Therefore, honourable senators, in amendment, I move:

That Bill C-21 be not now read a third time, but that it be amended on page 51 by adding the following after line 28:

45.1 The Act is amended by adding the following after section 118:

118.1 (1) If a proposed regulation may affect one or more Indigenous groups’, communities’ or peoples’ rights recognized and affirmed by section 35 of the Constitution Act, 1982, the federal Minister must, before the proposed regulation is laid before each House of Parliament under subsection 118(1), consult with a variety of Indigenous governing bodies and a variety of Indigenous organizations in order to take into account the unique circumstances and needs of those Indigenous groups, communities and peoples.

(2) If subsection (1) applies, the federal Minister must include with the proposed regulation laid before each House of Parliament pursuant to subsection 118(1) a report describing the consultations undertaken.

(3) The following definitions apply in this section.

Indigenous governing body means 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. (corps dirigeant autochtone)

Indigenous organization means an Indigenous entity that represents the interests of an Indigenous group and its members. (organisme autochtone)”.

Thank you.

In amendment, it was moved by the Honourable Senator Boisvenu, seconded by the Honourable Senator Seidman:

That Bill C-21 be not now read a third time, but that it be amended on page 51 by adding the following after line 28:

45.1 The Act is amended by adding the following after section 118:

118.1 (1) If a proposed regulation may affect one or more Indigenous groups’, communities’ or peoples’ rights recognized and affirmed by section 35 of the Constitution Act, 1982, the federal Minister must, before the proposed regulation is laid before each House of Parliament under subsection 118(1), consult with a variety of Indigenous governing bodies and a variety of Indigenous organizations in order to take into account the unique circumstances and needs of those Indigenous groups, communities and peoples.

(2) If subsection (1) applies, the federal Minister must include with the proposed regulation laid before each House of Parliament pursuant to subsection 118(1) a report describing the consultations undertaken.

(3) The following definitions apply in this section.

Indigenous governing body means 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. (corps dirigeant autochtone)

Indigenous organization means an Indigenous entity that represents the interests of an Indigenous group and its members. (organisme autochtone)”.

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

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

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

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

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

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

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

This is the assurance we have from the minister.

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

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

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

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

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

Just one very short question, Senator Yussuff, if you would. One of your reasons for our not doing this here is that it was defeated at committee. That’s probably a reasonable argument.

How do you feel about Bill C-234, where we defeated amendments at committee and then you voted for them in this chamber?

If I may say in response, Senator Plett, I would prefer to talk about Bill C-21, which is before us right now.

You’re not answering my question.

If you want me to speak about Bill C-21, I’ll be happy to.

You’re not —

I do believe my friend had every right to table the amendment that’s before us, and I gave a response as to why we should reject the amendment. I’m not suggesting he didn’t have the right to table the amendment, so let’s be very clear. He had the right to table the amendment. I accept that, and so does this Senate. But I believe equally the issue that he’s raising in regard to the amendment is adequately addressed in the legislation in Bill C-21.

Thank you for your sponsorship of this bill, senator.

You said that the minister will work collaboratively with Indigenous groups in the development of regulations. That is necessary. My question is simple. The witnesses were very clear that they have unique circumstances and needs that should be addressed, so if the minister will work collaboratively with Indigenous organizations in the development of regulations, why would you oppose an amendment that is proposing they do precisely that? What’s wrong with an amendment that reinforces the commitment you’ve already said the minister will undertake in speaking to the bill?

Thank you for the question.

As I said, section 35 is enshrined in the legislation. It obligates the government to do so. The minister simply reinforces what’s already in the bill, which is that they have an obligation and a legal responsibility to consult with Aboriginal people in regard to the development of regulations that may impact them, adversely or otherwise. He’s just reinforcing what’s already in the legislation.

I think the amendments before us are redundant and unnecessary.

Senator Yussuff, your time for debate has expired.

Point of order.

Yes, Senator Plett?

Senator Yussuff wasn’t on debate. Senator Yussuff was answering a question on the amendment. I don’t think he had 15 minutes on the amendment. If that’s what he had, Madam Chair, I’m sorry and I’ll stand down on it, but I think there may be some confusion there.

Senator Plett, let me check with the table officers because my clock here was not working. Yes, I’m sorry, a correction — he still has 10 minutes.

Senator Patterson, I believe you had a supplementary question.

Thank you, Your Honour.

Senator Yussuff, you have told us, basically, “Trust the government.” They have an obligation to consult because of the reference to section 35 in the bill, so don’t worry. It’s going to happen. The minister said it was going to happen. We have also heard clear evidence that there was no consultation with the Inuit in the development of the bill.

Why should we trust the minister to consult on the development of regulations when there was no consultation on the all-important development of a bill that profoundly affects Inuit as hunters, as people who have to survive on the land and as people who have to defend themselves from predators such as polar bears that have killed Inuit in my region? Why should we trust the minister to consult on regulations when there was no consultation on a bill before the chamber today which profoundly affects Inuit?

Thank you for the supplementary question.

