Debates of the Senate  
2nd Session, 41st Parliament, Volume 149, Issue 105
  Tuesday, December 9, 2014
Bill C-428: Indian Act Amendment and Replacement Act (Third Reading)
Hon. Lillian Eva Dyck: Honourable senators, I rise today at third reading of Bill C-428, An Act to amend the Indian Act (publication of bylaws) and to provide for its replacement.

Honourable senators, this is day 8 of third reading. It is with great reluctance that I rise today to speak to this bill. I am quite disappointed that the government has chosen to push this private member's bill forward. It's quite clear to me that it's a move to ensure that it gets passed before we rise for the Christmas break. It discourages me, as a senator, and it sends the wrong message to Canadians about our role as senators in this chamber.

As I mentioned, this is a private member's bill, and it is very poorly written. It does not do what the sponsor of the bill, Mr. Clarke, said it would do. Frankly, it's not worth the paper it's written on. The bill was released by the private member to great fanfare, but it was a balloon full of nothing but empty air.

Our committee, which is supposedly non-partisan, spent quite a long time during clause-by-clause analysis of the bill, but our side was unable to convince the Conservative senators on the other side to see why the bill should at least have been amended. I would say our committee is not non-partisan. It was partisan; and I'm sorry to say that is what happened. The Conservative senators on the other side voted to not allow any amendments. They wanted us to push the bill forward in the chamber; so here I am today, rising at third reading.

The Hon. the Speaker pro tempore: Honourable senators, if you insist on carrying on conversations that are not participating in the debate, can you take them outside the chamber? Out of respect for the honourable senator speaking, can we have some basic decorum and respect to ensure that we hear her discourse.

Senator Dyck: Thank you, Your Honour. You're doing an excellent job, and I appreciate that. I know that sometimes they may not wish to hear what I have to say, but it's my job, so here I am.

Bill C-428, the proposed Indian Act amendment and replacement act, is supposed to require band councils to publish their bylaws and to repeal certain outdated provisions of the act. It's supposed to require the Minister of Aboriginal Affairs and Northern Development to report annually to the House of Commons committee responsible for Aboriginal Affairs on the work undertaken by his or her department in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act.

As I mentioned before, the private member's bill was brought forward by Mr. Rob Clarke, Member of Parliament for Desnethé—Missinippi—Churchill River in northern Saskatchewan. Clause 2 of the bill is really the meat of the bill, and it requires the minister to report to the House of Commons committee for Aboriginal affairs on the work that his department has done in collaboration with First Nations and other interested parties to develop new legislation to replace the Indian Act. That sounds really good. Unfortunately, it doesn't do what it looks like it says it does.

The rest of the bill has a series of measures to repeal or replace outdated sections of the Indian Act, including repealing sections relating to the sale or barter of produce on reserve, the elimination of the designation of special reserves, creating the statutory obligation for band councils to publish all bylaws on a website, in the First Nations Gazette or in a newspaper that has general circulation on reserves, and repeals references to residential schools. Most of these provisions are minor. They're minuscule. Some of them are almost meaningless. Some are already not in force simply because the department, by policy, is not enforcing those particular clauses of the Indian Act. In reality, it's not doing anything except putting into a piece of legislation what the department is already doing through policy.

There has been criticism that this bill, being a private member's bill, does not fulfill the Crown's obligations to consult and accommodate First Nations on issues related to their Aboriginal and treaty rights. I'll expand on this in a few minutes.

Clauses relating to the repealing of references to residential schools and bylaw publication are duplicated in Bill C-33, the proposed First Nations control of First Nations education act, introduced in April 2014. If Bill C-428 is passed, Bill C-33 already has coordinating amendments in it to take into account which bill comes first. I'm going to go into this again later. It is very odd that this private member's Bill C-428 contains the exact same clauses as the ones found in the government's Bill C-33, the proposed First Nations education act, which as all honourable senators know is a key piece of proposed legislation. This bill was a priority for the government and was extremely important to First Nations because we know that education is a critical factor in getting out of the cycle of poverty.

Senator Cordy: Maybe this is a government bill too.

Senator Dyck: Yes, thank you for that. This is a private member's bill, but it is masquerading. It's being used to carry out the government's agenda, and that's what is discouraging and frustrating and makes me angry because it shouldn't happen. In addition, Bill C-33, the First Nations control of First Nations education act, was put on hold by the minister earlier this year. At this very moment in Winnipeg, it's probably being discussed at the Special Chiefs Assembly.


