About the Act


The United Nations Declaration on the Rights of Indigenous Peoples Act (the Act) became law on June 21, 2021. Under the Act, the Government of Canada will work in consultation and cooperation with Indigenous peoples, to:

The Act is an important step in moving Canada’s relationship with Indigenous peoples forward.

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Why we need this legislation

The United Nations Declaration on the Rights of Indigenous Peoples provides a framework for reconciliation, healing and peace, as well as harmonious and cooperative relations based on the principles of justice, democracy, respect for human rights, non-discrimination and good faith.

This Act creates a lasting and action-oriented framework to advance federal implementation of the Declaration in consultation and cooperation with Indigenous peoples. It ensures sustained and continued efforts to uphold the human rights of Indigenous peoples now and in the future and contains measures to hold the federal government accountable. This legislation also responds to the Truth and Reconciliation Commission's Call to Action 43 and the National Inquiry into Missing and Murdered Indigenous Women and Girls’ Calls for Justice.

In this way, this Act provides a clear vision for the future, ensuring that, moving forward, federal laws reflect the principles and rights set out in the Declaration, while also respecting Aboriginal and Treaty rights recognized and affirmed by the Constitution.

The Act explained

This legislation advances the implementation of the Declaration as a key step in renewing the Government of Canada’s relationship with Indigenous peoples.

The purpose of this Act is to affirm the Declaration as an international human rights instrument that can help interpret and apply Canadian law. It also provides a framework to advance implementation of the Declaration at the federal level.

This Act requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to:

  • Take all measures necessary to ensure the laws of Canada are consistent with the Declaration
  • Prepare and implement an action plan to achieve the objectives of the Declaration
  • Develop annual reports on progress and submit them to Parliament

Federal implementation of the Act, in consultation and cooperation with Indigenous peoples, will help:

  • Create a roadmap to advance work together to implement the Declaration in Canada
  • Protect, promote and uphold the human rights of Indigenous peoples in Canada
  • Forge stronger relationships with Indigenous peoples and advance reconciliation
  • Respond to calls from the Truth and Reconciliation Commission and the National Inquiry into Missing and Murdered Indigenous Women and Girls
  • Confront the harms of the Canada’s colonial history and build a better future together

The Act consists of a number of preambular provisions followed by seven sections and a schedule, which attaches the Declaration to the Act.

The preamble of the Act will guide this work, with an emphasis on:

  • Viewing the Declaration as a framework for reconciliation, healing and peace
  • Respecting and promoting the inherent rights of Indigenous peoples
  • Addressing discrimination and racism, and denouncing discriminatory doctrines, policies and practices
  • Affirming the constitutional protection of Aboriginal and treaty rights and that such rights are not frozen but can evolve and grow
  • Taking into account the diversity of Indigenous peoples
  • Respecting treaty rights, treaties and other agreements
  • Basing all relations on Indigenous peoples’ inherent right to self-determination, including the right of self-government

The Act affirms that:

  • Aboriginal and treaty rights protected by section 35 of the Constitution Act, 1982 will be upheld and are not lessened in any way
  • The Declaration already has application as a tool to interpret Canadian law
  • The Government of Canada is committed to work with Indigenous peoples to implement the Declaration

Key elements of the Act

The Preamble sets out the context of the Act, including:

  • Role of the Declaration as the framework for reconciliation
  • Acknowledgement of inherent rights and the importance of respecting treaties and agreements
  • Emphasizes the need to take diversity across and among Indigenous peoples into account in implementing the legislation

Section 2 sets out interpretive elements, including:

  • Definitions, including “Declaration” and “Indigenous peoples”
  • A non-derogation clause
  • Clarifies that the Act does not delay the application of the Declaration as an interpretive tool in Canadian law.

Section 3 provides for the designation of a Minister for the purposes of the Act:

  • The Minister of Justice was named the Minister responsible for the Act by Order in Council on June 24, 2021.