I’m not asking you to trust the minister. The legislation basically enshrines the rights of First Nations people to be consulted under section 35. That is fundamentally what’s in the legislation. Should the minister or the government not follow that direction, any organization can take a minister to court for not meeting his obligation under section 35 of the legislation. It is clear and simple. If section 35 was not enshrined in this bill, we would have every reason to fear the government would not respect that section of the Constitution, but it’s enshrined in the bill.

When the bill was first developed, section 35 was not part of the bill. The government recognized it was flawed and subsequently amended the bill to include section 35. They were assuring themselves, but, more importantly, this is what the Constitution is about.

Do we have to write it over? It’s now written in to give clarity and certainty. Does that mean a government may not violate that at some point? It’s quite possible, but at least there is a legal remedy should the government choose not to do so at the end of the day. That’s what a court of law is for.

There are many laws we pass in this place. Are we always assured that the government will follow the law as is stated based on the adoption we make in this chamber? We have a remedy if that doesn’t happen. That’s what section 35 speaks to.

I’m glad that when the bill was discussed in the other place, section 35 was added to the bill to make certain that First Nations’ rights will be protected in the context of this legislation becoming law in this country.

Would Senator Yussuff take a question?

Yes. Thank you.

Senator Yussuff, I have tremendous respect for you, and I consider you a friend. This government’s record on respecting laws is very worrisome. Consider the Canadian Victims Bill of Rights. At least 10 times over the past eight years, the government has failed to respect the rights of victims of crime.

Section 45 of the Canadian Constitution requires the government to consult Indigenous peoples. Indigenous peoples told us they were not consulted. The government even disrespected the Canadian Charter of Rights and Freedoms. It says it wants to apply the Charter of the United Nations to Indigenous peoples, but it has not done so.

Do you really think that, just because this is in the bill, the government will respect it? Let me ask you this question: What planet are you living on?

I thank my colleague for the question.

I live on the same planet he lives on, but I don’t live in a perfect world, nor does he.

Can the government do better? Can the government ensure it is going to meet its legal responsibility as stated in the Constitution? I believe so. I would like to believe that the minister’s letter was a serious attempt to ensure and recognize some of the points we made in the observation in regard to the bill and also the witnesses who came before the committee to testify.

Can the government do better? Yes, the government can do better, and we urge them to do better as part of our recommendation. But in the context of First Nations’ rights in regard to Bill C-21, the government has enshrined section 35 of the Constitution to give certainty and recognition that there are certain things that it is obligated to do as a result of the Constitution of the country.

Is it possible that some part of the administration may not follow that? It’s quite possible. We’re human beings. But at least there is a legal remedy should they choose not to do so.

It is my hope, in regard to this bill, which is a very challenging bill trying to regulate guns in this country, the government would recognize fundamentally the relationship to First Nations people and their right to hunt for sustenance in this country. It is fundamentally recognized as the minister states in his letter to us and, equally, as it was told to us by witnesses who came before the committee.

I’m honoured to have been part of the process to hear that, but also to reinforce to the government, as we did our observation, and ensure that it does a better job in consulting with all groups that are necessary in regard to the regulation process that will be undertaken once the bill becomes law in this country.

Senator Patterson, you had a supplementary?

If I may, Your Honour, yes. Thank you.

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

Again, I want to thank my colleague for the question.

It is my hope that section 35 will be respected in the broadest possible manner in regard to the obligation of the federal government. These are fundamental rights of the citizens of our country. The reason it’s enshrined in the bill is to ensure that those who are responsible for the implementation of this legislation will understand this is a critical and integral part of how we respect.

It has been a refreshing change to see this country, senators and our colleagues in the other place recognize the importance of Indigenous people’s rights in this country. I believe this has been long overdue.

It is my hope that no one from Indigenous communities will have to go to court to get remedy because the government has not fulfilled its obligation in terms of consulting in regard to regulations that may arrive as a result of the implementation of this bill.

Would you take another question, senator?

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

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

Thank you again for the question.

The minister, again, as a result of our work on the committee — which was very lengthy in regard to hearing witnesses — tried to address that to the committee in totality. He says:

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

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

This has assured us again that the minister is very conscious and aware of the —

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

Your Honour, I’m in your hands. I am not asking for anything. If colleagues want to offer five more minutes, I will gladly take it.

Is leave granted, senators?

I hear a “no.”

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

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

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

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

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

I am therefore unable to support this amendment.

Thank you.

Senator Dupuis, will you take a question?

Certainly.

I apologize, but I have to ask my question in English —

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

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

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

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

Thank you, Senator Lankin. As for allowing you to ask your question in English, I’d like to point out that you have a constitutional right to speak in English in the Senate of Canada. I, on the other hand, have a constitutional right to answer your question in French, and I think that’s great. I hope it comes through in the translation that we are both guaranteed this right, which I appreciate.

What I’m trying to say here is that we’ve often heard about the dialogue between the legislator and the courts. Legislators create laws that are interpreted by the courts, and sometimes the courts strike them down, saying that the legislators have exceeded their jurisdiction.