The other concern in the bill is that the member of Parliament did not include consultation, but he included collaboration. Collaboration has no legal meaning so it's rather weak compared to consultation, which has a constitutional weight behind it.

I'll repeat that a general concern of private members' bills is that they're used to further government objectives without proper scrutiny by Parliament, departments and Justice Canada. I would say that is exactly what has happened here because I am being asked, by negotiations between the leadership, to stand up today when I did not want to do that. I wanted more time to look into the outstanding issues with this bill, so it is not getting the depth of scrutiny that it should have.

Bill C-428, a private member's bill, was passed on division by the Standing Senate Committee on Aboriginal Peoples just a couple of weeks ago. There is nothing in this bill that is urgent and there is precious little in the bill that will actually help First Nations, contrary to the claims of the private member, Mr. Rob Clarke. If there were provisions in the bill that would help First Nations, we on this side of the chamber might have been persuaded to support the passage of this bill unamended, but there weren't any such helpful provisions.

The Conservative senators on our committee voted against amendments to strengthen and improve the bill. I will briefly mention two amendments that would have corrected obvious oversights or mistakes in the bill.

One would have put in a requirement to consult with First Nations on replacing the Indian Act — to consult, not to collaborate. It's really hard or impossible to understand how Mr. Clarke, himself a First Nations man, neglected to include consultation given its importance to First Nations and the constitutional requirement for consultation. It's unbelievable that this could have happened. It clearly was not a mistake; it was by design.

Another amendment would have included the Senate in the parliamentary process whereby the minister reports on the work done to replace the Indian Act through Bill C-428, and that was noticed by Senator Day when I gave my second reading speech. He said, "Oh, there is no mention of the Senate." You're absolutely right.

The amendment that was proposed to include the Senate was rejected by the Conservative senators of the committee.

Senator Fraser: Have they no shame?

Senator Dyck: This is just unbelievable to me. Their primary concern was clearly that they thought the bill would die on the Order Paper of the House of Commons if it were sent back amended.

Their concern was so pronounced that they voted against their own parliamentary rights and privileges as senators to be included in the reporting mechanism of this bill. Now to me that is just insane. Here on the floor of the Senate we have many inquiries to talk about reforming the Senate, to make it better, more efficient, more effective, and what are we doing in this bill? We're leaving senators out completely. Your side and that committee agreed to it. How could you possibly write yourself out of the parliamentary process? That makes absolutely no sense to me.

To get back to the concern, the only way this bill would die on the Order Paper of the House of Commons is if an election was called before the bill is dealt with in the House of Commons. The fixed election date is set for October 2015. Our estimation at the time of clause-by-clause analysis was that the bill would be dealt with in February. I don't see the big concern, unless they call an election before then.

An Hon. Senator: Which we think they will.

Senator Dyck: Who knows? We're only guessing what goes on in your minds because it doesn't make any sense.

It could die on the Order Paper if an election was called before it is dealt with, but again, it makes no sense to write ourselves, as senators, out of the bill. You're putting the needs of a private member, a member of Parliament, ahead of your individual roles as senators. The Senate is supposed to be the house of sober second thought. So for members of Parliament who have not necessarily thought through what the impact of their legislation is, we're supposed to provide sound advice for that. And what did we do? We said, "No, go ahead." That is what we get paid for.

It turns out that our sides have two very different understandings of the process and timing by which an amended bill would be handled in the House of Commons. I would have sincerely liked to adjourn the debate for the remainder of my time so I could research this and find out what exactly you have been told. It does not match what we have been told and what we have found in the rules regarding what happens in the House of Commons, if you look at the rules on the web and other places.

That's it, in summary.

We didn't have a huge number of witnesses. We had the member of Parliament himself, Mr. Rob Clarke. We had a couple of people from the Board of St. Kateri Catholic School. We had the chief of the Congress of Aboriginal Peoples. We had Manny Jules and members of the Assembly of First Nations, who also spoke on behalf of the Federation of Saskatchewan Indian Nations. We had Ian Peach, who is a legal expert, and officials from Aboriginal Affairs and Northern Development and the Department of Justice, who we asked to appear so we could ask questions. They appeared reluctantly, and they did answer questions. We also had Mr. Paul Chartrand.

