3. Questions and Answers

• Table of Contents

Upholding Section 35 Rights Through a Non-Derogation Clause in the Interpretation Act

Purpose, Contents, and Effect of a Non-Derogation Clause (NDC) in the Interpretation Act

• Q 1 What is the purpose of a NDC in this context? And what are Aboriginal and treaty rights?
• Q 2 This is a technical bill. How can Bill S-13 be explained to the Canadian public?
• Q 3 What is a tangible example of what a NDC does?
• Q 4 Does the federal Interpretation Act apply to all federal statutes and regulations?
• Q 5 How is legislation interpreted?
• Q 6 Does a NDC create different protection for Aboriginal and treaty rights than is provided for in section 35 of the Constitution Act, 1982? Put another way, do NDCs change the law, or are they just symbolic?
• Q 7 Do NDCs prevent infringement of Aboriginal and treaty rights?
• Q 8 How does S-13 relate to the Truth and Reconciliation Commission’s Calls to Action, and the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls?

NDCs in Other Federal Enactments

• Q 9 How many NDCs are there in federal legislation right now? What would happen to them if Bill S-13 is passed?
• Q 10 Why would certain NDCs be retained if the objective of Bill S-13 is to have federal laws interpreted consistently?
• Q 11 Why do only some enactments currently contain NDCs, and why do they have a variety of wording?
• Q 12 What happens if a NDC remains in a federal statute even after the addition of a NDC in the Interpretation Act?
• Q 13 Why wasn’t the approach to harmonize all currently existing NDCs, rather than repeal them, taken?
• Q 14 Will any NDCs in bills currently before Parliament have to be repealed?
• Q 15 Why aren’t there coordinating amendments for Bill C-219 (s.3), Bill C-271 (s.3), and Bill S-241 (s.17)?
• Q 16 How does Bill S-13 interact with the Official Languages Act?
• Q 17 Why aren’t you repealing the NDC in the Indian Oil and Gas Act?

Consultation and Cooperation Process

• Q 18 What was the consultation and cooperation process for the NDC initiative?
• Q 19 How were the Indigenous partners identified and how did Justice reach out to them?
• Q 20 What did we learn from the consultation and cooperation process?
• Q 21 What was the impact of the coming into force of the United Nations Declaration on the Rights of Indigenous Peoples Act on June 21, 2021?
• Q 22 Was funding available to participate in the consultation and cooperation process on NDC?
• Q 23 Why didn’t Justice reach out to everyone (or to each individual First Nation) as part of the consultation and cooperation process?
• Q 24 Have you obtained the free, prior and informed consent of Indigenous peoples for this legislation?
• Q 25 Does this process set a precedent for how Canada will approach consultation and cooperation in the future?

BC’s Interpretation Act and the Potential for an Interpretive Provision in the Federal Interpretation Act

• Q 26 Are there similarities between the federal NDC legislative initiative and the NDC that was added to the British Columbia Interpretation Act?
• Q 27 Why doesn’t Bill S-13 propose a clause to address that the interpretation of federal laws must be consistent with the UN Declaration, like British Columbia has done?

Other provincial NDCs

• Q 28 Do other provinces and territories have NDCs in their Interpretation Acts?
• Q 29 Were there any discussions with provinces and territories?

Is there a difference between the English and French versions of the NDC?

• Q 30 Is there a difference between the English and French versions of the NDC? In particular, does the French word “maintient” share the same meaning as the English word “uphold”?

Purpose, Contents, and Effect of a Non-Derogation Clause (NDC) in the Interpretation Act

Q 1 What is the purpose of a NDC in this context? And what are Aboriginal and treaty rights?

• The federal Interpretation Act is a technical statute providing a single uniform standard for the interpretation of all federal legislation. The inclusion of a NDC in the Interpretation Act would achieve the goal of ensuring all federal laws are interpreted as including a NDC. It would therefore no longer be necessary to include NDCs in individual federal laws going forward.
• The proposed 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.”
  “ Tout texte maintient les droits – ancestraux ou issus de traités – des peuples autochtones reconnus et confirmés par l’article 35 de la Loi constitutionnelle de 1982; il n’y porte pas atteinte »
• Because it is not a term defined in the Interpretation Act, the inclusion of the expression “Indigenous peoples” requires an explanation of what this expression means. The new Bill clarifies 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.
• The intention of this NDC is to highlight the importance of respecting s. 35 rights and interpreting federal legislation so as to avoid infringing these rights.
• The purpose of section 35 of the Constitution Act, 1982 is to give constitutional status and protection to the existing “Aboriginal rights and treaty rights” of the Indigenous peoples of Canada. Section 35 did not create these rights, but rather recognizes and affirms the Aboriginal and treaty rights that already exist.
• Aboriginal and treaty rights are of fundamental importance to Indigenous peoples. Aboriginal rights are rights that have an element of a practice, custom or tradition integral to the distinctive culture of an Indigenous group. They include rights in relation to lands, resources – including harvesting, hunting, fishing - cultures, languages, ceremonies and other collective rights which go to the root of Indigenous self-determination and self-government.
• Treaty rights are rights that derive from an exchange of solemn promises between the Crown and specific Indigenous groups, referred to as “treaties”.
• At its core, Section 35 serves to recognize the prior occupation of Canada by Indigenous peoples, by recognizing their Aboriginal rights, as well as to recognize the rights from treaties that have been concluded between Canada and Indigenous peoples from the 1800s onwards.

