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?

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.

Some Hon. Senators: Nay.

Hon. David M. Arnot: Honourable senators, I rise today in this place of cool, calm second thought in support of Bill C-35, An Act respecting early learning and child care in Canada. This legislation aligns with the objectives of the Multilateral Early Learning and Child Care Framework, which has set a transformative vision for Canada — a vision where every child can access the enriching environment of quality early learning and child care.

It is well known that the early years of a child’s life are pivotal. As outlined in the multilateral framework, quality early learning and child care systems are instrumental in promoting the social, emotional, physical and cognitive development of young children. These formative experiences significantly impact their learning, behaviour and health throughout their lives, especially for vulnerable children.

Bill C-35, rooted in these understandings, commits to the establishment of a national system that is of high quality, accessible, affordable, flexible and inclusive. This aligns with the framework’s commitment to these principles, ensuring that our systems respect and value diversity, responding to the needs of children from diverse backgrounds, including those with disabilities and from Indigenous and linguistic minority communities.

Colleagues, much of our debate on this bill has been, in my view, a collective effort to ensure that this legislation does not omit or ignore these groups of children, and further, that this bill does not omit or ignore the charter rights, the human rights, the Indigenous rights and the treaty rights obligations that are afforded to these children through citizenship or treaty. The amendment that we passed just yesterday responds to those obligations.

Even with this amendment affirmed, however, there is no room for complacency.

Today, I want to emphasize just how imperative it is that we affirm the existing rights-based obligations of not only this bill but, more broadly, the existing rights-based obligations of minorities in all future deliberations. It is our fundamental role as senators.

In relation to Bill C-35, I will begin with the Crown’s obligation to Indigenous children. As Regine Halseth and our colleague the Honourable Senator Greenwood, before she joined the Senate, stated in a 2019 report:

There are also unique structural and systemic factors that enable or hinder Indigenous children’s development, including lack of community-focused, culturally safe and accessible, health, education, child welfare, and social services systems; legislation, policies and agreements that contribute to (un)healthy family or community environments; and unresolved jurisdictional disputes over which level of government is responsible for funding programs and services for Indigenous peoples. . . .

A comprehensive early learning and child care system must consider these factors, particularly in terms of resolving jurisdictional concerns. Why? Because it is in the interest of children; it is in the interest of reconciliation; it honours the treaties; and because of the inherent rights of Indigenous peoples.

I recall the words of the late Saulteaux Elder Danny Musqua, who relayed oral history from his grandfather who was present at the Treaty 4 negotiations in 1874 at Fort Qu’Appelle, now in Saskatchewan. His grandfather spoke about an elderly Saulteaux speaker who:

. . . inquired about the “learned man” who was taking notes for the Treaty Commissioners. On being told that this was a learned man, the Saulteaux exclaimed, “that is what I want my children to have. That kind of education is what my children must have.”

He was hoping for integration into the new economy, not assimilation. He got assimilation instead.

The importance of language, culture in the education and early learning of Indigenous children cannot be overstated. Early learning is not merely a pathway for future success. It can embody and crystallize cultural heritage, traditions and identity.

In providing early learning and child care, we are acknowledging that it incorporates Indigenous languages and cultures. Child care fosters belonging and identity among Indigenous children and ensures the vitality of these languages for future generations.

In Saskatchewan, as in other Prairie provinces, First Nations communities are young and growing. In February 2007, in my role at the time as Treaty Commissioner for Saskatchewan, I submitted a report to the federal government about the successes and the challenges of fulfilling the covenant that was created by the treaties. That document acknowledged that First Nations:

. . . are struggling to retain their languages, cultures and important teachings of their elders, to achieve practical forms of governance, to achieve economic self-reliance, and to live as healthy individuals within healthy families and communities. These are not the conditions that the treaties promised.

For the First Nations in Saskatchewan, language is fundamental to the understanding of Treaties Nos. 4, 5, 6, 8 and 10 — treaties that cover every square metre of the province of Saskatchewan. A central principle in that is that “First Nations have distinct perspectives and understandings deriving from their cultures and histories and embodied in First Nation languages.”

Responding to unique cultural and linguistic needs fulfills a critical element of the treaty relationship. It demonstrates the commitment to reconciliation, and it also ensures the long-term well-being and development of Indigenous children.

Education, particularly in the early years, is a bridge to understanding, respect and reconciliation. It is a powerful tool that can help mend the gaps created by historical injustices, and it honours the spirit and intent of the treaties. The treaties are not relics of the past. They are, in fact, living documents, and the principles in those treaties are as good today as the day they were entered into.

