Senator Quinn: Thank you for that response, which makes really good sense.

Hon. Pierre J. Dalphond: I believe I have understood the responses from the Government Representative, and I have done some research on this topic since yesterday. I obtained a copy of the ruling from the trial division of the federal court, which is 306 pages long. I admit that I fell asleep while reading it last night, but not because it wasn’t interesting. On the contrary, it was fascinating to read about the early days of Confederation and the railway.

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Am I to understand from your comments today that you insist that the Senate adopt the motion without delay and without senators having the time to read the ruling, hear witnesses and check the documents that Senator Dupuis is referring to, some but not necessarily all of which are found in the schedule to the ruling?

The Hon. the Speaker pro tempore: Senator McPhedran, I’m afraid your time has expired.

Senator McPhedran: I ask for some additional time, please.

The Hon. the Speaker pro tempore: Senator Moncion, there appear to be two senators who wish to ask questions. Would you take some questions?

Hon. Mobina S. B. Jaffer: Honourable senators, the United Nations has declared February 6 as the International Day of Zero Tolerance for Female Genital Mutilation.

I am truly disappointed to inform you that Canada’s record on prosecuting this horrific and excruciating practice is dismal. Although the Criminal Code was amended in 1997 to include female genital mutilation as a form of aggravated assault, to date there have been no prosecutions for female genital mutilation in Canada. Twenty-five years, no prosecutions.

Honourable senators, this is unacceptable, particularly given that the End FGM Canada Network under the leadership of Giselle Portenier, with whom I have been working closely, estimates that there are more than 100,000 survivors across Canada and thousands of girls remain at risk.

Girls like Serat who was born in Somalia, but grew up with her aunt in Ontario. When she was 13, she travelled with her aunt to Somalia to see her mother. Early one morning, three women burst into her home and grabbed her while she was sleeping. Serat started screaming and tried to run. The women caught her, pinned her down, spread her legs and subjected her to female genital mutilation. Serat passed out from blood loss and pain. When she recovered consciousness, her legs were tied together. When she returned to Canada a few months later, her aunt told her to accept what had happened and move on. How could she? Serat still talks about feeling ashamed and devastated. She did not reveal this terrible act that happened to her for over a decade.

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Who could she talk to when there remains a complete wall of silence, even in Canada, around FGM? Honourable senators, we need to break this wall. Our laws are clear. To make it illegal, remember that Canada has a clear law that would make genital mutilation a crime.

I stand before you, as I have many times on this issue, to say that if you are moved by Serat’s story, please act now. Please look out in your community for those vulnerable girls, and please remember that they are our girls. I ask you to support me to get the issue of FGM prosecuted in Canada. Thank you, senators.

Hon. Marc Gold (Government Representative in the Senate): Thank you, senator, for the question. The government has made significant progress in advancing biodiversity and protecting our natural heritage. Indeed, the government has committed to protecting 25% of the land by 2025 and 30% by 2030 and, as you have noted, has committed to halt and reverse biodiversity loss by 2030, with full nature recovery by 2050.

With regard to, specifically, the Migratory Birds Regulations, I’m confident the minister will make a decision in a timely manner — one that both protects our environment and supports Canadian jobs.

Hon. Donald Neil Plett (Leader of the Opposition): Honourable senators, my question again today is for the government leader in the Senate. Senator Gold, it is not only truckers who oppose restrictions that are no longer supported by science. Canada’s two main airlines, WestJet and Air Canada, have joined with Toronto Pearson International Airport to call for an end to the current mandatory PCR testing for fully vaccinated passengers upon arrival.

Canada is the only G7 country that continues to demand pre‑departure and on-arrival PCR testing. The CEO of WestJet, Harry Taylor, said recently, “. . . Canada remains stagnant in its approach and continues to make travel inaccessible and punitive for Canadians and inbound tourists.”

WestJet cut 20% of its flights in March, and Air Canada has reportedly cut over 40% of its flights next month.

Leader, when will the Trudeau government catch up to the rest of the G7 and present a path forward for airlines and Canada’s entire travel and tourism sector?