So far, the interpretation of constitutionally protected rights has gone far beyond a duty to consult. It can go as far as requiring plans to be changed. Consequently, if we respond today by adopting this type of amendment, we run the risk of sending a message to the courts that their interpretation actually went too far and that our more narrow interpretation is that we think it’s not necessary to go as far as changing plans. The message the courts would be getting from legislators is that consultation is enough. This would be a step back compared to what has already been conceded.

I don’t know if that answers your question, but it’s the best way I can put it.

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

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

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

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

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

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

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

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

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

Would the honourable senator take a question?

Yes.

I want to speak specifically in this proposed amendment about section 45.1(2), which talks about reporting to each house of Parliament. As you are the Chair of the Defence Committee, and you heard all of the testimony and are very familiar with the bill, in general, there’s a public process of consultation and engagement for all regulations, but the Firearms Act in particular already goes further than most other laws. Section 118 of the Firearms Act actually requires that firearms regulations be tabled before both houses of Parliament for 30 days, with the Defence Committee having the option to study the regulations and report back.

Senator Dean, do you agree that this existing process in the Firearms Act already gives senators an opportunity to evaluate the quality of the government’s consultations?

I absolutely do. I thank Senator LaBoucane-Benson for reminding all of us of the rubrics of the bill and the efforts that have been made to build consultation and engagement into it. Thank you.

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

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

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

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

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

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

Senator Lankin has a question. Would Senator Prosper accept a question?

Yes.

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

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

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

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

Thank you for your question, which is much appreciated.

Certainly, it’s within the realm of the courts to determine whether an added provision like this will somewhat narrow what exists as a general rule of law with respect to the jurisprudence of constitutional law as relates section 35. I don’t think this provision would override that. Ultimately, the Constitution is the Constitution. Should this matter come before a court of law, the Constitution always trumps, it has paramountcy over federal statute. If anything, this provision could be read or provide further guidance to the court with respect to that adjudication of the matter. I think it could provide clarity, and if it conflicts, I’m sure a court of competent jurisdiction will say so. Thank you.

Senator Prosper, in your legal opinion, can you foresee any unintended consequences from this amendment?

Thank you for the question, Senator Osler. When I read this particular amendment, it’s quite prescriptive in terms of what the obligation is upon government. It doesn’t leave it to jurisprudence. It can be subject to litigation and court proceedings, but if anything, it provides guidance with respect to what is to be undertaken with respect to these rights, which are so critical for Indigenous peoples. Thank you.

Senator Patterson, do you have a question?

Yes, please.

Will Senator Prosper take another question?

Yes.

The provision in the bill that everybody is saying takes care of this issue of consultation with Aboriginal peoples is only the standard non-derogation clause, the “don’t worry about it” clause. Section 72.1(1) states that:

The provisions enacted by this Act are to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

Does it give you any comfort that this non-derogation clause, which is widely seen in government bills, will force the minister to consult on regulations that impact Indigenous people?

Thank you for the question, Senator Patterson.

You might recall a bit of dialogue and discussion on a separate bill with respect to Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts, which seeks to get that within the federal Interpretation Act, take it from existing acts and make that point irrelevant or unnecessary. The fact of the matter is that having a non-derogation clause within an act, while useful, is not necessarily followed or the direction isn’t sought according to that non-derogation.

One could think why have a non-derogation to begin with if we’re talking about a constitutional right? We know those rights are the supreme law of this land and therefore should take precedence over subordinate legislation, whether federal or provincial. I don’t draw any comfort in a non-derogation clause. Just look at the bulk of litigation and jurisprudence with respect to section 35. It still exists, and I don’t see that being a determinative feature to force public officials to really consult and deal with the nature of Indigenous rights in a legal fashion, as it should be.

Will you take another question, Senator Prosper?

Yes.

I have been listening to this debate and the many confirmations of section 35, but what has particularly gotten my attention is Senator LaBoucane-Benson and when she said that in this bill, there is confirmation that the regulation will be tabled in both houses of Parliament. I’ve been in this place for 21 years, I think today —

I have never seen in a bill an imposition on a government to table the regulation following the legislation to both houses, so I view that as an additional assurance in regard to your concern. What do you think about that?

I appreciate your comment and congratulations.

I certainly get your point, senator, with respect to seeing a provision like this being tabled within both houses, and I applaud that recognition.

The unique feature about this amendment is, I believe, it goes beyond that and it goes to the core of consulting with Indigenous peoples. That is an incredible provision to have on such a critical piece of legislation, so it gets to the core of consulting with Indigenous people and it provides a positive legal obligation within a statute to do so on such critical matters as regulations.

Senator Boisvenu, do you have a question?

I’d like to ask a question, if possible.

Senator Prosper, will you take another question?

Yes.

Thank you. Senator, I think everyone would agree that, once the regulations are adopted, they’ll be tabled in both houses. That’s not the problem. The problem is that Indigenous peoples have to be included in the content of the regulations before the regulations are tabled. Once the regulations have been written and tabled in this chamber, it will be too late to consult Indigenous peoples. All we’ll be able to do is acknowledge that there was no consultation. Do you agree?