Q 2 This is a technical bill. How can Bill S-13 be explained to the Canadian public?

• The purpose of Bill S-13 is to remind and highlight to anyone interpreting federal laws that all laws in Canada must respect Aboriginal and treaty rights, as set out in Canada’s Constitution.
• To do this, Bill S-13 would amend the Interpretation Act. The Interpretation Act is a law in Canada that explains how other federal laws should be interpreted and it applies to all federal laws. In a nutshell, the Interpretation Act sets out the default rules for interpreting federal laws.
• Under Bill S-13, a “non-derogation clause”, or “NDC” would be added to the Interpretation Act. This particular NDC would explain that all federal laws should be interpreted as upholding the Constitutional rights of Indigenous peoples, unless Parliament has said otherwise in the law.
• That means that if there are two ways to interpret the law, and one of those ways does not respect constitutional Aboriginal and treaty rights, the other more rights-respecting interpretation should be used.

Q 3 What is a tangible example of what a NDC does?

• Essentially, a section-35 related NDC informs anyone interpreting a federal law that the law should be read in a way that upholds section 35 Aboriginal and treaty rights. If there are multiple ways to interpret the law, the reader should choose the interpretation that aligns with section 35.
• For example, in the recent case Gitxaala v British Columbia, the Court considered the BC Chief Gold Commissioner’s (“CGC”) decision to grant mineral claims without consultation with Indigenous peoples. The case was heard in British Columbia, which has a NDC in its Interpretation Act.
• The mineral claim in question was granted under the Commissioner’s discretionary powers under the Mine Tenure Act (“MTA”). The Court found that – even though it didn’t say so expressly –the MTA and its regulations provided the authority and discretion to conduct consultation with Indigenous peoples, but that the Commissioner, in applying the law, improperly failed to consult impacted Indigenous peoples.
• One of the reasons that the Court came to this conclusion was that section 8.1 of the BC Interpretation Act has a NDC similar to the one proposed in Bill S-13. The Court noted that the BC Interpretation Act NDC directs that all enactments must uphold section 35 rights, which confirmed that the Commissioner should have exercised their discretion to consult with Indigenous peoples when applying the MTA, to ensure section 35 rights were upheld. The Court found that the Commissioner breached its constitutional obligations under section 35.
• Few court cases have discussed existing NDCs in federal legislation. One example is the 2019 decision in Ross River Dena Council v Canada, where the Yukon Court of Appeal noted that the NDC in the Yukon Act provides clarification that the Yukon Act does not abrogate or derogate from the protection of any s. 35 rights.
• We could also offer a hypothetical example of how the NDC could be applied.
• Under section 91(1) of the Indian Act, the Minister has the discretion to consent to someone acquiring title to property from a reserve, such as a totem pole or a rock with paintings or carvings. An example of this could be a museum requesting the Minister’s consent to take a totem pole from a reserve to add to their collection. On its face, the Indian Act does not refer to or acknowledge Aboriginal or treaty rights. If Bill S-13 were enacted, the Indian Act would have to be interpreted such that Aboriginal and treaty rights are upheld. The Minister, in this situation, would have to interpret their authority to permit or not the museum’s acquisition in a manner that is consistent with Aboriginal and treaty rights, which would include upholding section 35 rights as they relate to cultural objects such as totem poles.

Q 4 Does the federal Interpretation Act apply to all federal statutes and regulations?

• Yes. The federal Interpretation Act applies to every federal enactment, which includes both legislation and regulations, unless a contrary intention appears, as stated in subsection 3(1):
  “3 (1) Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after the commencement of this Act.”
• Under this subsection, to indicate a contrary intention Parliament may use express language to exclude the rules and definitions set out in the Interpretation Act. A contrary intention can also be inferred from reading an enactment in context, even in the absence of words that explicitly state the intention.
• With the passage of Bill S-13, the NDC in the federal Interpretation Act will also apply to legislation enacted before the amendments.

