Standing Senate Committee on Indigenous Peoples (42nd Parliament, 1st Session)

THE STANDING SENATE COMMITTEE ON INDIGENOUS PEOPLES

EVIDENCE

OTTAWA, Wednesday, October 18, 2023

The Standing Senate Committee on Indigenous Peoples met with videoconference this day at 6:45 p.m. [ET] to examine Bill C-29, An Act to provide for the establishment of a national council for reconciliation.

Senator Brian Francis (Chair) in the chair.

[English]

The Chair: Honourable senators, I would like to begin by acknowledging that the land on which we gather is the traditional, ancestral and unceded territory of the Anishinaabe Algonquin nation and is now home to many other First Nations, Métis and Inuit peoples from across Turtle Island.

I am Mi’kmaq Senator Bryan Francis from Epekwitk, also known as Prince Edward Island, and I am the chair of the Committee on Indigenous Peoples. I will now ask committee members in attendance to introduce themselves by stating their name and province or territory.

Senator Arnot: I am Senator David M. Arnot from Saskatchewan. I live in Treaty 6 territory.

Senator LaBoucane-Benson: Patti LaBoucane-Benson, Treaty 6 territory, Alberta.

Senator McCallum: Mary Jane McCallum from Manitoba.

[Translation]

Senator Poirier: Rose-May Poirier from Saint-Louis de Kent, in New Brunswick.

[English]

Senator Prosper: Senator Paul Prosper, Nova Scotia, traditional territory of Mi’kma’ki.

[Translation]

Senator Dalphond: Pierre Dalphond, senator from Quebec.

[English]

Senator Tannas: Scott Tannas from Alberta.

Senator D. Patterson: Dennis Patterson, Nunavut, Inuit Nunangat.

Senator Coyle: Mary Coyle, Antigonish, Nova Scotia, Mi’kma’ki.

Senator Audette: [Innue-aimun spoken] Senator Michèle Audette, Quebec.

Senator Greenwood: Good evening. Margo Greenwood, British Columbia, Treaty 6 territory.

Senator Sorensen: Karen Sorensen, Alberta, Treaty 7 territory.

The Chair: Thank you, senators.

Today we will consider our clause-by-clause consideration of Bill C-29, An Act to provide for the establishment of a national council for reconciliation.

Before we begin, I would like to remind senators of a few points. If senators are unclear of where we are in the process, I encourage you to ask for clarification.

When amendments are proposed to be moved in a clause, we will follow the order of the lines of a clause. If senators are opposed to an entire clause, in committees the appropriate step is not to move a motion to delete the entire clause, but rather to vote against that clause.

Some amendments may have consequential effect on other parts of the bill. As a result, it would be helpful if senators moving such amendments identify and explain what other clauses would be impacted. Staff will try to keep track of the places where subsequent amendments need to be moved and will draw our attention to them. However, there may be instances where no preliminary analysis has been done to establish which amendments are of consequence to others and which may be contradictory.

Senators who have questions about the process or about anything occurring can raise a point of order. As chair, I will listen to the argument, decide when there has been sufficient discussion of a matter of order and make a ruling. The committee is the ultimate master of its business within the bounds established by the Senate, and a ruling can be appealed to the full committee by asking whether the ruling shall be sustained.

As chair, I will do my utmost to ensure that all senators wishing to speak have the opportunity to do so. For this, however, I will depend on your cooperation. Please keep your interventions focused and brief.

If there ever is any uncertainty as to the result of a voice vote or a show of hands, the most effective route is to request a roll call vote. Senators are aware that any tied vote negates the motion in question.

Finally, I want to note that a few departmental officials from Crown-Indigenous Relations and Northern Affairs Canada and from Justice Canada will be available to answer any technical questions. With us with from Crown-Indigenous Relations and Northern Affairs Canada are Mary-Luisa Kapelus, Senior Assistant Deputy Minister, Policy and Strategic Direction; and Kate Ledgerwood, Director General, Reconciliation Secretariat; and from the Department of Justice, Dr. Seetal Sunga, Senior Counsel, Legal Services.

Are there any questions on any of the above? If not, we will resume where we left yesterday. We will return to clause 10.

Shall clause 10 carry?

Senator Tannas: Colleagues, before the conclusion of yesterday’s meeting, I served notice that I intended to move an amendment for consideration today that would remove the Native Women’s Association of Canada from the list of automatic directors to the board of the national council.

We heard many hours of testimony on the makeup of the board of the national council, and we heard a lot of general unhappiness about not enough seats for some and no seats for others. I dare say, although I couldn’t say it’s 100% true, but this was probably the issue that came up the most and that we invested the most time on.

I was struck by some gentle advice that we got from Marie Wilson, Commissioner of the TRC, when she pointed us to the national organizations that attended the apology. She never named anybody, but those national organizations were the AFN, the MNC, NWAC, CAP and ITK, as near as we have been able to ascertain. I pressed her a little bit on this as well, and I felt relatively certain — and I have looked at her testimony again — that she was pointing us at an inclusive group of those that were there at the beginning.

It was an odd process in the House of Commons where three out of the five were originally envisioned, then two were added to get us to five, and then somehow we know that CAP was dropped and NWAC was left on.

Yesterday there was an amendment to re-add the Congress of Aboriginal Peoples, and I thought that brought some symmetry to what we were doing. The discussion that we had further highlighted to me that there was some symmetry in all five or in only three. The discussion that we were having and some of the rational for excluding CAP could be applied today in a discussion today in a discussion about excluding NWAC. This whole issue has taken a long time and has been a distraction. Unfortunately, it has diminished the contribution over 50 years of one of those five organizations. My suggestion yesterday was to try and find the symmetry again. If we believed our own words yesterday when we did not pass CAP back in and restore the five, surely the words apply for NWAC.

But on reflection, my mother always said two wrongs don’t make a right. It would be terrible to diminish further the contributions of anybody that has worked so hard in the cause of Aboriginal people for so long. I believe we do have one more chance to get it right with CAP, if that’s what we decide to do, and that’s on the floor of the Senate with everybody there. I don’t think there would be anybody who would argue that it’s a worthy discussion to have, seeing as how it failed in a tie here at the committee. I think it would be smart for us to canvass the wider Senate to see if they can help us solve this problem that was not of our making.

Colleagues, forgive me for being so long-winded. I know it came in the package, but I would like to withdraw that proposed amendment. Thank you.

The Chair: Thank you. Okay. Any questions, comments before we move on?

Shall clause 10 carry?

Hon. Senators: Agreed.

The Chair: Agreed.

[Translation]

Senator Audette: First, I would like to ask the committee’s consent pursuant to Senate Rule 10-5 to return to clause 7, which the committee passed yesterday. I’d like to propose some changes to the amendment Senator Tannas put forward on behalf of Senator Patterson in order to clarify the French and English versions. Do I have your consent to proceed?

[English]

The Chair: It is moved by the Honourable Senator Audette that, pursuant to Rule 10-5, the committee proceed to reconsider clause 7 as amended?

Hon. Senators: Agreed.

Senator Audette: Your French is so good.

[Translation]

Thank you for your consent. The first change is to paragraphs (a) and (b). The amendment states that the council shall report annually to Parliament and the people of Canada.

