Therefore, honourable senators, in amendment, I move:

That Bill C-5 be not now read a third time, but that it be amended, in clause 4,

(a)on page 10, by replacing lines 30 to 37 with the following:

“Council must consider the following factors:

(a) the extent to which the project can

(i) strengthen Canada’s autonomy, resilience and security,

(ii) provide economic or other benefits to Canada,

(iii) have a high likelihood of successful execution,

(iv) advance the interests of Indigenous peoples by fulfilling Canada’s commitment to obtaining the free, prior and informed consent of those peoples,”;

(b)on page 11, by replacing lines 1 and 2 with the following:

“(v) contribute to clean growth and to meeting Canada’s objectives with respect to climate change; and

(b) any other factor that the Governor in Council considers relevant.”.

I appreciate the question and thank you for that, senator.

There is certainly a distinct need to identify the parameters and best practices with respect to consultation and the term “free, prior and informed consent.” It has been used by government within the context of this bill, yet it is not included in this bill, so I completely agree that there has to be a concerted, focused effort on defining and breathing substance into consultation and free, prior and informed consent. Thank you for that.

Thank you to my colleague and neighbour Senator PJ Prosper for all of the work that you have done on behalf of all of us in this chamber. It’s respected and appreciated.

I have a question about the amendment. It’s more about the provenance of this because you would like us to improve the bill by passing this amendment. I want to know about the consultation process that went into producing this amendment and who stands behind it. I know you do, and you have talked about a number of people whom you’ve met with. I know we heard from people here in this chamber whom you referred to. I want to know who is behind it in addition to you, of course, and what confidence we will have that passing the bill with this amendment will satisfy the concerns that we have been hearing from Indigenous leaders.

Thank you for your question. I appreciate it, Senator Coyle.

I’d like to begin by referencing the testimony from within this chamber. Although very limited, I think it was quite clear and to the point with respect to the sentiments and the inadequacies of this bill. Further to your question and in addition to that, my office has had discussions with various groups across this country, such as the Chiefs of Ontario, the Regional Chief within Ontario, the Assembly of Nova Scotia Mi’kmaw Chiefs.

I want to thank the other senators who have sent open letters and those who have submitted to the senators themselves. We’ve been relying on that as well.

This isn’t an exhaustive survey, from my perspective, of a unanimous consent of all rights holders throughout the country, but I think it’s a good cross sampling of the need for further consideration. What we attempted to do through this amendment is to tweak the legislation to account for some of those interests. It’s not all of their interests, but there is always a way to make at least key tweaks within the legislation that, at least in part, will address their issues. Thank you.

Senator Prosper, are you aware that the English and the French versions of your amendment are not quite the same?

My apologies for that. I’m not aware of that. I thank you for pointing that out.

I will work to correct that, but I’m hopeful that the general tenor and substance of the texts align, even though there are some inconsistencies there. Thank you.

All the words are there, but the English version and the French version don’t match. If we read the English version and compare it to the French version, they don’t line up at all. For instance, part of the French clause runs onto the next page. When these kinds of documents are presented, especially on the spot, it would be better if they were prepared properly. Thank you.

I’ll ask the same question that I asked the Honourable Lisa Raitt and my good colleague here, Senator Brian Francis.

What is stopping tribal Chiefs and Chiefs in council from setting the table, inviting the government to that table and laying out the expectations of tribal councils or Chiefs in council for full consultation and engagement? I’m wondering what stops that.

The Honourable Lisa Raitt said there is nothing stopping them, but it’s about precedence. I would like to hear your answer.

Thank you for your question, Senator Klyne. What I believe you said someone else suggested is what is stopping First Nations from having a dialogue on that.

It’s my understanding that First Nations want to have that dialogue, but what you need is apparent willingness from government to come to the table, to undertake those discussions and to do it proactively and in a respectful way. Colleagues, this is all about trust. As the Chief said, the real courtesy here is trust.

Senator Prosper, are you asking for more time? I believe Senator Klyne has a supplementary question.

Yes.

Is leave granted, honourable senators?

The driving factor on this is that we have these inherent rights and we have customary laws around how we negotiate that, but we also have the United Nations Declaration on the Rights of Indigenous Peoples law and the Truth and Reconciliation Commission’s Calls to Action. But the other thing is that we have what they want. They want our resources, and they want our consent.

The question is this: do we have enough standing?

Senator, please repeat your question.

I will summarize it.

We do have inherent rights and the customary laws of negotiation. We also have the resources and consent they want. I think that’s enough to bring them to the table in order to listen to what we have to say and negotiate with us.

I agree; if you want to have a true dialogue, you need two willing partners to come together.

The government has made great strides toward reconciliation, certainly with the Truth and Reconciliation Commission Calls to Action, the United Nations Declaration on the Rights of Indigenous Peoples Act and the existing common law as it relates to section 35 Aboriginal and treaty rights. You need a government willing to respect their own laws in order for that to happen.

Honourable senators, this past weekend, I celebrated National Indigenous Peoples Day by sun-dancing at the Alexander First Nation on Treaty 6 territory. It’s a sacred ceremony that involves fasting, sacrifice and deep prayers for the people. It’s something I’ve been doing since I was in my twenties. I’m grateful to Elders Fred and Melanie Campiou for including me and my husband, Allen, in their ceremonial family and for the kindness and humility they model for everyone who knows them.