Q 5 How is legislation interpreted?

• Common law and the Interpretation Act provide the framework for how legislation should be interpreted.
• The Supreme Court of Canada has said that the words of a law are to be read in their entire context and in their grammatical and ordinary meaning. Each provision must be considered within the entire context of the statute, including the overall goals of the legislation and the intention of Parliament.
• Anyone interpreting law should read the provisions of an act as parts of a harmonious whole. When words are ambiguous, the accurate meaning can be determined by looking at the entire context of the provision or the entire statute. Both the English and French version of a statute are equal and they have to be interpreted in a way that is consistent with both language versions.
• The Interpretation Act also provides interpretive rules. Bill S-13 would add a section 35-related NDC to the Interpretation Act that would provide this type of specific rule; the Interpretation Act would provide that all federal laws should be interpreted as supporting the section 35 rights of Indigenous peoples.

Q 6 Does a NDC create different protection for Aboriginal and treaty rights than is provided for in section 35 of the Constitution Act, 1982? Put another way, do NDCs change the law, or are they just symbolic?

• A NDC confirms that the legislation is subject to the normal application or operation of section 35 of the Constitution Act, 1982.
• Section 35 reiterates the guarantee of Aboriginal and treaty rights. This is a constitutional guarantee that cannot be modified by legislation.
• A NDC in the Interpretation Act will help to ensure that anyone interpreting the law will be reminded up front of those section 35 rights.
• Further, having a NDC in the Interpretation Act will help to ensure that different laws are interpreted the same way, i.e., that section 35 rights apply equally to all federal laws.^{Footnote 1}

Q 7 Do NDCs prevent infringement of Aboriginal and treaty rights?

• Section 35 of the Constitution Act, 1982 recognizes and affirms Aboriginal and treaty rights in Canada, and NDCs provide the reminder that legislation must be interpreted in line with proper application or operation of section 35. So for example, if there is more than one way to interpret a provision and one is consistent with section 35, that would be the proper interpretation.
• As the Interpretation Act states in section 3(1), its provisions apply to the interpretation of every law, “unless a contrary intention appears”. The proposed amendment would therefore direct federal officials, courts and any others who may be called upon to interpret and apply federal laws to do so in a way that upholds constitutionally protected Aboriginal and treaty rights, unless Parliament has expressed an intention for the law to be interpreted otherwise.
• Thus, if a particular statute contained provisions that, when interpreted in context and consistent with its purpose and objects, appear to infringe Indigenous rights, it is very likely that the proposed NDC in the Interpretation Act would be displaced.
• Any infringement would have to meet the rigorous test set out by the Supreme Court of Canada in the Sparrow decision. The government may still justifiably infringe upon s. 35 rights if it can meet that legal test and assuming Parliament has expressed an intent to infringe section 35-protected rights.
• In the 2022 reference regarding An Act respecting First Nations, Inuit and Métis children, youth and families, the Court of Appeal of Quebec explained the NDC included in that Act in the following way:
  [215] Section 2 of the Act declares that it upholds the rights recognized and affirmed by s. 35 of the Constitution Act, 1982, without abrogating or derogating from them. Parliament, therefore, does not intend for its Act to limit or exhaustively define the rights protected by this provision (a limitation that would, in any event, be subject to the test set out in Sparrow […]).

Q 8 How does S-13 relate to the Truth and Reconciliation Commission’s Calls to Action, and the Calls for Justice from the National Inquiry into Missing and Murdered Indigenous Women and Girls?

• Both the Calls to Action and Calls for Justice call for the implementation of the UN Declaration on the Rights of Indigenous Peoples (TRC CTA 43 and 44; MMIWG CFJ 1.2(v)). Bill S-13 supports the Calls to Action and Calls for Justice as it is an early measure to ensure the laws of Canada are consistent with the UN Declaration. Bill S-13 also fulfills a commitment in the UN Declaration Act Action Plan identified by Indigenous partners by completing Shared Priority measure 2(a).
• Bill S-13 applies to the rights of all section 35 rights-holding Indigenous peoples, including upholding the section 35 rights of Indigenous women, girls, and 2SLGBTQQIA people.

NDCs in Other Federal Enactments

Q 9 How many NDCs are there in federal legislation right now? What would happen to them if Bill S-13 is passed?