I move that, in the French version, those words be deleted and replaced with the following:

“faire rapport annuellement des progrès réalisés”

[English]

In English, it would read “report annually on the Government of Canada’s post-apology progress.”

[Translation]

After yesterday’s meeting, department officials told us that clause 17 deals with tabling the report. If you’ll remember, in the bill, clause 17 deals with tabling the report; the annual report will be submitted to the minister and the minister will table it in Parliament.

[English]

The Chair: Any comments or questions?

Senator D. Patterson: I understand and agree to the subamendment.

The Chair: Anyone else? Okay.

Is it your pleasure, honourable senators, to amend the clause as amended?

Hon. Senators: Agreed.

The Chair: Shall clause 7, as amended, carry?

Hon. Senators: Agreed.

The Chair: 7.1.

[Translation]

Senator Audette: I move the following for the new clause 7.1.

That Bill C-29 be amended on page 4 by adding the following after line 26:

“7.1 (1) For greater certainty,

(a) nothing in this Act is to be construed as authorizing the Council to act on behalf of, or represent the interests of, an Indigenous governing body; and

(b) no duty to consult an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982 is discharged by consulting or engaging with the Council.”.

[English]

The Chair: Comments or questions?

Senator Coyle: This is probably the key consideration here. I was just saying to Senator Tannas that it felt like it was last week already but it was only yesterday that we met. It’s just been a very busy and intense period here and around this table.

Just for clarity, Senator Audette, I believe we have heard that this is language that has been discussed with the three NIOs and that it is something that — I’m not sure whether I can say they agreed to or is drawn up based on conversations with them. How would you articulate that?

[Translation]

Senator Audette: Your question is important, senator. We agree that we’re only talking about that specific clause. My office will reach out to the people working for the interim national chief, President Obed and President Caron. What we’re hearing is that the wording is acceptable, but we’re only talking about the wording. I can’t put words in our leaders’ mouths.

Senator Coyle: Thank you.

[English]

Senator D. Patterson: This is a question to Senator Audette. You said you had a couple of changes that were required, and we have dealt with one. Do you have another change to propose to 7.1?

Senator Audette: On this one, no. The other one I do.

The Chair: Senator Patterson has a supplementary.

Senator Audette: On that one?

[Translation]

One moment. Help me.

[English]

The Chair: We’re going to suspend for a second.

(The committee suspended.)

(The committee resumed.)

Senator Audette: Senator Patterson, thank you for helping reorganize this. What I was presenting in French is new clause 7.1 on page 4. Do I need to read it again?

The Chair: Yes.

Senator Audette: I will read it in English.

I move:

That Bill C-29 be amended on page 4 by adding the following after line 26:

“7.1 (1) For greater certainty,

(a) nothing in this Act is to be construed as authorizing the Council to act on behalf of, or represent the interests of, an Indigenous governing body; and

The Chair: Are there any comments or questions? Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Senator Patterson?

Senator D. Patterson: This is DGP C-29 PRE 2-9, for your reference.

I move:

That Bill C-29 be amended on page 4 by adding the following after line 26:

“Bilateral Mechanisms

7.1 For greater certainty, if the Government of Canada establishes or has established a bilateral mechanism with a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982, that bilateral mechanism is not affected by this Act.”.

If I may, Mr. Chair, this complements the amendment just presented by Senator Audette, and it deals with the issue of bilateral mechanisms.

I would like to acknowledge that Senator Greenwood worked on the same issue that was raised by ITK, and I’d like to thank her for that work she did in advancing a similar amendment. I won’t talk about myself, but she’s got a great mind.

While a “greater certainty” clause is very good at adding clarity that many have asked for, it doesn’t specifically address bilateral mechanisms. As we have heard from ITK, since the Inuit-Crown Partnership Committee and other permanent bilateral mechanisms with other national Indigenous organizations are not defined in any statute to date — they are created by policy — I made a general reference in this amendment to any bilateral mechanism that is currently convened or could be convened in the future in this amendment, so it covers, of course, ITK, but other similar bilateral mechanisms. My hope is that it addresses ITK’s concerns and provides even greater clarity that the work of the council will in no way take away from, undermine or usurp the important work happening at these bilateral mechanisms.

I’m particularly focused on preserving the good work of the Inuit-Crown Partnership Committee tables given this region is the largest region within Inuit Nunangat, my region of Nunavut. I know that the preference would be to have Inuit specificity in this bill, and President Obed spoke about that, but I also recognize that there’s only so much we can do here without opening a larger debate as to why certain Indigenous groups are specifically included and others not. That’s why this amendment includes, of course, ITK and is motivated by ITK, and I’m happy to have the record show that, but it will also embrace other Indigenous groups who have established or will establish bilateral mechanisms. This amendment takes the route of referring to concepts more generally while working to address the issues raised to me by Inuit through ITK.

Thank you.

The Chair: Thank you, Senator Patterson.

Senator Arnot: I don’t have any question with the substance. On the legislative drafting, Senator Patterson, we have 7.1, Senator Audette’s amendment, for greater certainty that (a) and (b). Do we have to make this (c) and take out the word “Bilateral Mechanisms” as a heading and 7.1 “For greater certainty”? Is it redundant, or how will it read in its final form?

Senator D. Patterson: That’s a good question. Mr. Chair, perhaps I can suggest that the clerk could refresh us with the practice, which I believe is the legislative draftspeople will, following our work, make sure that all the numbers work. Is that not how Senator Arnot’s question could be dealt with?

The Chair: My understanding from Andrea is it’s the role of the law clerk, and we’ll confirm by the end of the meeting.

Senator D. Patterson: They would deal with the question that Senator Arnot brought up?

The Chair: Yes.

Senator Coyle: On that same point, plus another, just to clarify, I think Senator Arnot assumed that this would be the third, so it would be (c). Was it your intention — that’s my first question — that it would follow the other two?

Senator D. Patterson: Yes.

Senator Coyle: Okay, thank you.

My other question is more one of substance. Is this language that the ITK have seen and commented on?

Senator D. Patterson: Yes.

Senator Coyle: Okay, thank you. Their commentary is positive?

Senator D. Patterson: I don’t want to speak for them, but as I said, they had proposed to the committee and have consistently advocated that there be Inuit-specific measures in many policies and legislation.

The challenge that I found in looking at that — and I did have some interaction as well with the minister’s office — is that if we were to specifically refer to the Inuit-Crown Partnership Committee, then we’d have to do the same for other Indigenous groups. That’s why I chose to go through the title here, “bilateral mechanisms,” which is well understood to include the so-called ICPC table.

ITK is aware of that wording. They have seen it. It may not be everything they had hoped for, but I believe it will help to encourage them to nominate someone to the council and be satisfied that we were serious about respecting the integrity and independence of the bilateral mechanisms.

Senator Coyle: Thank you.

[Translation]

Senator Audette: Senator Patterson, I move that the amendment be amended by replacing “a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982” with “an Indigenous governing body” for consistency.

Do you agree, Senator Patterson?

[English]

Senator D. Patterson: I’m sorry, I didn’t understand.

Senator Audette: Okay, I’ll try in English.

In the wording of your paragraph, we can change it to “an Indigenous governing body”?