Hon. Fabian Manning, for Senator Busson, pursuant to notice of December 14, 2021, moved:

That the Standing Senate Committee on Fisheries and Oceans be authorized to examine and report on the implementation of Indigenous rights-based fisheries across Canada, including the implementation of the rights of Mi’kmaq and Maliseet communities in Atlantic Canada to fish in pursuit of a moderate livelihood;

That the Committee study how Indigenous rights-based fisheries have been implemented by the federal government thus far, and that the Committee identify the most appropriate and effective ways to ensure the recognition and implementation of Indigenous rights-based fisheries going forward;

That the papers and evidence received and taken and work accomplished by the Standing Senate Committee on Fisheries and Oceans during the Second Session of the Forty-third Parliament as part of its study of issues relating to its mandate as set out in the relevant subsection of rule 12-7, be referred to the committee; and

That the Committee report to the Senate no later than December 31, 2022, and that the committee retain all powers necessary to publicize its findings for 180 days after the tabling of the final report.

Hon. Raymonde Gagné (Legislative Deputy to the Government Representative in the Senate): I tip my hat to you, Senator Moncion, for this initiative. Having worked in a university for more than 25 years, I understand the complexity and opacity of the way universities are funded, especially in the case of establishments that serve official language minority communities.

You effectively demonstrated that post-secondary education in the Canadian francophonie is in crisis. The collapse of Laurentian University, a bilingual institution, highlighted how vulnerable French language programs are across Canada.

Do you find that the structural challenges are preventing post-secondary education in French in francophone minority communities from enjoying the same conditions prevalent for the anglophone majority?

Senator Cormier: Thank you for your question, Senator Mockler.

Obviously, as I said in my speech, I believe that this issue must be debated in committee.

I would first turn to colleagues like Senator Dalphond, who is certainly better equipped to understand the constitutional complexity of this issue, but I strongly believe that there are constitutional issues that affect the feasibility of the bill. If we want to require the lieutenant-governors of New Brunswick to speak both official languages, we need to address some issues — I spoke about them briefly — so it would be a good idea to examine the bill in committee.

My simple answer to your question is yes, I think this deserves to be examined in committee by experts who can enlighten us about the constitutional issues with this bill.

Which committee? I am not sure at this point whether the Standing Senate Committee on Official Languages would be best equipped to do it, but it would obviously be up to the chamber to decide where to send this bill. However, I believe that it should be examined in the context of the Constitution of Canada.

Hon. Rosa Galvez: Honourable senators, I rise again today to speak in support of Motion No. 12 introduced by Senator McCallum requesting that the Standing Senate Committee on Energy, the Environment and Natural Resources be authorized to examine and report on the cumulative positive and negative impacts of resource extraction and development, and their effects on environmental, economic and social considerations.

In the last parliamentary session I also spoke in favour of this motion, and I thank Senator McCallum for bringing this study proposal to the floor of the Senate. Her continued passionate work on community impacts, especially on Indigenous communities, is admirable and needs to be supported.

I believe this study could bring great value in understanding the overall impacts of resource extraction and development in Canada. I say “overall impacts,” because Canadians — and especially parliamentarians — are often bombarded by the one‑sided promotion of the positive contributions of resource extraction on Canada’s GDP, employment and government revenues. Next to these amplified voices, communities, NGOs, academics and scientists can barely pierce through the noise to present other aspects — positive or negative — and have to resort to protests to get media attention.

I have been teaching engineering students how to conduct and complete environmental impact assessments for almost 30 years. A project that considers and integrates the needs of a host community from its early conception and design will result in a project that is technically sound, cost-efficient, safe, prosperous for all and healthy for the community and the environment. On the contrary, a project that is conceived independently without considering community issues puts at risk the implementation of the entire project and will most certainly create irritants and opposition which can lead to wasting important and valuable investments. Nobody wants this, yet it still happens so often.

Effective and successful decision making requires in-depth analysis.

[Translation]

Senator Gold: Again, thank you for your question. The government is doing everything it can to save lives, and there is no attempt to put obstacles in the way. Circumstances were and remain difficult and challenging. The government is committed to doing everything it can, alone and with its allies, to address this significant, important challenge.