• There are about 30 federal statutes that contain section 35-related NDCs, expressed in many different wording formulations.
• If enacted, Bill S-13 provides that most NDCs would be repealed and the NDC in the Interpretation Act would apply to all statutes, including those statutes where the NDCs were repealed. This would 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 they would recommend repealing.
• Upon royal assent of Bill S-13, NDCs in 26 federal laws would be removed.
• NDCs in the following 3 federal laws would remain in place:
  • Mackenzie Valley Resource Management Act (the language of the NDC in the Act has been replaced to harmonize it with the language of the NDC in this Bill).
  • Shíshálh Nation Self-Government Act
  • Kanesatake Interim Land Base Governance Act

Q 10 Why would certain NDCs be retained if the objective of Bill S-13 is to have federal laws interpreted consistently?

• While the 2007 Senate Report had recommended a full repeal of existing NDCs, given the passage of time, developments in the relationship between the Government of Canada and Indigenous peoples, Indigenous partners have generally indicated a preference for a more targeted approach.
• The main takeaway from the recent consultation and cooperation process was that a majority of Indigenous partners supported moving forward with including a NDC in the Interpretation Act. However, Indigenous partners also generally agreed that there were NDCs in federal laws that impact specific Indigenous partners, and that those NDCs should be preserved if these specific Indigenous partners requested their retention. This is a position expressed by the majority of Indigenous partners. We agreed with the principle expressed and proceeded accordingly.
• Some partners who wished to retain NDCs that are specific to legislation that impacts them directly were open to amending the NDC to align with the wording of the new NDC in the Interpretation Act. Justice Canada has greatly appreciated this collaborative approach.

Q 11 Why do only some enactments currently contain NDCs, and why do they have a variety of wording?

• In the past, the issue of including NDCs tended to be dealt with on an ad hoc basis. Calls for the inclusion of a clause or debates over wording were often made late in the legislative process. Further, after the Sparrow decision, NDCs began to be expressed in a way that was not supported by a number of First Nations governments and organizations.
• While Canada’s intent of the post-Sparrow wording was to reflect the application of section 35 in accordance with the SCC’s guidance, this intent was questioned by some, who saw it as a potential attempt to reduce section 35’s protections.
• This is why Justice Canada welcomed the opportunity to work with First Nations, Inuit and Métis over the past few years to develop a single NDC that would inform the interpretation of all federal legislation going forward.

Q 12 What happens if a NDC remains in a federal statute even after the addition of a NDC in the Interpretation Act?

• Over the course of the past 40 years, NDCs have been included in nearly 30 federal statutes. If Bill S-13 passes as written, most of these NDCs will be repealed, and the NDC in the federal Interpretation Act will apply to these federal statues.
• However, a select few NDCs would remain in federal statutes. This implies the intention that the specific NDC applies, rather than the Interpretation Act’s NDC.
• However, given the very similar wording and legislative intent underlying them, the remaining specific NDCs and the Interpretation Act’s NDC will all serve the same legislative purpose of affirming s. 35 rights.

Q 13 Why wasn’t the approach to harmonize all currently existing NDCs, rather than repeal them, taken?

• There are many benefits to having a single NDC in the Interpretation Act, rather than in individual statutes.
• First of all, it provides a uniform approach and would mean that Indigenous peoples wouldn’t have to advocate for inclusion of an NDC in every new law (or in existing laws).
• Second, leaving current NDCs in legislation even while aligning their wording would be more likely to lead to ongoing ad hoc requests to add NDCs in legislation going forward, with the potential for there to be ongoing debates about wording and potential for confusion should wording start to differ across NDCs again.
• Finally, we heard from Indigenous partners that they preferred the inclusion of one standardized NDC in the Interpretation Act and repealing all other NDCs, except in cases where particularly impacted Indigenous peoples wanted to retain the NDC of a specific statute. This is the approach that was taken, and the NDCs are only being retained in very few specific and exceptional, situations.

Q 14 Will any NDCs in bills currently before Parliament have to be repealed?

• As of September 12, 2023, two government bills currently before Parliament include NDCs that could be repealed, including Bill C-35: An Act respecting early learning and child care in Canada and Bill C-21: An Act to amend certain Acts and to make certain consequential amendments (firearms).
• Bill S-13 addresses this issue through its coordinating amendment provisions. Coordinating amendments resolve conflicts between two or more bills. In this case, Bill C-35 and Bill C-21 would enact new NDCs while Bill S-13 aims to repeal non-derogation clauses. The coordinating amendments in Bill S-13 ensure that the NDCs that would be enacted by Bill C-35 and Bill C-21 will be repealed if they receive royal assent before the enactment of Bill S-13.
• Additionally, government Bill C-49 An Act to amend the Canada-Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act and to make consequential amendments to other Acts is currently before Parliament, and amends the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act and the Canada-Nova Scotia Offshore Petroleum Resources Accord Implementation Act to, among other things, change their titles.
• There are coordinating amendments in Bill S-13 to address the changes in Bill C-49.

