THE STANDING SENATE COMMITTEE ON ABORIGINAL PEOPLES
EVIDENCE
OTTAWA, Tuesday, June 11, 2019
The Standing Senate Committee on Aboriginal Peoples, to which was referred Bill C-91, An Act respecting Indigenous languages; and Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, met this day at 9 a.m. to give clause-by-clause consideration to the bills.
Senator Lillian Eva Dyck (Chair) in the chair.
[English]
The Chair: Welcome to the Standing Senate Committee on Aboriginal Peoples. We are meeting today to continue our clause-by-clause consideration of Bill C-91, and we also have on the agenda clause by clause of Bill C-262.
Senator Sinclair: I move that the committee do now proceed with clause-by-clause consideration of Bill C-262, to be followed by clause-by-clause consideration of Bill C-91.
The Chair: Are we ready for the question?
Senator Tkachuk: Just a minute. Could you explain exactly what that was all about? Are you saying that we skip government business to go to a private member’s bill right now?
Senator Sinclair: No.
Senator Tkachuk: What are you saying?
Senator Sinclair: The words are pretty clear, senator. I say we move to clause-by-clause consideration of Bill C-262 first, and then we do clause-by-clause consideration of Bill C-91.
The Chair: For clarification, that is a valid motion. It is within the rules and has been done previously.
Senator Patterson: Madam Chair, we were in the middle of doing clause by clause on Bill C-91. When we left, we were actually in the middle of discussing an amendment that I had proposed.
We also have the witnesses from the department here to assist us in consideration of Bill C-91. I am recommending that we conclude our work on Bill C-91.
The Chair: We will call the question.
Those in favour of the motion please raise your hands. That’s eight.
Those against the motion? Five against.
The motion is carried.
Senator Tkachuk: Can we have a roll call, please?
The Chair: Yes.
Mireille K. Aubé, Clerk of the Committee: I want to identify a few membership changes. I have Senator Eaton for Senator Doyle, Senator Sinclair for Senator McPhedran, and Senator Tkachuk for Senator Plett.
Senator Eaton: Is this whether this committee decides to look at private members’ business instead of government business?
Ms. Aubé: Yes.
Senator Eaton: If it comes up that this is delayed in the Senate, this will be noted. Thank you, Madam Chair.
Senator Tkachuk: Madam Chair, didn’t we start on Bill C-91 already?
The Chair: Sorry, we have already called the question. Thank you.
Senator Tkachuk: Didn’t we start on Bill C-91 already?
The Chair: We are calling the question. Thank you.
Clerk?
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: For.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: For.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: For.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Against.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: For.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: For.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: For.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: For.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Opposed.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: For.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Nay.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: For.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Against.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Against.
Ms. Aubé: Yes, 9; no, 5.
The Chair: Thank you. We will now proceed to clause-by-clause consideration of Bill C-262.
Before we do so, I would like to advise members that we have officials from the Department of Justice Canada at the table to help answer questions, technical or otherwise, if need be as we go through the bill.
I also remind senators of a number of points regarding the process last week. If at any point a senator is not clear where we are in the process, please ask for clarification. I want to ensure at all times we have the same understanding of where we are in the process.
Are there any amendments from the Conservative senators for Bill C-262? Have they been handed over to the clerk?
Senator Tannas: Yes, we have a number of amendments. We will present them as we go.
Senator Tkachuk: Could I have a copy of the bill, please?
The Chair: We will begin.
Senator Tkachuk: No, we will wait until the bill is in our hands. If we are going to clause by clause, we should all have a copy of the bill.
Senator Sinclair: There is the usual motion that you hear with regard to the bills, Madam Chair.
Do you have a copy of the bill, senator?
Senator Tkachuk: I do now.
The Chair: Shall the title stand postponed?
Some Hon. Senators: Agreed.
Senator Tkachuk: Can we have a recorded vote, please.
The Chair: Yes.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Agreed.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Agreed.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Agreed.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Agreed.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Agreed.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Agreed.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Agreed.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Agreed.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Nay.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Agreed.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 5.
The Chair: Motion carried.
Shall the preamble stand postponed?
Some Hon. Senators: Agreed.
Senator Tkachuk: No. Could we have a recorded vote, please?
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Agreed.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Agreed.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Agreed.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Agreed.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Agreed.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Agreed.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Agreed.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Agreed.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yeas, 9; nays, 5.
The Chair: Motion carried.
Shall clause 1, which contains the short title, stand postponed?
Some Hon. Senators: Agreed.
Senator Tkachuk: No. A recorded vote, please.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Agreed.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Agreed.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Agreed.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Agreed.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Agreed.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Agreed.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Agreed.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Agreed.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Because of the strange situation that we are in, chair, I move the adjournment of this meeting.
The Chair: We can vote on that motion.
Senator Tkachuk: I would like a recorded vote, chair.
The Chair: Yes, but we finish this first.
Ms. Aubé: Yeas, 9; nays, 5.
The Chair: Motion carried.
We have a motion to adjourn, with a recorded vote, I believe.
Senator Tkachuk: Yes, I have requested a recorded vote.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Senator Sinclair: Senator Eaton would like to change her vote.
Senator Eaton: I’d like to say “yes.” I’m sorry. “Yes,” please.
The Chair: We will allow that.
Senator Patterson: There is a little civility left here today.
Senator Tkachuk: Not much.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yeas, 5; nays, 9.
The Chair: Accordingly, the motion is defeated.
Shall clause 3 carry?
Senator Sinclair: Did we deal with clause 2?
The Chair: Sorry, I skipped ahead.
Shall clause 2 carry?
Some Hon. Senators: Agreed.
Senator Tkachuk: No.
Senator Patterson: I would like to move an amendment to clause 2, on page 2. I have a copy in English and French. It should have been circulated yesterday, Madam Chair; it should have been sent to Ms. Aubé yesterday.
The Chair: They were told not to circulate them. They are just verifying that what you are distributing is what you submitted yesterday.
Please go ahead.
Senator Patterson: I move:
That Bill C-262 be amended in the clause 2, on page 2,
(a) by replacing line 22 with the following:
“construed so as to
(a) expand, diminish or extinguish existing and aborig-”; and
(b) by replacing line 25 with the following:
“stitution Act, 1982; or
(b) create any new rights in relation to or in addition to the rights that are recognized and affirmed in section 35 of the Constitution Act, 1982.”.
The Chair: Senator Patterson, may we share a copy with the Department of Justice officials?
Senator Patterson: It’s public now, so sure.
The Chair: Please give an explanation.
Senator Patterson: Chair, I must say that I’m disappointed we are rushing ahead with consideration of this bill without many important questions having been clearly answered.
This amendment deals with the potential and perhaps unintended consequences for our Constitution flowing from imprecise language, and imprecise language translates to litigation risk. I fear that unless attention is paid to the language flaws in this bill, which was not drafted with the assistance of the usual Justice Department lawyers, I would expect, it being a private member’s bill — as the bill makes clear in clause 2, nothing in the adoption of the bill by Parliament will result in diminishing or extinguishing any of the current Aboriginal constitutional rights as provided for in section 35 of the Constitutional Act, 1982.
We have no objection to this provision. They were called “existing rights” by the drafters of the Constitution Act, and we have no objection to this provision, therefore. But, equally, there should be a provision that the passage of this bill will also not have the effect of increasing or expanding such rights.
In this respect, several submissions made to this committee have referenced the potential unintended consequences of Bill C-262. Professor Dwight Newman has referenced:
. . . the highly unpredictable effects of the Bill, particularly in light of s. 3, which states that UNDRIP “is hereby affirmed as a universal international human rights instrument with application in Canadian law”. While similar language would exist in preambles, I could not find any precedent for such language in the operative sections of any past statute, as it would be in s. 3 of Bill C-262.
Professor Newman further stated:
. . . Bill C-262 had wide-ranging effects that made even its sparse statutory provisions analogous to an omnibus bill and worthy of study by multiple committees whose mandates could be affected. All of those points are detailed further in that submission to the House of Commons Committee, and I would refer you back to those in addition to the further points I will make now.
Professor Newman specifically recommended that a greater certainty clause, such as the one proposed here, be added to the bill to address the potential challenges.
Justice John Major has filed a brief with the committee in which he notes that he agrees with Professor Newman’s concerns. This is a retired Supreme Court judge who agrees with those concerns.