Toward the end of the last day of the ceremony, member of Parliament Billy Morin, who was visiting the ceremony, and I were called to the tree in the centre of the ceremony. Special prayers were made, and a song was sung for the work we do here in Parliament. Senators, an Elder told me they were singing for all of us and for the work we are doing specifically here today.

One of the Elders — a man whose great-grandfather was a signatory to Treaty 6 — then spoke to me in the middle of the ceremony about Bill C-5. He expressed considerable misgivings about this legislation. He said he was afraid the bill would be used to take yet more land from him and his people. He wanted to come to Ottawa to tell us all about his connection to and deep knowledge of this land.

As the ceremony ended Sunday night, I left thinking about what he said and the moment Canada is currently in: our need for energy security and the massive geopolitical change we are experiencing now, all in the context of a country still trying to repair internal nation-to-nation relationships after more than a century of injustice.

I was thinking about the work that has been done in this chamber in recent years and decades — where we have come from and where we still need to go.

I was thinking about a table. Now, indulge me here, colleagues: The image in my mind as I left the sun dance and was driving home on Sunday night was a table in a field near Edmonton. Colleagues, join me in imagining this table as a representation of the legislative framework that protects the rights of First Nations, Métis and Inuit people.

The first leg of this table is section 35 of the Constitution Act, 1982 which states, “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

It defines “Aboriginal people” as First Nations, Inuit and Métis. It states that treaty rights include existing or future land claim agreements. This language was approved by our predecessors in the Senate in December 1981 as part of a legislative process that unfolded on both sides of the Atlantic.

The inclusion of section 35 was a major step and critically important. Still, those few lines left so much to be clarified. Indigenous leaders have spent the last three decades clarifying them, largely by taking the government to court. It’s been a long, expensive process. There are far too many cases to cite individually. But now we do have a considerable body of jurisprudence about what section 35 means.

For example, in the R. v. Sparrow case in 1990, the Supreme Court established a set of criteria to determine whether an Indigenous right is infringed and in what circumstances infringement can be justified. At the time, the court said one of the many factors to consider was whether an Indigenous nation in question had been consulted or “at the least . . . informed.”

In 2004, in Haida Nation v. British Columbia (Minister of Forests), the court went further, finding the government has a legal duty to consult when it “. . . contemplates conduct that might adversely affect [an Indigenous right] . . . .” and that “Good faith consultation may in turn lead to an obligation to accommodate [Indigenous] concerns . . . .”

In the court’s words, “. . . what is required is a process of balancing interests, of give and take.” That’s what we’ve seen in the years since. Progress has been imperfect and inconsistent. But overall, there’s no comparison to the way things worked before the “duty to consult” entered our lexicon.

There’s been an evolution in favour of dialogue, mitigation and accommodation. It doesn’t always lead to outcomes everyone finds satisfying. But it is an evolution we can find encouraging.

Of course, section 35 doesn’t solve everything; it’s only one leg of the table.

In 2018, in Mikisew Cree First Nation v. Canada (Governor General in Council), the Supreme Court found the duty to consult does not apply to the legislative process. That decision left many Indigenous peoples deeply frustrated, and I totally understand that.

Constitutional obligation or not, I certainly think it’s a good idea for the government to engage Indigenous peoples as early as possible in the legislative process.

I credit the last government for several legislative successes borne of early consultation and even an attempt at co‑development. These include the former Bill C-91 on Indigenous languages which my colleague Senator Francis was the sponsor of, and Bill C-92 on Indigenous child and family services which I had the honour to sponsor. And they include the second leg of the table that you are holding in your mind: the United Nations Declaration on the Rights of Indigenous Peoples Act. This act requires the government to modernize federal laws to reflect the 46 articles of the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, and to create and implement an action plan that achieves UNDRIP’s objective. That action plan was issued two years ago. Annual progress reports are published online for all of us to see.

Of particular relevance to our current debate, UNDRIP Article 32 calls on states to obtain Indigenous peoples’ free and informed consent prior to approving any project affecting Indigenous lands or resources.

Accordingly, Canada’s United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan commits the government to working with Indigenous peoples to develop guidelines for government and industry about how to obtain free, prior and informed consent.

We have section 35 of the Constitution which, according to the Supreme Court, imposes on the government a duty to consult. That’s leg number one.

We’ve got the United Nations Declaration on the Rights of Indigenous Peoples Act, through which Parliament has told government to go further in order to adopt free, prior and informed consent as leg number two.

My table’s third leg is one of the specific commitments made in the UNDRIP action plan which was accomplished, namely the addition of a non-derogation clause to the Interpretation Act. This was done through the former Bill S-13, which we studied in the Senate in 2023 and which was adopted by our colleagues in the other place last November.

The Interpretation Act is a law that tells us how to interpret all other laws. The addition we made last year was something that Indigenous peoples had been seeking for over a quarter of a century.

This is the text we added:

Every enactment is to be construed as upholding the Aboriginal and treaty rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

Previously, before Bill S-13 was passed, some laws contained this kind of safeguard, but many didn’t. The exact wording varied from one law to another, creating potentially problematic inconsistencies in the way Indigenous rights were understood in different situations.

The point of Bill S-13 was to establish a single, uniform standard that would apply across the board, which is exactly what it did. It applies to every existing law. And it will apply to every new law that we study going forward, including Bill C-5.