Section 4 describes the purposes of the Act as:

  • Affirming the Declaration as a “universal international human rights instrument with application in Canadian law”
  • Providing a framework for the Government of Canada’s implementation of the Declaration

Section 5 requires measures to ensure laws are consistent with the Declaration:

  • This requires that measures be taken over time to ensure that federal laws are consistent with the Declaration
  • Such measures must be taken in consultation and cooperation with Indigenous peoples
  • Like the rest of the Act, this obligation applies only to federal laws and does not seek to bind provincial or territorial governments

Section 6 requires the Minister to develop and implement an action plan to achieve the objectives of the Declaration:

  • The plan must be developed in consultation and cooperation with Indigenous peoples and with other federal ministers
  • The plan must be completed within 2 years, by June 21, 2023 and be tabled in Parliament and made public following its completion
  • The plan must include measures to:
    • tackle violence and discrimination against Indigenous peoples
    • promote understanding through human rights education
    • ensure accountability with respect to implementation of the Declaration
    • monitor the implementation of the plan and for reviewing and amending the plan

Section 7 requires the preparation of annual reports:

  • Reports must be prepared in consultation and cooperation with Indigenous peoples
  •  The report must:
    • Address the measures taken to ensure the laws of Canada are consistent with the  Declaration and the preparation and implementation of the action plan
    • Be tabled in each House of Parliament, and be made public
  • Subsection 7(3) provides that the report stands permanently referred to the committee of each House of Parliament that is designated or established to review matters relating to Indigenous peoples.

Ensuring the laws of Canada are consistent with the Declaration

The Government of Canada is responsible for taking all measures necessary, in consultation and cooperation with Indigenous peoples, to ensure consistency of federal laws with the Declaration. This means taking measures to ensure that existing laws are consistent with the Declaration. It also means that the Government will take measures to ensure that future laws reflect the rights and principles of the Declaration.

Impact on existing federal laws

Given the scope of the Declaration, many federal laws intersect with elements of the Declaration. We anticipate that some existing federal laws will need to be amended in order to better align with the Declaration. This legislation provides a whole-of-government framework for identifying and guiding such future changes. New legislation will also need to be developed with the Declaration in mind.

The full and effective implementation of the Declaration is a process that will take time as the federal government, in cooperation and partnership with Indigenous peoples, assesses changes that need to be made to laws, policies and practices to be consistent with the Declaration. Any future changes will need to go through regular policy development, engagement and parliamentary processes.

Non-derogation clauses

Upholding Section 35 rights through a non-derogation clause in the federal Interpretation Act

Background information

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The Government of Canada is committed to building renewed nation-to-nation, Inuit-Crown, and government-to-government relationships with First Nations, Inuit and Métis based on affirmation of rights, respect, cooperation and partnership.

In 2007, after examining non-derogation clauses (NDC) referring to section 35 of the Constitution Act, 1982 in federal legislation, the Senate Committee on Legal and Constitutional Affairs (Senate Committee) prepared its report entitled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal rights”. Among other recommendations intended to advance implementation of section 35 rights in the short and medium term, the Senate Committee recommended that the Government of Canada introduce legislation to add an NDC to the federal Interpretation Act and repeal current NDCs found in other federal statutes. The specific NDC wording the Senate Committee proposed was intended to convey an intention from the Parliament of Canada that public officials should actively take measures to uphold and implement Aboriginal and treaty rights.

Over the course of many years, NDCs have been included in several federal statutes with variations in language. They have often been added in the course of the parliamentary process at the request of some Indigenous peoples, governments, or organizations seeking to ensure that legislation would be interpreted in a way that respects section 35.

More recently, legislation has included a more positive formulation of NDCs including in the United Nations Declaration on the Rights of Indigenous Peoples Act (UN Declaration Act). The NDC in subsection 2(2) of the UN Declaration Act reads as follows:

Rights of Indigenous peoples

(2) This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.

Recently British Columbia’s Interpretation Act was amended to include a section 35 NDC along with an interpretive clause providing that B.C.’s laws are to be construed as being consistent with the UN Declaration.

Preliminary engagement and what we learned

In December 2020, the Minister of Justice and Attorney General of Canada announced the launch of a preliminary consultation and engagement process with Indigenous peoples on potential legislative changes in support of an NDC in the federal Interpretation Act. Justice Canada officials undertook preliminary consultation and engagement in February and March 2021 to seek views from Indigenous peoples to inform policy-making on potential amendments to the Interpretation Act. Justice officials consulted and engaged with Indigenous peoples on the following two questions:

  1. Language of the NDC: Should the federal Interpretation Act use the term “Aboriginal and treaty rights” or “Indigenous peoples”?
  2. Repeal of some or all existing NDCs: Should existing laws be amended to remove all NDCs included in federal legislation or should only certain NDCs be repealed?