So on the one hand — and this is typical of controversial clauses in the bill, Madam Chair — we have very strong concerns referenced by eminent legal scholars. On the other hand, the protections for Indigenous rights are already strong in the Canadian Constitution, specifically as recognized in section 35. This constitutional protection has been bolstered by a series of decisions by the Supreme Court of Canada and many of those decisions — it has been noted and research has shown — are, in fact, in favour of Aboriginal litigants. So that jurisprudence has not been one-sided as some witnesses suggest.
The Chair: Senator Sinclair?
Senator Sinclair: The senator is not done yet. I just want to be next on the speaking list.
Senator Patterson: Thank you, Madam Chair.
Thomas Isaac and Arend J.A. Hoekstra have written:
Indigenous rights are not new in Canada: through s. 35 and the general protections for human rights set out in the Canadian Charter of Rights and Freedoms, Canada has developed one of the world’s most sophisticated legal regimes for protecting Aboriginal and treaty rights, including in its constraint of unilateral state action. This has been accomplished in large part through the effective efforts of Indigenous peoples themselves litigating in Canada’s courts. With a focus on reconciliation, the SCC [Supreme Court of Canbada] has regularly constrained the exercise of Parliamentary authority for the purpose of protecting Indigenous rights (as seen in the SCC’s 2017 Peel River Watershed decision), while also allowing for necessary and unavoidable infringement of Indigenous interests where such interests conflict with broader, substantial social interests. . . .
In introducing Bill C-262 to a second reading, Mr. Saganash said that the Bill promises “to at least provide the basis or framework for reconciliation in our country,” suggesting a new approach to Indigenous rights focused on reconciliation. Yet, reconciliation between Canada and its Indigenous peoples has been a constitutional principle in Canada for more than two decades.
The Chair: Senator Patterson, I hate to interrupt you, but could you wind up soon? You seem to be be —
Senator Tkachuk: He can be as long as he wants, chair.
The Chair: Yes, it’s an important clause, but I think you have covered most of the points. You are going through each person’s testimony.
Senator Tkachuk: You can’t do that, chair.
The Chair: I’m just suggesting —
Senator Tkachuk: He has a right to speak as —
The Chair: Senator Tkachuk, I am speaking to Senator Patterson.
Senator Tkachuk: I’m just pointing it out.
She should show some respect for the person who is talking.
The Chair: Senator Patterson, continue.
Senator Patterson: I was in the middle of a quote, Madam Chair, from Thomas Isaac and Arend Hoekstra. I was quoting:
. . . Mr. Saganash said that the Bill promises “to at least provide the basis or framework for reconciliation in our country,” suggesting a new approach to Indigenous rights focused on reconciliation. Yet, reconciliation between Canada and its Indigenous peoples has been a constitutional principle in Canada for more than two decades. In 1996, SCC Chief Justice Lamer said s. 35 “provide[s] the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown.” Significant progress on the road to reconciliation has been made in Canada in recent decades, and will continue through the pursuit of honest dialogue, transparency of process, and shared expectations.
Given this reality for legislative and constitutional certainty, the amendment I’m proposing acknowledges that we are not seeking to upset the recent history of jurisprudence in Canada.
In that connection, Madam Chair, I would like to draw committee members’ attention to the important testimony we heard from Professor Borrows and Professor Nichols in one of the first meetings we had on Bill C-262. Those witnesses basically suggested that through Bill C-262, we were moving to an area where Indigenous rights in Canada would be guided by, developed and seen through the lens of international law. The witnesses suggested that this would, over time, supplant 150 years of jurisprudence. That’s the point I’m getting at in this amendment, that we have our own —
The Chair: Senator Sinclair, excuse me.
Senator Sinclair: He has spoken a great deal now and I think he is just running out the clock, so I will call the question.
The Chair: The question?
Senator Sinclair: On the amendment.
Senator Tkachuk: He has a right to speak as long as he wants.
Senator Sinclair: I call the question.
Senator Tkachuk: He has the right to speak.
This is not right, Madam Chair.
Senator Sinclair: I have the right to call the question.
Senator Tkachuk: He has a right to speak.
Are you shutting down his right to speak, Senator Sinclair?
Senator Sinclair: I call the question.
The Chair: He has called the the question. Recorded vote?
Senator Patterson: Point of order, Madam Chair. I would like ask Senator Sinclair to withdraw the motive he has imputed to me of running out of clock.
Senator Sinclair: Really? I don’t think so; I call the question.
The Chair: Do you wish a recorded vote?
Senator Tkachuk: It’s a point of order, chair.
The Chair: It’s within the rules that he can call the question.
Senator Tkachuk: It is in the rules that he gets to speak. We all get to speak, so cut that out.
The Chair: It’s a valid motion.
Senator Patterson: I haven’t finished speaking.
The Chair: The motion is in order. We are ready for the question.
Senator Tkachuk: The motion is not in order if none of us have been allowed to speak, Madam Chair.
The Chair: I consulted with the clerk. The motion in order. Correct?
Senator Tkachuk: The motion is not in order. I challenge the chair.
The Chair: Yes, it’s in order. We checked with the clerks.
Senator Tkachuk: I want a recorded vote on this, Madam Chair.
The Chair: Yes, definitely. We will have a recorded vote. Let’s make sure we know what the motion is.
Senator Tkachuk: The motion is that I’m challenging the chair. If you agree with the chair, it’s “yes.”
The Chair: The motion is to call the question on the amendment.
All those in favour of the amendment —
Senator Patterson: I haven’t finished speaking to the amendment, Madam Chair.
The Chair: He has called the question on the amendment.
Senator Tkachuk: I haven’t had a chance to speak on the amendment.
I think we should leave this meeting.
The Chair: Clerk, call those in favour of the motion. The question is on the floor.
Senator Tkachuk: You can’t do this, chair.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: I’m sorry; I’m confused. What is the motion?
The Chair: It’s on the amendment.
Senator Tkachuk: There was no recorded vote on the challenge to the chair.
The Chair: We’re dealing with the motion on the amendment.
Senator Tkachuk: You mean you can’t challenge the chair and there is no recorded vote?
The Chair: We’re dealing with the amendment. Keep reading out the —
Senator Tkachuk: No, you can’t. There was a challenge to the chair.
The Chair: Yes, you can. Go ahead.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: I’m sorry; I can’t vote. I have always understood that in the Senate — and I’ve been here 10 years — as long as somebody wants to speak on something, they are allowed to do so. Now, he might not be allowed to —
Senator Tkachuk: You may not like it, but he has a right to speak.
Senator Eaton: Yes. But the question is called all the time, and if somebody else wants to enter the debate, they are allowed to debate and to speak. Maybe the rules are different in committee than they are in the chamber, but in the chamber, you can debate something as long as you want.
Senator McPhedran: People are often cut off —
Senator Eaton: Yes, because of time.
The Chair: Senator Sinclair and then Senator Tkachuk.
Senator Sinclair: May I suggest —
Senator Tkachuk: There was a challenge to your ruling and that vote has not yet been done. Finish that vote first and then we’ll get to the rest.
Senator Sinclair: Despite his tone of voice, Senator Tkachuk has a point. He did challenge the chair. I think we should vote on his challenge to the chair.
Senator Tkachuk: Thank you, Senator Sinclair.
Senator Sinclair: Let’s deal first with the challenge to the chair’s decision.
The Chair: The clerk is consulting.
Senator Tkachuk: You can’t cut it off. The right to speak is a fundamental right.
This is unprecedented, chair. You are setting a precedent that has not taken place before. Committee members are —
The Chair: It hasn’t yet.
Senator Tkachuk: You’re setting it. You’re setting something extremely dangerous. I’m telling you that right now. If members here cannot speak, then that is a dangerous thing you’re doing.
Senator Lovelace Nicholas: You’re doing all the speaking.
Senator Tkachuk: You have a right to speak too.
Senator Lovelace Nicholas: Then you complain I’m interrupting all the time.
Senator Tkachuk: He was cut off.
The Chair: The question is: Shall the decision of the chair be sustained? That’s what we’re going to vote on.
Senator Tkachuk: To the motion?
The Chair: This is the motion: Shall the decision of the chair be sustained?
Senator Tkachuk: She made a decision to proceed. I challenged it.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Senator Sinclair: The motion is that the ruling of the chair should be sustained.
The Chair: Shall the decision of the chair be sustained? The question has been called.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
I move the adjournment of the committee.
Ms. Aubé: Yes, 9; no, 6.
Senator Tkachuk: I move the adjournment of the committee.
The Chair: We had another motion.
Senator Tkachuk: We don’t have another motion. We just finished one. What is the other motion?
The Chair: He called the question on clause 2.