Before last November, we might have felt the need to add a non-derogation clause to this legislation to ensure everyone understands that as important as a project might be, there is no possibility of opting out of Indigenous rights or taking shortcuts around them. Colleagues, people have tried to take shortcuts around our section 35 rights. The non-derogation clause was a fail-safe.

Now, though, with a non-derogation clause in the Interpretation Act, the centrality of Indigenous rights, as protected by section 35 of the Charter, is an inherent feature of every law, including this one.

At this point — and I thank you for holding the idea of that table in your mind — we have a table with three legs, all of which were built by Parliament. Legislators approved the language of section 35, adopted the United Nations Declaration on the Rights of Indigenous Peoples, or UNDRIP, Act and put a non-derogation clause in the Interpretation Act. Indigenous people fought for these changes for over 50 years.

But the fourth and final leg, the one that gives the table stability and prevents it from falling over, is not one that we as legislators can build.

In Haida Nation v. British Columbia, the case I cited earlier, in which the Supreme Court found that the government had a legal duty to consult, the Court also wrote this:

In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. . . .

And in the Mikisew Cree First Nation v. Canada case, where the court found that the duty to consult does not apply to the legislative process, the majority nonetheless found that the honour of the Crown does apply.

The honour of the Crown is an idea that goes back a long way. It’s not something we can enact in law, but it’s a crucial part of this process.

We actually have a colleague in our chamber who has written and spoken at length on the subject. I’m going to base my description of it on a speech that Senator Arnot delivered in 1997 — when he was obviously 12 years old — at the Sixth Annual Poundmaker Memorial Lecture. Long before we had a Charter of Rights and Freedoms, we adopted the British understanding of acting honourably for the sake of the sovereign. Throughout history, appealing to the honour of the Crown:

. . . was an appeal, not merely to the sovereign as a person, but to a traditional bedrock of principles of fundamental justice that lay beyond persons and beyond politics. . . .

It is from this understanding of the honour of the Crown that the Supreme Court has drawn the concept of the Crown’s fiduciary duty in the context of fulfilling the promises of treaties and upholding Indigenous rights.

There is a story Fred Campiou told me that I want to quickly share. It’s about treaty signing. This is a simplistic interpretation, but I hope you can stay with me on it. When it came to treaty signing, the Crown entered the treaty negotiations and the process and the signing with a piece of a paper, a written legal document based on the legal system of the Crown at the time. The Indigenous leaders came to the treaty signing and wanted to have a pipe ceremony. Their idea was to bring the Creator into this relationship. They wanted to develop a wahkohtowin, a sacred relationship with the people of this land, so that going forward, they would be a part of nation building. That wahkohtowin was the understanding that Indigenous leaders had regarding treaty signing.

I would argue neither side understood what they were signing at the time. The government took that treaty and started passing laws that affected Indigenous people in traumatic and long-standing ways. These laws caused the abduction of children from families and economic devastation in communities. The government passed those laws while the Indigenous leaders still thought that they had a wahkohtowin.

When I hear leaders like Treaty 6 Grand Chief Greg Desjarlais call Bill C-5 “a serious threat to our treaty rights,” or when an Elder tells me at ceremony that Bill C-5 will take away his land, I hear them saying that they don’t trust the Crown to act honourably. And who can blame them? We have over 150 years of dishonourable behaviour.

Even letters we received that are cautiously optimistic about the bill, like those from Fort McKay First Nation and the Métis National Council, are full of reminders to the government to act honourably if and when Bill C-5 passes.

I understand the pain created by the Crown’s historic dishonourable behaviour. Frankly, I share a certain amount of skepticism about the honour of the Crown. But there’s no amendment we can pass to change that. There’s no bill we can adopt that will guarantee the honour of the Crown.

Legislators have built three strong legs of this table: the Constitution, the UNDRIP Act and the Interpretation Act.

And, by the way, that table I imagined when I was leaving the Sun Dance isn’t floating in midair. It’s standing firmly on Treaty 6 land. The treaties provide the important foundation for the nation-to-nation relationship. Those treaties remind us that we have a wahkohtowin, a sacred relationship that we can still reclaim.

At a certain point, we’ve put in writing everything we can put in writing. It’s kind of a “you can lead a horse to water” situation — or, as my husband would say, “You can lead a hippie to water, but you can’t make him wash.” We have done everything. We have led the horse to the water.

We’ve enshrined First Nations, Métis, Inuit and treaty rights in the Constitution. We’ve passed the UNDRIP Act, adding free, prior and informed consent as one of the principles of consultation. We’ve amended the Interpretation Act. This bill mentions all those things. I don’t think there’s anything more we can do to the text of the bill to protect Indigenous rights.

Senator Klyne, we’ve set the table.

Now, at this pivotal and deeply uncertain moment for Canada, there is an opportunity for the government to achieve great things by acting honourably. It’s an opportunity for all our leaders to come together, do the hard work of consultation and compromise, find common ground and grow this country.

In a press conference, the Prime Minister said he wants to put “. . . Indigenous partnership at the centre of this growth. . . .” The Minister of Indigenous Services has spoken about the “. . . importance of relationship . . .” in the context of Bill C-5.

Senator LaBoucane-Benson, I have to interrupt. Would you like to ask for more time?

Yes.

Is leave granted, honourable senators?

Thank you, colleagues.

She says that the relationship will be “. . . a priority and a critical part of the work ahead.”

