Upholding section 35 rights through a non-derogation clause in the federal Interpretation Act: What we learned report

June 2023

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Executive summary

This report provides an overview of the consultation and cooperation process with Indigenous partners regarding the inclusion of a non-derogation clause in the federal Interpretation Act. This process led to the introduction, on June 8, 2023, of Bill S-13 An Act to amend the Interpretation Act and to make related amendments to other Acts. It sets out what we learned regarding preferences in potential wording for a non-derogation clause, as well as preferences about full or partial repeal of non-derogation clauses in current legislation.

Indigenous peoples have long called for legislation to signal that all laws and regulations should be interpreted as upholding Aboriginal and treaty rights, which are recognized and affirmed in section 35 of the Constitution Act, 1982.

In 2007, the Standing Senate Committee on Legal and Constitutional Affairs looked into the issue and recommended that a non-derogation clause be included in the federal Interpretation Act. Several discussions took place with Indigenous partners over the years since and, in 2020, the Minister of Justice and Attorney General of Canada directed Department of Justice officials to start consulting with Indigenous partners on a potential non-derogation clause legislative initiative.

The consultation and cooperation process continued through to April 2023. It was shaped, in part, by the coming into force of the United Nations Declaration on the Rights of Indigenous Peoples Act (UN Declaration Act) in June 2021. The enactment of new consultation and cooperation requirements with Indigenous peoples on legislative initiatives to ensure consistency with the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) provided further opportunities to exchange views on a potential non-derogation clause.

Throughout the consultation and cooperation process, a diversity of views were expressed. There was a desire expressed by Indigenous partners to see the non-derogation clause initiative move forward, but there were differing submissions on the exact wording for a non-derogation clause. It became clear that views had evolved since the 2007 Senate report.

The main points of discussion were whether to refer to “Aboriginal and treaty rights” or to “the rights of Indigenous peoples” in the non-derogation clause and whether to repeal all non-derogation clauses currently found in federal legislation or whether to repeal only some of them. In the end, a majority viewpoints emerged.

The non-derogation clause legislative initiative is a product of the views of Indigenous partners across Canada. We are grateful to the Indigenous partners whose participation has helped move this initiative forward.

Background

Indigenous peoples have long called for legislation to signal that all laws and regulations should be interpreted as upholding Aboriginal and treaty rights, recognized and affirmed in section 35 of the Constitution Act, 1982.

Section 35 related non-derogation clauses are clauses in federal enactments – both laws and regulations – that refer to rights protected under section 35 of the Constitution Act, 1982. non-derogation clauses have been included in various federal statutes and the specific text of the clauses has varied. In general terms, section 35-related non-derogation clauses state that the legislation should not be interpreted in such a way as to negatively impact section 35 rights. The purpose of a non-derogation clause is to highlight the importance of upholding section 35 rights and of applying federal legislation so as to avoid infringing these rights.

In 2007, the Standing Senate Committee on Legal and Constitutional Affairs undertook an examination of the implications of including non-derogation clauses referring to section 35 of the Constitution Act, 1982 in federal legislation. The Committee heard from representatives of Indigenous communities and organizations, as well as Aboriginal law academics and representatives from the Government of Canada. Based on these hearings, the Senate Committee submitted its report entitled “Taking Section 35 Rights Seriously: Non-derogation Clauses Relating to Aboriginal Rights.” In it, the Senate Committee put forward six recommendations, including one that requested the Government of Canada introduce legislation to add a non-derogation clause to the federal Interpretation Act and repeal current non-derogation clauses found in other federal statutes.

The Senate Committee’s recommendation conveyed the message that public officials actively take measures to uphold and implement Aboriginal and treaty rights, while also avoiding infringing on, or interfering with, those rights unless these were justifiable under the Sparrow test. The repeal of all existing non-derogation clauses in federal statutes was proposed as a way to ensure “clarity and to avoid future confusion.”

In 2009, a series of initial meetings and discussions were held between Department of Justice officials and representatives of the Assembly of First Nations (AFN), Inuit Tapiriit Kanatami, the Métis National Council, the Congress of Aboriginal Peoples and the Native Women’s Association of Canada on the Senate Committee recommendations.

