Ottawa seeks feedback on proposal for non-derogation clause to apply to all federal statutes

By Cristin Schmitz

Law360 Canada (March 1, 2023, 2:00 PM EST) -- The federal government is asking for public feedback by April 14 to its draft legislative proposal to add a non-derogation clause to the federal Interpretation Act stipulating that all federal laws are to be understood as upholding the rights of Indigenous peoples recognized and affirmed by s. 35 of the Constitution Act, 1982, and not as abrogating or derogating from those rights.

On March 1, Federal Justice Minister David Lametti unveiled a draft legislative proposal (i.e. not yet a bill) that will be further consulted on with Indigenous peoples.

The draft legislative proposal would amend the federal Interpretation Act to insert s. 8.3 (after existing s. 8.2) under the heading, “Rights of Indigenous peoples”:

Justice Minister David Lametti

Justice Minister David Lametti

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

Under the heading “Indigenous peoples,” the draft proposal further states: “For the purposes of subsection (1) Indigenous peoples has the meaning assigned by the definition aboriginal peoples of Canada in s. 35(2) of the Constitution Act, 1982.”

The draft legislative proposal indicates that if the proposed general non-derogation clause is added to the Interpretation Act, specific diverse non-derogation clauses in more than two dozen other federal statutes would be repealed.

(Subsection 35(1)of the Constitution Act, 1982 states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”)

The federal Department of Justice said in a press release that the draft legislative proposal will remain online, and open for feedback via email or using an online submission form until April 14. 

The government said it will also continue meetings “with Indigenous partners on related measures to clarify that all federal laws should be interpreted to uphold Aboriginal and treaty rights.”

“The draft proposal we are releasing today continues our commitment to listening to First Nations, Inuit, and Métis,” Lametti said. “Together we will build stronger nation-to-nation, Inuit-Crown, government-to-government relationships.“

The Department of Justice (DOJ) invites First Nations, Inuit and Métis to review the draft legislative proposal and address three questions: What are your views on the language of the non-derogation clause proposed in the draft legislative proposal? What are your views on the potential for repealing some of the non-derogation clauses contained in other federal Acts, as outlined in the draft legislative proposal? Do you have any other comments you would like to provide regarding the draft legislative proposal?

“The necessary work to promote, protect and affirm Indigenous rights must be done in partnership with Indigenous peoples,” Lametti said.

“Publishing this draft legislative proposal on [a non-derogation clause] is intended to maximize outreach and transparency with Indigenous partners with a view to obtaining as wide an agreement as possible in relation to this proposal, which relates to the rights of all Indigenous peoples,” the DOJ release states.

The Justice Department said it began “a consultation and cooperation process with Indigenous partners” last year regarding the use of non-derogation clauses in federal laws.

A non-derogation clause is a statement in a law or piece of legislation that indicates the law should be interpreted to uphold, and not diminish, other existing rights — in this case, the rights of First Nations, Inuit and Métis affirmed by s. 35 of the Constitution Act, 1982.

The federal Interpretation Act provides a single uniform standard for the interpretation of all federal laws.

Following study and consultation, in a 2007 report titled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights,” the Senate Legal and Constitutional Affairs Committee recommended that the federal government introduce legislation to add a non-derogation clause to the federal Interpretation Act and to repeal current non-derogation clauses in other federal statutes. 

The Senate committee recommended that the non-derogation clause state: “Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under s. 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.”

The Senate committee recommended the Interpretation Act consequently repeal “all non-derogation clauses relating to Aboriginal and treaty rights included in federal legislation since 1982.”

The DOJ said its “early engagement” with Indigenous peoples in 2021 indicated that many supported the Senate committee’s recommendation.

The department said its consultation and co-operation on the non-derogation clause initiative is part of continuing efforts to implement the United Nations Declaration on the Rights of Indigenous Peoples Act, enacted in 2021, which requires the government of Canada, in consultation and cooperation with Indigenous peoples, to take all measures necessary to ensure the laws of Canada are consistent with the UNDRIP.

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