Senator Tkachuk: We haven’t had a right to speak, chair. You can’t call the question when we don’t have a right to speak.
The Chair: You have been speaking for 20 minutes.
Senator Tkachuk: I have not spoken. Senator Patterson hasn’t finished speaking. Senator Sinclair is on the speaking list and he hasn’t spoken.
The Chair: To call the question is, as I understand, a legitimate motion. The question has been called.
Senator Tkachuk: This is appalling.
The Chair: It’s a legitimate motion, correct?
Ms. Aubé: Yes.
The Chair: Do the roll call.
Senator Patterson: Curtailing freedom of speech is a legitimate motion?
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Patterson: I’d like to finish speaking to the motion, chair. I was almost done.
The Chair: The question has been called.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yes, 6; no, 9.
The Chair: Accordingly, the motion is defeated.
Senator Tkachuk: Madam Chair, I’d like to raise a question of privilege.
The Chair: Yes.
Senator Tkachuk: I hear members saying they have a right to vote. The right to vote is predicated on the right to speak and the right of free speech.
Senator Patterson had not yet finished his speech on an important amendment that he was making to this bill. We have not been given a right to speak. Senator Sinclair was on the speaker’s list. He was not given a right to speak. Now, he may not have complained because he wanted to see this happen and called for the vote. Nonetheless —
The Chair: I’ve been informed that a question of privilege is not appropriate at this committee. You can raise it in the chamber.
Senator Tkachuk: There are a lot of things not appropriate in this committee, and I’m going to raise this question in the Senate. This meeting is not a regularly constituted meeting if you don’t allow members to speak.
The Chair: What is your point of order, please?
Senator Tkachuk: I’ve already raised that point of order. Now I’m raising the question of privilege that we all have a right to speak in committee. You cannot take that right away. This has never happened before.
The Chair: I’m sorry to interrupt you, Senator Tkachuk, but the question was called and it is perfectly within the rules of the committee to do so. So we shall proceed —
Senator Sinclair: Can we deal with clause 2?
Senator Tkachuk: Why are we even dealing with this?
The Chair: Shall clause 2 carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
An Hon. Senator: We have an amendment.
The Chair: The amendment, we did that already.
Do you have another amendment to clause 2? No?
Shall clause 2 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Patterson: You asked if there is another amendment and I put up my hand.
The Chair: You have another amendment to clause 2?
Senator Patterson: Yes, that’s what I said.
The Chair: Can we see the amendment? Will you distribute your amendment?
Senator Tkachuk: Give him time. He’ll distribute it.
The Chair: Sorry. We have a right to see the amendment.
Senator Tkachuk: Actually, you don’t.
The Chair: We don’t have a right to see the amendment?
Senator Tkachuk: He can just move it. He has a right to move that amendment.
The Chair: Please proceed to read your amendment into the record, Senator Patterson.
Senator Patterson: Oh, you’re allowing me to speak, Madam Chair?
The Chair: Yes, now that you’ve given us a copy of your amendment.
Senator Patterson: Well, I was cut off by you in the last amendment I had to move, so I’m hesitant to start again for fear I’ll be cut off.
The Chair: I didn’t cut you off during the amendment. It was only during the debate. It wasn’t me; it was the committee as a whole.
Senator Tkachuk: You’re the chair. Are we going to be given the right to speak?
The Chair: Please proceed with your amendment.
Senator Tkachuk: Are we going to be given the right to speak?
The Chair: You have the right to speak. You’re speaking right now. Within the bounds of respect —
Senator Tkachuk: I’m asking you a question. Are we going to be given the right to speak?
The Chair: I answered your question.
Senator Patterson, would you please move your amendment?
Senator Patterson: I move:
That Bill C-262 be amended in clause 2, on page 2, by adding the following after line 25:
“(1.1) For greater certainty, nothing in the Schedule to this Act, and in particular, nothing in article 32 of the Annex to the Schedule, is to be construed so as to expand the interpretation and application of section 35 of the Constitution Act, 1982.”.
Senator Sinclair: Question.
The Chair: Explanation?
Senator Patterson: Am I going to be able to speak to the amendment, Madam Chair? I was cut off the last time I tried to speak to the amendment. I think that I was speaking to the amendment and not ragging the puck, as was alleged.
I’m the critic on this bill. You will know, Madam Chair, as we’ve served on this committee for some time, that there is some latitude given to sponsors and critics of bills to —
The Chair: Let me interrupt you. You had about 20 minutes on the last one. This is an amendment to the same clause. Senator Sinclair has called the question, but if you could keep your comments short, please proceed.
Senator Patterson: Senator Sinclair, do you want me not to speak to the amendment?
Senator Sinclair: You can speak to the amendment.
Senator Tkachuk: None of us can speak.
Senator Patterson: Thank you. I appreciate that, Madam Chair.
There is a long history in this committee —
The Chair: If you could speak to the amendment, please.
Senator Tkachuk: He can speak to whatever he wants, chair.
The Chair: I would appreciate it if you didn’t interrupt, Senator Tkachuk.
Senator Tkachuk: Don’t tell us what to say.
The Chair: I would appreciate it if you didn’t do the same.
Senator Patterson, you have the floor.
Senator Patterson: Madam Chair, subclause 2(1) currently reads:
For greater certainty, nothing in this Act is to be construed so as to diminish or extinguish existing aboriginal or treaty rights of the Aboriginal peoples of Canada that are recognized and affirmed in section 35 of the Constitution Act, 1982.
That’s fine, but there is a need to manage expectations of what will happen if this bill comes into law. I say this respectfully. I know there’s strong support for this bill. It’s seen as symbolic of the path to reconciliation. I’m certainly not against the path to reconciliation. I think we have to make sure, however, when we embark on that path, that we are not creating other obstacles, barriers, risks, uncertainties and the potential for litigation and challenges that have bedeviled this country in recent times.
Based on emails, calls, social media posts and more — and I will quote from some of these public utterances — there seems to be a wide public expectation that this bill becoming law will “advance human rights and justice”; “safeguard that Indigenous people are afforded the rights they deserve”; “provide Indigenous people with basic human rights”; “finally recognize Indigenous rights and more.” But Canada officially recognized Indigenous rights in 1982 when section 35 was entrenched into the Canadian Constitution. Since inclusion of section 35 rights, Canada has been defining what those rights mean within the Canadian context, and we’ve done this ourselves in Canada.
Principles relating to Indigenous rights have been subject to judicial interpretation for many years. A “greater certainty” clause, as I’m proposing here, will ensure that it is clear to everyone that this bill coming into law will not upset the recent history of jurisprudence in Canada. The amendment guarantees that nothing in this bill alters existing constitutional rights, duties or obligations.
Thank you.
Senator Sinclair: Question.
The Chair: The question has been called.
Senator Tkachuk: I’d like to speak.
The Chair: The question has been called, Senator Tkachuk.
Senator Tkachuk: You mean I can’t speak? I’m going to speak. I’d like to talk about and bring into the record a letter from the Premier of Alberta on Bill C-262.
The Chair: The question has been called, Senator Tkachuk. I’m sorry.
Senator Tkachuk: The letter is to the Right Honourable Justin Trudeau, P.C., MP, the Prime Minister of Canada.
Senator McPhedran: Point of order. Could Senator Tkachuk be asked to leave the room, please?
Senator Sinclair: Could we hold the vote, please?
Senator Tkachuk: “Dear Prime Minister: I am writing” —
Senator Sinclair: Could we call the question, please?
Senator Tkachuk: — “with respect to Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples which, at the time of the writing” —
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Tkachuk: — “was in second reading in the Senate. The Government of Alberta is committed to a path of reconciliation and shared prosperity with Indigenous peoples” —
Senator McPhedran: Senator Tkachuk, point of order, please. You’re obstructing the meeting.
Could I ask that Senator Tkachuk —
Senator Tkachuk: You know what, Senator McPhedran, my grandparents came here so I could speak.
Senator McPhedran: They didn’t come here so you could abuse the rules of this place.
Senator Tkachuk: I’m not abusing the rules; you’re abusing the rules.
Senator McPhedran: You are. You’re obstructing the chair.
Senator Tkachuk: Madam Chair, you have a responsibility to have us all speak. What are we doing here?
The Chair: The question has been called.
Senator Tkachuk: What kind of precedent are we setting?
The Chair: We’re trying to vote on this amendment; that’s what we’re trying to do.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Tkachuk: — “within the boundaries of the principle of law and the Canadian Constitution.”
The Chair: Recorded vote, please.