With regard to the individuals from the department, one thing came out that was important and we need to remember, and I should remind the Conservative members of the committee. Mr. Joe Wild, who is Senior Assistant Deputy Minister of Aboriginal Affairs and Northern Development Canada, said that clause 2, which requires the minister to report to the House of Commons on the progress made on replacing the Indian Act, would not do what Mr. Clarke said. The minister had to report, but that didn't mean he had to report on any progress of work undertaken because there was no operative clause in the bill that says the minister must meet with First Nations and the minister must initiate a process to repeal the Indian Act. None of that was there. It was only that the minister must report; and it was "must" report, not "shall" report.

We have gone through this before with other bills where I think Senator Eggleton said they had watered downed the language and they were no longer using the word "shall," which has a strong legal interpretation. In this bill it is just "must."

I'm going to put forth the key observations and go through them in detail. As I've said, the bill will not do what Mr. Clarke says it will do, and the bill essentially incorporates trivial changes. They are mostly meaningless changes. The bill leaves out the Senate in reporting, which the Conservative senators agreed to, and it duplicates portions of Bill C-33, the proposed "First Nations Control of First Nations Education Act."

When I asked Mr. Clarke whether he was a bit concerned that this bill was coming before the other, he made what could be called a boastful interpretation: "Well, my bill got through first." That, for a First Nations man, is not traditional First Nations behaviour. It was not at all. It is what we would call môniyâw behaviour, or White man behaviour, and you can be insulted by that if you like. That's Cree for "White man."

There were a number of technical but important mistakes made by Mr. Clarke. For instance, Mr. Clarke, as well as one of the witnesses and the sponsor, Senator Ngo, was reading from the wrong version of the bill. This may seem technical, but anyone who reads our transcripts and then looks at the bill will get thoroughly confused because when we were saying clause 8, we were actually looking at clause 9. It added a lot of confusion for anyone who was trying to make sense of what we do.


In addition, Mr. Clarke told us that he thought the Senate automatically gets reports tabled in the House of Commons, and we as a committee were going to believe him. However, we did check, and I will read from the brief of the law clerk. It says that that is not the case at all. We do not automatically get it, and if we're left out, we have no recourse, no point of privilege.

Another mistake was that he was convinced that his bill forces the government to initiate a process to replace the Indian Act. As I said, it was confirmed by Mr. Joe Wild, senior assistant deputy minister of the department, that the bill does not do that. The intention is there in the preamble, but the preamble has no legal force.

Honourable senators, if you've been here for a year or whatever, you soon find out that's the case. The preamble has no legal force. Why doesn't our member of Parliament know that? He's been over there for some time as well. He's dealt with bills. Surely, he ought to know the preamble has no legal force.

In addition, the word "progress" was not included in the bill, despite the fact that Mr. Clarke said he "was careful to include the word `progress"' in his bill so that the minister had to report on the progress undertaken. Well, senators, the word "progress" is not in the bill. It's not there. So Mr. Clarke was clearly mistaken again about what was in his bill and what it should do.

Now, recently Mr. Clarke was on Aboriginal People's Television claiming that Aboriginal organizations such as the Assembly of First Nations and the Federation of Saskatchewan Indian Nations take a cut of money designated for child welfare. I mention this because that is totally, absolutely wrong. That is not true. I mention this just to exemplify and amplify the competency of this member of Parliament whom you seemingly are standing behind. There are great doubts about his competency.

It appears that the Assembly of First Nations may be trying to get the Prime Minister to reject him from your caucus, or they may try to sue him for saying falsehoods on public television about the Assembly of First Nations and the Federation of Saskatchewan Indian Nations.

Basically, for me, also a First Nation person, a First Nation woman, it speaks volumes to me, considering that he is also a First Nation person who doesn't seem to get it. He doesn't seem to be on the side of First Nation concerns, and I think that is terribly wrong. He often self-identifies as a First Nation person, which is fine. I think it's great to be proud of who you are, but he is self-identifying as an excuse for his own self-promotion or as an excuse to take over a conversation as he did on that APTN issue. He said, "I am a First Nation person, let me speak," when he was, in fact, dominating the conversation. I found that offensive.