Since 2009, Indigenous partners, especially Inuit partners, Modern Treaty organizations and governments, and the Land Claims Agreements Coalition (LCAC), have been actively asking in many fora for the Government of Canada to bring forward amendments to the federal Interpretation Act. Indigenous peoples and organizations and Indigenous members of Parliament have also repeatedly raised the issue of the non-derogation clauses during legislative processes.

In 2019, Canada enacted statutes that are generally reflective of the language recommended by the Senate Committee (e.g. An Act respecting Indigenous languages; An Act respecting First Nations, Inuit and Métis children, youth and families; An Act to amend the Fisheries Act and other Acts in consequence).

In November 2021, the province of British Columbia’s Interpretation Act was amended to introduce a non-derogation clause and an interpretive clause referencing the UN Declaration. While the federal Interpretation Act need not follow provincial legislation, British Columbia’s efforts informed the work on the non-derogation clause legislative initiative.

Given the Government of Canada’s approach to reconciliation and recognition of the rights of Indigenous peoples, the work on the non-derogation clause was made a priority in order to address the long-standing requests of Indigenous peoples.

Adding a non-derogation clause in the federal Interpretation Act would replace the previous approach of adding non-derogation clauses in statutes on an ad hoc basis and would ensure that all laws are read as upholding section 35 rights. The federal Interpretation Act is a technical statute providing a single uniform standard with respect to the interpretation of federal legislation. It is meant to ensure that all federal statutes are consistently applied. Including a non-derogation clause in the federal Interpretation Act would mean that the clause would apply to all federal laws and regulations except for those that express a contrary intention.

2020-2021 Consultation and engagement process on non-derogation clauses

In 2020, the Minister of Justice and Attorney General of Canada directed Department of Justice officials to initiate pre-engagement discussions with some members of the Inuit-Crown Partnership Committee and some Modern Treaty organizations and governments, as well as representatives from the LCAC. These partners were contacted for purposes of a pre-engagement phase based on their key participation in the 2007 Senate Committee hearings and because LCAC and Inuit partners had been active advocates for the implementation of the Senate Committee recommendations. During this pre-engagement phase, input was sought on the approach to engagement, whom to engage with, engagement documents and the communications approach.

On December 16, 2020, the Minister of Justice and Attorney General of Canada launched a targeted consultation and engagement1 process on the non-derogation clause legislative initiative. The primary objectives of this process were the following:

  1. Informing Indigenous partners of consideration being given to adopting a non-derogation clause in the federal Interpretation Act and repealing existing non-derogation clauses in federal statutes
  2. Providing opportunities for input into the proposal, including on possible wording of the non-derogation clause
  3. Determining if the preliminary support expressed in 2009 by National Indigenous Organizations engaged had changed
  4. Satisfying any statutorily mandated requirements to consult that may arise in seeking to repeal existing non-derogation clauses

A letter was sent to 58 Indigenous partners and representative organizations, inviting them to provide written submissions on the non-derogation clause legislative initiative and offering them engagement sessions with Department of Justice officials.

Over the course of February and March 2021, Department of Justice officials held about a dozen virtual meetings and received over 30 written submissions from Indigenous partners representing many Indigenous peoples and organizations.

What we learned in 2021

Consultation and engagement with Indigenous peoples was conducted with Indigenous partners focusing on what the wording of the proposed non-derogation clause should be, and, more specifically, on whether the non-derogation clause should refer to “Aboriginal and treaty rights” or to “the rights of Indigenous peoples.” The latter was most frequently used in legislation since 2019. The other aspect for consideration was whether or not to repeal all existing non-derogation clauses in current legislation or only some of them.

Submissions showed different preferences as to the exact wording of the non-derogation clause—whether to refer to “Aboriginal and treaty rights” or “the rights of Indigenous peoples.” The majority of Indigenous partners favoured the wording “Aboriginal and treaty rights.” Several Indigenous partners with a strong preference for “Aboriginal and treaty rights” pointed to the fact that the term “Aboriginal peoples” is already constitutionally defined, while the term ‘Indigenous’ is not. “Aboriginal and treaty rights” was therefore said to provide greater specificity and clarity than the expression “the rights of Indigenous peoples.” Some of the supporters of this wording also noted that it is reflective of the language used in section 35 of the Constitution Act, 1982 and of the non-derogation clause wording recommended by the Senate Committee. Some First Nations partners explained the importance of the terminology “Aboriginal and treaty rights,” which includes the term “treaty,” and that, for Historic treaty partners, there is a strong wish to retain the reference to treaties, which is lost when the expression “the rights of Indigenous peoples” is used.