Senator Tkachuk: “That said, there are many serious questions and concerns about how Bill C-262 would be enacted within the context of the Canadian Constitution” —
The Chair: Could you turn his microphone off?
Senator Tkachuk: — “and what enacting would do to the federal government, the province and the relationships with Indigenous communities. Some of those unanswered questions involve potentially sweeping and far-reaching effects on Canadian law and the very nature of our national political and constitutional system. I am very concerned that, to date” —
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Show of hands, please. Could we have a show of hands if you’re in favour of the amendment?I see no show of hands.
Those against the amendment?
I believe “nays” have it. The motion is defeated.
Senator Tkachuk: Could we have a recorded vote?
The Chair: Yes.
Senator Christmas: I have a motion, Madam Chair. I’d like to move to limit debate to five minutes per amendment. I understand that the committee is the master of its own agenda and how we proceed with that agenda.
The Chair: We have a motion on the floor.
Senator Tkachuk: Could I finish speaking to the previous motion?
The Chair: Are senators ready for the question?
Those in favour of the motion, please raise your hands.
Those opposed to the motion?
Senator Tkachuk: Could we have a recorded vote?
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: For.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: For.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: For.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: Accordingly, the motion is carried.
So we were —
Senator Sinclair: Are you recording a vote on the amendment?
The Chair: We’re calling for a vote on amendment DP-2.2b.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Ms. Aubé: Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yes, 6; no, 9.
The Chair: The amendment is defeated.
Shall clause 2 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Tkachuk: Can we have a recorded vote?
The Chair: Yes.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: I’m sorry, what was the motion again? Clause 2?
No.
Senator Tkachuk: Could you read clause 2, please?
Senator Sinclair: It’s before you in the bill.
Senator Tkachuk: Could you read clause 2, please?
The Chair: It’s before you in the bill.
Senator Tkachuk: Could you read clause 2, please?
The Chair: No.
Senator Tkachuk: My goodness.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Senator Patterson: I guess I meant to say “no.”
Senator Sinclair: You confused me. We could have just switched votes.
Senator Tkachuk: He almost went with you.
Senator Sinclair: You almost had me there for a second.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
The Chair: We have your voted recorded correctly.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Senator Patterson: May my vote be recorded as a “no,” please? Please make me laugh today.
Ms. Aubé: Yes, 9; no, 6.
The Chair: Accordingly, clause 2 has been carried.
Moving on to clause 3. Shall clause 3 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Patterson: I have an amendment, Madam Chair.
The Chair: Can you distribute the amendment, please?
Senator Patterson: It has been given to the clerk.
Can I ask for clarification, Madam Chair? The closure motion adopted by the committee, does that give me only five minutes to speak to my amendment?
The Chair: In total. The debate in total is five minutes.
Senator Patterson: But every committee member can speak for five minutes?
Senator Christmas: It’s five minutes per amendment.
Senator Patterson: So 12 committee members —
The Chair: No. Five minutes per amendment.
Senator Patterson: Three hundred seconds is 20 seconds per person if we all speak?
Senator Tkachuk: This is absurd.
Senator Eaton: This is schoolyard bullying.
The Chair: Would you read your motion into the record, please, Senator Patterson?
Senator Patterson: My motion is on clause 3, page 3. Does reading the amendment count as part of my 300 seconds?
Senator Tkachuk: I don’t think we should pay attention. Why don’t we go about our business.
Senator Patterson: I move:
That Bill C-262 be amended in clause 3, on page 3, by replacing lines 6 and 7 with the following:
“tional human rights instrument.”.
Clause 3 currently reads:
The United Nations Declaration on the Rights of Indigenous Peoples that was adopted by the General Assembly of the United Nations as General Assembly Resolution 61/295 on September 13, 2007, and that is set out in the schedule, is hereby affirmed as a universal international human rights instrument with application in Canadian law.
Madam Chair, the rationale for this is that the use of the words “with application in Canadian law” has no precedent in the operative sections of any past statutes. This is a confusing and poorly worded example of legislative drafting.
In order for an international instrument such as the United Nations Declaration on the Rights of Indigenous Peoples to become part of Canadian domestic law, the legislation attempting to do so must be clear. The words “with application in Canadian law” indicate an indication to perhaps implement the United Nations Declaration on the Rights of Indigenous Peoples in the future rather than immediately. Therefore, the current wording is ambiguous and vague.
In this case, given the uncertainty surrounding the implication of this bill, it is important that it be clear that it does not take immediate effect in Canadian domestic law. To do that, the current legislative wording is “approved.” This was and is the wording in the NAFTA implementation legislation, as it is also intended to take full force in Canadian domestic law but gradually and over time.
It is the same in this case, as the bill goes on to require the implementation of a plan to carry it out. In fact, the bill contemplates annual reports to Parliament up until the year 2037.
Therefore, if the bill requires this plan to be developed, then until it is developed the bill cannot immediately become law. The plan is required first.
This was one of the basic arguments made by Justice Major when he appeared before the committee. He stated:
The primary difficulty is that section 3 of Bill C-262 uses novel language. Others, such as Professor Newman, have noted that the phrase UNDRIP “... is hereby affirmed as a universal international human rights instrument with application in Canadian law” has no precedent in the operative sections of any past statutes. I too have found no precedent in federal or provincial legislation for that wording. A court, faced with this novel wording would have to consider afresh what that phrase means.
International instruments are not a part of Canadian law unless they have been implemented through statute.
The Chair: You have thirty seconds left.
Senator Patterson: You’re cutting me off, Madam Chair.
The Chair: I’m telling you that you have 30 seconds.
Senator Patterson: I prepared my remarks carefully. I expected I would have an opportunity to at least present them in the consideration of this important bill. I strongly object to not being allowed to complete my remarks. I think it’s undemocratic and unfair and unbalanced.
The Chair: Five seconds left.
Senator Patterson: In doing so, the statute must make its intent to implement sufficiently clear —
The Chair: Five minutes. The question is called.
Senator Patterson: It is not clear to me —
The Chair: The question has been called.
Senator Eaton: They’re going to vote the way they’re going to vote. They are not interested in the debate.
Senator Sinclair: Question.
Senator Patterson: Your point, Senator Sinclair?
Senator Tkachuk: He doesn’t care.
Ms. Aubé: The Honourable Senator Dyck?
The Chair: No.
Senator Tkachuk: It’s all self-interest stuff. This has nothing to do with anything.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes, I support the amendment.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Tkachuk: Continue speaking.
Senator Patterson: I would like to finish. I’d like to defend my amendment. If I’m being forced to vote, yes, I support the amendment, but I would appreciate the opportunity for a balanced discussion of the pros and cons.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes, I support the amendment. I wish I could speak to it.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
I would like to raise an objection to the fact that neither was Senator Patterson given a right to speak but no other members on our side have been given the right to participate in the debate on an amendment moved by Senator Patterson. I would like to have that put that into the record. I think we would all like that to be put into the record.
The Chair: It is in the record, and as I said, the motion that was passed is in order.
Ms. Aubé: Yes, 6; no, 9.
The Chair: The amendment is defeated.
Shall clause 3 carry?
Some Hon. Senators: Agreed.
Senator Tkachuk: No.
The Chair: Recorded vote.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Could you tell me what the motion is, please?
The Chair: Shall clause 3 carry?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
I’d like to raise, for the record, an objection to the fact that members on our side were not allowed to speak. Senator Patterson was not allowed to finish his remarks on his amendment.
This is a procedure that is wholly not in keeping with the Rules of the Senate and the rules of the committee. You can pass any motion you want, and what is the point —
The Chair: Read out the results, Ms. Aubé.
Ms. Aubé: Yes, 9; no, 6.
The Chair: The amendment is defeated. Sorry. The clause is adopted. Clause 3 has been carried.
Shall clause 4 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
The Chair: Recorded vote.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Senator Patterson: Excuse me. I have an amendment, Madam Chair, or am I not allowed to make any amendments?
The Chair: Pass out your amendment. I called the question and you didn’t respond quickly.
Senator Patterson: You asked the question, and I said “no.” I was waiting to be recognized. You know I’m the critic of the bill and you know we have a package of amendments.
The Chair: Please hand out your amendment. We didn’t know you had an amendment.
Do we have permission to circulate your amendment?
Senator Patterson: Yes.
The Chair: In the meantime, could you read into the record what your amendment is?
Senator Tkachuk: Could you read the main motion again?
The Chair: He is proposing an amendment, and we are asking him to read it into the record.
Senator Tkachuk: Why don’t we read the main motion and then he can make the amendment to that motion.