I agree about the importance of this relationship. The nation-to-nation relationship — our wahkohtowin — has always been about sharing the land for mutual benefit. But it hasn’t always worked out that way.

My plan is to support this bill, unamended, with all the legislative safeguards already in place, and then hold the government to its commitment to respect the relationship and behave with honour from my position as legislative deputy.

I understand the impulse to slow things down, but we are at a moment of potential crisis. As the president of the Manitoba Métis Federation noted, we are facing the threat of “economic war” and the risk that Canada’s economic engine will break apart in a way that will harm low-income and vulnerable Canadians the most. There will have to be consultation on projects. That’s where the consultation has to happen, on each project, as they are proposed, because the law already demands it. But we need to move forward and begin consulting on actual projects in the national interest.

Again, thank you very much for indulging me on my table metaphor. I hope my table is one where people will sit together, consult, negotiate and listen to each other with humility and respect and build a better future. Thank you.

The time reserved for debate had expired. Senator LaBoucane-Benson, I see two senators rising. Are you asking for more time to answer questions?

If the chamber will indulge us, yes, I will.

Is leave granted, honourable senators?

Thank you so much for sharing your story. My brother goes to Sun Dance every year, and I can relate.

The thrust of your speech was about how there is nothing more we can really do and that the honour of the Crown must take root here. It’s on government.

Do you think a positive reference within the bill on FPIC, or free, prior and informed consent, could provide some useful guidance for government and First Nations moving forward? Thank you.

Thank you, senator. With regard to having this mentioned in the preamble, my personal opinion is that the preamble sets the intention. If this goes to court — because if the honour of the Crown is not there, it could wind up there — the judge will look at the preamble and ask, “What was the intention?” Our section 35 rights are located in the intention. So we have already called it to mind for the Crown to act honourably.

First of all, sometimes the preamble is unfortunately inoperable, but that’s a good wish.

I actually want to ask Senator Brazeau’s question from yesterday. He wanted to address that question to the sponsor of the bill for the government or to the government. I want to see if we can obtain an answer for him. The question he initially directed to Senator Housakos, who had just spoken, was this:

Senator Housakos, I was just building up on the meeting in July with Indigenous leaders. I meant to ask this question to the sponsor of the bill earlier, but time ran out.

He said he wanted to get a bit creative so that he could ask it. He wanted to know this:

. . . what exactly is the purpose of the meeting with Indigenous organizations? I ask this because I am the former head of one of the five national organizations, which are all funded by the Government of Canada. Many of these organizations are funded to play ball with the government.

Wouldn’t it be important to have clarification on why the meeting is taking place with Indigenous organizations, given those five Indigenous organizations in Canada are not the rights holders of anything? They are political lobby organizations. Hypothetically, what happens if a future project of the Government of Canada includes the Algonquin people? Well, the Assembly of First Nations, the Métis National Council, the Congress of Aboriginal Peoples, Inuit Tapiriit Kanatami and the Native Women’s Association of Canada do not represent the Algonquin people. Do you think it’s important . . . to seek clarification as to what exactly is the consultation process taking place on July 17, and is that really helping the process for the real First Nations in this country?

That was Senator Brazeau’s question. Could you provide the government’s answer? Thank you.

Thank you, senator, for the question. The Prime Minister said specifically that he will be consulting with rights holders. As important as are the Assembly of First Nations, or AFN, and the Métis National Council, or MNC, they are not rights holders. I heard the Prime Minister say that he is consulting with rights holders this summer. Then, for every national project proposed, the rights holders who would be affected by the project being proposed will be consulted.

It is not that the AFN wouldn’t be at those meetings, but the rights holders will definitely be at the meetings. I hope that helps Senate Brazeau.

Honourable senators, I will try to be brief. Senator Prosper, thank you for your amendment and — more specifically — for doing your job.

Colleagues, far too often we are appointed to this place and get carried away with the mechanics of Parliament and politics. Sometimes we even become enamoured with the perceived influence we might or might not have. Every single time I see an individual who comes here and does what they are supposed to do, which is to articulate and stand up for the community they represent regardless of which part of the country it is, I take my hat off to them.

As you know, Senator Prosper, I support Bill C-5. I support it in principle because I think this country for the last decade has been thirsting to unleash our natural resources and start to create wealth again. As you appropriately said in your speech, to create wealth appropriately for all Canadians — French, English and — of course — our Indigenous People: east, west and everyone in between.

However, like you and many others in this chamber, I have some concerns. I articulated those concerns on second reading. I’m not going to repeat them again. I think this was a poor piece of legislative crafting. I thought at the time when I spoke at second reading that this was a political exercise after an election campaign in which millions of Canadians — even if they voted for the government or the opposition — wanted change over the last 10 years. They felt that many of our policies were just too cumbersome, had too much red tape, and they wanted to start building wealth again.

Again, as I pointed out, I’m concerned when you have Minister Freeland, Minister Champagne, Minister Anand and Minister Guilbeault, the fathers and mothers of Bill C-69 and Bill C-48, and all the other environmental extreme regulation that has basically caused the inertia of our energy wealth sector in our country. I’m very concerned.

This bill is highly aspirational. For me, it is more a framework of something that the government is trying to achieve rather than a piece of legislation. We saw how quickly they put it together without any real thinking or strategic planning. They dropped it into the House of Commons where some good amendments were made to it. They could have made many more if they had had more time to look at its nuts and bolts. I can live with what they are proposing simply because we are racing against the clock.