An Hon. Senator: Show him where you want it.

Senator Audette: I’ll read the motion in English. I move:

That the motion in amendment be amended by replacing “a council, government or other entity that is authorized to act on behalf of an Indigenous group, community or people that holds rights recognized and affirmed by section 35 of the Constitution Act, 1982” with “an Indigenous governing body”.

Senator D. Patterson: Yes, I’m fine with that, Senator Audette, but did we vote on the amendment?

Senator Audette: Do we have to vote first?

Senator D. Patterson: Yes.

The Chair: Is it your pleasure, honourable senators, to adopt the subamendment?

Hon. Senators: Agreed.

The Chair: Carried. Shall the motion in amendment, as amended, carry? Is it agreed that we adopt Senator Patterson’s amendment?

Hon. Senators: Agreed.

The Chair: Shall clause 7.1 as amended carry?

Hon. Senators: Agreed.

The Chair: Carried.

Shall clause 11 carry? I’ll let everybody get caught up here.

Senator Sorensen: With everything that was being discussed yesterday about 7.1, we’re done now?

The Chair: We’re done now. We’re on clause 11 now.

Senator Sorensen: I know that three people were trying to organize and —

The Chair: No, we’re good now. We did it.

Back to clause 11. Shall clause 11 carry?

Hon. Senators: Agreed.

The Chair: Agreed.

Shall clause 12 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 13 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 14 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 15 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 16 carry?

Senator Greenwood: I have a piece for your consideration. I move:

That Bill C-29 be amended in clause 16, on page 7, by adding the following after line 8:

“(3) If the Minister fails to comply with the obligations set out in subsections (1) and (2), the Council may apply to a judge of the Federal Court for a declaration to that effect.”.

This amendment deals with the disclosure of information, namely, the protocol respecting the disclosure of information by the Government of Canada to the council regarding documents and material deemed relevant to the council’s purpose. While subclause 16(2) states that the protocol must allow the council to receive all of the information it judges relevant to fulfill its purpose, there is no recourse for the council to obtain this information from the government if the government declines to disclose the information the council deems important or declines to follow the agreed-upon protocol. This proposed amendment allows the council to apply to a federal judge if the government or minister fails to comply with the obligations set out in clause 16.

During the Minister of Crown-Indigenous Relations’ appearance before our committee, Senator Patterson asked about clause 16 and how this clause is vague, and the minister indicated that he was receptive to language that would strengthen the clause.

Senator D. Patterson: Thank you for this, Senator Greenwood. I am thinking about this proposed amendment with a question in my mind. Is it necessary to spell this out in legislation? I ask that question because I’m just wondering if the council would have other tools that it could use if the minister fails to comply with the obligations set out in subclause 1, particularly whether they could indeed apply to a judge for a declaration without us having to spell it out in legislation. I’m just wondering if it’s necessary to put this into law.

Senator Greenwood: Thank you for the question. As we were thinking about this, it was just to ensure that there were avenues or a way for the council to seek the information if they could not access it. That was the intent of this amendment.

[Translation]

Senator Audette: Thank you, Senator Greenwood. As I understand it, the organizations already have the option of turning to the courts, even though it is not specified in legislation. There is an initiative in the works in the medium to long terms to create a protector position, an Indigenous rights tribunal. A great deal of reflection must occur before we get there, including studies. This generates costs for the time being. If we include that in the bill, it would be as though they would have to take legal recourse for the time being. I’d be more comfortable waiting for the next process on which we’ve embarked: a legal recourse related the National Inquiry into Missing and Murdered Indigenous Women and Girls on the report and the two people who were named.

Maybe, instead of including it in the bill, we should rather include it in our observations so it doesn’t get lost. As far as the governance of the board of directors is concerned, it will be up to each individual to decide how to proceed if they don’t have access to documents.

[English]

Senator Greenwood: I hear what you are saying. I am thinking about ensuring that the council has the opportunity to have as many avenues of recourse as possible. It doesn’t mean that they have to use this, but it may be there if they need it. I hear what you are saying about other things that I don’t know about which may be coming and I’m not privy to. Thank you for your comment.

Senator LaBoucane-Benson: Following on what Senator Patterson said, I would actually like to hear from the officials about whether — I want the council to have teeth too, but do we need this? Do they have the teeth whether this is there or not? I think that’s what Senator Patterson had alluded to. I’d like to hear from the officials.

Mary-Luisa Kapelus, Senior Assistant Deputy Minister, Policy and Strategic Direction, Crown-Indigenous Relations and Northern Affairs Canada: I can start and maybe Seetal can add. Thank you, senators.

There is one point that I’d like to raise within the context of this, and that is there is a protocol that will be developed. The teeth that we’re talking about could be a part of that protocol. We also have within the Government of Canada the ATIP process, Access to Information and Privacy, which also has some teeth to it. I think Seetal may have something else she may want to add in this regard. And, of course, the courts are always a right of recourse and something else that can be used as well.

Seetal Sunga, Senior Counsel, Legal Services, Department of Justice Canada: Thank you very much.

My understanding of the government position and of my colleagues in the client department, is that, yes, the council does have whatever recourse it has available to them to the courts. It is a non-profit corporation and it is independent, so it will be able to have recourse to the courts in the normal course of events, as long as there is jurisdiction, et cetera. In that respect, it’s not a necessary provision.

Another point that I think is worth making is that it may overly narrow the form of dispute resolution mechanism that the council may wish to design or negotiate into the information protocol itself. The council is not set up and we do not yet have an information protocol, but one of the things that could be addressed is actually developing something that might be appropriate to how the council wants to do its work. It may overly narrow the process that they might choose to engage in prior to recourse to the courts.

Senator LaBoucane-Benson: Thank you for that.

Ms. Kapelus, if we wanted to write an observation that would maybe help in the protocol forming to ensure that there were teeth, do you have any recommendations on how we might form those observations? Or is that outside of your purview?

Ms. Kapelus: To a certain degree, yes, it would be outside of our purview to provide that, but it could be done.

Senator LaBoucane-Benson: Thank you.

Senator Tannas: We don’t yet have this protocol. Let’s imagine that a future government somewhere down the road is less excited about developing a protocol and maybe we don’t get it done in time. That wouldn’t be a surprise. I don’t want to be sarcastic, but it could happen that we don’t get it done in time. A new government takes over. It says the council “may” apply. It doesn’t say that it “will” apply, “must” apply or “shall” apply. It says it “may.” If no other protocol appears and the council is high centred, I think this is a nice little piece of insurance. If it doesn’t harm, if it’s redundant, et cetera, then why not? That would be my question, chair.

Senator Arnot: Senator Tannas nailed it, as far as I’m concerned. It says “may,” not “shall.” It’s also designed, I think, to give the council the opportunity to create some public opprobrium over non-compliance, and it’s a bit of a small “P” political motivation, perhaps, to motivate a minister to be in compliance. I think the thing speaks for itself. Let’s give them the tools, whether they use them or not, rather than wait for something in the future that may or may not exist. There is no downside, in my opinion.