The Chair: It’s his motion.
Senator Tkachuk: Read the whole main motion and then make the amendment.
Senator Patterson: Clause 4 reads:
The Government of Canada, in consultation and cooperation with indigenous peoples in Canada, must take all measures necessary to ensure that the laws of Canada are consistent with the United Nations Declaration on the Rights of Indigenous Peoples.
I move:
That Bill C-262 be amended in the clause 4, on page 3, by replacing lines 9 and 10 with the following:
“eration with Indigenous peoples in Canada, and the governments of the provinces, must take all reasonable measures to ensure that the laws of Canada are”.
That’s the amendment, Madam Chair.
The Chair: Explanation?
Senator Patterson: Adding the words “and the governments of the provinces” after the word “Canada” in line 9 on page 3 of the bill.
Due to the possible but inadvertent amendment of section 35 of the Constitution Act, 1982, by the passage of this bill, before any measures can be taken by the federal government under its obligation under section 3, it is necessary to expressly provide that the governments of the provinces also be involved.
It has been acknowledged by witnesses that the provinces are engaged by this bill. Senator Sinclair stated the following when he appeared before the committee as a witness:
. . . this particular UN declaration has implications for all levels of government. It has implications for the federal government, provincial governments, municipal governments and Indigenous governments. In each case, each of those entities is going to have to consider the extent to which it will make changes within its legal regime to be compliant with the principles that are enunciated in the declaration.
It is a major oversight not to engage the provinces, given the areas of provincial jurisdiction that might be implicated as well as areas of shared jurisdiction. Steering committee members will know that I suggested that we hear from provincial witnesses. That was rejected by steering in the rush to consider this bill.
Under the constitutional amending formula, any formal amendment of section 35 requires the consent of at least seven provinces constituting 50 per cent the population of Canada. Therefore, the provinces are essential participants in the development of any measures by the federal government resulting from the passage of this bill as currently drafted. I believe this amendment covers that circumstance.
Premier Kenney in his letter to Prime Minister Trudeau, copied to all leaders in the Senate, stated:
While we recognize that Indigenous communities fall within the purview of the federal government, many of the potential legal and policy implications of Bill C-262 will affect areas of exclusive provincial jurisdiction. I would urge you to consider those implications, as attempts to carve out political powers that are constitutionally assigned to the provinces will fail in court, further frustrating the constructive path towards real reconciliation and shared prosperity that Alberta is pursuing.
The amendment adds the words “take all reasonable measures” in place of the words “take all measures necessary,” which far too broadly compels the federal government to take any and all measures to ensure that the laws of Canada are consistent in all aspects of the declaration. The words “take all reasonable measures” need to be added. Otherwise, the federal government could be compelled at law to take measures that could be economically irresponsible and unfeasible.
This is an important limitation in every component of federal law and also incorporates the concept of reciprocal responsibility. The words “take all reasonable measures” allow the federal government to take what it considers are sensible steps but not unreasonable ones. I believe this corresponds with Canadian legal jurisprudence.
In its ruling in Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource Operations), the Supreme Court found in that case that:
. . . the Crown met its obligation to consult and accommodate. Section 35 guarantees a process, not a particular result. There is no guarantee that, in the end, the specific accommodation sought will be warranted or possible. Section 35 does not give unsatisfied claimants a veto. Where adequate consultation has occurred, a development may proceed without consent.
I think it is instructive that in this case the court used the terms “veto” and “consent” interchangeably. It is jurisprudence that we should want to preserve. Therefore, I believe this amendment to add the words —
Senator Christmas: Five minutes, Madam Chair.
Senator Tkachuk: Chair, has the clerk been keeping the clock?
The Chair: Yes.
Senator Tkachuk: Was it five minutes, madam clerk?
The Chair: Yes.
Senator Tkachuk: We have the officials here. I wonder if the officials could explain the clause and the amendment and what it means.
You can’t have it both ways. You asked the officials to come here. I’m asking that the officials explain the amendment and explain what it means to the actual clause in the bill. So I am asking them the question, and I am wondering if they can comment on them.
The Chair: The question has been called, Senator Tkachuk.
Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Tkachuk: Why are they here? Are they here for your convenience or for the committee’s convenience?
The Chair: We’ll do a recorded vote, please.
Senator Patterson: Madam Chair, may I finish my remarks?
Senator Tkachuk: Madam Chair, the officials were called here to help us.
The Chair: I know that they were called here, but the question has been called.
Senator Tkachuk: So I’m asking them to explain the amendment and the clause to us.
The Chair: Let us proceed to the recorded vote.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yes, 6; no, 9.
The Chair: Accordingly, the amendment has been defeated.
Senator Tannas: Chair, I move the adjournment of the meeting and ask for a recorded vote.
Senator Tkachuk: Recorded vote, please.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yes, 6; no, 9.
The Chair: Motion defeated.
Shall clause 4 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Tkachuk: I’m wondering if the officials comment on clause 4, please.
The Chair: The question has been called.
Senator Tkachuk: Could we have the officials comment on clause 4, please?
The Chair: No.
Senator Tkachuk: Why not? Why are they here, then?
Why don’t you all go home? Obviously the chair isn’t interested in what you have to say.
The Chair: Proceed with the vote, please.
Senator Tkachuk: I think they should all go home. Clear the room.
The Chair: Call the vote, please.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: Accordingly, clause 4 has carried.
Shall clause 5 carry?
Senator Patterson, do you have an amendment?
Senator Patterson: I have moved four amendments and have not been allowed to complete my remarks on any of the four. I’m going to try a fifth amendment. I’d be grateful for the opportunity to explain the amendment. Neither have my colleagues.
The Chair: Senator Patterson, can we share your amendment, please?
Senator Patterson: Yes.
Neither have my colleagues been allowed to speak to the amendment. I don’t think it reflects well on the committee.
The Chair: Could you move the amendment, please?
Senator Patterson: I move:
That Bill C-262 be amended, in clause 5, on page 3, by replacing lines 13 to 15 with the following:
“5 The Government of Canada may, in consultation and cooperation with Indigenous peoples and governments of the provinces, develop and implement a national action plan that sets out reasonable steps to achieve the objectives of”.
That’s my amendment.
The Chair: Explanation?
Senator Patterson: Replacing the word “must” with the word “may.” Given the very broad and vague nature of the obligations as the bill is currently drafted, it may impose an extremely onerous and unworkable obligation that is neither fiscally realistic nor pragmatic. To place a mandatory obligation on the Government of Canada to develop and implement a national action plan to implement these broad and open-ended obligations is not reasonable or even workable.
An amendment is therefore necessary to limit the application of the bill and its impact on Canadian law. I submit that the obligation in section 5 must be ultimately optional for the federal government, given these policy implications.
This is also necessary in light of the fact that this is a private member’s bill and there has not been the necessary detailed government study of all its implications.
As an aside, this constitutes, in my respectful opinion, an incredible abdication of responsibility by the federal government and, given the scope of this bill, is without precedent. I submit that if we replace “must” with “may,” the federal government will still be under a good faith obligation after consultation with Indigenous persons to work to develop such an action plan. However, I do not believe it should be under an inflexible legislative diktat to do so.
Adding the words “and the governments of the provinces,” this amendment also encompasses the matter of provincial consent. Due to the possible but inadvertent amendment of section 35 of the Constitution Act, 1982 by the passage of this bill, before any measures can be taken by the federal government under its obligation under section 3, it is necessary to expressly provide that the governments of the provinces also be involved. It is a major oversight not to engage the provinces, given areas of exclusive provincial jurisdiction that may be implicated, as well as areas of shared jurisdiction. Under the constitutional amending formula, any formal amendment of section 35 requires the consent of at least seven provinces constituting 50 per cent of the population of Canada. Therefore, the provinces are essential participants in the development of any measures by the federal government resulting from the passage of this bill as currently drafted. I believe this amendment covers that circumstance.
Alberta Premier Jason Kenney expressed his “serious questions and concerns about how Bill C-262 would be enacted within the context of the Canadian Constitution and what enacting would do to the federal government, the province and relationships with Indigenous communities.” We are clearly risking unintended but very possible consequences in the bill as drafted to incorporate a de facto change to the Constitution as a result of a judicial decision. I submit that the Constitution Act can only be formally and properly amended after receiving the required level of provincial consent. This amendment guarantees provincial participation in this process to avoid this indirect effect.
