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.

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?

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

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

Hon. Pat Duncan: Senator Arnot, will you take a question?

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

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

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

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

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

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

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

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

An Hon. Senator: Litigation.

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

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

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

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

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

The Hon. the Speaker: I hear a “no.” Sorry.

Hon. Mary Jane McCallum: I wanted to go back to the suggestion about consultation and defining it. When we look at consultation, it’s defined by the groups that they consult with. That group defines what it means to them. To have a pan-Canadian approach hasn’t worked, and it will never work.

We live with the reality that there’s very little to no consultation that happens, and First Nations are continuously left to struggle with the legislation that we pass here, such as Bill C-91 and Bill C-92. I was talking to the Assembly of First Nations about that today. There are limited time resources, so I think this consultation —