Hon. Michael L. MacDonald, pursuant to notice of February 8, 2022, moved:

That, notwithstanding any provision of the Rules, previous order or usual practice and pursuant to the order of the Senate on November 25, 2021, authorizing Senate committees to hold hybrid meetings, the Senate authorize standing joint committees to hold hybrid meetings;

That:

(a)hybrid committee meetings be considered, for all purposes, to be meetings of the standing joint committee in question, and senators taking part in such meetings be considered, for all purposes, to be present at the meeting;

(b)for greater certainty, and without limiting the general authority granted when this order is adopted by the Senate, when a standing joint committee holds a hybrid meeting:

(i)all members of a standing joint committee participating count towards quorum;

(ii)such meetings be considered to be occurring in the parliamentary precinct, irrespective of where participants may be; and

(iii)the standing joint committees be directed to approach in camera meetings with all necessary precaution, taking account of the risks to confidentiality inherent in such technologies; and

(c)subject to variations that may be required by the circumstances, to participate by videoconference senators must:

(i) participate from an office or residence within Canada;

(ii)use a desktop or laptop computer and a headset with integrated microphone provided by the Senate for videoconferences;

(iii)not use other devices such as personal tablets or smartphones;

(iv)be the only people visible on the videoconference;

(v)have their video on and broadcasting their image at all times; and

(vi)leave the videoconference if they leave their seat; and

That a message be sent to the House of Commons to acquaint that House accordingly.

Senator Galvez: Okay.

(At 9 p.m., pursuant to the order adopted by the Senate on November 25, 2021, the Senate adjourned until Tuesday, February 22, 2022, at 2 p.m.)

Senator Gold: As I said, as the Government Representative, I would like this to be debated and voted on efficiently and appropriately. However, as I said before and will say again, I respect the Senate’s and senators’ desire to take as much time as necessary to fully understand the matter before us. In light of the clarifications I provided today, I’m eagerly awaiting the speech by our colleague, Senator Cotter, who has a stake and expertise in this area. I hope you’ll join me in looking forward to an efficient vote.

[English]

Hon. Dennis Glen Patterson: Thank you, Senator Cormier, for your support for Indigenous languages. You remind me, with your passion, of Senator Joyal.

Senator, you know I represent a region with the highest proportion of Indigenous people in the country; 85% or more of the people of Nunavut are Inuit, and they largely still speak Inuktitut. It’s a bilingual radio station, newspaper, and I mean French and Inuktitut. Yet the federal government refuses to provide services in the Inuktitut language for its federal services in Nunavut, in contravention of the Nunavut government’s own Official Languages Act and Inuit Language Protection Act.

Do you have any comments on that in relation to your bill? Thank you.

Senator Cormier: Thank you so much for your question. I will try to answer in English.

The answer, for me, maybe does not reside in the Official Languages Act. I think the answer is that the federal government must do more to implement the Indigenous Languages Act; that’s for sure. The federal government — and all citizens, by the way — should do more to ensure that citizens receive the services they deserve in their part of Canada.

I sincerely and honestly feel that this is not in opposition with the official languages. I think that taking care of the Indigenous languages, taking care — making sure that in Canada, those rich languages can be revitalized — is a responsibility of the federal government and it is a responsibility for all of us.

So concerning this bill, it is specifically on the Language Skills Act. I talked about the Official Languages Act, but mainly this bill is about the Language Skills Act. I say “may be,” but I’m not sure even if this actual bill — what I said in my speech — I’m not sure if it is the right vehicle for that. But what I can assure you, Senator Patterson, is that much more must be done for the different languages in Canada, and we must find the right tools, the right place and the right hour to do that.

I’m not sure I am answering your question, but I’m trying to express the importance of making sure that in Canada we do help and respect all cultures and that their languages can also be celebrated. Thank you.

[Translation]

Hon. Brent Cotter: Honourable senators, let me begin by apologizing if some of what I have to say is repetitive and redundant of the two previous speakers. Colleagues, this is a rare moment for us. It’s a rare opportunity for this chamber to consider an amendment to the Constitution of Canada. There have only been seven of such bilateral constitutional amendments considered by Parliament, as Senator Gold outlined yesterday. I rise to speak in support of the motion. Indeed, you may have observed that I introduced the identical motion on December 17 of last year in this chamber.

The motion before us is supported by each of the five senators from Saskatchewan as well as all of the members of Parliament from Saskatchewan who voted yesterday in favour of the motion in the other place. I hope it will be supported by each and every one of us here.