I propose adding the word “reasonably” before the word “achieve” in line 15 of page 3 of the bill. This amendment adds the word “reasonably.” It allows for at least some necessary flexibility for the federal government on its obligation to ensure that all the laws of Canada are consistent with the international UN declaration in this case.
“Ensure” is simply too strong and inflexible an obligation, and expressly amending it to apply the reasonable test is consistent with the ongoing development and application of sound public policy. In essence, this is a reasonable legislative amendment to apply to the obligation required by that section.
And this is all a problem stemming from the use of the unprecedented words “with application in Canadian law.”
The Chair: Five minutes.
Senator Patterson: Once again I have been cut off, Madam Chair, and I must object that my freedom of speech has been curtailed. I don’t think it’s fair.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Tkachuk: I would like to move another motion, then.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Senator Tkachuk: We can’t move a motion?
The Chair: Not at the moment.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes, I support the amendment.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yes, 6; no, 9.
The Chair: The amendment is defeated.
Senator Tkachuk: I would like to move a motion that the officials be removed from the room.
Senator Sinclair: Question.
The Chair: The question has been called.
Senator Tkachuk: We have debate. I moved a motion; we have debate. The question can’t be called; we have not had debate.
The Chair: I have just been informed it’s a public meeting. We can’t remove people from the room.
Senator Tkachuk: I would like to challenge that. It doesn’t seem that the other rules apply, so why should this not apply? I think we have been asked — we cannot access the information from —
The Chair: Senator Tkachuk —
Senator Tkachuk: — the officials that you asked to come here to explain —
The Chair: Shall clause 5 carry?
Some Hon. Senators: Yes.
Senator Tkachuk: Are we talking about the motion?
The Chair: We are doing clause 5. Do you want a recorded vote? Shall clause 5 carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator Tkachuk: Record the vote.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Sorry, there is some confusion. What is the motion we are voting on?
The Chair: Shall clause 5 carry?
Senator Eaton: No.
Senator Tkachuk: Could you read the motion out?
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: Clause 5 has been carried.
Shall clause 6 carry?
Some Hon. Senators: Yes.
Senator Patterson: No.
The Chair: Show of hands. I believe the “yeas” have it.
Recorded vote, please.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: Clause 6 has been carried.
Senator Tkachuk: Chair, I would like to move a motion to extend the time that a senator has to speak from five minutes total on a motion to 20 minutes per senator.
The Chair: Question.
Senator Tkachuk: You can’t call the question; we have a debate here. We have a motion on the floor.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yes, 6; no, 9.
The Chair: The motion is defeated.
Shall the schedule carry?
Senator Patterson: Madam Chair —
The Chair: Shall the schedule carry?
Senator Tkachuk: We have amendments.
Senator Patterson: Madam Chair, I had my hand up.
The Chair: Yes.
Senator Patterson: I would like to move an amendment. It’s a new clause.
The Chair: Do we have your permission to hand it out?
Senator Patterson: Yes, this is a new clause 7 on page 3.
The Chair: Would you read it into the record, please?
Senator Patterson: I move:
That Bill C-262 be amended on page 3, by adding the following after line 24:
“7(1) This Act comes into force on a day to be fixed by order of the Governor in Council on recommendation of the Chief Justice of Canada in accordance with subsections (2) and (3).
(2) The Governor in Council, no later than five days after the day on which this Act receives royal assent, must refer to the Supreme Court, under section 53 of the Supreme Court Act, for its hearing and consideration, the question of whether the provisions of this Act, if they were all to come into force, would provide the Aboriginal peoples of Canada with the ability to permit or prohibit the development, utilization or exploitation of mineral, water or other resources.
(3) The Chief Justice may make no recommendation to the Governor in Council under subsection (1) unless he or she considers that the opinion of Supreme Court of Canada on the question referred to that Court in accordance with subsection (2) confirms that the provision of this Act, if they were all to come into force, would not provide the Aboriginal peoples of Canada with the ability to permit or prohibit the development, utilization or exploitation of mineral, water or other resources.”.
Colleagues, we have heard from multiple witnesses relating to the potential for far-reaching legal and constitutional implications of this legislation. In this regard, Professor Dwight Newman has noted:
Over the past fifteen years, the Canadian courts have developed a complex body of law on the duty to consult Indigenous communities whose rights could be affected by a government decision. That duty to consult doctrine has already led to some surprises that have had major implications for Canada, such as some of the pipeline-related decisions of the Federal Court of Appeal that have seen major projects’ certificates of approval quashed after businesses engaged in multi-year regulatory processes and spent hundreds of millions of dollars doing so. Various articles within UNDRIP reference an obligation by states to consult with Indigenous peoples “in order to obtain, for their free, prior, and informed consent.” If Bill C-262 has any effects of directly implementing UNDRIP, Parliament should be aware of what these words mean. However, they have shown themselves to be subject to multiple different interpretations in international law discourse such that any statutory adoption of them leaves it in the hands of the courts in what ways these words may alter the duty to consult doctrine, with whatever consequent effects there might be for relationships between Indigenous and non-Indigenous Canadians. Even were the Canadian government to express what it thinks the words mean, no such statement would bind the courts if they read the statute (and UNDRIP) differently. While Canada is certainly fortunate to have a judicial system of high quality, on the present text of Bill C-262 and the presence of many different interpretations possible for FPIC in the UNDRIP, the Court’s interpretation of FPIC is nonetheless subject to uncertainties that have enormous implications for Canada.
Similarly, a brief submitted to this committee by Edward H. Lipsett has stated:
I respectfully suggest that Bill C-262 not be enacted into law. The main reason is that the wording (particularly sections 3 and 4) are so vague that we don’t know the effects this bill will have on particular legal matters or on our entire legal system. Furthermore, there are provisions in the Declaration itself which could be problematic. In raising these objections, I wish to make this clear that I am not challenging the need for reconciliation with the Aboriginal peoples and to remedy the injustices they are suffering. However, progress towards these goals can be achieved through the application of section 35 of the Constitution Act 1982, repealing or amending legislation deemed inappropriate, negotiating and entering into new agreements, enacting new legislation enhancing the jurisdiction of particular First Nations, and improving services and financial resources available to Aboriginal communities. However, these ought to be done on a case by case basis, and any new agreements and legislation must be —
Senator Christmas: Five minutes.
Senator Patterson: I’m cut off again, Madam Chair.
Senator Tkachuk: I would like to raise a point of order.
Senator McInnis: Madam Chair, can I raise a point of order, please?
There are officials up here. I would like to have some questions answered with respect to the constitutionality of some of this stuff.
Look, someone is telling me that you can amend the Constitution without the consent of at least 50 per cent of the population or seven provinces. I would like to hear the officials answer that question because I’ve never heard of that.
We have constitutional change; there’s 1982. The provinces are at the table with the Prime Minister. Now, are we saying that we can change the Constitution here without the consent of the provinces, on a private member’s bill.
The Chair: The question has been called.
Senator McInnis: The question has been called.
Can I get an answer? I think it’s important.
The Chair: The question has been called.
Senator McInnis: You’re passing an imperfect bill.
Senator Tkachuk: May I raise a point of order? Madam Chair, I have a point of order.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Ms. Aubé: Honourable Senator Dyck?
Senator Dyck: No.
Senator Tkachuk: Madam Chair, you have to recognize a point of order. The practices of this committee have not been consistent. I’m raising a point of order, Madam Chair.
The Chair: The question has been called.
Senator Tkachuk: They have not been consistent with the rules and practices of the Senate.
The Chair: They have been.
Senator Tkachuk: No, they haven’t. In relation to the priority of government business —
The Chair: The question has been called.
Senator McPhedran: Question! Question!
Senator Tkachuk: Can I make my point, Madam, Chair, and then you can decide?
The Chair: Question.
Senator Tkachuk: You’re saying you’re going to refuse someone —
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Senator Tkachuk: Madam chair, this is beyond the pale.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: I’m confused again. We’re voting on the amendment?
Yes, I support the amendment.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: You know, if I had been allowed to explain my amendment, there might have been more support for it, but I was cut off for the sixth time, and I object. My vote is yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
I’d like to raise my point of order, Madam Chair, after this vote.
Ms. Aubé: Yes, 6; no, 9.
The Chair: The motion in amendment is defeated.
Senator Tkachuk: Could I raise my point of order, Madam Chair?
The Chair: You have raised that point of order several times.
Senator Tkachuk: No, I have not. I have tried to, but you have to listen to a point of order for me to make a point of order.
