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.

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 —

The Hon. the Speaker pro tempore: All those in favour, please say, “Yea.”

Hon. Senators: Question.

The Hon. the Speaker pro tempore: Are senators ready for the question?

The Hon. the Speaker pro tempore: The vote will occur at 5:26 p.m.

Motion in amendment of the Honourable Senator Boisvenu negatived on the following division:

On the Order:

Resuming debate on the motion of the Honourable Senator Moodie, seconded by the Honourable Senator Miville-Dechêne, for the third reading of Bill C-35, An Act respecting early learning and child care in Canada, as amended.

The Hon. the Speaker pro tempore: I believe the nays have it.

And two honourable senators having risen:

The Hon. the Speaker pro tempore: Honourable senators, do we have an agreement on a clock?

Honourable senators, do you give leave for a vote in 15 minutes, following the clock?

Hon. Senators: Agreed.

The Hon. the Speaker pro tempore: All those against, please say, “Nay.”

Some Hon. Senators: Yea.