Having said what, this is what concerns me the most. It’s not so much that once again the Senate finds itself under the gun of the government, saying, “We must get this done by July 1. If we don’t get it done, it’s going to be the end of the world.” We know it won’t be the end of the world. This is a government that, at the end of the day, used an executive order to do away with the carbon tax, which they had been defending for nine years. They used an executive order to get rid of the GST on newly built homes costing $1 million.

By the way, there is no such thing as an executive order in Canada; that’s a Donald Trump thing. We have order-in-council in Canada, and that doesn’t apply to these bills. That’s an entirely different debate for another time.

The true concern I have is that, when it is all said and done, they were willing to postpone the budget to the fall to get it right, but they were not willing to postpone this piece of legislation to September or October to get it even more right. The question I have is this: For your flagship piece of legislation, you are not willing to do it right and go through the legislative rigmarole and review and all the rest of it, so I don’t know how much of a flagship policy it is. We all know it is going to pass before July 1. We know it will pass momentarily. We know the government has enough appointees here that if they split their votes three ways, the legislation will still pass, as it should, because the upper house — Senator Harder is absolutely right — has the final word. That is the elected chamber of Parliament.

But this place is where we have concrete debate, thanks to amendments like yours. I have become very concerned over the last few days about the fact that First Nations people — and I have heard it now from various corners of this chamber but also from leaders of First Nations people across the country — feel that no consultation was done. I ask myself this: How could a government that knows how critical this piece of legislation is to the future of the country, facing the existential economic crisis that we are now facing, not have taken the time to do this a month ago? This is not new. Throughout the whole election campaign, they were focused on building more infrastructure, big infrastructure, national projects, energy projects. So they didn’t wake up the Prime Minister three weeks ago and say, “Oh, I need a flagship piece of legislation. Oh, I think we also heard about it in the Speech from the Throne.”

So we have a government that professes that the First Nations people are important to them, yet they didn’t take the time to consult far and wide. I have heard it now from far and wide.

Of course, I heard it in your speech. You brought back memories of some of the dark periods of our history, the way First Nations people were treated, and we all recognize that. We are a country that doesn’t participate in revisionist history. We believe that you learn from history so that you don’t repeat the mistakes of the past, and we go forward hand in hand in reconciliation. But I’m also the son of an immigrant who’s been in Canada not 150 years or 100 years; I have been here only 57 years. Over the last few decades, I have seen a willingness among French, English, Indigenous people and everyone in between to go forward hand in hand to build a better future. In my province I have seen that some of the best infrastructure and energy projects were done in consultation and negotiation with First Nations people. They worked and were win-win for everyone involved.

I scratch my head as to how a newly elected Prime Minister with a clear mandate and the support of both chambers of the House — because we know how important this issue is — has not taken the time to consult far and wide. The Deputy Leader of the Government, rose up in the chamber and delivered a very compelling speech. She highlighted all the bills, motions and check files we have in place to make sure First Nations people are respected. Yet, as I have learned in my 17 years in this place, laws don’t mean very much. UNDRIP doesn’t mean very much. CEPA doesn’t mean very much. These are all nice motions to placate various stakeholders and groups at various times in a process.

They only mean something when a government is willing to respect those laws, rules and regulations, and when there is a political will to back them up.

I’m ready — and this is a political and philosophical view — to bend some environmental red tape in order to get projects done because I think our country needs it. I think we’re on the verge of bankruptcy, and that my prophecy will be proven right in the next budget that’s tabled in the fall. So we need action. We need to create jobs. We need to get revenue up. We need to get tax dollars in. We need to start paying down debts and deficits that have ballooned over the last decade. But what we can’t afford is to go forward in building these massive infrastructure projects without properly treating our First Nations people as partners. And we can’t be saying it just in law, in virtue signalling and in nice public declarations, when the buck is on the table and we have to divvy up the pie and figure out when the deal is made — that we start negotiating with our First Nations people like partners, like shareholders.

The opposition in the Senate and in the House of Commons continue to support Bill C-5 though we are skeptical — optimistic, but skeptical — that the government has the political will to get it done. We are becoming even more skeptical; the way they are dealing with our First Nations people is a continuous replica of errors we’ve seen in the past. Thank you, colleagues.

Honourable senators, I rise in support of Senator Prosper’s amendment. I want to acknowledge and deplore that you and your staff had to read racist vitriol online.

I understand the urgency of this legislation. Canada is facing uncertainty and that requires action. But we shouldn’t be rushing at the expense of actually listening to the people who will be most negatively impacted by this bill. It won’t be those of us in this chamber. It won’t be policy-makers. It won’t be executives of oil and mining companies. It will be the communities and workers.

As a legal aid lawyer who specializes in workplace safety, I have seen the impact of ineffective and weak regulations. I’ve seen my clients suffer from occupational diseases and cancers caused by polluted workplaces during times when regulations about hazardous materials and safety were less stringent. We need to learn from these times and not make the same mistakes over and over again.

So I tabled 10 documents yesterday; 9 of which came from Indigenous communities, organizations and rights holders. I’d like to highlight a few of their stories. They may also respond to Senator Coyle’s question to Senator Prosper.

