Hon. Mary Jane McCallum: Honourable senators, I rise today to speak to third reading of Bill C-235, An Act respecting the building of a green economy in the Prairies.

I want to go on the record about my concern about the expedited process of this bill in the Senate — a bill that is not a government bill but has been given special privilege, a privilege that has superseded government bills on the floor — a process I have not witnessed before.

I understand that this special privilege and exception were ratified by the leaders of the four caucuses. As an unaffiliated senator, I am not part of these caucuses, so I was not party to nor aware of this deal being made, nor do I agree. Therefore, there was not unanimous agreement to this process that seeks to marginalize, exclude and silence certain segments of the Canadian population.

While I understand that this bill is being given prompt consideration as a way to honour the legacy of a dearly departed colleague, I have profound concern that this is the sole reason why we are asked to rush this bill through. I personally didn’t know our colleague, but from the tributes I have heard, I would believe that he would want his legacy to incorporate equity, diversity, inclusion, respect, relationship, integrity, trust, reconciliation and public trust. Any prompt and exceptional consideration requires rigorous examination to maintain public trust and transparency. However, this bill has spent a mere three days before the Senate.

The second-reading debate began just two days ago, and here we are today facing a final vote on a very complex bill, a bill that doesn’t require speedy passage. This process included the decision to hold only one committee meeting to hear the views of the many different rights holders and stakeholders. This study did not include a single First Nations witness to be heard on matters that greatly impact them as rights holders, impact their treaty rights, their economic rights, their human rights. But you know this, you passed Bill C-15.

As many of you will know from correspondence we have all received over the past 24 hours, First Nations were unaware of this impending legislation and of the extremely truncated timeline in the Senate. This precluded First Nations from the opportunity to register their concern with this bill. In discussion on the process being adopted by the Senate, the Assembly of Manitoba Chiefs, or AMC, had the following comment, “The lack of notice and involvement of First Nations is as ridiculous as it is disrespectful.”

This sentiment, colleagues, is telling. While it is blunt, it is a belief that I agree with wholeheartedly. It is a well-established role and function of the Senate to give voice to minority rights and interests in the review of legislation. As senators, we have a duty to promote core principles and values of our democratic system, especially given the Senate’s traditional role in acting on behalf of groups under-represented in the House of Commons, whereby the Supreme Court of Canada has noted in Reference re Senate Reform, 2014:

Over time, the Senate also came to represent various groups that were under-represented in the House of Commons. It served as a forum for ethnic, gender, religious, linguistic, and Aboriginal groups that did not always have a meaningful opportunity to present their views through the popular democratic process.

However, yet again, we find ourselves enabling a process that willfully sidelines and quiets these marginalized voices from our discourse. This is especially troubling, as this is a bill that has an immediate and substantial impact on First Nations in the Prairie provinces. As senators, we hold a unique public office that requires us as parliamentarians to confront racism without reservation and to ensure the integrity of the institution.

Yesterday, honourable senators received a written submission from the Assembly of Manitoba Chiefs highlighting their concern with Bill C-235. Within their submission, they expressed the deficit they have been placed in by the Senate’s actions. In their words, “This has severely reduced [AMC’s] ability to properly prepare and seek to be a witness to speak to it.”

We received the same. I know that MKO had put in a submission to speak.

Let us be clear: The Assembly of Manitoba Chiefs have underscored their support for the development of a green economy. However, as they rightfully maintain, this approach:

 . . . must be done with First Nations, as Treaty partners with the Crown, taking a much larger role in matters that affect Treaty lands and First Nations traditional territories and the waters that run through them.

AMC has stated, colleagues, that Bill C-235 represents:

 . . . the development of a framework through a legislated consultation and engagement process that maintains the status quo and does not consider current developments that impact on their inherent and Treaty rights of First Nations in Manitoba and other provinces.

Honourable senators, the Assembly of Manitoba Chiefs highlight a greater and more direct concern with this legislation when they write:

Bill C-235 deals with the provinces of Manitoba, Saskatchewan, and Alberta, all of which have Natural Resource Transfer Acts that purported to transfer control over Crown lands and natural resources within these provinces from the federal government to the provincial governments that did not have the free, prior, and informed consent of First Nations. In the AMC’s view, supporting legislation that directly affects the NRTA, Treaty lands and rights, self-determination and sovereignty of First Nations in Manitoba can be interpreted as supporting the status quo and accepting the unfinished business that has yet to be resolved.

Honourable senators, it is important to note that tomorrow the Federation of Saskatchewan Indian Nations is having a press conference to announce a lawsuit they are initiating on the Natural Resources Transfer Acts. This lawsuit has the support of First Nations chiefs in both Manitoba and Alberta. Colleagues, with this foreknowledge, we are all now aware that this lawsuit is imminent. Moving to pass federal legislation that will interfere with that process is both reckless and against the usual practice of the Senate, especially when it involves a bill that doesn’t require speedy passage. As senators, we require clarity on this upcoming lawsuit.

Colleagues, we must consider profound legislation that we passed in this chamber, Bill C-15, legislation that will align Canadian law to the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP. This chamber voted in support of this bill, affirming the Senate’s intent that the articles of UNDRIP serve as guiding principles when approaching the drafting and implementation of federal legislation as it pertains to its impact on, and inclusion of, Indigenous peoples in Canada.

Bill C-235 represents a litmus test on how it respects the principles of UNDRIP. A foundational feature of UNDRIP is that it requires Canada to work with, engage and consult directly with First Nations on a nation-to-nation basis. This show of respect and conciliation is sorely missing from this bill.