To go with some of these concerns in more detail, the first one, of course, the concern for all First Nations has been and continues to be that of consultation. When I asked Mr. Clarke what his method of consultation was, he said that he sent letters out to about 600 chiefs and councils on six separate occasions. He had information sessions, national tele-town hall meetings, informational YouTube videos and informal conversations with First Nation members at his constituency office, but he didn't have any formal accounting of the feedback received during this outreach. He did not consider his outreach consultation. He said, "I can't say consultation because that's not what I did. I was going out educating and talking to First Nations." He was educating them. That's insulting to the First Nations. He was educating and talking to First Nations and giving them information to make their judgments.

When pressed by Senator Moore on the details of the feedback, Mr. Clarke guessed that he received 200 responses and that the majority were supportive of his legislation, but he could not provide any concrete examples because he did not actually keep any records, so there you go.

In fact, he considered the committee hearings as part of the consultation process, and we all know, if you've been here for any time at all, that First Nations leaders do not consider the hearings in the House of Commons or here in the Senate as part of the consultation. They want to be consulted before the bill is drafted, before it reaches Parliament Hill. That's what consultation is.

Senator Nancy Greene Raine brought up the topic of consultation. She said, quite rightly so, that we always talk about consultation for every bill we get for First Nations. That's absolutely true, we always do, and yet we always seem to come to a stalemate. The answer is simple, senators. If it is a stalemate, instead of pushing forward a bill with no consultation, you undertake a consultation. You'll never get over the issue until you provide the solution. You at least try to start a consultation. So consultation was not part of the bill.

With respect to parliamentary procedure issues, clause 2 requires the Minister of Aboriginal Affairs and Northern Development to report only to the House of Commons committee dealing with Aboriginal affairs. There is no requirement for the minister to table anything in the Senate. In all other legislation, reports are generally tabled in both houses of Parliament simultaneously, and as the clause stands, there is no avenue by which the report can be tabled in the Senate or any standing Senate committee for review.

Mr. Clarke has indicated he doesn't want the bill amended, and it was quite clear the Conservative senators didn't want the bill amended because they were afraid it was going to die on the Order Paper; therefore, the bill remained unchanged.

Because Mr. Clarke had said he thought the bill would come to us, we on the steering committee met with Michel Bédard, Senate parliamentary counsel. I asked Mr. Bédard to write up what he told us and I presented it to the committee so it would be part of the written record of deliberations on this bill. With regard to the section of his report on the right of the Senate to a report, I will read some excerpts from his document: "Reports that are tabled before the House of Commons may indeed be tabled before the Senate, pursuant to the Rules of the Senate or with the consent of the Senate. Reports from the Auditor General, for example, are tabled before the Senate despite the fact that the relevant provisions of the Auditor General Act refer only to the House of Commons. Such a practice, however, does not create a right to the report for the Senate." It does not create a right to the report for the Senate. "Therefore, if no report were to be prepared and tabled, it would be for the House of Commons and not the Senate to raise and dispose of the matter. Clause 2 of Bill C-428 creates an obligation to report only to the House of Commons. If no report were to be tabled, the matter could only be raised as a question of privilege or otherwise in the House and not in the Senate."

So we have written ourselves as senators out of this bill. We have written the Standing Senate Committee on Aboriginal Peoples out of the purview of this bill when it's dealing with the Indian Act. It makes no sense.

That's the end of the quotation from Mr. Bédard's report.


Such a report should be brought to our attention as the Standing Senate Committee on Aboriginal Peoples, because our mandate generally is to examine and report on the federal government's constitutional, treaty, political and legal responsibility to First Nation, Metis and Inuit peoples. So we do play a very big role, but yet we're left out of this bill. Once again, I will say this flies in the face of Senate reform when we're trying to improve the Senate, but here what we're doing is we're throwing the Senate out, considering it unimportant, because the wishes of the private member supersede the role of the chamber of sober second thought, the Senate.

To get back to the effect of clause 2 — I keep repeating this, because it's important to get it into your minds what the problems are with this bill — Mr. Clarke believes that clause 2 would mandate the government to sit down and actually start a process for formal consultation. He claims that this clause initiates progress to eventually replace the Indian Act. Of course, we've heard a lot of people, First Nation chiefs and others, grumble about the Indian Act. He states:

But I was careful to include the word "progress" in this clause to ensure that my intent was clear.