Senator Dalphond: My question is for the officials. Do I understand from your answers that if we look at clauses 2 and 3 of the bill, the council is a corporation, according to the Canada Not-for-Profit Corporations Act, and enjoys all the rights and benefits that are provided to corporations under that legislation, including the right to be treated as a legal entity which has the right to sue in court and to be sued?

Ms. Kapelus: Correct.

Senator Dalphond: So what you are saying is that they have the power to go to court because they are a legal entity that is empowered by the act to go to court?

Ms. Kapelus: Correct.

Senator Dalphond: Thank you.

Senator Coyle: It’s already there, which is what the intent of this is. Do we need it? I mean, is it nice to have, or is it superfluous if it’s already there? Putting forward this amendment is a good thing because we are testing if we need it. We have just heard that we don’t need it because it’s already there. That’s what I’m hearing. It’s nothing to take away for the intent of this amendment. We now have our answer, that it’s actually already there without this. Is that correct?

Ms. Kapelus: Correct.

Senator Coyle: Okay. Thank you.

Senator Tannas: So again, this organization exists. It’s being created by the government, and one of its primary duties is to get information from the government, repackage it, analyze it and publish it to people. This isn’t just some corporation that has a beef with the government over something. It’s vital to their work that they get information from the government. It’s why they exist. I think it’s an apples and oranges comparison to say, “Well, they are a corporation; therefore, they can sue because you can sue anybody if you are a corporation.” It’s not a leap of too far to imagine a moment when they might be sitting there being stonewalled by somebody in the government. To me, if it’s there, they can show it to whoever it is that’s in the way: “This remedy exists, and we’re not scared to use it.” That has a different power than, “Well, we’re a corporation, and we can sue you like every other corporation in Canada can sue.” I don’t know that that is anywhere near as powerful.

We have ways of testing the will of the committee. Maybe it’s time.

Senator Arnot: Can anybody think of an example where an Indigenous organization has gone to government and been thwarted, stonewalled or denied basic information that is exactly their right to get? I think we all can. That’s what Senator Tannas is talking about. That’s what Senator Greenwood is putting in. That’s why it’s there. It’s not “shall,” it’s “may.” It’s forewarning government that this action might happen. Corporations have lots of tools, but they don’t use them all.

Anyway, I see this as a good motion. I will be voting in favour of it.

Senator LaBoucane-Benson: I do like the idea of having teeth. I do. But what I heard the officials say is that it could limit this — I know it doesn’t say “shall,” but in the interpretation of it, it might limit it. What are the other recourses that this organization could take that are way more nimble than going to the Federal Court, which takes forever? Are there other avenues, because this is written like this, that we are making less available to this group? I don’t know what they are. I’m not a lawyer.

Kate Ledgerwood, Director General, Reconciliation Secretariat, Crown-Indigenous Relations and Northern Affairs Canada: I can start and certainly turn to my colleague to continue.

Just to provide a little context, when this component of the bill was being introduced, it was to recognize the fact that the government was looking to try and create a system that would support the sharing of information. As senators are likely aware, there already exists the Access to Information Act and the Privacy Act, which certainly this organization would be able to avail itself of. They could request any information that they would like, and the government would have to respond to that. However, the intention was to try to find a more streamlined way that this information could be shared, and that was the intention around the development of this information-sharing protocol. Recognizing that it hasn’t been developed yet, one of the intentions, as the act states, is it has to be developed with the minister in collaboration with the council, so the council also has to agree to what is going into that information-sharing protocol. Certainly, they would have the ability to introduce or identify the requirements around if there were disputes as well.

Similarly, while we are trying to create an avenue that was separate from the Access to Information Act, there is nothing that prevents the council in the future from using the Access to Information Act, and that certainly has as well different mechanisms and recourse. If there are concerns about the lack of information provided, there is the Information Commissioner who can do an assessment or investigation into it and potentially in relation to complaints. There is also the Privacy Commissioner for similar things.

Finally, as the other mechanism that we would see is strengthening, the requirement to provide information is around the annual report. The council is certainly within its rights to include information they would like that annual report, which could include the fact of the provision of information they are receiving from the government. With this bill, it also has a requirement that the prime minister table a response to that report to address the issues that were identified.

We see collectively that those are different ways that could support the intentions around this, but when this was introduced, it was really to look at finding a way to support the facilitation of information in a more streamlined way for the council.

Senator LaBoucane-Benson: Picking up on what Senator Tannas has been talking about, I would say that our observations should outline some principles for that protocol. In the event that protocol is never developed, then we would have the principles of a protocol maybe sitting there. That’s what I’m hearing.

Senator Coyle: The protocol is already a must in the existing legislation.

Senator Audette: Coming from a place where even if we had the power to compel with the national inquiry, it was hard to get information and documents from all governments, and even other places. It was hard. I totally understand that words are very important.

We had two witnesses that came here — Jennifer Moore-Rattray and Kimberly Murray — and who are doing an exercise and will soon be presenting a report on different mechanisms to make sure that Canada or the government gives the information. I would like to support this, but there are pieces or beads — as a beader — that are missing right now for me. The reports are coming in the fall or before Christmas. I need to see what could be good.

Every couple years, we have to review legislation and change and bring amendments to re-enforce. If we have good examples of what could be a recourse or tools — access to information takes forever — maybe we will amend something to make sure that there are real teeth in the protocol.

I want to support that, but it’s too soon in the report process. There are two reports I’m anxious to read and see, the Indigenous Human Rights Tribunal and the Ombuds Office for Indigenous People, and then I’ll be comfortable. Thank you.

Senator McCallum: Do you think that you are putting a lot of responsibility on the minister when you are looking at all those stats, like the over-incarceration, the children, education where Indigenous people fall behind? All that comes from the provinces. How will making the minister responsible for getting that information — that’s putting a lot on him. He is going to have a hard time getting some of that. They already do.

Senator Greenwood: I have just a couple of things as I listened to senators and folks from the ministry and Justice.

I want to go back to what Senator Tannas and Senator Arnot said. This is an amendment that has the word “may” in it. It’s not prescriptive. It says you “may” use this. It articulates it in a specific place. It doesn’t have to be used. You talk about the council and the minister being part of a larger strategy or protocol. This could be a piece of protocol. It is not as if it is only this. It can be one piece of a whole range of other things. I don’t know what you know, Senator Audette. You know these things that are coming. I don’t know these things.

I’m going to speak from a very personal place. What I do know is that sometimes I waited a lifetime to see some changes in my community. To me, it’s an articulated tool in a specific place to be used appropriately. It’s one piece of a whole lot of other things. The minister will reach across government to get information, and through the federal-provincial tables if necessary, but he or she or they will be working with the council to develop what they believe is important in their strategy. That’s why I put this forward. It isn’t the only thing, I just wanted some assurance for people.

The Chair: Thank you, Senator Greenwood.

Senator Dalphond: I have another question for the officials.

I understand from your previous answers that this is to be a body corporate and has the power to go to court to seek an injunction or mandamus or whatever other type of order against the government.

