Non-derogation clauses

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

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.

As part of this commitment, on June 8, 2023, the Government of Canada introduced Bill S-13 that would amend the federal Interpretation Act to include a non-derogation clause (NDC) on upholding section 35 Aboriginal and treaty rights.

The proposed inclusion of a non-derogation clause to the Interpretation Act is aligned with the Government of Canada’s commitment to reconciliation, respecting and upholding the rights of Indigenous peoples and supporting stronger nation-to-nation, Inuit-Crown, government-to-government relationships. This legislative initiative is also guided by the principles of reconciliation and will contribute to the implementation of the United Nations Declaration on the Rights of Indigenous Peoples Act.

On this page

• Background information
• About the proposed legislation (Bill S-13)
  • Proposed addition of an NDC to the federal Interpretation Act
  • Proposed repeal of existing non-derogation clauses in other federal laws
• Consultation and cooperation

Background information

First Nations, Inuit, and Métis have long advocated for legislation to signal that all federal laws (including statutes and regulations) should be interpreted as upholding, and not diminishing, Aboriginal and treaty rights, as protected by section 35 of the Constitution Act, 1982. Many have specifically called for an NDC in the federal Interpretation Act.

In 2007, after examining NDCs referring to section 35 of the Constitution Act, 1982 in federal legislation, the Senate Committee on Legal and Constitutional Affairs (Senate Committee) prepared a 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 
• repeal current NDCs found in other federal laws and regulations

Over the course of many years, NDCs have been included in several federal laws with variations in language. They have often been added in the course of the parliamentary process at the request of Indigenous peoples seeking to ensure that legislation would be interpreted to respect section 35 Aboriginal and Treaty rights. However, some NDCs contain language that Indigenous peoples viewed as diminishing the protections of section 35 rights and should therefore be repealed.

On June 8, 2023, the Government of Canada introduced Bill S-13, which proposes to include an NDC to the federal Interpretation Act. This directly responds to the recommendations made by the Senate Committee in their 2007 report and is the result of consultation and collaboration with First Nations, Inuit and Métis.

About the proposed legislation (Bill S-13)

Proposed addition of an NDC to the federal Interpretation Act

Bill S-13 was introduced by the Government in the Senate on June 8, 2023. Its main objective is to add a standardized non-derogation clause to the federal Interpretation Act to ensure that all federal laws (including statutes and regulations) are consistently interpreted to uphold, not diminish, Aboriginal and treaty rights.

With the proposed addition of an NDC in the Interpretation Act, it would no longer be necessary to include a non-derogation clause in individual federal enactments going forward.

The proposed standardized NDC reads as follows:

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

As recommended by a number of Indigenous partners, the proposed NDC uses both “Aboriginal and treaty rights” and “Indigenous peoples”. A definition of “Indigenous peoples” would also be added to the Interpretation Act to clarify that “Indigenous peoples” has the same legal meaning assigned by the definition “Aboriginal peoples of Canada” in subsection 35(2) of the Constitution Act, 1982.

Proposed repeal of existing non-derogation clauses in other federal laws

If passed, Bill S-13 would mean that most NDCs would be repealed in order to promote greater consistency in the interpretation of federal laws. Through the consultation and cooperation process, Indigenous partners identified existing NDCs they would recommend retaining and those that they would recommend repealing.

Upon royal assent of Bill S-13, NDCs in the following 26 federal laws would be removed:

• Fisheries Act, 2019
• International Boundary Waters Treaty Act
• Canadian Navigable Waters Act
• Canada Wildlife Act
• Canada Petroleum Resources Act
• Canada–Newfoundland and Labrador Atlantic Accord Implementation Act
• Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act
• Migratory Birds Convention Act, 1994
• Firearms Act
• Oceans Act
• Canada Marine Act
• Canadian Environmental Protection Act, 1999
• Canada National Parks Act
• Yukon Act
• Canada National Marine Conservation Areas Act
• Species at Risk Act
• First Nations Fiscal Management Act
• First Nations Oil and Gas and Moneys Management Act
• An Act to amend the Canadian Human Rights Act
• Ending the Captivity of Whales and Dolphins Act
• Indigenous Languages Act
• An Act respecting First Nations, Inuit and Métis Children, Youth and Families
• Oil Tanker Moratorium Act
• Impact Assessment Act
• Canadian Energy Regulator Act
• United Nations Declaration on the Rights of Indigenous Peoples Act

As a result of cooperation and consultation, NDCs in the following three federal laws would remain in place:

• Kanesatake Interim Land Base Governance Act 
• Mackenzie Valley Resource Management Act 
• shíshálh Nation Self-Government Act 

Consultation and cooperation

In December 2020, the Minister of Justice and Attorney General of Canada announced the launch of a targeted consultation and cooperation process with First Nations, Inuit, and Métis to advance discussions on potential legislative changes in support of an NDC in the federal Interpretation Act.

In February and March 2021, Justice Canada officials held about a dozen virtual meetings and received over 30 written submissions from Indigenous partners representing many Indigenous peoples, governments and organizations.

In 2022, Justice Canada officials broadened the consultation and cooperation process to better understand the views of Indigenous partners regarding the use of NDCs in federal laws. Bilateral meetings were held starting in February 2022, and throughout the rest of the year.

As a part of a six-week final stage of consultation and cooperation, a draft legislative proposal was shared with Indigenous partners and posted on Justice Canada’s website from March 1, 2023 to April 14, 2023. First Nations, Inuit and Métis were invited to review and provide feedback on the draft legislative proposal.

The What We Learned Report provides a comprehensive summary of the consultation and cooperation process that occurred between December 2020 and June 2022.