That's what he said at the committee.

However, clause 2 as currently drafted does not include the word "progress." The word "progress" is not included in the bill anywhere. The clause as written asks for the report to include the work undertaken by the department towards new legislation to replace the Indian Act, and, as I pointed out, the bill actually only requires the government to report. There is no legal clause that says they must sit down and collaborate and, better yet, consult with First Nations. There is no clause that would make that happen. The preambulatory clauses do not carry a legal force.

That, as I said before, was confirmed by the senior assistant deputy minister and by Mr. Ian Peach, another legal expert. There may have been an intention for that to happen, but there is not a legal obligation.

Just to go back for a minute to consultation, if Mr. Clarke had been serious about consultation, which, honestly, as a First Nation person, I thought he would have been, he could have sat down with well-known First Nation leaders in Saskatchewan, such as Senator Sol Sanderson, a senator with the Federation of Saskatchewan Indian Nations, who is just like a walking encyclopedia. I'm not sure where Sol lives; he might even live in northern Saskatchewan. He could have sat down with Perry Bellegarde and, you know what, he could have sat down with Senator Gerry St. Germain. Now there is a man who understood everything to with Aboriginal peoples. He could have sat down with Senator Patterson, with all the experience he's had. He could have sat down with Senator Sibbeston. He could have sat down with Senator Watt. He could have sat down with me to hash out this consultation aspect, but, no, he didn't do that.

What he did do was quite the opposite. He just forgot about the Senate entirely. To me, that's just outrageous. Not an oversight. It's simply outrageous.

The last clauses in Mr. Clarke's bill deal with removing the sections of the Indian Act that mention residential schools. This, I think, is a good intention. However, again, it bewilders me as to why. The Prime Minister in 2008 stood in the House of Commons and apologized for the residential schools and the ensuing trauma for Aboriginal peoples. He promised that that would be done in 2008. Why is it in Mr. Clarke's bill when it's a government promise? Why has it been downgraded to a backbencher MP when it was a heartfelt apology from our Prime Minister? I do believe it was heartfelt.

That promise was reiterated two years later by then Minister Strahl, Minister of Aboriginal Affairs and Northern Development. At the first national meeting of the Truth and Reconciliation Commission, Minister Strahl said, "Our government will remove from the Indian Act all mention of the residential schools."

So here we are in December 2014. Those actions are in Bill C-33, a government bill. The same actions are in Mr. Clarke's bill, a private member's bill.

Honestly, if you want to respect First Nations people, it should be in a government bill. That gives it the weight of a government initiative and also recognizes the nation-to-nation relationship. Thank you for that. So to me it's almost insulting to have it come from a backbencher member of Parliament rather than from the government.

As I mentioned earlier, one the issues, too, is the mix-up of various versions of Bill C-428, and I won't go through that again. It indicates the lack of attention that Mr. Clarke actually paid to this bill that he couldn't even come to the committee with the right version of the bill. In fact, when I asked him what clauses in the Indian Act refer to residential schools, he couldn't answer. He didn't even know. The research analysts at the front of the room were looking nervous; they were looking it up and saying "Senator, it's clause da-da-da-da," and I said, "Thank you very much," but I wanted Mr. Clarke to answer.

I spent many years as a professor. When you ask someone a question, you expect them to answer, not someone else. This he did not know. He had the wrong version, so he was reading out this stuff that made no sense.

Senator Cordy: It's not his bill, clearly.

Senator Dyck: It's not his bill. Maybe this is not his bill. Why did he pick those sections of the Indian Act that are outdated? There was no explanation why the sections that he wanted repealed would be repealed. In fact, in the original version of the bill, the main intention of the bill was to deal with wills and estates because he was concerned about his own will and estate, but as it turned out, it was way too complicated, and there were unwanted side effects, so all that stuff was taken out.

So his intention really was not to help First Nations. It was really to help himself with his own will and estates. That was the main intention.

An Hon. Senator: Can that be a conflict?

Senator Dyck: Is that a conflict? Absolutely.

The bill as it stands now, as I said, incorporates trivial changes. In fact, as I said before, some of the clauses that are being removed from the Indian Act are not being enforced anyway. The department knows they're outdated and archaic, so they're not going to incorporate them. They just institute a policy.