The Chair: Everything we have done is in —
Senator Tkachuk: Government business has priority, Madam Chair
This is my point of order: that the practices of this committee have not been consistent with the rules and procedures of the Senate in relation to the priority of government business, specifically rule 12-20(4) of the Rules of the Senate, which states:
No Senate committee shall adopt procedures inconsistent with the rules and practices of the Senate.
We’ve done that here a number of times.
The Rules of the Senate, at rule 3-5(1), state:
Any item of business under consideration at the ordinary time of adjournment shall be an order of the day for the next sitting.
Rule 4-13(1) states:
Except as otherwise provided, Government Business shall have priority over all other business before the Senate.
The only exceptions are rule 8-4(1), adjournment motion for emergency debate; rule 13-5(1), consideration of a question of privilege; rule 13-5(2), when a question of privilege without notice is considered; rule 13-6(2), debate on a motion of question of privilege.
So clearly, what this committee has done today is out of order with the Senate rules.
The Chair: I have been advised that the committee is the master of their own proceedings, and that is verified by the clerks. We also have a precedent with the Legal and Constitutional Affairs Committee, where Senator Boisvenu moved Bill C-337, the Rona Ambrose bill, and it was dealt with before government business, so therefore I rule against your point of order.
Senator Tkachuk: I challenge your point of order, Madam Chair. I would like to have a vote.
The Chair: Shall the decision of the chair be sustained?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Tkachuk: I’d like to have a recorded vote.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: The decision of the chair is sustained.
Shall the schedule carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Tannas: Chair, I have an amendment.
The Chair: Do we have permission to hand it out?
Senator Tannas: I’m going to read it into the record.
The Chair: Is it available in both languages?
Senator Tannas: I’ll read it in and they can make a copy and get it to you.
The Chair: Is it available in both languages?
Senator Tannas: No, it is not.
Senator Sinclair: Then it’s not appropriate to receive it.
Senator Tkachuk: It’s translated.
The Chair: We can’t consider a motion unless it’s in both languages. You can bring it up at third reading.
Senator Tkachuk: Any senator can move an amendment.
The Chair: The clerk advises me otherwise.
Senator Tkachuk: No.
The Chair: It’s not admissible.
Senator Tannas: That’s your ruling?
The Chair: Yes.
Senator Tannas: I challenge the decision of the chair.
The Chair: Shall the decision of the chair be sustained?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
The Chair: Roll call.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: The decision of the chair is sustained.
Shall the schedule carry?
Senator Tannas: I have an amendment.
The Chair: Call the vote.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Senator Tannas: Chair, I have an amendment.
Senator Sinclair: I did hear Senator Tannas say that he has an amendment to the schedule.
The Chair: Sorry, I missed it. Is it available in both languages?
Senator Tannas: It is. Yes, I have it here.
My amendment is as follows, adding the following to section 7:
“Free, prior and informed consent:
Free, prior and informed consent, as referenced in the schedule of this bill shall not be interpreted as an ultimate veto but simply as one aspect of consultation”
We heard from a number of people about how free, prior and informed consent was not a veto. Senator Sinclair and I had an exchange on this very question. He assured us that his reading of the bill and of the article was that free, prior and informed consent would not constitute a veto.
We heard others who said specifically the opposite, both on debate and through submissions.
This would simply clarify what is the clearly stated intention or understanding of the proposer, the drafter and —
The Chair: Senator Tannas, sorry to interrupt you, but there are errors in your proposed amendment. There is no section 7 in the bill. And unlike the other amendments, you don’t refer to where in the bill, which clause, which page and that kind of thing.
Senator Tkachuk: I will make a subamendment:
That Bill C-262 be amended, on page 3, by adding the following as clause 7:
“Free, prior and informed consent —
The Chair: There is no clause 7.
Senator Tkachuk: “Adding the following as clause 7:”
Senator Sinclair: Can we deal with the rewording as Senator Tannas —
The Chair: This is a new clause you’re proposing?
Senator Tannas: Yes. That would be a subamendment to my amendment, and that would then bring it into compliance with what I think your concern is.
The Chair: Do we have the text?
Senator Sinclair: So rewording your amendment to say “as clause 7:” —
Senator Tannas: We added, “Bill C-262,” “on page 3, by adding the following as clause 7:” —
Senator Sinclair: That will deal with everything, yes.
Senator Tannas: We have to vote on the subamendment and then the amendment.
Senator Sinclair: Do we agree with that wording of Senator Tannas’ amendment? So his amendment would simply read, “By adding the following as clause 7:”?
The Chair: Okay. That’s agreed to.
Senator Tkachuk: Who is “we”?
Senator Sinclair: All of us. Everybody. We all do.
Senator Tkachuk: Could I have a recorded vote? This will be interesting.
The Chair: Are we ready for the question?
Senator Tkachuk: Are we voting on the subamendment?
Senator Tannas: Senator Tkachuk moved a subamendment.
Senator Tkachuk: Which we can vote on.
The Chair: On the subamendment.
To be clear, can we read the subamendment?
Senator Tkachuk: Really?
The Chair: Slowly. So if I understand correctly —
Senator Tkachuk: It reads:
That Bill C-262 be amended, on page 3, by adding the following as clause 7:
Senator Sinclair: Is that in French and English?
The Chair: No, it isn’t.
Senator Sinclair: Then it’s not in order.
The Chair: So it’s not in order.
Senator Tkachuk: We can move an amendment in any official language. If you would wait, we could have it translated, if you want to give it a few minutes.
The Chair: I’ve been advised that it has to be in both languages.
Senator Tkachuk: No, it doesn’t.
The Chair: Yes, it does.
Senator Tkachuk: No, it does not. It doesn’t have to be in both official languages. That’s why we have translation.
Senator Sinclair: I agree to Senator Tannas’s amendment simply rephrasing his amendment to say “as clause 7,” which amounts to the same thing. It will avoid all this delay.
The Chair: We will proceed to a vote.
Senator Sinclair: For the record, we are dealing with —
The Chair: The subamendment.
Senator Sinclair: Are we dealing with the subamendment? I thought it was out of order because it was not in both official languages.
The Chair: I thought you just said you agreed to that.
Senator Sinclair: No. I said the subamendment is out of order, but in order to clarify what we’re doing, Senator Tannas has suggested, and I concur, that we have his amendment read “as clause 7.”
The Chair: I have just been informed that the first part, which has been subamended to say you’re adding a new clause 7, is actually an instructional line and is acceptable as is, so we don’t need the subamendment. We can then move to consideration of the amendment as a whole.
Senator Tannas: Fair enough.
Senator Sinclair: Question.
The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?
Senator Sinclair: Senator Tannas’s amendment?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Senator McInnis: Recorded vote.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: For the amendment, yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yes, 5; no, 10.
The Chair: The motion is defeated.
Shall the schedule carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: Carried.
Shall clause 1, which contains the short title, carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas.
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: Motion carried.
Shall the preamble carry?
Some Hon. Senators: Yes.
Senator Patterson: I’d like to move an amendment, Madam Chair.
The Chair: Do we have your permission to share the amendment?
Senator Patterson: Yes, and I would appreciate, for the first time, having the opportunity to explain the amendment. I have moved seven amendments, and I have not been allowed to explain any one of them. I don’t think that’s fair. All I ever wanted was a balanced consideration of the bill considering various viewpoints.
Senator McPhedran: Use your time to speak, Senator Patterson.
Senator Tkachuk: The Senate belongs to all of us, not just to you. You think it belongs to you and that’s the way you’re behaving. It does not belong to you; it belongs to the people of the country and we all have a right to speak.
Senator Patterson: I move:
That Bill C-262 be amended in the preamble on page 1,
(a) by replacing line 1 the following:
“Whereas the Parliament of Canada recognizes”; and
(b) by replacing lines 3 and 4 with the following:
“tion on the Rights of Indigenous Peoples;”.
This amendment proposes to delete the word “that” and the words “should be enshrined in the laws of Canada.” We are not arguing that UNDRIP principles are not worthy of Canada aspiring to; however, we don’t believe that enough clarity has been given to the complex legal and constitutional issues at play here for us to actually make Bill C-262 Canadian law.
To that end, we propose to endorse the principles of the United Nations Declaration on the Rights of Indigenous Peoples without enshrining them in law. We believe the preamble should reflect this. This is appropriate in particular for a private member’s bill that is not able to incorporate the nuances that a government bill could. And it is appropriate given the serious legal concerns raised with respect to the implications of the bill by jurists and scholars such as Justice John Major, Professor Dwight Newman and, indeed, by former Attorney General of Canada Jody Wilson-Raybould, who called Bill C-262 unworkable.