This lack of respect and conciliation is demonstrated clearly through the committee process of Bill C-235. First Nations have expressed that they wish to be heard as witnesses on this legislation. As they were not consulted in the development of the bill, it is critical that space be made for them to be heard during committee study. Yet, as we know, the committee examination of this bill was negligible. It took place yesterday, with just one panel of witnesses being heard. Not a single First Nations voice was heard as part of that discussion. What were the factors taken into consideration to invite some and not others?

Honourable senators, we must look inward to determine if passing Bill C-235 at this time is responsible, equitable and just. If we are honest with ourselves, we must acknowledge that we have not been allowed to be fulsome, diligent and, therefore, not responsible in the study of this bill.

First Nations and others who will be negatively impacted but not given the opportunity to be heard on this matter — despite a desire to do so — should be reason enough to prompt us to momentarily delay the final vote. Silencing is violent behaviour and not a good foundation for any bill.

Delaying a final vote until early in the new year will not have a deleterious effect on the bill. However, silencing First Nations when they are requesting to be heard will have a deleterious effect on Canada, including the Senate. We must then ask ourselves what the purpose was of passing previous legislation that purported to advance self-determination and establish a nation-to-nation relationship.

Colleagues, it is not too late to do the right thing and delay the troublingly swift passage of this bill. This will allow all impacted stakeholders a chance to be heard and ensure that we, senators, are dealing with legislation in a responsible, respectful way, practising sober second thought.

Hon. Mary Jane McCallum: Therefore, honourable senators, in amendment, I move:

That Bill C-235, An Act respecting the building of a green economy in the Prairies, be not now read a third time, but that it be referred back to the Standing Senate Committee on Agriculture and Forestry for further study.

Thank you, kinanâskomitin.

Senator McCallum: Will the senator take another question?

Senator McCallum: First Nations are also masters of their own domain. How will First Nations’ leaders and advocates be informed in order to be prepared to present, and how will the committee ensure that they hear from Indigenous peoples?

Senator McCallum: Senator Cotter, there are a lot of unresolved issues here for rights holders in this bill. How will the lived experiences of rights holders in the Prairie provinces be meaningfully addressed when you see Alberta and Saskatchewan, with Manitoba not far behind, ignoring the rights holders in the acts that they are bringing forward? How do you see that being addressed in this bill?

Senator Cotter: As you will see in the bill, Senator McCallum, there is a requirement of consultation and dialogue with Indigenous leadership in the Prairies. That’s a mandate imposed upon the minister who coordinates this work, and, I presume, the other ministers who will have a role here.

Maybe I could answer this with an example of what I think is an opportunity lost in the past, but may be there in the future.

When you think about economic opportunity — let me focus on that first — the opportunities for Indigenous people, but particularly First Nations, have been badly circumscribed by treaties, treaty lands and reserves. I think you and I are on the same wavelength there. In fact, a lot of those, if you look at the maps — Saskatchewan is, perhaps, the worst case — are not just being put on small, postage stamp-sized reserves, but also at the margins of a productive economy in the province, at least in the days when agriculture seemed like the story. So Indigenous people and communities never had a chance to get off the ground.

The place where those conversations have been the richest have been in relation to traditional territories. Not the postage stamp-sized reserves, but the areas where First Nations tended to live traditionally, which often covered vast areas.

One of the ways of trying to build an economy is to create opportunities for Indigenous people and communities to tap into those resources. It’s tricky if you’re a provincial government because usually tapping into those resources — which conventionally provincial governments have understood to be theirs or belonging to all the people — are a source of revenue to run the programs of the province. What you need is a partnership with the province and the Government of Canada because in the Constitution Indians and land reserved for Indians are the constitutional responsibility of Ottawa. It’s possible for the Government of Canada to support those developments, sometimes with support for equity, but also support for sharing the constraints or the opportunity costs for the provinces.

Ottawa has not always been open to that. I don’t know where this will go. I am hoping that imaginative ideas to unlock that potential that was taken away will occur. There are people a lot smarter than me coming up with these ideas, but I think there is a remarkable amount of potential to do that if the goodwill is there.

Provinces are vulnerable in some respects. Sometimes when oil revenues and others are really good, it looks pretty good, but provinces are vulnerable to having to give up large amounts of their tax base. But partnerships with the Government of Canada, which has a fiduciary obligation here and was the mechanism for taking away that opportunity, I think there is a duty that rests with Canada.

I hope that is at least partly helpful.

Hon. Mary Jane McCallum: Will the senator take a question?

Senator Cotter: Yes.

Senator McCallum: I want to go back to your statement about the Natural Resources Transfer Agreement that was done unilaterally without First Nations input. That is now a huge conversation and area of concern for First Nations, and they are going to be bringing it forward. Underneath that lies the Doctrine of Discovery and how it plays into the Constitution.

Is there any way that this portion of the bill could be sent to the Indigenous Peoples Committee to study? That is huge, and I think we need to settle that before you go any further.

Senator Cotter: Ever so briefly, I think the point you make is a matter of legitimate concern, but the Natural Resources Transfer Agreement is a recent Prairie-Alberta-Saskatchewan event that actually creates the same question across the country: Who are the owners of subsurface resources, not just in Alberta and Saskatchewan but more broadly across the country? I think that question, if it were to be studied, would need to be studied on a national basis, and this bill isn’t the right fit for it, with the greatest of respect.