I turn to the issue of what would have happened to the bill if it was amended. That's the difficult one. I have to admit that I am an idealist, and so I always pursue the ideal goal. On your side, you're perhaps more pragmatic than I am. But despite all the arguments that were put forward at our clause-by-clause analysis — it's a short bill, and we spent the whole two hours going through it and arguing for the inclusion of the Senate, the inclusion of consultation, but it didn't fly. We were unable to convince the Conservative senators on the committee to amend the bill. What came out very clearly was that you on the other side were concerned that the bill would die on the Order Paper, and I'm thinking, well, you've got to take your chances. The bill as it now stands has serious flaws and is not going to help the First Nations anyway. In fact, if anything, it's going to have the opposite effect, because this is going to make people angry. First Nation people are going to be angry at this bill. They're not going to look at it and say, "Gee, thank you so much." It's going to have the opposite effect.


As I said, their main sticking point was that the bill would die on the Order Paper. I had thought that it wouldn't die if there was an election call, but I was wrong. So, if there is an early election call before this bill does come up, it will die on the Order Paper.

But you know what? It's our job to amend it. If there's something wrong with it, it's our job. It will die and someone else could take it up. Maybe he'll be re-elected. He could take it up again. Maybe it could come back in its true form as a government bill.

We heard various things from members on the committee: Well, you know, Mr. Clarke is a nice guy. He's got a good heart. I think his intentions are good. He's a First Nation man. He's elected.

Those things may be true, but that's not relevant to the bill; that's not relevant to the contents of the bill. Maybe he is a nice guy with a big heart, but the bill has serious flaws. It's like me saying, "I gave an exam and that person back there should fail, but he's a nice guy. I'm going to pass him." This guy should have received a failing grade.

An Hon. Senator: Hear, hear.

Senator Dyck: If Mr. Clarke really were interested in helping First Nation people, he should have thought more carefully and consulted First Nation people.

Yes, people say we should get rid of the Indian Act. But you know what? The Indian Act is not the problem. We already know that. If there are outdated and archaic provisions, the government, by policy, doesn't institute them. It's not the Indian Act that's the problem; it's the policy-making powers of Aboriginal Affairs and Northern Development Canada. It's the powers of the department who can decide whatever they want and just do it. They can just decide by policy: We're going to give you x number of dollars. We're going to make you do this; we're going to make you do that.

Their policy-making powers are autocratic. They don't get input from anybody, from any First Nation leaders. It's autonomous; they just go ahead and do it. It's a waste; it's a complete waste of time. Go through the Indian Act, which I think must be — I don't know — hundreds of pages long, because it covers everything to do with Indian people, from where you're buried to how you can get an education.

It's a waste of time to go through, as he was saying, to cut out the dead brush. The dead brush is dead. The department is not using it anyway. Why waste valuable time going through the Indian Act? Do you know why the focus is there? To distract us from getting to the real solutions, which is the department itself and the things they do and the powers they have to make decisions that affect every aspect of First Nation people living on reserves. That's the problem, not the Indian Act.

If Mr. Clarke really had wanted to help First Nations, he could have introduced a bill that forces the government to sit down with First Nations and negotiate a mutually acceptable process to fulfill the duty to consult and accommodate First Nations — in other words, to fulfill the Crown's constitutional obligation to First Nation peoples. That bill would have been most helpful, but he would not even include the word "consult." He used the word "collaborate," which has no legal force behind it.

The close-to-final comments I would like to make speak to the issue of the bill dying in the House of Commons. Really, that's what sold senators on that side. That's why they would not accept good amendments that would have improved the bill. They were worried that this bill would die on the Order Paper if an election is called.

Senator Mitchell: But only if it's called in February.

Senator Dyck: Yes. There is a misconception that an amended version of this bill by the Senate would simply lead to the bill dying on the Order Paper in the House of Commons. The only way it would die is if an election is called before the bill reaches the top of the Order of Precedence to be dealt with in the House of Commons. They've got all their standing orders, just like we do.