Thank you for your comments, Senator Boisvenu. I tend to agree with what you just said. As mentioned previously — and I really want to get to the core of that — the critical matter within this amendment is preliminary discussions before actual development of the regulations. It gets to the core and substance of the regulation itself, ensuring that appropriate consultations take place before it goes to both houses. I think that’s the critical feature here, thank you very much.

Are senators ready for the question? Senator Prosper, will you take another question?

Yes.

Senator Prosper, do you see any issues with the definitions in this section, especially the “Indigenous organization” meaning an Indigenous identity that represents the interests of an Indigenous group? I’m wondering if there’s anything with these definitions that could be perceived as ambiguous in any way.

My apologies, I’m looking at the bill right now. Could you guide me to that?

It’s on the amendment and it’s 118.1(3), the definitions.

Under Indigenous organization?

Under Indigenous governing body and Indigenous organization, do you see anything that could be ambiguous in those definitions?

There is provision within the definition that talks to an entity that is authorized to act on behalf of an Indigenous group. There are questions with respect to that authorization and, in part, sometimes the legitimacy of Indigenous groups, granted. I’m sure those are questions that could be dealt with through relevant discussions that government can undertake to ensure that the appropriate bodies are consulted. It could be part of the consultation process.

So there are ambiguities in that section. Thank you.

Senator Prosper, do you have an answer to that question?

I’m saying there could be inevitably ambiguities. What we’re looking at is the existing landscape of Indigenous organizations. It’s a necessary exercise, when you undertake consultations with Indigenous organizations, that you’re going to have different organizations claiming certain rights and obligations to their membership.

Honourable senators, I just want to bring up a few points in response to some of the statements that were made, including Senator Dean’s suggestion that no government has ever consulted so extensively with Indigenous peoples.

Colleagues, we have been through this movie before. The Firearms Act was amended in 1998, and, at that time, there was this same concern raised about Indigenous peoples having special and unique circumstances that had to be addressed. What did the government do? The government worked particularly with the Inuit — I know — to develop the Aboriginal Peoples of Canada Adaptations Regulations (Firearms), specifically to deal with the special circumstances of Indigenous peoples. This had to do with developing a regime for acquiring firearms acquisition certificates, recognizing there were language barriers to Inuit acquiring firearms acquisition certificates and developing a process where firearms acquisition certificates could be acquired orally based on the traditional Inuit hunting practices of elders in communities.

There are 21 regulations that were developed in 1998 to recognize the specific situation of Indigenous peoples. All that Senator Boisvenu’s amendment is proposing to do is make sure that we conduct the same process.

Let me say that the Firearms Act of 1998 was equally controversial for Indigenous peoples. They were involved in the development of the regulations. There was a whole adaptations regime developed. It’s been satisfactory for Inuit. They can obtain firearms acquisition certificates without having to read English and without having to submit written applications.

That’s just one example of the 21 provisions that were developed.

We’re told that the amendment will duplicate what is already in the act. Sorry, no, that’s totally misleading. The act includes a standard non-derogation clause. That’s the only reference to section 35 of the Constitution Act, 1982. A non-derogation clause is negative. It basically says that you can’t override section 35 rights when implementing the bill.

This clause is about not acting against Indigenous rights so that if the government does something, there is a remedy. This amendment will lead to a proactive process to prevent that from happening. The Inuit were happily and meaningfully involved in developing the Aboriginal Peoples of Canada Adaptations Regulations (Firearms). There have been no concerns about the Firearms Act of 1998, and there will be no concerns if they are meaningfully involved in implementing this bill.

By the way, I know that the committee heard evidence from witnesses who said, “You know what? We need semi-automatic weapons in Nunavut, because when a polar bear is coming for you and coming into your tent, you may need more than one shot in rapid fire to save the lives of your family and your children.” There is a genuine need to have the regulations adapted to Inuit in Nunavut.

I feel very strongly that this amendment should be carefully considered by the chamber.

I want to say what I also said in my question to Senator Yussuff: The government didn’t bother to consult with Inuit in the development of this legislation. They are hunters. They live and feed their families by hunting. They are not sports hunters. They are like farmers. They harvest on the land using firearms. They know about firearms like no one else does, and, again, they contributed to the adaptations regime in 1998. They should be allowed to contribute to an adaptations regime in 2023.

This amendment will do that.

Senator Yussuff has told us that it is his hope that rights will be respected. Let’s guarantee it by ensuring that the consultation that did not take place in the development of this bill will happen in the development of the regulations.

I’m sorry, but regulations are published and gazetted. We all know the process; that’s an after-the-fact process. This is proactive. It will ensure that the regulations are not responded to after the fact, and do not have to invoke the non-derogation clause or result in litigation. Again, this ought to be done proactively, as it happened in 1998.

I give credit to the government of 1998 for consulting with Inuit and Indigenous organizations in the Aboriginal Peoples of Canada Adaptations Regulations (Firearms). Let’s do it with this bill.