The amendment proposes deleting the ambiguous reference to the term enshrining the declaration of the laws of Canada, but instead asserts that the Parliament of Canada recognizes the United Nations Declaration of the Rights of Indigenous Peoples.
That’s the amendment, Madam Chair. Thank you.
The Chair: Question.
Senator Patterson: Is no one else allowed to speak on the amendment?
The Chair: The question has been called.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yes, 6; no, 9.
The Chair: The motion is defeated.
Shall the preamble carry?
Senator Tannas: Given the time, I move that we suspend and begin clause by clause on Bill C-91.
The Chair: Question?
Senator Sinclair: Question.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Why wasn’t Senator Tannas allowed to speak to that? He wasn’t allowed to speak to his motion.
Ms. Aubé: Yes, 6; no, 9.
The Chair: Motion defeated.
Shall the preamble carry?
Some Hon. Senators: Agreed.
Some Hon. Senators: No.
Senator Patterson: I have an amendment.
The Chair: Do you have an amendment you can share with the committee?
Senator Patterson: Yes.
The Chair: Do we have your permission to share it?
Senator Patterson: Yes.
The Chair: Could you read the motion into the record, please?
Senator Patterson: I move:
That Bill C-262 be amended in the preamble, on page 2, by adding the following after line 15:
“Whereas this Act does not effect the interpretation or application of section 35 of the Constitution Act, 1982;
And whereas section 35 of the Constitution Act, 1982 may only be amended with the authorization, by resolution, of the Senate, the House of Commons and the legislative assemblies of at least two-thirds of the provinces that have, according to the latest general census, at least 50 per cent of the population of all the provinces;”.
Due to the possible but inadvertent amendment of section 35 of the Constitution Act, 1982, by the passage of this bill, before any measures can be taken by the federal government under its obligation under section 3, it is necessary to expressly provide that the governments of the provinces also be involved.
In his letter to the Prime Minister dated June 2019, on which Senators Harder, Woo, Smith and Day were copied, Premier Kenney stated:
. . . there are many serious questions and concerns about how Bill S-262 would be enacted within the context of the Canadian Constitution and what enacting would do to the federal government, the province and relationships with Indigenous communities.
Some of these unanswered questions involved potentially sweeping and far-reaching effects on Canadian law and the very nature of our national, political and constitutional systems.
I am very concerned that, to date, and especially this morning, with the greatest of respect to you and my colleagues on the committee, Madam Chair, having our freedom of speech, my freedom of speech arbitrarily limited by the majority vote of the committee so as to not hear a balanced view on this important legislation. Nor has there been sufficient clarity on how the proposed legislation will be applied in the Canadian context.
To rush through a private member’s bill with so many open questions and so few clear answers —
The Chair: Question. The question has been called.
Senator Patterson: Can I finish my sentence, please? Can I at least finish the sentence?
Senator Tkachuk: Has it been five minutes?
The Chair: He’s talking on different points aside from the amendment.
Senator Patterson: — with so many open questions and so few answers forthcoming from the Government of Canada on the eve of a federal election would be reckless and unprecedented.
One can surmise that other provincial governments will share the same concerns as those expressed by Alberta, but they weren’t allowed to be heard before this committee. The committee has simply not been given the time to hear from these provinces.
Under the circumstances, it therefore makes sense for the legislation to expressly note that the act does not impact on provincial authorities relating to amending section 35 of the Constitution. That is what the amendment is intended to do.
Senator Sinclair: Question.
Senator Tkachuk: Wait a minute. We haven’t made it to five minutes yet, so I’m going to continue. I’d like to continue reading a lit bit about —
Senator Sinclair: What do we have left in terms of time?
The Chair: A minute and 12 seconds.
Senator Tkachuk: I’m going to continue reading the letter that Premier Kenney sent to the Prime Minister, during which I was rudely interrupted by the chair earlier in the meeting. I’m going to start it again and try to get it into the record.
Dear Prime Minister:
I’m writing with respect to Bill C-262: An Act to ensure that the laws of Canada are in harmony with the United Nations Declaration on the Rights of Indigenous Peoples, which, at the time of writing, was in second reading in the Senate.
The Government of Alberta is committed to a path of reconciliation and shared prosperity with Indigenous peoples who were the first to settle the land, in the spirit of the treaties. As part of this path, Alberta supports the spirit and principles of the UN Declaration within the boundaries of provincial law and the Canadian Constitution. That said, there are many serious questions and concerns about how Bill C-262 would be enacted within the context of the Canadian Constitution and what enacting would do to the federal government, the province and relationships with Indigenous communities.
Some of these unanswered questions involve potentially sweeping and far-reaching effects of Canadian law and the very nature of our —
Some Hon. Senators: Question.
Ms. Aubé: The Honourable Senator Dyck?
The Chair: No.
Senator Tkachuk: — national political and constitutional systems —
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: I’m sorry. There is too much confusion going on for my old brain. What are we doing right now?
The Chair: Voting on the motion in amendment.
Senator Eaton: Which? Senator Patterson’s amendment?
The Chair: Yes.
Senator Eaton: I support it.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes, I support it.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Yes.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: Yes.
Ms. Aubé: Yes, 6; no, 9.
The Chair: The motion is defeated.
Shall the preamble carry?
Some Hon. Senators: Yes.
Senator Tkachuk: It’s 11 o’clock.
The Chair: Recorded vote, please.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: The motion is carried.
Shall the title carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 9; no, 6.
The Chair: The title is carried.
Shall the bill carry?
Senator Tannas: Point of order. We are now clearly past 11 o’clock. We would like to move to the government business, Bill C-91. We are not allowed, under the rules, to proceed with private member’s business outside of our scheduled hours.
Senator Tkachuk: We are past 11 o’clock.
The Chair: We have been informed by the clerks that we are allowed to sit past 11 o’clock, and that it is in order. We have done so in the past, so I rule against your point of order.
Senator Tkachuk: So what are you saying?
Senator Tannas: Are you saying it is in order for us to continue business past 11 o’clock —
The Chair: Yes.
Senator Tannas: — even though this room is spoken for, and that that is within —
The Chair: Not until 11:30.
I rule that we continue with the last motion.
Shall the bill carry?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yess, 9; no, 6.
The Chair: Motion carried.
Does the committee wish to consider appending observations to the report?
Senator Tkachuk: Yes, absolutely.
Senator Sinclair: No.
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms. Aubé: The Honourable Senator Dyck?
Senator Dyck: No.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: No.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: No.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: Yes.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: No.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: No.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: No.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: No.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: Yes.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: Yes.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: No.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: Madam Chair, you know that the practice has been to discuss observations and not to have a railroaded vote. That has been our practice.
The Chair: What is your vote, please?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: No.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: Yes.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yes, 5; no, 10.
The Chair: The committee does not wish to append observations.
Is it agreed that I report the bill to the Senate?
Some Hon. Senators: Yes.
Some Hon. Senators: No.
Ms. Aubé: The Honourable Senator Dyck?
The Chair: Yes.
Ms. Aubé: The Honourable Senator Christmas?
Senator Christmas: Yes.
Ms. Aubé: The Honourable Senator Coyle?
Senator Coyle: Yes.
Ms. Aubé: The Honourable Senator Eaton?
Senator Eaton: No.
Ms. Aubé: The Honourable Senator Francis?
Senator Francis: Yes.
Ms. Aubé: The Honourable Senator LaBoucane-Benson?
Senator LaBoucane-Benson: Yes.
Ms. Aubé: The Honourable Senator Lovelace Nicholas?
Senator Lovelace Nicholas: Yes.
Ms. Aubé: The Honourable Senator McCallum?
Senator McCallum: Yes.
Ms. Aubé: The Honourable Senator McInnis?
Senator McInnis: No.
Ms. Aubé: The Honourable Senator Ngo?
Senator Ngo: No.
Ms. Aubé: The Honourable Senator Pate?
Senator Pate: Yes.
Ms. Aubé: The Honourable Senator Patterson?
Senator Patterson: No.
Ms. Aubé: The Honourable Senator Sinclair?
Senator Sinclair: Yes.
Ms. Aubé: The Honourable Senator Tannas?
Senator Tannas: No.
Ms. Aubé: The Honourable Senator Tkachuk?
Senator Tkachuk: No.
Ms. Aubé: Yeas, 9; nays, 6.
The Chair: Motion carried.
We have come to our end of our time. With that, the meeting is adjourned.
Senator Patterson: Are we going to deal with Bill C-91?
An Hon. Senator: No.
(The committee adjourned.)