My question is the following: If we have this subclause 3 as drafted, can that be read as the minister fails to comply with its obligations? First, in paragraph 1, he must develop a protocol, and the protocol must allow the communication to the largest extent. If it fails to do so, could subclause 3 be read as meaning the sole remedy of the council is to “may apply to a judge” for a declaration to that effect, which will exclude injunctive relief, including mandamus and specific orders? Clause 16. Subparagraph 3 is specific, “may apply for declaration”. Could that be read as that is the sole remedy in such a case? Maybe it’s a bit better to say “apply to a federal court for a proper remedy,” not to be limited. Here it says “for a declaration to that effect.” It seems to limit the remedy of the council just to seek a declaration. The court will say, “Minister, you are not complying.” Fine. Maybe change the minister. But I would prefer that they have the power to order an injunction and to say, “You must comply with this. This does not comply with the protocol, and we order you to comply within 60 days.” I’m just wondering. I’m asking a question. I’m not proposing.

Ms. Sunga: Thank you for the question. We would like to take that under deliberation. It’s a bit of a complex question and would require internal consultation before we answer. We can get back to you on that.

Senator Dalphond: Okay.

Senator McCallum: What is the process that the council is going to go through when they are requesting information? Are they going to the minister or to the organizations?

Ms. Ledgerwood: Part of the protocol is to identify the approach that the council will use to solicit information. The intention is that we will likely look to try and find as streamlined a process as possible to make it potentially a single entry point so the council does not have to do the work of going across all the federal organizations in this case. Again, these are things that will have to be discussed with the council and the minister in the future to come up with an approach that both parties agree to on how the council will be receiving and requesting information.

Ms. Kapelus: If I may add, that protocol is the protocol referenced here that is to be developed but has yet to be developed.

The Chair: Great discussion.

Senator Arnot: I’m just wondering if it’s possible that we could get an opinion from the legislative law clerk on these issues. That may weigh a lot of things. I’m happy if we had a vote on it. It’s an opportunity to put some teeth in this act that could be helpful. We don’t know what other legislation will ever come, et cetera. I think the issues are fairly clear. I’m prepared to have a vote on whether we support Senator Greenwood’s amendment, or we can get the legislative law clerk to give us an opinion.

The Chair: There are two options: We can go to a vote now, or we can postpone and come back to it.

Senator Dalphond: May I propose a sub-amendment, “for a declaration to that effect or any other remedy”? That will make it stronger.

The Chair: Senator Greenwood, are you in agreement?

If there is a sub-amendment, we have to get translation from the law clerk before we can proceed. We can postpone and come back to this clause later as well. Is everyone in agreement with that?

All right, let’s keep going.

Senator Greenwood: This is very similar. It really is very similar. Do you want me to do it formally? Oh, sorry.

This is 16.01, page 7. I move:

That Bill C-29 be amended on page 7 by adding the following after line 8:

“16.01 (1) The Council may apply to a judge of the Federal Court or of a superior court of a province for an order requiring a person, organization or entity in possession of a record relating to the operation, policies or practices of a Canadian residential school or the location of burial sites associated with a Canadian residential school to produce the record for examination by the Council.

(2) The judge may make an order under subsection (1) subject to any terms and conditions that the judge considers appropriate.”.

This proposed amendment creates a new clause and is specific to the disclosure of information regarding Indian residential schools and the burial sites associated with residential schools. Our committee heard from the National Centre for Truth and Reconciliation. They are still unable to receive vital records from government and various religious organizations. As a result, the TRC’s Calls to Action No. 71-76 are yet to be fulfilled. Currently, there’s no recourse for the National Centre for Truth and Reconciliation to obtain these records.

We’ve heard from many witnesses and from these organizations. I believe the committee members agree that something should be done to ensure that this is remedied. This amendment will create a provision whereby the council may apply to a judge of the Federal Court or a superior court of a province for an order requiring a person or organization or entity in possession of a record relating to the operation, policies or practices of a Canadian residential school or the location of burial sites associated with a Canadian residential school to produce the record.

While some witnesses have called for the council to have powers similar to a tribunal or an inquiry, any amendments to this extent would fundamentally change the nature of the council. Therefore, I believe that this amendment strikes a balance where it gives them an opportunity.

I would also like to say and hope that we may agree on a sub‑amendment that would include Indian day schools and associated institutions such as Indian hospitals, reformatories and industrial schools.

Senator Audette: I just want to be clear about knowing things that people might not know. I’m talking about Kimberly Murray, who came here as a witness and told us that there is a report coming, and Jennifer Moriarty was also a witness and has a report coming.

Again, with this, it’s important teeth about access to information with the oblates. I totally understand that. Also, Ms. Kimberly said we need legislation. We need laws. This is before the report of what she will propose to us — society, the government, the Senate — as to type of mechanism to get that information that is hard to access. This is again something I want to support, but there’s something missing. Or maybe I’ll say, “Oh, you were so right, and we should have done it.”

Senator Coyle: I’m actually confused. This council has very different purposes from the Centre for Truth and Reconciliation and from the other entities that we’ve just described. Why would it be seeking these measures in order to get these records? I may be missing something completely, but as I understand the purpose of this council, will it be doing that on behalf of the Centre for Truth and Reconciliation or some other body? When I look at the purposes under purpose and functions, I don’t see it. I don’t see how this fits with the purposes and functions of the council. I see this as absolutely essential, but I don’t see what it has to do with the council. I may have missed something along the way, or are we perhaps blurring? We were doing this study while we were also studying other things. As important as it is, does this fit with this particular bill that we are studying right now? I just went and looked for the purposes again and read them. This doesn’t quite fit for me. But I could be corrected.

The Chair: Thank you for that, Senator Coyle.

Senator D. Patterson: I agree with Senator Coyle. This is a very important issue.

Senator Coyle: Huge issue.

Senator D. Patterson: I know it is a very important issue. I know that the National Centre for Truth and Reconciliation is struggling to get these records, and of course, this committee is well aware of that because we are studying that very issue. I think we are getting into the weeds too much on this, and actually, it may not even be something that the council will want to pursue, given that the National Centre for Truth and Reconciliation is very vigorously dealing with that issue.

Senator Dalphond pointed out to me as well that if it is recommended that Senator Greenwood’s amendment that we’ve just been discussing would broaden —

Senator Coyle: Prior to this one?

Senator D. Patterson: — yes, could be broadened to include any other remedy, then that amendment could embrace such a process or such an order as is contemplated with this amendment, which would, therefore, make this amendment unnecessary.

I understand where you’re coming from, Senator Greenwood, and it’s a burning issue that we’re all no doubt very concerned about, but I think that it’s going too far. In any event, if we strengthen clause 16 as proposed in the previous amendment, it could embrace an order like this and a declaration and an injunction and a mandamus order. Mandamus is forcing a government to do something that it is supposed to do, if I recall correctly from law school. Clause 16(1), if it’s broadened, could embrace this and other remedies without narrowing the remedies and foreclosing legal options of a federally incorporated corporation. Thank you.

Senator McCallum: I think this is very important with the burial sites. When you look at all the people that — what is that word when they don’t believe? Denialism is coming up. When I look at the purposes, it’s so important. It’s to educate the public about Indigenous people’s realities and histories and advocate for reconciliation. I went to the residential school, to Guy Hill, and we were there when they were searching for the graves, and this is so critical to reconciliation. It’s the foundation of it. We knew our students didn’t go home, so if you leave that out, then you’re not getting the whole picture. We need to educate the public, and this is part of our history and our reality.