It’s a simple, reasonable request.

I know there’s a mantra of “no amendments.” That was the rule in committee, which I understand is probably the government’s desire, but this is a reasonable amendment. No one will oppose this amendment. Let’s do it right and properly, and make sure the consultations that took place in 1998 also take place in 2023 in the all-important development of the details — the regulations.

Please support the amendment, honourable colleagues. Thank you.

As a lawyer, Senator Patterson, which you are, and as a legislator, as we all are, is it not the case that section 35 of the Constitution Act, 1982, even if it were not in this bill, imposes an obligation upon all levels of government — including us, as parliamentarians, but also the executive branch of government — to respect all the terms of the Constitution? Is that not correct?

Yes.

Is it not the case, therefore, that section 35 of the Constitution Act, 1982 imposes a positive obligation on all levels of government, including parliamentarians, in our actions in order to ensure respect for the rights that are guaranteed — in this case, to Indigenous peoples under section 35 of the Constitution Act, 1982 — whether it’s in the legislation or not?

Sure, there’s a positive obligation, but there’s no guarantee that it’s going to happen. It didn’t happen in the development of the bill. Natan Obed said, “We weren’t consulted in the development of this bill.” That gives me good reason to say that we should ensure Inuit are involved in the development of regulations — proactively and positively — so that when the regulations are tabled in the Canada Gazette and in both houses of Parliament, Inuit will say, “Yes, we were heard, we were given the respective consultations and things are okay by us,” just as was done in 1998 when they were actively and collaboratively involved in developing the Aboriginal Peoples of Canada Adaptations Regulations (Firearms). That is just as important in this bill.

Senator Dennis Patterson, would you take another question, please?

Yes.

Thank you.

I’m not a lawyer, and I’ve heard a lot of things during the debate on the amendment: proactivity, which is in the consultation and development of legislation, versus discussions around section 35 of the Constitution Act, 1982, which talks about implementation.

Senator Patterson, could you clarify — for this non-lawyer — the following: Does this clause allow us to close the gap between what seems to be upon implementation versus trying to do it in the development phase?

Thank you.

Thank you for the question.

This government — and I love to hear the phrase — says, “Nothing about us without us.”

That, by the way, is essentially the provision in the United Nations Declaration on the Rights of Indigenous Peoples, which this government has also adopted. There will be a collaborative approach to developing legislation, especially legislation that impacts Indigenous peoples — like surely firearms legislation does for people who make their living and feed their families by hunting.

I believe that what we are seeing here is an opportunity to prevent problems from happening, like what has happened in the development of this bill and as is illustrated in the need for this amendment. They weren’t consulted in the development of this bill, so let’s make sure they are consulted in the development of the regulations. It’s proactive, it’s positive. It’s not negative. No, you’re not allowed to do anything that will impair our rights.

This process proposed by Senator Boisvenu, which I think includes a broad definition of Indigenous groups — I have to respectfully disagree with Senator Boyer — will ensure that the regulations, just as they were done in 1998, respect and reflect the unique circumstances and needs as is outlined in the amendment by Senator Boisvenu of Indigenous groups, communities and peoples in a proactive, positive way. Not after the fact like, “Well, we overlooked that and we’ll have to go to court, hire lawyers and sue to get our rights recognized.” Let’s do it right in the development of the regulations so we don’t have these ongoing problems and be solving issues by having white-haired judges determining Indigenous rights. Let’s do it with the Indigenous people as proposed in this amendment. Thank you.

Would the senator take another question?

Yes.

This may be my last chance to ask you a question, and I can assure you that I appreciate it.

Senator Patterson, you are a lawyer by training. I’m also a lawyer by training and a judge, and I think the basic principles have to be remembered here for non-lawyers. First, in legal order, is the Constitution. The Constitution prevails over the laws and regulations. If a law or regulation is contrary to the Constitution, it is null and void and the courts will strike it down. That is the first point.

The second point is that we just amended the Interpretation Act to incorporate provisions that say all laws, regulations and statutory instruments from the federal government must comply with section 35. Don’t you believe that all these things together are enough? We have the suspenders and the belt, and now you are proposing that we need more. Is there a point where the system makes sense while repeating things all over the map?

Senator Dalphond, I’m terribly alarmed to hear this might be your last chance to ask a question. I hope you’re not considering resigning from the Senate. We need you. We need you in the Legal and Constitutional Affairs Committee. I’m just kidding.

You have pointed out, as Senator Yussuff pointed out, that there is a remedy in the courts if Indigenous rights are violated under section 35. I’m asking, how do we guarantee it before the fact, before the rights are violated rather than trying to fix it up after the fact? How do we guarantee that this doesn’t happen in the development of regulations? It’s by guaranteeing consultation.

A broad non-derogation clause doesn’t guarantee what Senator Boisvenu has laid out. There’s a proactive, before-the-fact obligation on the minister. As much as you’re a former judge — and I respect that — and the courts will strike laws down, let’s not make the Indigenous peoples go through that. Let’s involve them to make sure the regulations respect their rights. That’s all I’m saying, honourable senators.