Over the course of February and March 2021, federal officials, held about a dozen virtual meetings and received over 30 written submissions from groups representing many Indigenous peoples and organizations. From these meetings and submissions, we learned that there is general support for this initiative. The issue of a NDC is important for many Indigenous peoples as it concerns all section 35 rights holders of the Constitution Act, 1982.

However, there are divergent views on how the NDC in the federal Interpretation Act should be worded. The many participants who prefer using the term “Aboriginal Peoples” in the NDC appreciate how the term “Aboriginal” is clearly linked clearly to constitutionally identified section 35 rights holders. Many others though favour the term “Indigenous peoples”. Some of the participants who prefer using “Indigenous peoples” appreciate how it closely aligns to language used in the UN Declaration Act and international instruments, such as the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration).

Views differ on whether or not to repeal all NDCs in current legislation. While a number of Indigenous partners have expressed a view that all NDCs should be repealed, some Indigenous partners have expressed their desire for a partial repeal, with certain specific NDCs being retained where they relate to legislation that impact them. The majority view is to keep NDCs in certain specific pieces of legislation where Indigenous peoples have voiced a desire to retain these.

The current approach and objectives

On June 21 2021, the UN Declaration Act came into force. In keeping with the UN Declaration Act requirements, the Act’s consultation, cooperation and engagement process was launched on December 10, 2021. During this process, federal officials are working with Indigenous peoples and their organizations to identify measures to be included in the action plan, including measures to ensure consistency of federal laws with the UN Declaration. A broader range of Indigenous partners will be able to express their views on the NDC initiative as part of this process.

The objectives of the current consultation and engagement process on the NDC is to hear from a larger range of Indigenous voices, on a distinctions basis, to better understand how any concerns might be addressed through changes to the federal Interpretation Act going forward. We invite you to participate further in this discussion to share your views and recommendations on options for NDCs in federal legislation.

Non-derogation clauses in federal legislation in relation to upholding section 35 rights

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The following 10 examples of non-derogation clauses are already included in existing federal legislation in relation to upholding section 35 rights. Consult the Justice Laws Website for more information.

“Nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.”
“This Act does not address any aboriginal or treaty rights of the Mohawks of Kanesatake. Nothing in this Act is intended either to prejudice such rights or to represent a recognition of such rights by Her Majesty in right of Canada.”
“For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982.”
“For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the application of section 35 of the Constitution Act, 1982 to existing aboriginal or treaty rights of the aboriginal peoples of Canada.”
“For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.”
“For greater certainty, the repeal of section 67 of the Canadian Human Rights Act shall not be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.”
“For greater certainty, nothing in this Act is to be construed as abrogating or derogating from the protection provided for the rights of the Indigenous peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.”
“For greater certainty, the amendments made by this Act to the Criminal Code, the Fisheries Act and the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act shall not be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of these rights in section 35 of the Constitution Act, 1982.”
“This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.”
This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.”
  • An Act respecting the United Nations Declaration on the Rights of Indigenous Peoples, S.C. 2021, c. 14, s. 2(2)

Options for non-derogation clause and repeal options

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First issue: Whether the federal Interpretation Act Non-Derogation Clause should refer to “Aboriginal and treaty rights” or to “the rights of Indigenous peoples”

Senate Committee Recommendation:

In its 2007 final report, the Standing Senate Committee on Legal and Constitutional Affairs supported the continued use of NDCs and recommended that a clearly worded clause should be added to the federal Interpretation Act for application to all federal statutes. For additional details, see the report: Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights.

The 2007 Senate Committee recommendation was to include the following text:

“Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.”

Updated Language in Recent Legislation:

Recently, Parliament has introduced language that is consistent with the Senate Committee recommendation but has included the expression “Indigenous peoples”. This expression better aligns and reflects the vocabulary used in international instruments, including the United Nations Declaration on the Rights of Indigenous Peoples, recent policy direction of the Government of Canada and in the United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14).