Q 15 Why aren’t there coordinating amendments for Bill C-219 (s.3), Bill C-271 (s.3), and Bill S-241 (s.17)?

• C-219 and C-271 are both Private Members Bills and S-241 is a Senate Public Bill. Private Members Bills and Senate Public Bills originate from an individual member of the House of Commons, or an individual Senator, respectively. These types of bills are not officially sponsored by the Government and coordinating amendments are not drafted to account for such bills. Due to this, Bill S-13 does not currently propose coordinating amendments for these bills. However, when and if these bills go through future stages of the parliamentary process, their impact can be addressed.

Q 16 How does Bill S-13 interact with the Official Languages Act?

• A NDC in the Interpretation Act will apply to the Official Languages Act. This means that the Official Languages Act should be interpreted and applied so as to uphold section 35 rights. However, the NDC in the Interpretation Act cannot be used to create new rights or to otherwise displace the clear text of the legislation.
• The Interpretation Act’s NDC and section 83(1) of the Official Languages Act would apply alongside each other. There may be some overlap between the two in terms of protecting rights related to Indigenous languages, as the Interpretation Act’s NDC upholds section 35 rights, which could have links to Indigenous languages, and the Official Languages Act subsection 83(1) prevents abrogation from any legal or customary rights relating to Indigenous languages. These provisions do not conflict with each other, but rather complement each other.

Responsive if asked for a more detailed explanation:

• The Official Languages Act contains the following provision:
  83 (1) Nothing in this Act abrogates or derogates from any legal or customary right acquired or enjoyed either before or after the coming into force of this Act with respect to any language other than English or French, including any Indigenous language.
• This is an example of a non-derogation clause that is aimed at somewhat different rights than those affirmed in s. 35 of the Constitution Act, 1982. While there may be some overlap with s. 35 rights related to language, this provision protects a broader set of language rights, including: any type of legal right related to languages other than English and French and also any customary rights related to languages other than English and French. A repeal of this provision would have significant implications that are beyond the scope of Bill S-13.

Q 17 Why aren’t you repealing the NDC in the Indian Oil and Gas Act?

• The provision referred to in the Indian Oil and Gas Act reads as follows:
  “6(2) Nothing in this Act shall be deemed to abrogate the rights of Indian people or preclude them from negotiating for oil and gas benefits in those areas in which land claims have not been settled.”
• The focus of the Indian Oil and Gas Act and the rights referred to in this provision relate to the scheme of the Indian Act.
• The original version of this provision predates section 35 of the Constitution Act, 1982, and therefore, was not originally referring to section 35 rights. The Indian Oil and Gas Act was updated and expanded in 2009, following extensive consultation with representatives of First Nations whose reserve lands contain commercial quantities of oil and gas.
• The new Act contains the same s.6(2) provision as the old Act. This provision addresses the rights of First Nations and preserves their ability to negotiate oil and gas agreements. This was important at a time when their authority and autonomy to do so was not assumed.
• The new Act also preserves the statutory duty to consult in s.6(1) Indian Oil and Gas Act 1974: “The Minister shall, in administering this Act, consult on a continuing basis, persons representative of the Indian bands most directly affected.”
• The NDC in Bill S-13 and subsection 6(2) of the Indian Oil and Gas Act are complementary. The new NDC proposed in S-13 could also inform the interpretation of the Indian Oil and Gas Act.
• Additionally, we note that Indigenous partners have identified the Indian Oil and Gas Act as a piece of legislation to be considered for possible reform. The clause in this Act may be considered for future reform.

Consultation and Cooperation Process

Q 18 What was the consultation and cooperation process for the NDC initiative?

• As an initial step, Justice Canada began with preliminary discussions with key Indigenous partners who had been involved with the Standing Senate Committee on Legal and Constitutional Affairs hearings which led to the 2007 report on the NDC issue entitled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal rights.”
• In December 2020, Justice Canada began a broader phase of consultation and cooperation based on input received from preliminary discussions. A letter was sent to nearly 60 Indigenous rights-holders and representative organizations, inviting them to provide written submissions on the NDC legislative initiative and offering the opportunity for discussions with Justice officials. These meetings were held in early 2021, and many Indigenous partners provided written submissions.
• In December 2021, after the coming into force of the United Nations Declaration Act, Justice Canada launched the next phase of the NDC consultation and cooperation process. A letter was sent to the same Indigenous partners that were contacted earlier in 2021, inviting them to share any updated or additional views on the NDC initiative. Meetings were held with Indigenous partners throughout 2022. Further, Justice Canada discussed the NDC legislative initiative with Indigenous partners at meetings about the implementation of the UN Declaration Act.
• In 2023, the last phase of the consultation and cooperation process was launched. A draft legislative proposal was published on the Justice Canada Website from March 1, 2023 to April 14, 2023, and Justice Canada invited comments from Indigenous peoples. We were able to broaden the consultation and cooperation process by using this approach, which maximized outreach and transparency with Indigenous partners.
• At the close of this stage, the draft legislative proposal was removed from the website so that a formal bill could be prepared and introduced. The draft legislative proposal was used to inform the preparation and language of Bill S-13. The language of the NDC in the draft legislative proposal is identical to the language of the NDC in Bill S-13. The Bill is publicly available on the Legisinfo website at: https://www.parl.ca/LegisInfo/en/bill/44-1/S-13.