Forgive me for my tone in this question. I do apologize.

There is a positive obligation to consult that flows from the Constitution. That is also embedded in this legislation, and, therefore, no matter how many times we put it in the legislation, it remains the case that there is a positive duty recognized in the law — both in the Constitution and in this bill already — for Indigenous peoples to be consulted in the making of regulations. You have agreed with that.

My question is as follows —

Senator Gold, I’m sorry, but the time on debate has expired. Senator Patterson, would you ask for more time to answer the question?

I hear a no.

Honourable senators, I support the amendment that Senator Boisvenu has put forward here. I ask the question: What is one of the reasons that we’re here? We’re here to protect minorities. Look at the track record. The only reason we’re having this discussion is because the government failed to consult with Indigenous people properly even though they have been required to do so since 1982. Forty-one years later, they didn’t do it in this case.

To me, that is a reflection of an ongoing attitude. I could argue right now that there’s been a breach of the fiduciary duty under section 35 because of what the government has already done. Moreover, it’s a breach of Indigenous rights, which are constitutional rights. As well, it is a breach of the honour of the Crown, that high standard. It’s already happened. We should not be countenancing this kind of action by the government vis-à-vis Indigenous people in this country. Now is the time to stop it. We can do that.

There has been an interesting explanation from our friend Senator Yussuff. It’s an admission by the minister that he failed. He fumbled the ball, he made a mistake and he’s going to try to clear it up. That’s good; I’m not suggesting otherwise. However, the best prediction of the actions in the future is the actions of the past, and it’s a bad story dating back some 41 years where Indigenous people are required to hire a lawyer, go to court, spend millions of dollars over seven years and litigate a case.

Litigation is an admission of failure. Don’t put people into a place where they have to litigate. This should be a problem-solving exercise. The way to do that, in my opinion, is to support Senator Boisvenu’s amendment.

What’s the downside? There’s no real downside because, as Senator Prosper and Senator Gold have pointed out, the Constitution is the highest order of the land, we have to follow that and the courts will do that.

I want to mention in respect to my friend Senator Boyer, these definitions were in Bill C-29. They are new definitions that have been set by the Government of Canada. I just wanted to say that.

With that being said, I say there’s been a failure, and there’s been an attempt to cure it. Can we trust the government? I hope we can, but let’s not do that. Let’s give them a backup, and Senator Boisvenu’s amendment will provide that backup, in my opinion. I think it’s best to err on the side of protecting minorities, and we have a chance to do so here now.

One of the things that I reflect on is Senator Prosper’s actions in these amendments in the Interpretation Act; it failed. But really, what’s at the heart of this is that the Government of Canada should have, as a matter of policy — in any policy they create — an analysis of the treaty rights of Indigenous people and an answer to the question: How does this affect Indigenous people and how does it affect their treaty rights? That would be a much better way. To put it into the Interpretation Act and make an assumption that it’s all going to work out is wrong. That’s why we have litigation.

I support Senator Boisvenu’s amendment, and I encourage my colleagues here to think very carefully about that.

If you want to really think about it, look at it through the eyes of an Indigenous person being told, “We promise you it will be better next year.” If you’re an Indigenous person, I’m sure you’d answer that question by thinking, “Not on your life. I don’t accept it anymore.” That’s what we should be telling the federal government right now while we have the opportunity.

Senator Arnot, will you take a question?

What’s troubled me about the amendment before us — and it goes to the discussion of the definitions — and what has struck me throughout this debate is that there are as many definitions of what constitutes “consultation” as there are First Nations Indigenous groups across this country.

Consultation means different things to different people, and there’s no consultation protocol that exists in the Government of Canada. That’s part of the problem. We have constitutionally protected rights. Senator Dalphond has spoken to that.

This amendment, from what I’ve heard, is redundant if we don’t clarify exactly what it’s supposed to do, which would be to provide a definition of “consultation.” For that reason, I’m struggling with it. I appreciate the passion that you have brought forward, but I also know that when I first stood in the Yukon Legislative Assembly, I was asked, “Have you followed the consultation protocol duly negotiated with First Nations?”

That’s why I can’t support this amendment. What is “consultation”? Do you have a definition?

It’s been litigated. Even that’s been litigated, but I would say, yes, you’re right; it would be good if the federal government had a protocol that was understood and attorned to by Indigenous people, but they don’t.

Similarly, they don’t have a policy of analyzing every piece of legislation coming from the federal government or House of Commons in implementing policy to determine whether it breaches Indigenous rights, treaty rights or fiduciary duty.

What you have talked about repeatedly, then, is policy, and this is the legislation. To me, the administrative law is that we’ve got the Constitution; now we need the policy. This is where the rubber will hit the road, so we urge the government to have a consultation protocol in place that applies throughout the government. We don’t write it in legislation.

What Senator Boisvenu is trying to do is help solve a problem that the government created by not doing the consultation correctly in the first place. In my opinion, there’s no downside to implementing this particular amendment.