In this chamber, there has been much well-thought analysis and talk about reconciliation and economic reconciliation. Elders in my home province also call for spiritual reconciliation, a reconciliation which requires affirmation of the cultural and spiritual traditions of First Nations in Saskatchewan, and clear actions designed to re-instill traditional values, languages and cultural ceremonies.

I believe that this investment will also contribute to self-sufficiency for this and future generations in the Cree culture. This is known as pimâihisowin, part of which is the pursuit of iyinîswin, the ability to develop a clear mind.

This past June, the Greater Saskatoon Catholic School Division announced that it would construct a new school known as the St. Frances Cree Bilingual Elementary School. This school already exists but in a different building.

This school has 700 students. Saskatoon Tribal Council Chief Mark Arcand stated that the St. Frances Cree Bilingual Elementary School is the largest Cree language school in Canada, if not the world. I am hopeful that this school will serve as an example and encourage the provision of Indigenous language and child care.

More broadly, Bill C-35 must afford all children the ability to develop a keen mind. This bill and the framework apply to all children.

Senate study and debate has focused on the recognition and the support of the development of early learning and child care programs that are culturally relevant and linguistically appropriate for all children. This means investing in programs that are developed in partnership with all communities, respecting their cultures, identities and languages. It means heeding the lessons from other jurisdictions, as highlighted by the Senate committee, to prevent the commodification of child care, especially in ways that might overlook or undervalue the importance of culturally specific care.

The Senate committee’s meetings on Bill C-35 further highlight the importance of collecting comprehensive, valid, timely and comparable data. This is crucial for monitoring, evaluating and improving the effectiveness of our early learning and child care systems.

The committee’s meetings also emphasized the importance of ensuring equal opportunities and access for children with disabilities in line with the principles of the United Nations Convention on the Rights of Persons with Disabilities. Indeed, the Supreme Court of Canada, in 2012, in the Moore case set out the parameters of accommodation for children with learning disabilities in school systems. More broadly, it affirmed that programs must be based on subjective, child-centred individual needs of each child.

As a former Chief Commissioner of the Saskatchewan Human Rights Commission, I can tell you that while the jurisprudence on accommodation of children with disabilities took a leap forward with the Moore decision, the actual funding, provision and tracking of the system — the data points — remains very murky. One can hope that the maxim, “What gets measured gets managed” will prove true in, it is hoped, the best possible way.

I am mindful of the standing committee’s debate over respecting language rights and bilingualism, particularly in provinces such as New Brunswick, which has a unique constitutional status concerning its two linguistic communities. This aligns with our national commitment and our Charter obligations in supporting educational opportunities for citizens from official language minority communities throughout their lives.

Colleagues, I am grateful for the effort of our colleague the Honourable Senator Cormier and his pursuit of clarity of Indigenous language rights and minority language rights through the amendment of this bill.

From first-hand experience, and on a much smaller scale, I witnessed the establishment of commitment to official bilingualism in a small, 20,000-person city in Saskatchewan. The path to success was not straightforward. As a result of the effort of many people, however, under the banner of the Canadian Parents for French organization, many children, including my own, were able to become fully bilingual in the school system.

The rights of child care-age children must be respected, whether they are part of an official language minority community, they have a disability, they are Indigenous or if they have an intersectional identity, including one or more of the above.

Accessing, obtaining and advancing individual rights through the courts, as in the Moore decision, is not only unnecessarily burdensome for a parent or parents — very costly — but also resolution through the courts will not likely be effective or it will not benefit the school-aged child that actually starts the litigation because it takes too long and is too expensive. To be clear, the need to seek recourse through the justice system for rights-based obligations is a demonstration of failure of the system, which I mentioned earlier today.

The First Nations Child and Family Caring case reminds us all of this, and that the rights of child care-age children must also be respected across jurisdictions.

Colleagues, Bill C-35, as amended, considers the Charter rights, human rights, Indigenous rights and the treaty rights obligations in the provision of child care. As is often said in this chamber, no legislation is perfect — I also said that today.

Bill C-35 is sorely needed, and we must support it. This legislation represents a significant step forward in building a more equitable future for all Canadian children.

This is not about a one-size-fits-all solution. It is about creating an inclusive system that responds to the needs of Canadian families. It embodies our collective commitment to ensuring that every child in Canada, regardless of their background or abilities, can thrive and reach their full potential.

I will be voting in favour of Bill C-35. I encourage you to do that.

I offer my thanks and appreciation to our honourable colleagues on the Standing Senate Committee on Social Affairs, Science and Technology, to Senator Cormier, who reached out to me, and to all others who are speaking for the needs of children in this chamber. Thank you very much.