Senator Greenwood: Thank you for your input. It is very specific, and I was looking at the previous motion with the sub‑amendment — I think that’s what it’s called — of any other remedy. There are so many things we could put in here. You’re right, Senator Audette, that those ladies did come, and we know those reports are coming. I’m comfortable that what I’m proposing could be included or could fall under the previous one, and then we know we’re catching it all. I guess that’s what I am thinking here.

Senator Coyle: I wanted to respond to what Senator McCallum just said, which nobody here disagrees with. Absolutely that is central. We have all heard about denialism and the issues and the importance of getting at the truth, the truth part of truth and reconciliation, right? We have different entities with responsibilities for different pieces of that. I would imagine that a lot of the education that happens through this council will be happening in partnership with others, but the inputs for that education, much of it, I would imagine, would be coming from the Centre for Truth and Reconciliation in Winnipeg. And we have the ombudsperson.

We need to be clear, and it’s hard for us to be clear, frankly. It’s hard for me to be clear because there are many irons in this fire. That’s a good thing, but I think we could get caught up in confusing the very specific purposes of each of those various entities. I would see this council using and partnering with other entities but not necessarily — if I were one of those, I’d be saying, “How come you’re messing with my job? This is what I’m supposed to be doing. I’m supposed to be getting those records. I’m supposed to be doing that, and I’m supposed to be the keeper of that, not you. You can use what I am getting, and you can help me, but this is a clear delineation of what my purpose is versus your purpose, and yes, let’s work together.”

Senator McCallum, don’t take anything I have said about this particular amendment as not respecting the importance of this. It’s more respecting the roles and responsibilities of the various entities. That’s all I was getting at.

Senator Audette: We also come from a place where we deserve more, and it’s something that should be there every day and it’s not there. I totally understand that when we have an opportunity, we bring as much as we can.

I just want to give an example of why I think we should put this specifically under legislation. When we finished the inquiry, the Quebec government put it under legislation or an organization, and it’s diluted that Indigenous families were able to get information where their babies were buried after a hospitalization or when they went to hospital without the parents. Forty years later, you’re still wondering. “What happened to my babies, or my three babies? They never came back, and I don’t know where they are. Are they still alive?” We fought to say, “Don’t dilute this access of information under this organization. Create specific legislation just for families. They deserve to know, and not only one year but 10 years minimum.” Kimberly Murray came to Quebec to understand that legislation and how the Quebec government has — well, you heard that. This is where I think it’s so crucial that it should have been given to the National Centre for Truth and Reconciliation, that power to get that information, but it didn’t happen.

I want to support, of course, but I think we need teeth. If it’s under that organization where they have so much to do, I’m afraid that they might do half or not enough, because they have a big mandate. For information, it’s a specific mandate we need to. We will get the report from those two women and their team, and if they propose something to us and we agree that it’s the way to get information and to act — you know, for the amendment that was presented to us, we are putting this on this council when it’s probably a different mandate than what they will recommend to us. I think Kimberly is called a special interlocutor. We might have to work on a piece of legislation.

Senator Coyle: A completely separate piece. Exactly.

Senator Greenwood: It’s all good. Thank you for all of your input. This is really about my thinking. At this point, I would wish to withdraw the motion but have this request go alongside of it. I don’t know if I’m using the right words. Senator LaBoucane-Benson mentioned this earlier on, and it came to me because when I went back and looked at clause 16, all those challenges that we face are articulated there. We face them today, but there is a reason that we face them. It is contained in this amendment that I will withdraw.

I think we should be putting this kind of thing — and I’m happy to help craft it — in an observation so that people do not forget where some of these things are situated. The previous motion that I brought forward has teeth. If the council so chooses, on whatever topic, it would have the teeth to do it, but I don’t want this important part of our history, this context — and we will see it many times. I have written this in so many articles and books. I always start with that context. We can put that in as a strong observation so the council remembers as they start to do their work.

Thank you, everybody, for your input.

The Chair: Thank you for that, Senator Greenwood. Senator Greenwood is withdrawing her motion, so we need total consensus.

Hon. Senators: Agreed.

The Chair: Okay.

Senator Audette: We are getting there. On clause 16.1, page 7, I move:

That Bill C-29 be amended in clause 16.1, on page 7, by replacing lines 9 and 10 with the following:

“16.1 The Minister must, within six months after March 31 of each year, submit to the Council an annual”.

Senator Coyle: So instead of the end of each financial year, it’s —

Senator Audette: Exactly. To be clearer. Precision.

Senator Coyle: I have no problem with it. I also have no problem with what’s there because it’s the same thing. It’s a different word, but it’s the same thing.

Senator Audette: I am adding a date.

The Chair: March 31.

Senator Coyle: After the end of each financial year, after March 31 of each year, and six months after the end of each financial year is March 31. It’s the same thing.

Senator LaBoucane-Benson: There are some organizations that use different calendars.

The Chair: Yes, they use January as the end of the fiscal year.

Senator Coyle: It’s the minister. It’s the government.

Senator LaBoucane-Benson: I know, but this organization has to be on the March 31 calendar is what they are saying. They can’t choose a January-to-December calendar. They are saying they have to be on the same calendar as the federal government.

Senator Coyle: It’s just aligning the two. No problem.

The Chair: Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Shall clause 16.1 as amended carry?

Hon. Senators: Agreed.

The Chair: Carried as amended.

Senator D. Patterson: Point of order: We’re still postponing the earlier amendment on 16.1?

The Chair: Yes, we are still postponing that. They are separate clauses.

Senator D. Patterson: Chair, this is DGP C-29-17-8-7a.

The Chair: Yes.

Senator D. Patterson: Clause 17, page 8. I move:

That Bill C-29 be amended in clause 17, on page 8, by replacing lines 7 to 11 with the following:

“(a) the Government of Canada’s post-apology progress towards reconciliation;

(b) the progress being made towards reconciliation across all levels of government and sectors of Canadian society; and

(c) the Council’s recommendations respecting mea-”.

This amendment is a consequential amendment to the previous one that was passed, which modified the functions of the council in clause 7.

As you know, I was unable to attend the committee yesterday, but I did see the proceedings, and I saw the intervention by the departmental officials who flagged that the passage of my amendment, which Senator Tannas introduced on my behalf, would create discordance with the reporting structure set out in clause 17.1. While I personally believe that the clause as originally written was broad enough to capture the new reporting requirements in the amended clause 7.1, I was happy to engage with the law clerk’s office to have these amendments drafted. This is the direct result of the advice given by the official at our meeting last night, and that’s why I have moved it. Thank you.

The Chair: Thank you, Senator Patterson. Comments or questions?

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: Agreed.

The Chair: Shall clause 17 as amended carry?

Hon. Senators: Agreed.

The Chair: New clause, 17.1.

Senator Greenwood: This is 17.1-8-25. I move:

That Bill C-29 be amended on page 8 by adding the following after line 25:

“Funding

17.1 (1) The Council may annually submit a request to the Minister for funding for its operations for the next following financial year.

(2) The Minister may, with the agreement of the Minister of Finance, submit the request to the Treasury Board for approval.

(3) The Treasury Board may specify any terms and conditions it deems appropriate for the approval of the request.