Q 19 How were the Indigenous partners identified and how did Justice reach out to them?

• In 2020, Justice officials initiated preliminary discussions with some members of Modern Treaty Organizations and Governments (MTOG), as well as representatives from the Land Claims Agreements Coalition (LCAC) and Inuit partners. These partners were contacted based on their key participation in the Standing Senate Committee on Legal and Constitutional Affairs hearings which led to the 2007 report on the NDC issue entitled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal rights.”
• On December 16, 2020, a letter was sent to nearly 60 Indigenous rights-holders and representative organizations. This allowed Justice Canada to inform Indigenous partners that consideration was being given to adopting a NDC in the federal Interpretation Act and repealing existing NDCs in federal statutes, and to provide opportunities for input, including on possible wording of the NDC.
• In 2022, Justice officials began to proactively raise the NDC initiative with Indigenous partners through the UNDA Action Plan consultation and cooperation process. This presented an excellent opportunity to further canvas views from a broad range of Indigenous partners on the NDC initiative.
• A draft legislative proposal was published on the Justice Canada Website from March 1, 2023 to April 14, 2023 as part of a final stage of the consultation and cooperation process. The broad dissemination of the draft was meant to ensure maximize outreach and transparency with Indigenous partners. This website was public and welcomed input from any Indigenous peoples in Canada.
• The list of Indigenous partners who participated in the consultation and cooperation process is available as part of the What We Learned Report, which is available online on Justice Canada’s website.

Q 20 What did we learn from the consultation and cooperation process?

• The consultation and cooperation process revealed that there was considerable support for the proposal to amend the federal Interpretation Act to add a NDC in relation to upholding section 35 rights.
• Indigenous partners had differing views on whether the federal Interpretation Act NDC should refer to “Aboriginal and treaty rights” or to “the rights of Indigenous peoples.” However, many Indigenous partners preferred the reference to “Aboriginal and treaty rights.” Partners who preferred the reference to “Aboriginal and treaty rights” emphasized how the wording linked clearly to section 35 rights in the Constitution Act, 1982. That said, many Indigenous partners supported using either expression, emphasizing their priority was to ensure that amendments to the federal Interpretation Act are enacted, whichever expression is ultimately used.
• A number of Indigenous partners suggested that, similar to the NDC in the British Columbia Interpretation Act, the NDC could include both “Aboriginal and treaty rights” and “the rights of Indigenous peoples,” with an explanation of the term “Indigenous peoples” included at the beginning of the Act. It was suggested that using both references would be a way to acknowledge both constitutional Aboriginal and treaty rights and the rights of Indigenous peoples in the UN Declaration. This was the approach ultimately adopted in the legislation before you (see clause 1).
• We learned that repealing all existing federal NDCs was not the preferred approach. Indigenous partners generally agreed that NDCs in federal legislation affecting only certain Indigenous partners should be retained if these partners wish to do so. Indeed, there were partners who wished to retain such NDCs. In some cases, Indigenous partners wished to retain the NDC, but were open to amending the NDC to reflect the wording of the new NDC in the Interpretation Act.
• To promote consistent judicial interpretation across statutes, Indigenous partners generally supported the repeal of all other remaining NDCs that Indigenous partners did not specifically wish to retain. In addition, several Indigenous partners favoured repealing NDCs that did not align with the Senate Committee report’s recommended language.
• Indigenous partners repeatedly raised the need to repeal NDCs referencing the “protection provided” for Aboriginal treaty rights by section 35 of Constitution Act, 1982. Partners stressed that NDCs which refer to not abrogating or derogating from “protection” rather than from “rights” are problematic. The following is an example of such wording:
  “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.”
• As Canada agrees that the purpose of the NDC is to reflect the presumption that federal statutes should be interpreted to uphold the rights recognized and affirmed in section 35, Bill S-13 reflects the language preferred by Indigenous peoples.

