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. 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?

The Hon. the Speaker: Are senators ready for the question? Senator Prosper, will you take another question?

The Hon. the Speaker: Senator Prosper, do you have an answer to that question?

Hon. Marc Gold (Government Representative in the Senate): 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?

Senator D. Patterson: Yes.

Hon. Dennis Glen Patterson: 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.

Hon. Rebecca Patterson: Senator Dennis Patterson, would you take another question, please?

Senator D. Patterson: Yes.

Senator R. Patterson: 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.

Senator D. Patterson: 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.

[Translation]

Some Hon. Senators: Hear, hear.

Hon. Pierre J. Dalphond: Would the senator take another question?

[English]

Senator D. Patterson: Yes.

[Translation]

The Hon. the Speaker: I hear a no.

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