(4) The President of the Treasury Board must have any approved request included in the Main Estimates tabled in Parliament for the fiscal year.

(5) The Minister may, pursuant to the authority of an appropriation Act, pay to the Council any amount that is authorized.”.

The rationale is that, while this clearly speaks to funding, as the bill stands right now, there is no multi-year funding, and we clearly heard from many witnesses that they would like to see multi-year funding. Right now it’s a one-time endowment of $125 million. This bill would allow the council to submit a funding request to the Minister of Crown-Indigenous Relations for the following fiscal year. It’s not an obligation, but it opens the door that if the council wants to submit, the council can submit.

Senator Sorensen: Just on the lay out of the bill, we have a report of council, we have tabling of Parliament, we have government response, so this will be a fourth clause, with the number 4 beside it.

Senator Greenwood: With “Funding.”

Senator Sorensen: With “Funding.” Thank you, I just couldn’t find the word “funding.”

Senator Greenwood: Sorry.

Senator Sorensen: Number 4, Funding. Thank you.

Senator Tannas: I want to make sure that I understand. My understanding of the endowment was that it is the only way in which a government can provide funding beyond its own mandate, beyond its own Parliament, that is, to put in a big chunk of money, budget it and have it spent in a fiscal year, hand it over, and then nobody can take it back. So the endowment is permanent funding. That is the idea.

I like this amendment because you never know — inflation versus scope, expansion, all of those things. It shouldn’t be necessarily that the council’s request for annual funding, operating funds, is dismissed because they point at the big chunk of endowment money and say, “There is your funding.” It may be that’s not right. The way that you have written it, Senator Greenwood, it has a lot of “may”s in it, so it really provides for the opportunity but not the obligation or, in fact, the expectation that it’s there. It gives maximum flexibility to everybody. I support it. Great amendment.

Senator Coyle: I have three questions. The first one is, would this not be a whole other clause as opposed to being under the report of council, which is what 17 is about?

Senator Greenwood: I would have to rely on the clerk. I don’t know.

Senator Coyle: It’s a different title. It’s a different thing from what 17 is about.

The Chair: Separate clause. The amendment creates a new clause.

Senator Coyle: I guess. I don’t know.

The Chair: It’s 17.1

Senator Coyle: It is 17.1. Okay.

Senator Arnot: It regularizes everything at the end of this, and it’ll probably be the new 18 or 19 or whatever.

Senator Coyle: Just doesn’t make sense to me that it’s under the same heading. Anyway, that’s not my main point.

The Chair: But that’s a question for the law clerk.

Senator Coyle: So that’s a question.

The Chair: Yes.

Senator Coyle: I would like to hear any reaction from our officials. I’m just curious, you know, about the Senate putting in something about funding.

Senator Greenwood, I have run non-profits just like you have. I sure wouldn’t want just an annual opportunity. I would want multi-year funding. What’s the annual stuff? It’s a nightmare. If it makes sense to put anything in about money — which I’m not sure it is — why would we be putting annual stuff in here? That’s a nightmare for any non-profit.

Can I hear from you folks on that?

Ms. Kapelus: I know references have already been made to the endowment fund. Indeed, through our conversations with the transitional committee members and others, the endowment fund was that first permanent step to allow an opportunity to figure out what actually was needed on an ongoing basis.

In terms of, yes, there are some “may”s in here. I would just point out that for the section that — second paragraph, with the 2, with the agreement of the Minister of Finance — it’s a little interesting to have that there. The minister could submit without the agreement, but, from a technical perspective, I just wanted to add that.

We have this relationship with a lot of partners, where they do come back. Pre-budget submission is a general practice with different bodies, different communities, and they submit regularly, and not just necessarily annually, sometimes. It can happen more than once within a one-year period, depending on needs, priorities and things like that. Those would be my initial comments.

Ms. Sunga: The only thing that I will add is that there is a little bit of peril in laying out internal processes in a piece of legislation and then maybe the processes themselves change. It’s in legislation but may become obsolete at some point in the future. You were referring to internal approval processes, et cetera.

Senator Greenwood: So what would your recommendation be, then?

Ms. Kapelus: We can’t really advise. We can give feedback on what practices we have in place.

The one thing I will add, taking up the same line of reasoning that Seetal was just explaining, this is limiting it to the federal government. There are other models of endowments internationally — I’m thinking of Australia — where there are multiple sources of funding that are often sought for bodies like this, not just a federal one. This could be suggestive that this is the only option for funding sources. I’m just putting that out there.

Senator LaBoucane-Benson: I also come from the not‑for‑profit world. When Mike DeGagné was here, he was talking about his experience with running the Aboriginal Healing Foundation and not having to go to the government hat in hand every year, begging for money, as the entire reason why they set it up as an endowment.

I personally would like to find a way to get the endowment increased. If anybody remembers, Mike DeGagné had $350 million to run the Aboriginal Healing Foundation. I am thinking of strong observations saying that I don’t know why this isn’t funded to the same level. He was doing a lot of work, research and in the community. This is going to be a lot of work.

I remember the CEO of native counselling is always saying about how he doesn’t want his hand out. He wants to shake hands in partnership with government. Government needs the not-for-profit world, and the government will need this council as much as this council needs the government. Setting up an annual “please give me money” situation makes this council hat in hand to the government, and the government says, “Okay, here are all the ways you must spend this money and the rules around that money,” whereas the endowment is rule-free. That was the entire thing. Let this council go over there and do all of their work, independent of government, and they don’t have to write annual fiscal reports and account for every pencil. Anybody who has had government funding knows what it’s like. At the end of the fiscal year, you count how many pencils you have used, how many stacks of paper, and account for why you used those seven pencils. It’s a lot. This council should not be in that kind of funding arrangement, in my mind.

I would feel much more comfortable with a strong observation saying to fund this at the same level of the Aboriginal Healing Foundation was funded at, in endowment, and leave them do their work. That’s just me.

Talking about annual funding doesn’t sound very arm’s length. It sounds very, “We’re your watchdog.” It sounds like, “We want you to fund us.” Therefore we’re in that really uncomfortable beholden to government situation, and we don’t want this council there. We want them storming the castle when they have to. That’s what I would say.

[Translation]

Senator Audette: My English-speaking brain is asleep, so I’ll speak in French. Is this something we can find — my question is for our government colleagues — is this type of wording present in acts dealing with organizations similar to the council?

Second, is the Senate allowed to draft bills or amendments that deal with financial matters, that involve money, or was funding already announced for a bill? That clarification is important to me.

[English]

Ms. Sunga: Can we take a minute to confer to answer the question?

Senator Audette: The first one or the second one?

[Translation]

I understand asking, but organizations can already ask for money. Is it for fear, as Senator Tannas explained, of the money not being forthcoming? At the same time, if we’re not saying — the council wants to be arm’s length; that’s my understanding. Aren’t we essentially telling them, “Your independence, you can—”?

I want to understand. I thought they wanted to be arm’s length when we heard them. I understand full well how precarious funding is for all organizations, but they’ll be receiving an amount that they’ll have to invest. They will have to spend or allocate those funds appropriately.

I’d like you to explain that to me, senator. Can other governments get involved as well? Could they constitute other sources?