Doing so has required that the legislation include a definition clause for the expression “Indigenous peoples” that refers back to the definition of “aboriginal peoples of Canada” in the Constitution Act, 1982. More recent legislations have adapted some of the vocabulary used in the Senate Committee’s recommended clause to include more positive language, such as “as upholding” and “not as abrogating or derogating”. For example, the United Nations Declaration on the Rights of Indigenous Peoples Act (S.C. 2021, c. 14) includes the following text:

“This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.”

What an NDC in the federal Interpretation Act might say:

Option 1: Would follow the recommendations of the Senate Committee on the use of the more positive language of “upholding rights”, and would include the updated vocabulary to reflect more recent NDCs, but would not refer to “Indigenous peoples” in order to avoid the necessity of adding a definition of “Indigenous peoples”. Option 1 could be worded as follows:

“Every enactment shall be construed as upholding the existing Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.”

Option 2: Would also follow the recommendations of the Senate Committee on the use of the more positive language of “upholding rights”, but would refer to “Indigenous peoples”, therefore also requiring a definition of “Indigenous peoples” that refers back to the definition of “aboriginal peoples of Canada” in s. 35 of the Constitution Act, 1982. Option 2 could be worded as follows:

“Every enactment shall be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982, and not as abrogating or derogating from them.”

Second issue: Whether to remove all NDCs or have a partial repeal

Senate Committee Recommendation:

In its 2007 final report, the Standing Senate Committee on Legal and Constitutional Affairs recommended that the legislation to amend the federal Interpretation Act to add a non-derogation clause also provide for the repeal of all non-derogation clauses relating to Aboriginal and treaty rights included in federal legislation since 1982. The Senate Committee viewed it as important, for purposes of clarity and to avoid future confusion, that all existing non-derogation clauses included in federal statutes since the enactment of section 35 in 1982 be repealed.

For additional details, see the report: Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights.

Considerations for total or partial removal:

The Senate Committee’s recommendation for the repeal of all non-derogation clauses relating to Aboriginal and treaty rights included in federal legislation since 1982 aims to provide uniformity in statutes and to leave no room for differences in judicial interpretation regarding the intent of Parliament because there would be a single NDC.

However, further consideration is being given to the views of Indigenous partners with an interest in an NDC in specific legislations. As a result, some preexisting NDCs could be maintained after the introduction of an Interpretation Act NDC. The presence of a new Interpretation Act NDC alongside NDCs in other statutes does raise the possibility of differences in judicial interpretation because there would be different NDCs with variations in wording.

What the repeal might be:

Option 1: Add a universal NDC in the federal Interpretation Act and remove all other NDCs in existing federal legislation since 1982.

Option 2: Add an NDC in the federal Interpretation Act and remove all NDCs except those that mirror the Senate Committee’s recommended language and that Indigenous partners would prefer to retain.

Submit your feedback

Submit your feedback by email: Non-Derogation@justice.gc.ca

The Declaration as a human rights instrument

The Act recognizes that the Declaration, like other international human rights instruments, can guide the interpretation of Canadian law. The Act also requires the federal government to take measures to ensure that federal laws are consistent with the Declaration over time. This means that the Government of Canada, in consultation and cooperation with Indigenous peoples, will identify measures to help align existing or new federal laws with the Declaration.

The Declaration affirms the human rights of Indigenous peoples – both collective and individual rights. These include the inherent rights to self-determination and self-government, as well as equality rights, rights relating to culture, spirituality, and identity, and rights relating to lands, territories and resources.

The legislation and the Canadian’s Constitutional framework

Many of the rights affirmed in the Act are already reflected in the Constitution, notably the Canadian Charter of Rights and Freedoms and section 35 of the Constitution, which recognizes and affirms Aboriginal and treaty rights. The United Nations Declaration on the Rights of Indigenous Peoples Act does not amend the Constitution – but this legislation recognizes that the Declaration should inform how we understand and interpret the Constitution.

This legislation and Canadian law recognize that international human rights instruments, like the Declaration, can be used to interpret the Constitution, which is a “living tree” that evolves over time.

The Act, like other international human rights instruments or federal legislation, cannot amend or supersede the Canadian Constitution. However, they can inform how the Constitution and the law are interpreted and developed.