Okimaw Henry Lewis, Chief of Onion Lake Cree Nation, wrote:

Our traditional lands are already heavily impacted by clearcutting from the logging industry, and our territory lies within the path of ongoing industrial development. We are not newcomers to the harms of environmental degradation and jurisdictional confusion. We live with these consequences daily.

We oppose this Bill in its entirety.

The Senate’s role as a chamber of sober second thought is a constitutional safeguard. We ask that you consider the significant impacts this Bill has to our people, our lands and our waters in its current form.

We are not stakeholders. We are Nations.

Chief Billy-Joe Tuccaro of Mikisew Cree First Nation agreed that communities will be hurt. He wrote:

There are human costs to the unmitigated development on our territory. We are burying our people monthly, sometimes weekly, dying from cancer including rare forms of cancer. We are and have always been collateral damage. On our own land, we have witnessed the devastation of “profits over people.”

Gary Quisess, Chief of Neskantaga First Nation, described the realities of his community — the high cost of living, a severe housing shortage and a lack of access to basic services like health and mental health. Vulnerable community members were recently evacuated after the only health centre was flooded. Neskantaga has been on a boil water advisory for over 30 years, the longest boil water advisory in Canada.

Chief Quisess described his community as enduring a long-standing social emergency. He wrote:

It is for this reason that we are so appalled by Canada’s invocation of an ‘emergency’ related to the tariff war with the United States as a pretext for accessing our lands and resources without our free, prior and informed consent. We say very clearly: there will be no ‘constitution-free zones’ in Canada, even in an ‘emergency.’

We’re all anxious to respond to the rapidly changing world we live in. We want to see Canada thrive. This sometimes feels like an emergency, but is it? Everyone here lived through the COVID-19 pandemic. Some of us have loved ones who didn’t make it. That was an emergency. Communities who don’t have safe drinking water or who face pollution-related illnesses, that’s an emergency. Growing our economy? Nation building? Yes, that’s urgent; it requires a timely and efficient response, but it doesn’t require the trampling of Indigenous rights and our environmental protections.

Senator Prosper’s amendment turns a “may” into a “must” and adds what we’ve heard from so many — a commitment to obtaining free, prior and informed consent. If you listened to witness testimony and reviewed the briefs submitted, you would have heard and read that reinforcing free, prior and informed consent is of the utmost importance. By adding this amendment, it is being responsive to those who have sent us feedback. It cultivates the trust that Senator Prosper has been talking about and builds stronger relationships.

I’m sure that if we had more time, in addition to this amendment strengthening the requirement for Indigenous communities’ consent, many of us would want to see stronger wording to ensure environmental protections were firmly in place. But that’s the problem with this process. It’s framed as an emergency when it isn’t. I worry that, years from now, there will be more clients like mine suffering from workplace diseases and cancers. There will be more boil water advisories. There will be more clear-cutting. And these will be real emergencies.

I agree with putting that language up front and in the legislation, as Senator Prosper said when he was questioning witnesses here in this chamber. I disagree with Senator Housakos who said the wording of those laws don’t always matter. The words do matter. That’s what we do here. We put those words in those bills and, yes, we hope for political will. Of course. Always.

I may very well vote for Bill C-5 in the end because when I go into my community, Canadians are anxious. We hear that; they want action. And they see this as possible action, and I understand that.

I understand that Canadians are nervous and anxious. I understand that they want action and that they see this bill as action.

But my job as a senator includes listening, questioning, reviewing and amending legislation to make it better. This amendment makes it better. It makes it better for Indigenous communities. It makes it better for the long-term view that we need to have when we legislate. It makes it better for fostering trust and relationship building which makes the bill better for all of us.

I’ll end here on what I heard from Pam Palmater, a member of the Eel River Bar First Nation and Chair in Indigenous Governance at Toronto Metropolitan University. She was speaking with Desmond Cole on “The Breach Show.” Here’s what she said:

Environmental protections are not red tape. Indigenous rights are not red tape, and certainly workers’ rights and protections are not red tape. Red tape is if you have to fill out 50 of the exact same forms, if you have to wait for someone to stamp it. Bureaucratic delay is red tape. None of these legal rights in Canada are red tape.

Thank you. Nia:wen.

Honourable senators, I get to sit beside an incredibly inspiring and principled man, and I really appreciate that. Today, I love the idea of getting to study really narrowly focused and short pieces of legislation. This is not one of those pieces of legislation, and we are hearing about the complexities when you have a more aspirational and challenging objective in front of you.

For this reason, I want to focus on the extent to which our Prime Minister has committed to fulfilling the rights and responsibilities outlined by Senator LaBoucane-Benson.

Bills like this require compromise and faith. I don’t think any of us have passed a bill that scores better than a B or a B-plus in our time here. We don’t get the opportunity to see many A bills. They all have flaws and imperfections. We have to realize there is an obligation to do better.

Bill C-5 is one of those astonishing pieces of legislation that is requiring us to work together on climate change, a global net‑zero objective, energy production, environmental protections, Indigenous rights, provincial concerns and grievances — all coming together in one piece of legislation. This is as tough a piece of legislation as any of us have ever faced.

Within that list, I think Indigenous Canadians have had a unique position, given past practices in this country. I’m part of a substrate of the human race that has caused a lot of harm in the past, so I acknowledge the irony of me speaking on this issue. There are a lot of harms that have eroded the ability to have trust. As Senator Francis said, after generations of harms and exclusions, Indigenous Canadians have a greater stake than most. I think there is a lot of truth to that very simple and clear statement.