[English]

Senator Greenwood: Thank you for the question. The primary reasons I brought this forward are the Call to Action 54 that calls upon Canada to provide multi-year funding to a national council for reconciliation and having heard many of the witnesses talk about multi-year funding. I don’t think this amendment obligates any group or council to just apply for government funding. This just makes sure that doorway is open instead of just $125 million and that’s all you are going to get. There is a pathway and the doorway is open. Whether the council chooses to walk through that doorway, that’s their choice. It is not the only doorway open to the council. They may go to other places and sources of funding, as I understand it, but this just keeps that opportunity open for them.

I don’t believe a $125 million endowment is enough. Senator LaBoucane-Benson just talked about the Aboriginal Healing Foundation with $350 million. This kind of work and the magnitude of the expectation around this council is massive to even undertake, prioritize and then begin the work. I listened clearly to what the witnesses were saying, and I am trying to create a space or place for them to have opportunity. That was the whole intent of this. It’s not to obligate anybody. It is to create that space or that an opportunity.

The Chair: Would anyone else like to comment?

[Translation]

Ms. Kapelus: To your first question, not to date, no, not to our knowledge.

[English]

Not to our knowledge at present, no. We just conversed amongst ourselves, and we’re not aware of any.

Senator Audette: Thanks.

Senator Arnot: What was the question? “Not to our knowledge?” What’s the question you are answering?

Ms. Kapelus: Basically, if there are any other examples of where we have seen language like this in a similar model or way. We were trying to pick our brains not even just in legislation but elsewhere, but nothing that we’re aware of.

Senator Coyle: To follow on what you said, this looks not like language you see in legislation, but it looks like a process that may be written up about how do you follow the federal government bureaucracy. That’s what it looks like to me. That is an unusual thing to put in legislation.

Having said that, I completely agree with Senator Greenwood and what everybody else is saying here. We heard clearly from our witnesses that they didn’t feel that that endowment amount was sufficient. They didn’t want that to tie their hands from being able to seek more funding if needed or wanted from the federal government, or possibly other sources. I understand what the intent is, absolutely, and I really appreciate what our colleague Senator Greenwood has done here because she has clearly distilled those many, many pages of the Hansard notes and has pulled out for all of us and for our benefit these reminders of these key areas that we heard from our witnesses. What do we do with it is the question here.

I’m not sure that Senator LaBoucane-Benson and I completely see things eye to eye, but with the idea of an observation on perhaps three things, one under the title of adequacy of funding for the important purpose of council, one about the initial endowment amount needing to be of a greater magnitude; and one that the provision of that endowment not preclude the council from seeking multi-year or other funding or further endowment funding, for that matter, from the federal government. The council — and we already know this is possible because it is a non-profit — can, according to its own will, seek out funding from other sources. That is a possible three-pronged way of getting at this very strong message that we heard from several witnesses without limiting it but actually broadening it and making a strong statement in an observation. That’s what I’m saying, because I think that might actually be stronger and maybe more appropriate, in my mind.

Senator Arnot: I think the fundamental flaw is the endowment amount. We have talked about it so many times: $125 million at 5%, $6.25 million a year, is not enough — we know that, and everybody agrees with that — whereas $350 million at the same 5% would be $17.5 million. That’s in the ballpark. If you consider the mandate of the Aboriginal Healing Foundation, it’s at least comparable to this mandate here. If we put it in an observation, is it going to have any effect?

Senator Coyle: I don’t think we can put a dollar amount.

Senator LaBoucane-Benson: I think we can observe.

Senator Arnot: My question is, does it have any real effect? Will that flaw be remedied?

Senator Tannas: The tyranny of the “or” and the genius of the “and,” right? We should have an observation about the endowment being insufficient and suggesting an amount.

Senator Arnot: Agreed.

Senator Tannas: When the minister was here, he acknowledged that there would potentially be a need for additional funds. He responded to Senator Arnot and said that he acknowledged the fact that there may be more annual funds needed: We develop the council, and the council comes up with an action plan, figures out the scope of the work and budgetary requirements, and we are definitely open to increasing that. To me, having this sitting there as a legitimatizing of asking for annual money with an observation that ties to this and explains it would be entirely appropriate. The two go together.

Senator D. Patterson: Just quickly, if we are going to put anything like this in, it’s too weak. For one thing, it suggests only year-to-year funding, which is not what we would want. Secondly, it’s strange that the minister would have to get agreement from the Minister of Finance. That’s unusual and unnecessary. This clause about terms and conditions set by Treasury Board invites nickel-and-diming of the kind that we’re afraid of. I do think this would erode the independence of the council, having to go every year, even though it’s optional. My own view is that it should be a strong observation. Thank you.

The Chair: All right. So we’ll end debate on this.

Is it your pleasure, honourable senators, to adopt the motion in amendment?

Hon. Senators: No.

The Chair: So the amendment is defeated.

We’ll revert back to clause 16. This is the subamendment that we postponed earlier to Senator Greenwood’s.

It is moved by the Honourable Senator Dalphond that the motion in amendment be further amended by adding:

That the motion in amendment be amended by adding after “effect” the following: “or for any other appropriate order”.

Is it agreed?

Hon. Senators: Agreed.

The Chair: Shall the motion in amendment, as amended, carry?

Hon. Senators: Agreed.

The Chair: Shall clause 16, as amended, carry?

Hon. Senators: Agreed.

The Chair: Shall clause 18 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 19 carry?

Hon. Senators: Agreed.

The Chair: We’re moving now. Shall clause 20 carry?

Hon. Senators: Agreed.

The Chair: Shall clause 1, which contains the short title, carry?

Hon. Senators: Agreed.

The Chair: Shall the preamble carry? Senator McCallum?

Senator McCallum: I’m going to do it in third reading, because the interpreters have to go and we don’t have time.

The Chair: Shall the preamble carry?

Hon. Senators: Agreed.

The Chair: Shall the title carry?

Hon. Senators: Agreed.

The Chair: Shall the bill carry, as amended?

Hon. Senators: Agreed.

The Chair: If amendments were adopted, is it agreed that the Law Clerk and Parliamentary Counsel be authorized to make necessary technical, grammatical or other required non‑substantive changes as a result of the amendments adopted by the committee, including updating cross-references and renumbering of provisions?

Hon. Senators: Agreed.

The Chair: Does the committee wish to consider appending observations to the report? We don’t have to do observations at all. They can be done in third reading. The observations can be done at third reading as speeches.

Senator D. Patterson: Can the observations be done later by steering and circulated? No?

The Chair: There wouldn’t be a chance for the committee to discuss. I’m being told that it’s not recommended to do that practice. The best course of action is observations during the speech at third reading.

Senator Coyle: Is there a reason we couldn’t get this done on Tuesday with observations?

Senator Arnot: It’s too late for that. I think it’s better to consider this —

Senator Coyle: Yes, because then it’s more coordinated.

Senator D. Patterson: Observations are important.

The Chair: Yes. We’ll adjourn and come back at a later date.

Senator Sorensen: If we have a suggested observation, do you want us to send it to you in advance? It’s nice to have them in advance. Okay.

The Chair: Thank you for your input, everyone, and the great discussion tonight.

(The committee adjourned.)