Q 21 What was the impact of the coming into force of the United Nations Declaration on the Rights of Indigenous Peoples Act on June 21, 2021?

• The United Nations Declaration on the Rights of Indigenous Peoples Act (UNDA) includes a statutory requirement to consult and cooperate regarding measures to ensure the consistency of laws with the UN Declaration (section 5 of the UNDA). Among other elements, consultation and cooperation involves good faith relationships, working together towards a shared objective in a joint or collaborative process, and respecting relationships with Indigenous peoples. The NDC consultation and cooperation process took into account this requirement in the UNDA.

Q 22 Was funding available to participate in the consultation and cooperation process on NDC?

• Yes. Funding was available to support the participation of Indigenous peoples in the consultation and cooperation process on implementation of the UNDA, which included consultation and cooperation on the NDC initiative. Through this process, Justice Canada was able to further canvas the views of Indigenous partners with respect to a possible amendment to the federal Interpretation Act in order to add a NDC.

Q 23 Why didn’t Justice reach out to everyone (or to each individual First Nation) as part of the consultation and cooperation process?

• Justice officials engaged in a broad, multi-stage consultation and cooperation process over several years, building on the prior work of the Senate Standing Committee, among others.
• In addition to targeted consultation and cooperation with over 60 Indigenous partners, Justice officials took measures for the process to be as broad and inclusive as possible.
• This included leveraging meetings that Indigenous partners were having regarding the UNDA Action Plan as an opportunity to reach more Indigenous peoples to discuss the NDC Initiative.
• In early 2022, background information on the NDC legislative initiative was also posted to the Justice Canada website, with a publicly posted e-mail address. Justice officials have monitored that e-mail address for the duration of the NDC Initiative.
• A draft legislative proposal was published on the Justice Canada Website from March 1, 2023, to April 14, 2023, as part of a final stage of the consultation and cooperation process. The broad dissemination of the draft was meant to ensure maximize outreach and transparency with Indigenous partners.
• Any Indigenous peoples who would still like to provide input on the NDC Initiative can still provide their comments throughout the Parliamentary process.

[If pressed on First Nations’ participation]

• Modern Treaty and Inuit partners were key partners in this initiative, dating all the way back to the 2007 Senate Report. These partners include several First Nations.

Q 24 Have you obtained the free, prior and informed consent of Indigenous peoples for this legislation?

• In many ways, Bill S-13 reflects an Indigenous-led process, as it is the result of the longstanding advocacy and leadership of Indigenous peoples who have been calling for this amendment for decades.
• Recognizing that this bill affects all Indigenous peoples, and informed by the UN Declaration Act’s provisions on consultation and cooperation, we have provided a number of opportunities over the past three years for Indigenous peoples to share their comments and perspectives regarding this proposal.
• We believe that we have been able to address almost all concerns that have been raised to date and that this proposed legislation has wide-ranging support across Indigenous peoples.
• However, we know there may not be a unanimity of views and we will remain open to hearing from those who have perspectives they wish to share through the legislative process.

Q 25 Does this process set a precedent for how Canada will approach consultation and cooperation in the future?

• Section 5 of the United Nations Declaration on the Rights of Indigenous Peoples Act requires the Government of Canada, in consultation and cooperation with Indigenous peoples, to take all measures necessary to ensure that the laws of Canada are consistent with the UN Declaration.
• Section 5 does not prescribe exactly how the consultation and cooperation process should occur.
• Based on international commentary on the UN Declaration, and particularly on the right of Indigenous peoples to participate in decision-making processes impacting their rights, Canada understands section 5 of the UNDA to allow for some variation in the intensity of consultation and cooperation with Indigenous peoples.
• Essentially, the greater the potential impact on Indigenous peoples’ rights and interests, the more intensive and extensive the prior consultation and cooperation efforts should be.
• In the future, other legislative initiatives may look to the consultation and cooperation approach adopted for this initiative as one example. There are also many others, including those used for the Indigenous Languages Act, the First Nations, Inuit and Métis Children, Families and Youth Act, and work currently underway in relation to Indigenous health and Indigenous policing for example. New initiatives will need to be considered in their broader context, and in light of lessons learned and emerging best practices, in order to determine whether a similar approach should be followed.

BC’s Interpretation Act and the Potential for an Interpretive Provision in the Federal Interpretation Act

Q 26 Are there similarities between the federal NDC legislative initiative and the NDC that was added to the British Columbia Interpretation Act?