The motion before us is a small constitutional amendment, but an important one to my province as you have heard. In late November, it was adopted unanimously by the Legislative Assembly of Saskatchewan. It addresses a long-standing inequity that was put in place by the Government of Canada to facilitate the building of the intercontinental railway from Central Canada to the Pacific coast decades and decades ago.

Here is the story, and why it is now a matter of significant concern for the people of Saskatchewan.

One part of the bargain to build the railway to British Columbia was part of a deal to bring British Columbia into Confederation in 1871. This commitment, this promise to build the transcontinental railway, was to be built within 10 years. This coincided with at least two other of Canada’s larger interests as a nation.

First, a critical building block in the building of a country from the east to the West Coast, Canada’s national dream, nation building. We all know this story.

Second, the establishment of a secure Canadian presence in the west, in the face of an aggressive American presence. It will be recalled that the United States at that time had recently acquired Alaska only years before, and a porous U.S.-Canada border across the Prairies was routinely ignored by American hunters and traders in those days.

Indeed, historians have shown that the actual route of the transcontinental railway was strategic in the sense that it was built along the more southerly line, closer to the U.S.-Canada border, than less difficult but more northerly routes through the mountains.

The railway was completed in 1885, as Senator Gold has noted. It’s an amazing achievement. The pounding of that Last Spike in the mountains of British Columbia is captured in an iconic photograph. The pounding of that Last Spike is pounded into the memories of nearly every Canadian child and has been eulogized by Gordon Lightfoot.

The story that brings us to this constitutional amendment is the story of the bargain struck to build the railway, and its curious and lingering consequences to this day for the provinces of Saskatchewan, Alberta and Manitoba.

After two failed attempts to get the railway built, and with the 10-year deadline approaching, in 1880 the Government of Canada turned to a consortium of investors — who ultimately became the Canadian Pacific Railway — and entered into an agreement to have the railway built. This was a daunting undertaking. Based on my reading, the consortium had the Government of Canada somewhat over a barrel given the timetable they faced.

It’s therefore not surprising that the Government of Canada, for all of these reasons, provided significant incentives to the CPR to build the railway. The most significant of those were three: $25 million in cash, as Senator Arnot noted; 25 million acres of land across the Prairies near the rail line, that land to be selected by the CPR; and, thirdly, tax concessions. It is the tax concessions that are the focus of the constitutional amendment before us today.

I would like to take a moment to reflect on the other two incentives. First, the $25 million. In 1881, a very young country, Canada, had limited fiscal capacity. So $25 million, even then, was a lot of money. You might ask what is $25 million worth today? Using the CPI from 1880 to today, that $25 million would be worth a little over $68 billion.

Second, the land concessions. Now, the CPR acquired large tracts of land in some of Canada’s most important Prairie cities: Calgary, Regina, Moose Jaw, Brandon, Medicine Hat, to name a few. Even ignoring the value of the urban land the CPR selected, and imagining that it took only good, rural land — good, rural farmland — by a conservative estimate, 25 million acres of good farmland today would be worth roughly $50 billion.

The tax concession was also generous. It is a wide range of exemptions from federal, provincial and municipal taxes — how wide, and for how long, we have been hearing and I’ll speak a bit more about that in a moment.

The exemptions were set out in clause 16 of the CPR-Canada agreement, the clause about which Senator Dalphond asked. They were incorporated into legislation that launched the venture in 1881 and created the CPR as well; and, furthermore, as Ottawa had the power to do, in creating the Province of Saskatchewan in 1905, it unilaterally embedded the exemption from provincial taxes into The Saskatchewan Act, in a way, part of the commitment set out in clause 16 of the agreement, required the exemption to apply to any provinces created thereafter, and that meant that, in 1905, it came to apply to Saskatchewan. The federal government implanted that provision in the constitutional document — The Saskatchewan Act — that created the Province of Saskatchewan.

I mention parenthetically, as you have already heard, that the exact same exemption from provincial taxes is embedded in the constitutional document that created the Province of Alberta, The Alberta Act of 1905, and a series of constitutional documents that expanded the boundaries of the Province of Manitoba in 1881.