A precondition here is that the Prime Minister has put forward a really clear precondition on any project that he wants to consider under Part 2, which is that it has to have Indigenous support. He said that to the provinces before they met: Bring forward projects, but they must have Indigenous support.

When you consider the honour of the Crown, not only did King Charles speak his own words about the paramount importance of words and deeds as they relate to relationships with Canada’s Indigenous peoples; he spoke the Prime Minister’s words. That puts the Prime Minister in a position where he has caused the monarch to make promises. There are a lot of relationships and deals — I call them “deals” because I think that’s the way people should think of treaties; they’re deals. We like to honour deals in Canada, yet we have not honoured those deals. So it’s a commitment:

To build Canada strong, the Government is working closely with the provinces, territories and Indigenous peoples to identify and catalyse projects of national significance. . . .

It goes on to say to accelerate major projects “. . . while upholding Canada’s world-leading environmental standards and its constitutional obligations to Indigenous Peoples.”

Further:

The Government will be a reliable partner to Indigenous Peoples, upholding its fundamental commitment to advancing reconciliation. Central to this commitment is the creation of long-term wealth and prosperity with Indigenous Peoples. . . .

Those are commitments that our Prime Minister asked King Charles III to make on behalf of his government.

Rights, lands and processes have been trampled in the past. We have a situation where Prime Minister Carney has promised to cut a new path and establish a new practice. If he doesn’t — and I remember seeing the clip of you outside the House of Commons, saying, “If you don’t do it now, you are going to do it later in the courts.” I think the Prime Minister must know that if we don’t establish a new practice now, this will end up slowing everything down in the long run. The objective of this bill will be undermined.

To go back to last night, Senator Duncan made a very passionate speech about sharing the model of success that she and many others worked hard to establish in Yukon. This is something we have to trust the Prime Minister to generalize. This is not and has not been the general practice. By speaking so long about this in the Senate and by it being such a concern in the Senate, I think we are reinforcing that if that new model isn’t followed, court action will be reinforced by the fact that we were deeply concerned about this issue in the chamber at this time.

So I’m hopeful that the Prime Minister will be leading a process of implementing this bill that follows the models of success like the one Senator Duncan spoke about so well last night. That’s the basis on which I’m looking at this bill.

I really respect the passion and integrity you bring, Senator Prosper. Thank you.

Thank you.

Honourable senators, I would like to explain to you why I oppose this amendment and support the passage of Bill C-5 without amendment.

I want to talk specifically about Part 2 of the bill, which enacts the building Canada act, following my careful consideration of the concerns that were raised in the Senate in Committee of the Whole and in the speeches given by some of my colleagues.

This act seeks to give our country the tools it needs to deal with the challenges and upheaval caused by the tariff war being waged by the U.S. administration.

My speech will have three parts: the economic context surrounding Bill C-5 and the urgent need for special tools to respond to it, the concerns raised by environmental groups, and the concerns raised about the rights of Indigenous peoples.

Colleagues, the economic context surrounding Bill C-5 justifies its expedited adoption. In the six months since President Trump took office, Canada has faced a series of actual and proposed tariff measures, including a recent 50% tariff on aluminum and steel. Our trade relationship with our neighbour and still closest ally is undergoing a fundamental shift marked by growing unpredictability. As a result, we see declines in our exports to the U.S., layoffs around us and the cancellation or postponement of major projects.

According to a recent Bloomberg report, a recession has already begun in Canada. In these circumstances, our government must take bold actions to encourage projects that can reinforce Canada’s economy and create jobs. This is precisely what the building Canada act sets out to do by providing means to encourage and accelerate major nation-building projects that support the government’s ambitious but, I believe, entirely achievable goal of making Canada the G7’s strongest economy.

I now move to my second point, which is the various concerns raised by environmental groups. There is no doubt in my mind that unlocking Canada’s economic potential must go hand in hand with environmental stewardship. I also believe that Prime Minister Carney, who was, until recently, the United Nations Special Envoy on Climate Actions and Finance and was behind the United Nations’ Net-Zero Banking Alliance is the person best equipped to unlock our tremendous economic potential while respecting our environment.

Thus, I am not surprised to see in the preamble of the building Canada act the government’s commitment to upholding rigorous environmental protection standards, and in clause 4 a clear statement that environmental protection is one of the act’s purposes.

The act also states that in deciding whether to add the project to Schedule 1, the Governor-in-Council may consider the extent to which the project can contribute to clean growth and to meeting Canada’s climate change objectives, as we see in subclause 5(6).

In addition, certain provisions of the act provide for greater transparency that will encourage questions in the House, in the Senate and among the public about environmental issues and the ways the government has been dealing with them, such as the reasons for orders made under the act; a public registry; the content of authorizations issued to proponents of projects, including all their conditions; and the public release of all documents and information used to issue the authorization. This ongoing provision for transparency will encourage questions, including ones about the environment.

Furthermore, the act, as amended, prevents the government from adding projects to the list while Parliament is prorogued or dissolved. In other words, the government may exercise its special powers only if Parliament is in session and able to question its decisions and call meetings of parliamentary committees to review them.