The action plan

The action plan

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This Act requires that the action plan include measures:

  • to address injustices, combat prejudice and eliminate all forms of violence, racism and discrimination against Indigenous peoples, including Elders, youth, children, persons with disabilities, women, men and gender-diverse and two-spirit persons
  • to promote mutual respect and understanding, as well as good relations, including through human rights education
  • related to the monitoring, oversight, follow up, recourse or remedy or other accountability with respect to the implementation of the Declaration

The action plan must also include measures for monitoring the implementation of the plan itself and for reviewing and amending the plan.

The Act requires that the action plan be developed as soon as possible and no later than two years after it has come into force. Once completed, the plan must be tabled in Parliament and will be made available to the public. The action plan can then be renewed and updated as needed.

How the action plan will be created

The Government of Canada will work in consultation and cooperation with Indigenous peoples to develop the action plan and take measures to ensure that federal laws are consistent with the Declaration.

A combination of Government-led consultation sessions and direct outreach led by Indigenous groups and organizations will be conducted to hear the views of as many Indigenous people as possible.

All federal departments will have important roles to play in implementing the legislation in consultation and cooperation with Indigenous peoples. As the Government of Canada considers the development of the action plan and the measures needed to ensure our laws are consistent with the Declaration in collaboration with Indigenous peoples, we expect some of the discussions will include identifying new, innovative processes and creative ways of working together.

Visit the Next Steps webpage for more information on the consultation, cooperation and engagement process.

Annual Report

The Act requires the Government of Canada to report annually to Parliament on progress made to align the laws of Canada with the Declaration and on the development and implementation of the action plan. The annual report will contribute to accountability for making progress on implementing the Declaration. This approach is consistent with the Declaration itself, which calls on states to collaborate with Indigenous peoples on appropriate measures, including legislative measures, to achieve the goals set out in the Declaration (Article 38 of the Declaration).

The annual report must be completed by the end of June each year, beginning in 2022. It will be available to the public on Canada.ca/Declaration.

How the Act impacts the existing duty to consult

The Government of Canada has a constitutional duty to consult Indigenous peoples when it considers measures that might adversely impact their potential or established Aboriginal or treaty rights. This has been consistently confirmed by the Courts. The Government of Canada has consistently worked to uphold this duty and has shown its commitment to taking additional steps to do so.

As the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples note, free, prior and informed consent builds on and goes beyond the legal duty to consult. Consultation obligations can also be set out in legislation or modern treaties. In fact, modern treaties have been described as an example of free, prior and informed consent in action.

The implementation of the Declaration will inform how the Government approaches meeting these legal duties going forward. It will do so in a way that provides greater clarity and creates greater certainty over time for Indigenous groups and all Canadians. The Act itself does not immediately change Canada’s existing duty to consult Indigenous groups, or other consultation and participation requirements set out in legislation like the Impact Assessment Act.

Role of provinces and territories in Canada

The Truth and Reconciliation Commission called on all levels of government to adopt the Declaration as the framework for reconciliation. Many provincial and territorial governments in Canada are also using the Declaration as the framework for reconciliation and to actively engage with Indigenous peoples on matters that affect them. For example, British Columbia passed the Declaration on the Rights of Indigenous Peoples Act into law in November 2019.

The United Nations Declaration on the Rights of Indigenous Peoples Act only imposes obligations on the federal government. It is intended to create a framework to support the Government of Canada to further implement the Declaration.

This Act affirms that the Declaration is a universal international human rights instrument with application in Canadian law. This means that the Declaration is an important source to interpret provincial and federal law. In fact, provincial and federal courts are already using the Declaration in this way.

The preamble to this Act specifically recognizes that provincial and territorial governments have their own approaches and authorities relating to the implementation of the Declaration. The obligations set out in the Act apply specifically to the Government of Canada, in consultation and cooperation with Indigenous peoples. This includes the requirement to take all measures necessary to ensure that the laws of Canada that fall within federal authority are consistent with the Declaration, the development and implementation of an action plan, and the tabling of annual reports in Parliament. Together, these provide a framework for the federal government’s implementation of the Declaration. Nothing in the federal legislation prevents provinces or territories from developing their own plans and approaches for implementation of the Declaration, or requires them to do so.

The Act specifically outlines key areas that the Government of Canada must consult on with Indigenous peoples in order to meet the requirements of the Act. Here is a series of questions designed to help guide discussions related to each of the legal obligations contained in the Act.

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