The wide-ranging exemption from provincial taxes, which the CPR now argues to include things like sales taxes, taxes on its assets, excise taxes and income taxes, that exemption states the following:

That the CPR shall be free from taxation by the Dominion or by any province hereafter to be established, forever.

Let me repeat that. “Forever.” I don’t quite know how long “forever” is, but it feels like a very long time to me.

Now, there was an agreement reached in the mid-1960s — and Senator Arnot has spoken about it — between the CPR and the Government of Canada to end the taxation. But for reasons unknown, it was never implemented in the form of the removal of the constitutionalized exemption from provincial taxes. Even so, a peace broke out and the CPR apparently continued to pay or began to pay provincial taxes, as well as payments of municipal taxes, or at least grants in lieu of municipal taxes, subsequently.

However, again for reasons largely unknown, in 2008 the CPR concluded that that 1960s agreement only applied to municipal taxes; that is, the CPR took the view that it had only agreed to give up its municipal tax exemption, essentially property taxes for land it owned on or near the main line.

It then launched the four lawsuits we have heard about — one against the Government of Canada, one against Saskatchewan, one against Manitoba and one against Alberta — to get a return of taxes paid and a declaration that would confirm the tax exemption.

The claim against Saskatchewan, which is the main focus of the consequences of this exemption is, as Senator Gold noted, $341 million, plus a declaration of a continuing perpetual exemption from provincial tax. Perpetual.

Now to the present.

In the first case against Canada, and Senator Gold referred to this earlier, the CPR tax exemption was recently found in September of 2021 by the Federal Court of Canada not to have been constitutionalized vis-à-vis the Government of Canada, meaning that Canada could, and did, amend its laws to end most of the CPR tax exemption. That is the state of the law presently.

Though not decided in that case — since it was not a case about Saskatchewan — a plain reading of the situation and the evidence indicates that the 1960s deal was only intended, at least on the written language of the text of the material, to remove only the exemption from municipal taxes.

Second, in relation to provincial taxes, the exemption being embedded in the Saskatchewan Act, and therefore being a constitutional exemption, means that Saskatchewan cannot unilaterally amend its own tax laws to make the CPR subject to provincial taxes. It can only do so through this motion in Saskatchewan and a parallel motion in the two houses of Parliament to remove the exemption.

Where does that leave us today? Essentially this: Grand concessions were made to the CPR to get the intercontinental railway built. All Canadians were part of that bargain and, through taxes or in other ways, contributed to it. Fair enough. But one aspect of that bargain has left three provinces, and only three, with no say in the matter, continuing to pay for the building of that railway some 137 years after the railway itself was completed.

Speaking for myself, I’m not opposed to tax incentives that can be clearly shown to advance the public good. Incentives to advance a national and nation-building railway probably fit in that category, but I offer three countervailing points.

First, the other concessions, cash and land, were pretty darn generous in and of themselves.

Second, surely the tax exemption has long outserved its usefulness and justification. Its best-before date has long passed, and it appears that even the CPR thought so in the 1960s.

Third, as a burden imposed uniquely on Prairie taxpayers for a railway that has always served the country’s regional and national interests, it is profoundly unfair. If nothing is done in this chamber, there is a good chance that the residents of Saskatchewan would be required to unfairly continue to subsidize the CPR forever.

I will go a little bit further, if I may, in my remarks. As may be evident, I have done a bit of work on this. What I have learned is that, although the CPR cases against Alberta and Manitoba are not as far along as the Saskatchewan case — Senator Gold noted that the latter in Saskatchewan is in the final stages — and although the amounts in those other two provinces’ cases vary, the same issue and same unfairness apply to the residents of Alberta and Manitoba.

I would encourage my colleagues in Manitoba and Alberta to examine the question of the CPR tax exemption and its application to their respective provinces and residents.

In my view, this motion is the beginning of an honourable national process to clear away a curious anomaly in the constitutions of our three provinces that, if it was ever appropriate, is certainly no longer so. I would be pleased to assist in such an undertaking.

I urge you to support the motion before you today. Thank you, hiy hiy.

Hon. Paula Simons: Senator Cotter, my question is a simple one. As an Alberta senator newly alerted to this situation, what would Albertans need to do to be party to this initiative? Would there need to be a bill or a motion passed in the Alberta legislature or is the bill before us today one that could be amended?