Finally, clause 24 provides for ongoing review of the government’s use of the powers granted by the act to be guided by the common good of Canada, including the quality of the environment. This ongoing review will be made by a special joint committee of MPs and senators referred to in the Emergencies Act. Senator Harder was a member of the previous iteration of the committee. It must review the exercise of the government of its powers under the act and must report to both houses at least once every 180 days. This is an ongoing review process regarding whatever decisions will be made.

And, of course, any government decision may be challenged by a judicial review if it breaches the provisions of the act or is contrary to its purpose and goals or the Charter of Rights or any other applicable bills. Judicial reviews have been used effectively by environmental groups in the past.

I now move to the concerns raised by some Indigenous leaders, especially about the need to consult and to seek free, prior and informed consent. Incidentally, in reviewing the act, I noticed no fewer than 10 specific references to Indigenous rights and interests. Moreover, following an amendment adopted in the House of Commons last Friday, subclause 21(2) expressly restricts any sidestepping of the Indian Act.

It is also important to distinguish between three important steps that were confused in some of the speeches: first, the implementation phase of this act; second, the selection of the major projects, which would lead to an approval; and third, the carrying out of any approved projects.

On the first point, regarding implementation of this bill, I understand that the Prime Minister will hold separate meetings in July with First Nations, Inuit and Métis to discuss the framework to implement the act.

With regard to the second step, during an appearance before us, the Minister of Crown-Indigenous Relations said that the new office will include an Indigenous advisory council; thus, an Indigenous perspective will be part of the process for selecting projects.

In connection with the third step, the act makes clear that consultation with Indigenous peoples whose rights may be adversely affected by any specifically approved project is mandatory.

Moreover, colleagues, before any work can be carried out on the ground, the government and proponents must ensure that the rights enshrined in our Constitution, at section 35 of the Constitution Act, 1982, are fully respected. Statutory law, including this bill, cannot override the constitutional protections of section 35, which encompasses a duty to consult with Indigenous peoples.

To quote from the Department of Justice:

Where the Crown is contemplating undertaking conduct that could have an adverse impact on section 35 Aboriginal or treaty rights, the Crown has a duty to consult with the rights holding group . . . .

They continue, saying, “Both the Crown and Indigenous peoples are required to engage in consultation in good faith. . . .”

They continue:

The scope and content of the duty to consult vary with the circumstances and are proportionate to the preliminary assessment of the strength of the claim and the severity of the potential adverse impact on the right. . . .

This flows from the Supreme Court’s decisions in Haida and Mikisew.

Moreover, the effect of good-faith consultation may be to reveal a duty to accommodate, as affirmed by the Supreme Court in Haida. It also bears emphasis that section 35 cannot be infringed lightly. In fact, the Supreme Court has drawn significantly on section 1 jurisprudence in developing a high burden of evidence on the government to not comply with section 35. As summarized by the Department of Justice:

. . . in Sparrow, where the SCC set out a two-step process of analysis starting with whether the measure had a valid legislative objective. If yes, the inquiry proceeds to the second stage of inquiry, which is guided by the Crown’s fiduciary relationship with Indigenous peoples and the goals of reconciliation. At this stage of inquiry, the test must be adapted to the legal and factual context in which the infringement arose. While the considerations will vary with the circumstances, they might include whether there was as little infringement as possible, whether fair compensation was provided and whether the collective was consulted.

Simply put, section 35 provides Indigenous peoples with robust constitutional protections that Canada must uphold, including in its actions under the building Canada act.

Overall, I am confident that the executive will exercise its powers under the act in good faith and with respect for its obligations towards Indigenous peoples. If the executive oversteps, my experience as an appellate judge assures me that the courts will not hesitate to intervene.

In this regard, I wish to share with you a historic decision — many of you were not yet born when it was made — from my home province of Quebec, the Kanatewat decision, which was rendered prior to the Constitution Act, 1982, and the section 35 we know today. This was at the beginning of the 1970s. I was still a teenager.

In 1971, Quebec announced a vast hydroelectric project in northern Quebec. The proposed plan involved the creation of large reservoirs that would flood vast territories inhabited by the Cree and the Inuit, who brought proceedings for an injunction before the Superior Court of Québec.

On November 15, 1973, the Superior Court of Québec delivered a historic 183-page decision granting an interlocutory injunction that stopped the work that day.

While the decision was suspended within a week and later overturned on appeal, it brought about the negotiations that would lead to Canada’s first modern Indigenous land claim agreement and treaty, the James Bay and Northern Quebec Agreement.

Colleagues, our legal and social frameworks have come a long way in the 50 years since this judgment of the Superior Court of Québec. The rights of Indigenous peoples are now more explicitly recognized and robustly protected, including through section 35 and associated case law, as they rightfully should be. In the Canada of today, I trust the courts to stand firm and intervene if the government falls short on its obligations to Indigenous peoples.

In closing, honourable senators, we have before us a bill that confers a great deal of power on the executive branch, while also setting out clear requirements for transparency and democratic oversight. This bill aligns with the constitutional framework that protects Indigenous rights and the Charter rights of all Canadians.

In my opinion, this bill strikes a balance between our principles and the priorities at play. That is why I urge you to join me in voting against this amendment and in favour of the bill.

Thank you. Meegwetch.

Are senators ready for the question?

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

It’s rejected. I didn’t hear any “yeas.”

Is there an agreement on the length of a bell?

Is leave granted, honourable senators?

The vote will take place at 1:55 p.m.

Call in the senators.