Still, many Indigenous partners preferred the wording “the rights of Indigenous peoples.” Some of the proponents of the wording “the rights of Indigenous peoples” valued its use of a more contemporary language, along with its alignment with international instruments, notably with the United Nations Declaration on the Rights of Indigenous Peoples.

Most Indigenous partners had clear preferences for one wording or the other but were willing to follow the majority. Indeed, many supporters of the “Aboriginal and treaty rights” wording were willing to support the phrase “the rights of Indigenous peoples” if this was the preference of a majority of Indigenous partners, and vice versa.

A common theme in the discussions and submissions was the importance of including an explanation of the expression “Indigenous peoples” if this wording was ultimately used in the non-derogation clause. The explanation would refer to section 35 of the Constitution Act, 1982, which identifies “Aboriginal peoples” as “includ[ing] the Indian, Inuit and Métis peoples of Canada.” The importance of this explanation was stressed by some Indigenous partners who preferred “the rights of Indigenous peoples” wording or were willing to support such a wording.

Finally, there were a few Indigenous partners that proposed their own wording for a federal Interpretation Act non-derogation clause, including wordings that combined the terms “the rights of Indigenous peoples” and “Aboriginal and treaty rights.”

On the related matter of the verbs of choice, some Indigenous partners expressed a preference for the wording found in some current non-derogation clauses that include the verbal expression “so as to uphold” as opposed to “upholding.” Some supporters of the “so as to uphold” phrase viewed the language as more active, with the potential to direct interpreters of the federal Interpretation Act non-derogation clause to actively construe the legislation as upholding rights. Other partners reasoned that using this phrase in the federal Interpretation Act non-derogation clause is consistent with the non-derogation clause wording proposed in the Senate Committee report. It would also align, they noted, with the federal government’s 10 Principles respecting the Government of Canada’s relationship with Indigenous peoples.

The biggest take away on the question of exact wording for a non-derogation clause in the federal Interpretation Act is that, for many of the Indigenous partners who long advocated for this initiative, the priority was for the non-derogation clause initiative to advance in an expedited manner and less about the exact terminology used.

A separate issue that was considered was whether the non-derogation clauses currently contained in legislation should be repealed. As discussed above, the 2007 Senate Committee report recommended that all non-derogation clauses in current legislation be repealed. However, there has been some evolution in the position of Indigenous partners since 2007, such that a diversity of views were expressed. Indigenous partners generally agreed that a small number of non-derogation clauses currently appearing in federal legislation and only impacting specific Indigenous partners should be preserved, if those Indigenous partners express that preference. Indeed, there were partners who wished to retain such non-derogation clauses and were open to seeking to amend the relevant legislation to reflect the wording of the new non-derogation clause in the federal Interpretation Act.

To promote consistent judicial interpretation across statutes, Indigenous partners tended to support the repeal of all other remaining non-derogation clauses that Indigenous partners did not expressly wish to retain (see list of all existing federal non-derogation clauses).

In addition, several Indigenous partners favoured repealing non-derogation clauses that did not align with the Senate Committee report’s recommended language. Specifically, partners repeatedly raised the need to repeal non-derogation clauses referencing “from the protection provided” through the Constitution Act, 1982. The idea is that not derogating from the “protection” afforded to rights is less effective than not derogating from rights themselves.

With that being said, there were still several partners who indicated a preference for the full repeal of all current non-derogation clauses. Some of the Indigenous partners advocating for a full repeal did so to promote clarity and certainty across statutes.

In conclusion, the targeted consultation and engagement process revealed that there was considerable support for the proposal to amend the federal Interpretation Act to add a non-derogation clause. However, opinions varied on the exact wording of the non-derogation clause. There were also differing views on whether to repeal all, or most, of the existing non-derogation clauses in federal legislation.