Thank you, Senator Arnot. I appreciate the knowledge and experience you bring to this, both legal and in terms of working with and supporting First Nations in your province and beyond.

First of all, we can all have different opinions. In my opinion, there is a potential downside, but putting that aside — and by the way, I agree with Senator Patterson on a lot of what he has said regarding what has not been done to include Innu people. I have no complaints about what he has said.

What I want to ask you and the others who have made this point is this: What makes you think that adding this amendment will be preventive in any way? If a government is not going to follow the Constitution, the Interpretation Act, their own legislation or a minister’s letter that says, “I messed up and we’re fixing it now,” how does this amendment ensure that the government will do it and that First Nations people won’t end up having to litigate it anyway? This does not preclude further litigation if they don’t live up to their already multiple stated obligations.

This bill is important, and I know that there are many amendments coming. Think about what we’re doing in one place or the other. Where are we attempting to make the situation better by repeating something that has already been ensured across laws? It does nothing to address the basic concerns that I’m in agreement about and which Senator Patterson has put forward.

One way to look at it is this: Let’s say you’re a judge in the Supreme Court of Canada, and you’re looking at this at some point in the future. You see this in the legislation, and it says, “Well, the legislature spoke. You’re supposed to do that. Not only that, it’s in the Constitution as well.” It enhances the argument, in my opinion.

I believe that that’s the right thing to do. It’s excellent. It gives —

That’s my opinion —

I agree very much with the intent of what you have said, Senator Arnot. I agree very much with Senator Boisvenu’s amendment, but I have — excuse me, I think I have the floor. Thank you.

I’m thinking of some of the voices we heard. When you say, “What do we have to lose? What is the downside?” My answer is, “Bill C-21.” I want to say a couple of things. I look to PolySeSouvient, which said:

We recommend that the Senate pass the bill as is so that it can be implemented as quickly as possible. We support Bill C-21 because of some of the very strong measures to better protect victims of intimate violence, as well as the public safety potential of the freeze on handgun purchases in addition to other measures.

We can try to make every bill perfect, but we live in the real world. The chaos in the other place is enormous. Let’s not pretend it’s not happening. The chance of getting Bill C-21 passed by sending it back to the House — are you prepared to give that up to ensure your amendment, which Senator Lankin just outlined is ensured in many places? Adding it here wouldn’t ensure it any further, in my view.

You’re talking about public safety. I don’t think any hunter, trapper or First Nations person I’ve talked to would say that they are not in favour of ensuring public safety. I see that as a completely different issue.

This is about the rights of Indigenous people. I’ll speak to that later, perhaps on the third reading of this bill. I understand the passion. I understand the reason that Canadians need to feel protected. There’s a tsunami of handguns coming across the border. That’s separate from this issue.

This is about the protection of minority rights and Indigenous people. It’s about reconciliation. It’s all wrapped up in that, and that’s the way I see it. It’s at that frame. Thank you.

I see that, but in a debate like this we’re never dealing with just one issue. We’re dealing with many different issues.

I would say the issue we raised has been protected quite well, as Senator Lankin has brought up, in terms of Indigenous consultation. I would just go back to the fact that the Danforth Families for Safe Communities said it needs to be supported by the Senate without delay and that:

Every level of government needs to be involved. However, our position is that Bill C-21 is a strong contribution to the federal level of government and needs to be supported by the Senate without undue delay.

I leave you with that, sir.

That’s the answer: “We didn’t do the consultation. It was too difficult. It was too time-consuming. It’s too complicated.”

That’s the wrong answer. Those are the explanations we received and they are not sufficient. We need to make sure that Indigenous rights are protected. This is what I’m proposing, and I believe that’s what my friend Senator Boisvenu is proposing.

Senator Cardozo very clearly indicated that it is not our job to fix legislation. I’m surprised that on one bill they want to fix it, and on another bill he’s saying we should not fix legislation, which Senator Boisvenu is trying to do and you’re supporting.

He further indicated that this bill was going to die because the other place is in a bit of disarray now, and they wouldn’t be able to get this bill back to us. Senator Arnot, I have a question: Have you heard anything about prorogation or an election coming up that would prevent the government from dealing with this at the end of January or beginning of February, if they are going home?

Nothing I can rely on.

I’m sorry, Senator McCallum, the time for debate has expired. Are you asking for leave to answer the question, Senator Arnot?

I hear a “no.” Sorry.

Honourable senators, the importance of this amendment and the importance of this bill cannot be overstated. The passion with which all of the debate has taken place — and it has certainly affected me and my questioning — is palpable, real, authentic and welcome.

I’m rising today to speak very briefly — because I do want to get to the question, and I hope you’ll allow us to do that — to express the government’s position. I’m appealing to you as legislators with convictions, passions, constituencies, beliefs, frustrations and memories. I’m appealing to you as legislators about what it is and how laws are actually interpreted by governments and by courts.

There is a duty to consult on legislation and regulations that flows proactively and positively from the operation of the Constitution, whether it’s in any legislation or not, that is independent of any non-derogation clause. There’s a positive obligation to consult on the regulations that I also believe is implicit in the non-derogation clause that will be part of every legislation, as was outlined in an earlier intervention.

