Hon. Frances Lankin: I apologize, but I have to ask my question in English —

[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?

[Translation]

The Hon. the Speaker: 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?

Some Hon. Senators: Agreed.

The Hon. the Speaker: I hear a “no.”

Senator Cardozo: Thank you, Madam Speaker. I just want to take a few minutes in much the same vein as Senator Lankin. There are a few people I would like to pay homage to today. This has been a process that has been going on for — my math is not very good, but 55 or 60 years. I want to start by mentioning the late Honourable Monique Bégin, who passed away just a few weeks ago. She was the secretary of the Royal Commission on the Status of Women, which was the first royal commission that recommended a national child care program. It’s taken us a long time to get there, but we are almost there.

I would also salute the Honourable Margaret McCain, former lieutenant governor of New Brunswick and head of the McCain Family Foundation. Some of the other individuals who appeared before us include people from the McCain Family Foundation, as well as Martha Friendly from the Childcare Resource and Research Unit and Morna Ballantyne, executive director of the child care organization called Child Care Now, and, of course, as Senator Lankin mentioned, Pauline Marois, who was the minister of education and brought in the first $5-a-day child care program in Canada that we have now followed throughout the country.

Kudos to all these women who have worked on this for a long time, and it’s really to their credit that we now have a national child care program. Thank you.

The Hon. the Speaker: Senator Dupuis, will you take a question?

Hon. Renée Dupuis: 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.

The Hon. the Speaker: Is leave granted, senators?

The Hon. the Speaker: Senator Lankin has a question. Would Senator Prosper accept a question?

Hon. Frances Lankin: 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.

Hon. Patti LaBoucane-Benson (Legislative Deputy to the Government Representative in the Senate): Would the honourable senator take a question?

Hon. Yvonne Boyer: 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.

An Hon. Senator: Or sympathy.

The Hon. the Speaker: Senator Patterson, do you have a question?

Hon. Dennis Glen Patterson: Yes, please.

The Hon. the Speaker: Will Senator Prosper take another question?

Hon. Pierrette Ringuette: Will you take another question, Senator Prosper?

Hon. Flordeliz (Gigi) Osler: Senator Prosper, in your legal opinion, can you foresee any unintended consequences from this amendment?

The Hon. the Speaker: Senator Boisvenu, do you have a question?

The Hon. the Speaker: Senator Prosper, will you take another question?