2022 Consultation and cooperation process on non-derogation clauses

The UN Declaration Act came into force on June 21, 2021. The UN Declaration Act provides a new framework for consultation and cooperation with Indigenous peoples which informed the path forward on the non-derogation clause legislative initiative. Section 5 of the UN Declaration Act requires the Government of Canada take all measures necessary to ensure that the laws of Canada are consistent with the UN Declaration in consultation and cooperation2 with Indigenous peoples. The UN Declaration Act also contains a non-derogation clause itself, which would be impacted by the non-derogation clause legislative initiative, as with other pieces of federal legislation that contain non-derogation clauses.

In keeping with the UN Declaration Act's statutory requirements, the Department of Justice launched the UN Declaration Act Action Plan consultation and cooperation process, which also provided an excellent opportunity to further canvass the views from a broader range of Indigenous partners with respect to the non-derogation clause initiative. Indeed, the non-derogation clause initiative was proactively raised with Indigenous partners through the UN Declaration Act consultation and cooperation process. In August 2021, the Minister of Justice and Attorney General of Canada provided an update to Indigenous partners on the non-derogation clause initiative. The letter he sent focused on the potential benefits of hearing from a broader range of voices in order to better understand their views.

In December 2021, the Minister of Justice and Attorney General of Canada launched the continuation of the non-derogation clause consultation and cooperation process by letter sent to Indigenous partners, inviting them to share their views on the non-derogation clause initiative. As part of this consultation and cooperation process, a broader range of Indigenous partners were able to express their views on the non-derogation clause initiative, including some Indigenous partners who had not participated in the first phase of this initiative.

In order for the consultation and cooperation process to be as transparent as possible, information about the non-derogation clause legislative initiative was made available on the Department of Justice website, including a list of all non-derogation clauses in existing federal legislation, and an email address was set-up to receive feedback: Non-Derogation@justice.gc.ca. The process also included an online submission tool published from June 3, 2022, to December 31, 2022, which provided another platform for Indigenous peoples to provide views on the non-derogation clause legislative initiative.

What we learned in 2022

While divergent views remained on whether the possible federal Interpretation Act non-derogation clause should use the term “Aboriginal and treaty rights” or “the rights of Indigenous peoples,” there was still a majority of Indigenous partners who preferred the expression “Aboriginal and treaty rights” to “the rights of Indigenous peoples.”

As with the first period of consultation, the participants who preferred using the term “Aboriginal and treaty rights” in the non-derogation clause explained that they appreciate that the wording is identical to that of section 35 of the Constitution Act, 1982. Those who preferred the use of the expression “the rights of Indigenous peoples” reiterated their appreciation for its reflection of more contemporary language. They recommended that a definition of “Indigenous peoples” referring back to section 35 of the Constitution Act, 1982 be included in the non-derogation clause. However, many Indigenous partners were open to either wording, and expressed that the priority was on getting the amendment to the federal Interpretation Act passed.

A number of participants suggested using both expressions “Aboriginal and treaty rights” and “the rights of Indigenous peoples” to reconcile Indigenous partners’ views on the issue. This would, however, require an explanation of the expression “Indigenous peoples” This option would connect with both Aboriginal and treaty rights as expressed under the Constitution Act, 1982,and with the Indigenous peoples referenced in the UN Declaration. With the passage of amendments to British Columbia’s Interpretation Act in November 2021, participants in the 2022 consultation and cooperation process had an example of a non-derogation clause that includes both expressions. Some Indigenous partners recommended that the federal non-derogation clause use language mirroring or similar to that used in British Columbia’s Interpretation Act.

We also heard numerous calls for active and positive wording in the federal Interpretation Act amendment. In support of these calls, there were Indigenous partners who reiterated their preference for the “so as to uphold” wording recommended in the Senate Committee report.

In addition, we heard that repealing all existing federal non-derogation clauses was still not the preferred approach. There remained general agreement that non-derogation clauses in legislation affecting certain Indigenous partners specifically should be retained should these partners wish to do so. Indigenous partners who wished to retain the non-derogation clauses in legislation affecting them viewed this issue as paramount. However, some partners were open to amending non-derogation clauses in legislation affecting them to reflect the wording of the new non-derogation clause in the federal Interpretation Act.

