2. Opening Remarks

Senate

An Act to amend the Interpretation Act and to make related amendments to other Acts

Committee Stage

October 2023

Good afternoon, I am pleased to be here today to speak about Bill S-13, An Act to Amend the Interpretation Act and to Make Related Amendments to Other Acts.

The Bill I am speaking about today is a long time coming. Many First Nations, Inuit and Métis have long called for a section 35-related non-derogation clause to be added to the federal Interpretation Act. Such a clause would apply to all federal laws and be a reminder of the importance of Aboriginal and treaty rights affirmed in s. 35 of the Constitution Act, 1982.

In the context of the United Nations Declaration on the Rights of Indigenous Peoples Act action plan, which was released on June 21 of this year, Indigenous peoples stated that adopting a non-derogation clause remains a priority. Passage of this bill would achieve one of the priority measures set out in the action plan.

I’d like to take a moment to appreciate the hard work and tremendous dedication of the Indigenous partners who participated in the consultations and worked with us to move the bill forward. Indigenous peoples and the organizations that represent them took part in more than 70 meetings and submitted more than 45 briefs about the proposed legislation on the non-derogation clause. I’m extremely grateful to everyone who shared their perspective and their technical expertise.

This brings us now to the substance of this Bill.

S-13 proposes to add a section 35-related non-derogation clause to the federal Interpretation Act, and to repeal most existing non-derogation clauses in other statutes.

Section 35 of the Constitution Act, 1982 recognizes and affirms Aboriginal and treaty rights. These rights are of fundamental importance to Indigenous peoples.

They include rights in relation to lands, resources – including harvesting, hunting, fishing - cultures, languages, ceremonies and other collective rights which go to the core of Indigenous self-determination and self-government.

This means that these rights are constitutionally protected from infringement through government action, including through legislation, unless infringement is justifiable, in accordance with the rigorous test set out by the Supreme Court of Canada.

A section 35-related non-derogation clause reflects this constitutional protection by stating that a piece of legislation should be interpreted in a way upholds, and does not negatively impact, s.35 constitutional rights. The intention of a non-derogation clause is therefore to highlight the importance of upholding s.35 rights and the importance of applying federal legislation in a way that avoids infringing these rights.

Including a non-derogation clause in the Interpretation Act would ensure that all federal laws and regulations are interpreted to uphold, and not diminish, the rights of Indigenous peoples affirmed in section 35 of the Constitution Act, 1982.

It would therefore no longer be necessary to include a non-derogation clause in individual federal laws going forward.

The bill would ensure that all federal laws are interpreted in a manner compatible with section 35 of the Constitution. As a result, Indigenous peoples will no longer have to lobby for the inclusion of non-derogation clauses every time the government introduces a new bill that could have implications for the rights recognized in section 35.

In addition, the bill promotes uniformity of federal law with respect to non-derogation clauses. The ad hoc approach, combined with the evolution of the legal landscape and legislative drafting practices over the past 40 years, has resulted in non-derogation clauses that differ from one to the next. That’s why we now have statutes containing different variations of non-derogation clauses.

In order to ensure the clarity and consistency of laws, this Bill proposes that almost all non-derogation clauses in existing laws would be repealed, subject to a small number of exceptions. Where Indigenous peoples directly impacted by the respective pieces of legislation have indicated that it is important to retain the non-derogation clause, the clause will be preserved. These exceptional circumstances are very limited, and include the Mackenzie Valley Resource Management Act and the Shíshálh Nation Self-Government Act.

This Bill also builds on the important work done by the Senate Committee on Legal and Constitutional Affairs and its 2007 report entitled “Taking Section 35 Rights Seriously: Non-derogation Clauses Relating to Aboriginal Rights”. That report recommended that the Government of Canada introduce legislation to add a non-derogation clause to the federal Interpretation Act and repeal such clauses in existing legislation.

Many Indigenous leaders and experts participated in the Senate Committee hearings leading to the 2007 report and have continued to advocate for its implementation ever since.

In response to this ongoing advocacy and leadership, in December 2020, Justice Canada launched a targeted consultation process to advance discussions on the non-derogation clause initiative. The goals of this process were to determine if views had changed since the 2007 Senate report and gauge the level of support for moving forward with the NDC initiative. This targeted process revealed there was still considerable support for the proposal to amend the federal Interpretation Act.

From December 2021 to May 2023, a very broad group of Indigenous partners had opportunities to submit comments. This new consultation and cooperation process occurred in two additional phases.

The first of these two additional phases began in December 2021, when the previous justice minister announced a broader consultation and cooperation process in accordance with the requirements in the United Nations Declaration on the Rights of Indigenous Peoples Act. Further meetings took place with indigenous partners starting February 2023 to examine options for the amendment of the Interpretation Act to include a non-derogation clause.

During the final phase of the consultation and cooperation process, a draft legislative proposal was posted on the Justice Canada website from March 1, 2023, to April 14, 2023. This method allowed for further transparency in the consultation and cooperation process and enabled Indigenous partners to review the draft legislative proposal and provide comments.

Throughout the process, Indigenous partners were broadly supportive of the non-derogation clause initiative, although there were differing views regarding the specific wording of the clause. Some preferred the expression “Indigenous peoples”, while others maintained the need to use the expression “Aboriginal and treaty rights” as it more closely reflects s. 35 of the Constitution Act, 1982.

The proposed language in this Bill uses both of these expressions, to reflect a compromise between the language options proposed by Indigenous partners.

The fate of non-derogation clauses in existing laws was also the subject of lengthy discussions with Indigenous partners. The Indigenous partners weren’t in favour of repealing all non-derogation clauses. In fact, many Indigenous partners argued that non-derogation clauses should remain in laws that have a direct impact on Indigenous peoples, if that was the wish of the people affected.

To conclude, the changes contemplated by this Bill complement and reinforce the constitutional protections set out in section 35. They will contribute to promoting, protecting, and affirming Indigenous rights at the federal level, at the same time as they bring greater coherence and consistency to the interpretation of all federal laws.

In summary, this initiative demonstrates our commitment to work in partnership with Indigenous Peoples, as we build stronger nation-to-nation, Inuit-Crown, government-to-government relationships.

Thank you.