As outlined in the ninth edition of the Private Member's Business - Practical Guide, this key textbook, the following is stated:

The order for the consideration of Senate amendments to a private Member's bill is placed at the bottom of the Order of Precedence when the message relating to the amendments is received from the Senate. The Standing Orders do not specify any time limit for the consideration of a motion respecting Senate amendments. When the item reaches the top of the Order of Precedence, it is considered during Private Members' Business Hour and, if not disposed of at the end of the hour, it is placed again at the bottom of the Order of Precedence. This process is repeated until the debate ends and the question can be put on the motion.

The placement of a Senate-amended private member's bill, when the message is received from the House of Commons, is that which is similar to when a private member's bill is received from a House of Commons committee that was charged with studying it. In both scenarios, it is placed at the bottom of the Order of Precedence. As the private member's bill is dealt with, items move up in the Order of Precedence. So it would go to the bottom and then it would work its way up to the top.

Last week, on December 2, the Order of Precedence and Notice Paper of the House of Commons listed 17 items. If the bill were amended and passed by the Senate, it would be placed, theoretically, at No. 18, Private Members' Bills, Business, in the House of Commons, and receive one hour each sitting day for consideration. There are generally one or two hours of debate on the items currently on the Order Paper.

If honourable senators do the math, if, at the maximum, all of the 17 current items on the Order of Precedence would take two hours of debate, that is thirty-four hours to be accommodated for before the Senate-amended Bill C-428 would come to the top of the Order of Precedence. This was last week: Starting tomorrow, and assuming the House of Commons maintains the current sitting schedule, hour 34 of Private Members' Business would come up around the first week in March.

When we considered this at our committee, it was earlier; it was February. Now this is a few weeks later. Sometime in the first week of March, approximately —

Senator Mitchell: We're going to be voting sometime in the first week of March.

Senator Dyck: — the House of Commons and the sponsor of the bill, Mr. Clarke, would get their first chance to consider these amendments. Unless senators opposite have some inside information — Could I have five more minutes, please?

The Hon. the Speaker: Is five more minutes granted to Senator Dyck?

Hon. Senators: Agreed.

Senator Dyck: Unless senators opposite on the committee have some inside information — like an early election call; who knows? — about the possibility of Parliament not sitting in March 2015 due to an election call, there is no merit in any of the arguments that this bill will die if amended by the Senate. It can very well be dealt with by the House of Commons before the fixed election date of October 2015.

Frankly, even if Bill C-428 isn't dealt with in the House of Commons and does die on the Order Paper, it would be no loss to any First Nation; it would be no loss at all. That's how bad this bill is.


I will repeat what I said earlier. It would be a travesty to pass Bill C-428 at this tumultuous time. As I said before, the Assembly of First Nations is holding a special assembly in Winnipeg. They're discussing First Nation education. Putting those sections about residential schools into this bill is downgrading it. It's a dishonour to First Nations. It should have come from the Prime Minister. It should be a government bill.

Therefore, the bottom line, the clear message is that the Conservative senators on the committee gave precedence to the re-election of Mr. Clarke over the rights of First Nations to consultation and the rights and privileges of senators to be involved in their parliamentary oversight and reporting included in this bill.

Motion in Amendment

Hon. Lillian Eva Dyck: Therefore, honourable senators, I move:

That Bill C-428 be not now read a third time but that it be amended, in the preamble, on page 1, by replacing line 17 with the following:

"legislation in consultation with the First".

That Bill C-428 be amended on page 1 by adding after line 24 the following:

"1.1 For greater certainty, nothing in this Act is to be construed so as to abrogate or derogate from the Aboriginal and treaty rights of Aboriginal Peoples of Canada that are recognized and affirmed by section 35 of the Constitution Act, 1982"."

That Bill C-428 be amended in clause 2, on page 2, by replacing line 5 with the following:

"And Senate committees responsible for Aboriginal affairs on"

That Bill C-428 be amended in clause 4 on page 2 by deleting line 17 to 24.

That Bill C-428 be amended in clause 14, on page 4, by deleting lines 8 to 12.

That Bill C-428 be amended in clause 15, on page 4, by deleting lines 13 to 15.

That Bill C-428 be amended in clause 16, on page 4, by deleting lines 16 to 20.

That Bill C-428 be amended in clause 17, on page 4, by deleting lines 21 to 29.

That Bill C-428 be amended in clause 18,

(a) on page 4, by deleting lines 30 to 36; and

(b) on page 5, by deleting lines 1 to 4.

Some Hon. Senators: Hear, hear.