Several Indigenous partners were still in favour of repealing non-derogation clauses that did not align with the Senate Committee report’s recommended language. The majority of Indigenous partners still preferred the repeal of all other remaining non-derogation clauses to promote uniformity.

Other topics of discussion

Some Indigenous partners requested the development of an interpretive provision in the federal Interpretation Act that provides for the use of the UN Declaration in the interpretation of federal enactments, as was done in the province of British Columbia’s Interpretation Act. While this approach also informed the work on the non-derogation clause legislative initiative, many Indigenous partners also raised this during the consultation and cooperation process for the development of the UN Declaration Act draft action plan. The UN Declaration Act draft action plan includes a measure that speaks to exploring options around a UN Declaration interpretive provision. Justice Canada looks forward to exploring the development of an interpretive provision with Indigenous partners in the future.

Some Indigenous partners saw a connection between including a non-derogation clause in the federal Interpretation Act and section 25 of the Constitution Act, 1982, which states that the rights guaranteed in the Canadian Charter of Rights and Freedoms “shall not be construed so as to abrogate or derogate from any Aboriginal, treaty or other rights or freedoms that pertain to the Aboriginal peoples of Canada,” including rights and freedoms recognized by the Royal Proclamation of 1763 and rights set out in land claims agreements. They stressed the need for the non-derogation clause wording to be consistent with section 25 of the Constitution Act, 1982.

There also continued to be Indigenous partners supporting other Senate Committee report recommendations beyond the inclusion of a non-derogation clause in the federal Interpretation Act. For example, these Indigenous partners stressed the importance of the Department of Justice working with Indigenous peoples to review existing and proposed new federal statutes to ensure their consistency with section 35 constitutional rights, and the importance of having an accountability mechanism in place related to this work (recommendation 3).

2023 – Posting of the draft legislative proposal

In order to maximize outreach and transparency with Indigenous partners, and with a view to obtaining as wide an agreement as possible in relation to the non-derogation clause proposal, a draft legislative proposal was posted on the Department of Justice website on March 1, 2023. An explanatory note on the proposal, as well as an online questionnaire soliciting views on the proposal, accompanied the draft. On April 14, 2023, the period to provide input on the draft legislative proposal ended. Some submissions were received through the questionnaire, and some by correspondence directly to the non-derogation clause inbox. These submissions mostly reiterated what had been heard in the consultation and cooperation process thus far.

Consultation required by statutes

Throughout the process, the federal government also followed the statutorily mandated consultation requirements set out in the Mackenzie Valley Resource Management Act, S.C. 1998, c. 25 (MVRMA) and the Yukon Act, S.C. 2002, c. 7 (Yukon Act). The MVRMA and Yukon Act each include a non-derogation clause that could be repealed by the proposed non-derogation clause legislative initiative, depending on which option was pursued. The statutory consultation requirements were met, and the views of Indigenous partners were considered.

Discussions with provinces and territories

While the proposed non-derogation clause initiative does not impact provinces and territories, discussions with some provincial and territorial governments took place. Invitations were extended to hold discussions with some provinces and territories that are signatories to agreements, which have subsequently been enacted through legislation that contain a non-derogation clause. These include the government of the Northwest Territories (signatory to the Déline self-government agreement and the Tłı̨chǫ land claims and self-government agreement), the government of Newfoundland and Labrador (signatory to the agreement leading to the Canada–Newfoundland and Labrador Atlantic Accord Implementation Act), and the government of Nova Scotia (signatory to the agreement leading to the Canada – Nova Scotia Offshore Petroleum Resources Accord Implementation Act). The province of British Columbia is not signatory to an agreement enacted through legislation containing a non-derogation clause. However, meetings were held with the government of British Columbia in 2021 and 2022 to discuss both the federal non-derogation clause initiative and the non-derogation clause in British Columbia’s Interpretation Act.

Conclusion

The non-derogation clause legislative initiative is generally supported by Indigenous peoples. The year 2021 marked the first period of the non-derogation clause consultation and cooperation process. The non-derogation clause consultation and cooperation process was expanded in 2022 to include more Indigenous peoples. The findings from 2022 were quite similar to those from 2021, with a more urgent call to move the non-derogation clause initiative forward as quickly as possible.