• Yes, there are many similarities between the NDC in S-13 and the NDC added in 2021 to the British Columbia Interpretation Act.
• The BC NDC affirms British Columbia’s constitutional obligations to Indigenous peoples and applies to all laws and regulations of British Columbia. The NDC in the British Columbia Interpretation Act highlights the importance of upholding section 35 of the Constitution Act, 1982. It includes the following clause:
  “For certainty, every enactment must be construed as upholding and not abrogating or derogating from the aboriginal and treaty rights of Indigenous peoples as recognized and affirmed by section 35 of the Constitution Act, 1982.”
• This change responded to a long-standing call from Indigenous peoples in British Columbia for a positively framed NDC and fulfilled a commitment made in the draft action plan for the British Columbia Declaration on the Rights of Indigenous Peoples Act.

Q 27 Why doesn’t Bill S-13 propose a clause to address that the interpretation of federal laws must be consistent with the UN Declaration, like British Columbia has done?

• Some Indigenous partners have requested the development of an interpretive provision in the federal Interpretation Act similar to the one enacted by British Columbia that provides for the use of the UN Declaration in the interpretation of laws.
• This type of provision is different than a non-derogation clause and would serve a different purpose. Bill S-13’s proposed NDC refers to section 35 rights, whereas an interpretive provision would relate to the UN Declaration.
• The proposed amendments in Bill S-13 respond to longstanding calls from Indigenous peoples for the addition of a NDC on section 35 rights to the Interpretation Act.
• In order to not delay the initiative to add a NDC to the Interpretation Act and to ensure adequate consultation and cooperation on any potential UN Declaration interpretive provision, our process leading up to the introduction of Bill S-13 focused on a section 35-specific NDC.
• The UNDA Action Plan includes a commitment to explore amending the Interpretation Act or other laws to provide for the use of the UN Declaration in the interpretation of federal enactments.
• Justice Canada looks forward to exploring the development of an interpretive provision with Indigenous partners in the future.
• In the meantime, we note that section 4 of the UN Declaration Act affirms that the UN Declaration is a universal international human rights law instrument with application in Canadian law. When section 4 is read alongside the preamble of the UN Declaration Act, which states that “the Declaration is affirmed as a source for the interpretation of Canadian law”, we would expect this to have a similar effect to the interpretive provision found in BC’s Interpretation Act. (Note for reference, the BC Rights of Indigenous Peoples Act did not have a preambular provision similar to the federal UNDA).

Other provincial NDCs

Q 28 Do other provinces and territories have NDCs in their Interpretation Acts?

• Some provinces and territories have section 35-related NDCs in their respective Interpretation Acts, including British Columbia and Manitoba, and Nunavut has a NDC in its Legislation Act.

Q 29 Were there any discussions with provinces and territories?

• The Deputy Minister of Justice kept all provinces and territories updated on this initiative, including through an information update at the February 2023 meeting of the Federal-Provincial-Territorial Deputy Ministers Responsible for Justice and Public Safety.
• In addition, Justice officials held discussions with, and/or received submissions from, government representatives from British Columbia, the Northwest Territories, the Yukon, and Nova Scotia.
• While the only legal requirement to consult with provinces or territories is in relation to the Yukon Government as a result of provisions in the Yukon Act, invitations were extended to hold discussions with some provinces and territories that are signatories to agreements with Indigenous peoples that have subsequently been enacted through legislation and also contain a NDC.
• Discussions were also held with the Government of British Columbia to gain insight on the addition of a NDC to British Columbia’s Interpretation Act in 2021.
• No provinces and territories raised any significant concerns with the proposed federal NDC initiative.

Is there a difference between the English and French versions of the NDC?

Q 30 Is there a difference between the English and French versions of the NDC? In particular, does the French word “maintient” share the same meaning as the English word “uphold”?

• It is important to recognize that Justice Canada takes the approach that English and French statutes are not literal translations of one another. English and French statutes are developed together, rather than being developed in one language and then translated literally into the other. The purpose is to achieve the same legal result, not just equivalent wording.
• In the Interpretation Act, the French statute is often more direct than the English statute. The proposed new non-derogation clause in the Interpretation Act aligns with the language used throughout the rest of the statute. There are many provisions where the English version uses the word “construed” and has a longer phrasing compared to the French (e.g. ss. 6, 11, 15(2)). The entire Interpretation Act follows this style. Again, this is because the goal is to achieve the desired legal result in both official languages, not necessarily an exact word-for-word equivalency.
• Using “doit maintenir” in French, for example, would not match the rest of the Interpretation Act’s verb tense. Therefore, the “doit” would not align with the rest of the Interpretation Act, and the legal result would be less predictable.
• Justice Canada’s position that the English and French versions of S-13 have the same legal result.

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