hasn’t gone far enough.

I don’t need to remind you about the National Inquiry into Missing and Murdered Indigenous Women and Girls dramatically shifting the yardstick for the better, cleaning up water on Indigenous reserves that others have failed to do for decades, for responding to calls for recognition of the United Nations Declaration on the Rights of Indigenous Peoples, which was a hard battle in this place, wasn’t it? And we all know whose side people were on. That’s all I’ll say.

I have never seen the demands and expectations that have been placed on federal departments at all levels right across this country to take Indigenous consultation and engagement seriously. That has been there. It’s on the record, and you talk to anybody in a federal department, and you are going to hear that.

We listened in our committee to Indigenous colleagues. I’d like to think that our Indigenous colleagues and brothers and sisters were heard in the committee, and I think they were.

There was mixed success in the consultations on this bill, and the government has amended the legislation as a result of that in response to concerns and toughened it up. We’ve heard Senator Dupuis’ very eloquent, important and decisive response to the amendment before us.

Colleagues, that’s all I wanted to say. I am nothing but grateful for the ability that I had to come to this country, to see this country struggle with its issues, to be part of that struggle with its issues and other struggles in here. This is an ongoing process. We’ve got more work to do. We’ve got a government that takes this seriously. We’ve got a government that did its best to hear from as many people as possible and to reflect their concerns in this legislation. I do not think that we need this amendment. Thank you very much.

Some Hon. Senators: Agreed.

The Hon. the Speaker: I hear a “no.”

Senator Cardozo: Thank you, Madam Speaker. I just want to take a few minutes in much the same vein as Senator Lankin. There are a few people I would like to pay homage to today. This has been a process that has been going on for — my math is not very good, but 55 or 60 years. I want to start by mentioning the late Honourable Monique Bégin, who passed away just a few weeks ago. She was the secretary of the Royal Commission on the Status of Women, which was the first royal commission that recommended a national child care program. It’s taken us a long time to get there, but we are almost there.

I would also salute the Honourable Margaret McCain, former lieutenant governor of New Brunswick and head of the McCain Family Foundation. Some of the other individuals who appeared before us include people from the McCain Family Foundation, as well as Martha Friendly from the Childcare Resource and Research Unit and Morna Ballantyne, executive director of the child care organization called Child Care Now, and, of course, as Senator Lankin mentioned, Pauline Marois, who was the minister of education and brought in the first $5-a-day child care program in Canada that we have now followed throughout the country.

Kudos to all these women who have worked on this for a long time, and it’s really to their credit that we now have a national child care program. Thank you.

The Hon. the Speaker: Is leave granted, senators?

The Hon. the Speaker: Senator Yussuff, your time for debate has expired. There are a few other senators who want to ask questions. Are you asking for five more minutes?

An Hon. Senator: No.

Hon. Renée Dupuis: Honourable senators, in my opinion, the proposed amendment currently before us creates a situation that limits the government’s obligation to consult. The amendment states, and I quote:

 . . . consult with a variety of Indigenous governing bodies and a variety of Indigenous organizations in order to take into account the unique circumstances and needs of those Indigenous groups, communities and peoples.

I think it’s important to realize that the rights entrenched and recognized by section 35 require the government to do more than consult. They require the government to potentially change its plans, whether those plans are regulations, legislation or activities.

Furthermore, the legislation that we passed to implement the United Nations Declaration on the Rights of Indigenous Peoples imposes even more obligations on the Crown, given that it must develop plans, but in collaboration with Indigenous peoples. This means co-developing projects, activities and regulations.

Therefore, since recognized rights that create obligations for the Crown already exist in our legal system, I presume that we, as legislators, would not want to ultimately reduce the protection afforded by these rights by limiting ourselves, as proposed here, to consulting Indigenous peoples based on their constitutional rights in order to take their circumstances into account.

I am therefore unable to support this amendment.

Thank you.

The Hon. the Speaker: Senator Lankin has a question. Would Senator Prosper accept a question?

Hon. Paul J. Prosper: Honourable senators, I appreciate you, my colleagues in this chamber, for offering your perspectives on the nature of this amendment being proposed here.

A lot has been said about the existing constitutional obligations upon the Crown to consult with Indigenous peoples. Following Senator Dean’s comments, one can say there certainly have been positive steps taken both from a legislative and consultation perspective. While consultation is a matter that begs a bit of complexity, I can’t help but look at the record with respect to my colleague Senator Boisvenu and his recollection of the evidence and testimony that came before the committee.

When I look at an amendment and when I think about consultation, yes, there are provisions like non-derogation clauses, and things of that nature, but as mentioned previously — I believe Senator Quinn mentioned it as well — when it involves litigation and the advancement, protection and preservation of Indigenous rights, it is a costly exercise borne upon First Nations groups and organizations. It’s largely an access-to-justice issue.

Although one can look and hope that the duties and the obligations of the Crown with respect to consulting with Indigenous peoples takes place, it’s still an exercise that is subject to debate and criticism.

When I look at this provision, it’s a positive inclusion within an actual statute. It’s there. It provides guidance, like other pieces of legislation, to government to take into account the rights of Indigenous people and to consult on matters that are integral to who they are as a people. We’re talking about subsistence rights here. As my colleague Senator Patterson has mentioned, these are very significant rights that relate to livelihood.

I’m in agreement with this amendment. It provides a prescriptive way upon which consultations can take place and will provide guidance for lawmakers as well. Thank you very much.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate): Would the honourable senator take a question?

Hon. Frances Lankin: Senator Prosper, I appreciate your intervention and hearing your voice on the disappointment with the way in which governments have not lived up to their obligation to consult on behalf of Indigenous peoples.

You are a lawyer. I’m not a lawyer. I’m a trade union negotiator, among other things over the years involving contract language and requirements, and as a former Ontario legislator, I’ve been involved in drafting, writing and amending legislation.

My problem with your argument is that saying it 2, 3, 10 or 20 times in a piece of legislation doesn’t compel any government to live up to their obligations. We have seen this over the years. Section 35 has been around a long time. The obligations are there. In this case, they even wrote that into the bill already. This is a duplication, and it’s a narrower amendment than what the section 35 rights are. I would think you would agree that courts look to all of the provisions and how they work together and what the intent was of the legislature in doing this, and it can create problems.

Please tell me why saying it two, three or four times in one bill is going to help us correct this and avoid a government abrogating a responsibility? It will end up in court anyway, whether or not this amendment is put in place.

An Hon. Senator: Or sympathy.

The Hon. the Speaker: Senator Patterson, do you have a question?

Hon. Dennis Glen Patterson: Yes, please.

The Hon. the Speaker: Will Senator Prosper take another question?