It has been said that if there is no consultation or inadequate consultation in the regulatory process absent this amendment, then Indigenous rights holders and groups will have to go to court to seek a remedy. It was implied, and I think indeed stated, “But this amendment will change that.” But that, colleagues, to the lawyers and non-lawyers, is nonsense — it is nonsense, as Jeremy Bentham would have said, upon stilts. I say that with no disrespect, but it misunderstands exactly how the laws operate. There could be the most specific positive obligation in this amendment on top of the other obligations that I’ve already outlined, but if there’s a breach, you still have to go to court. There is no avoiding litigation when there is a breach of a positive constitutional and legal obligation.

It is not true that this amendment solves that problem. It’s a real problem. First Nations and Indigenous groups have had to spend far too much money and, more importantly, far too much time — sometimes generations — to get their rights recognized. The Government of Canada, whether it’s this government or the previous government or governments before that, have been dragged by the courts into recognizing and acknowledging Indigenous rights.

Thank goodness that section 35 in the Constitution is open‑ended enough so that our courts still have the ability to learn from Indigenous voices and to articulate, in the myriad of cases that have not yet been resolved either through negotiation or litigation, what the true contours and shapes of Indigenous rights are. We don’t know. Our generation is the first to really confront the extent to which rights are being held in this country — lands were not surrendered, treaties were dishonoured. Our children and grandchildren will live in a world with much more expansive rights and understandings, and it will be the courts, to be frank, not governments, who will be leading the way.

This amendment does not solve the real problem you identify, but there is a problem with this amendment. Again, if I’m speaking passionately, I’m doing it as a legislator and as a constitutional law professor — rusty, though; maybe the rust is coming off a little bit — and I’m trying to offer you an analysis of how legislation actually works in the law-making process, and there are problems with this amendment.

The first one flows from the comments that Senator Dupuis made and from what I just said. If our Constitution is a living tree — harkening back to the Persons Case, which we celebrate every time we leave this building — what that means is that the contours of the rights, whether they’re section 35 rights, equality rights or any other rights, are able to evolve with time not because of the political whims of the day, not because of the passions of the day, but because of the evolving understanding that we have as citizens of what our rights and obligations to each other entail.

This amendment has one problem, and this is downside number one, Senator Arnot, to your point. I agree with Senator Lankin in this respect; if it was not Senator Lankin, then some other senator. We are all equal as senators, and your interventions are all equal of my respect.

One downside is that this has the potential for narrowing the interpretation of the evolving, not yet fully circumscribed rights, the duty to consult, the nature of consultation and the meaning of consultation to the groups, which is evolving with time.

With respect, Senator Prosper, I think that is a problem. Though it is true, of course, that the Constitution trumps all, it is also true that the standard principle of legislative interpretation — we heard it recently in connection with another bill — is such that we are supposed to actually have meant what we say. Therefore, there is a presumption that we have to put all the words together, and if we put a narrower phrase, maybe that qualifies a broader one, or maybe it doesn’t. We are inviting litigation all the way up to the Supreme Court on this narrow issue that might have actually nothing to do with whether there was adequate consultation or not.

So if we’re trying to avoid legislation and the human cost of people having to wait years and generations for their rights to be vindicated, this is not part of the solution — this is a potential problem. I can’t predict the future. That’s one downside.

The second downside is identified by Senator Boyer, and it flows from the nature of this amendment that is coming at third reading. It’s totally legitimate to introduce amendments at third reading — that’s not my point. When an amendment is introduced at third reading, it has not been studied. It hasn’t been vetted. We haven’t asked officials what it means. We don’t have legal opinions as to whether or not the ambiguity is or is not a problem, whether it will be solved in the consultation process or not, or when one group that wasn’t consulted claims it should have been, but it’s not clear whether they were involved, that becomes a litigation matter.

There are some downsides with the narrowness of the drafting, the ambiguity that appears to be there and the fact that we didn’t have a chance to study it the way this bill was studied extensively in the other place and in this place.

There is a final downside, and that is simply that this bill is being looked upon by survivors and communities across the country who have asked us to pass it with dispatch, without amendment.

We have studied this properly, and we have studied it seriously. I think that, as legislators, we’ve done our job. More importantly, however well-intentioned this provision is and however passionate you feel, it will feel good to pass this. It will feel good to pass it. I understand the feeling, but it’s not the right thing to do as legislators. It’s not the right thing to do. It’s an unnecessary, potentially complicating amendment that does not solve the problem that, with respect, its proponents in the best faith — we assume — have argued for.

Therefore, I urge you to acknowledge your feelings, but let’s do our job as legislators. Our job as legislators, in my opinion, is to vote against this.

Thank you very much.

Are senators ready for the question?

All those in favour, please say yea.

All those against, please say nay.

I believe the nays have it.

Honourable senators, do we have an agreement on a clock?

Honourable senators, do you give leave for a vote in 15 minutes, following the clock?

The vote will occur at 5:26 p.m.