The discussions with Indigenous partners were fruitful and enlightening. They taught us that things have evolved since the 2007 Senate Committee report. While we heard a diversity of views, a consensus eventually emerged, guiding the development of the non-derogation clause initiative.

The non-derogation clause legislative initiative is a product of the views of Indigenous partners across Canada. We are grateful to the Indigenous partners whose active participation has helped move this important work forward.

Annex A – List of Indigenous partners and groups who participated in the consultation and cooperation process

First Nations

National Indigenous organizations

  • Assembly of First Nations

Other national organizations

  • First Nations Financial Management Board regarding the First Nations Fiscal Management Act
  • Land Claims Agreements Coalition (First Nations & Inuit, Modern Treaty and Self-Governing Partners)

Provincial and territorial organizations

  • Anishinabek Nation - Union of Ontario Indians
  • Council of Yukon First Nations
  • Maritime Aboriginal Peoples Council
  • Nishnawbe Aski Nation

Regional organizations

  • Aboriginal Life in Vancouver Enhancement Society
  • BC Aboriginal Child Care Society
  • First Nations Leadership Council
  • Manitoba Keewatinowi Okimakanak Inc.
  • Mi’kmaw Kina’matnewey

Historic Treaty partners

  • Grand Council of Treaty 3
  • Treaty 7 First Nations Chiefs’ Association
  • Treaty 7 First Nations – Siksikaitsitapi – Blackfoot Confederacy
  • Treaty 8 First Nations – Sovereign Nations of Treaty 8 First Nations of Alberta

First Nations, and Modern Treaty and Self-Government partners

Yukon
  • Carcross/Tagish First Nation
  • Champagne and Aishihik First Nations
  • First Nation of Nacho Nyak Dun
  • Kluane First Nation
  • Kwanlin Dün First Nation
  • Little Salmon/Carmacks First Nation
  • Selkirk First Nation
  • Ta'an Kwäch'än Council
  • Tr'ondëk Hwëch'in
  • Teslin Tlingit Council
  • Vuntut Gwich'in First Nation
Northwest Territories
  • Délı̨nę Got’ı̨nę Government
  • Gwich’in Tribal Council
  • Tłı̨chǫ Government
British Columbia
  • First Nations of the Maa-Nulth Treaty Society
  • Huu-ay-aht First Nations
  • Ka:’yu:’k’t’h’/Chek’tles7et’h’ First Nation
  • Nisga'a Lisims Government
  • shíshálh Nation
  • Tla'amin Nation
  • Toquaht Nation
  • Tsawwassen First Nation
  • Uchucklesaht Tribe
  • Witset First Nation
  • Yuułuʔiłʔatḥ First Nation Government
Alberta
  • Mikisew Cree First Nation
  • O’Chiese First Nation
Ontario
  • Chippewas of Kettle and Stony Point
  • Chippewas of the Thames First Nation
Quebec
  • Grand Council of the Crees and Cree Nation Government
  • Mohawk Council of Kahnawà:ke

Inuit

National Indigenous organizations

  • Inuit Tapiriit Kanatami

Other national organizations

  • Land Claims Agreements Coalition (includes First Nations & Inuit)

Inuit Land Claim Organizations

Northwest Territories
  • Inuvialuit Regional Corporation
Nunavut
  • Nunavut Tunngavik Incorporated
Quebec
  • Makivik Corporation
Newfoundland and Labrador
  • Nunatsiavut Government

Métis

National Indigenous organizations

  • Métis National Council

Self-governing Métis Nations

  • Manitoba Métis Federation
  • Métis Nation of Alberta
  • Métis Nation of Ontario
  • Métis Nation – Saskatchewan

Other representative organizations

  • Métis Nation British Columbia

Off-reserve & urban Indigenous peoples

Representative organizations

  • Congress of Aboriginal Peoples

Indigenous women

Representative organizations

  • Native Women’s Association of Canada
  • Ontario Native Women’s Association

Additional Indigenous participants

Individual survey respondents

  • Names withheld

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