NationTalk: Department of Justice Canada– The recognition of the rights of Indigenous peoples affirmed in Canada’s Constitution is a fundamental element of Crown-Indigenous relationships. The Government of Canada is committed to respecting and upholding the rights of First Nations, Inuit and Métis as part of building stronger nation-to-nation, Inuit-Crown, and government-to-government relationships.
Today, the Minister of Justice and Attorney General of Canada, David Lametti announced the introduction of legislation (Bill S-13) to amend the federal Interpretation Act to include a non-derogation clause on upholding section 35 Aboriginal and treaty rights. This legislation would help ensure that all federal laws (including statutes and regulations) are consistently interpreted as upholding, and not diminishing, existing Aboriginal and treaty rights of First Nations, Inuit and Métis, as recognized and affirmed by section 35 of the Constitution Act, 1982.
Section 35 of the Constitution Act, 1982 affirms Aboriginal and treaty rights of Indigenous peoples in Canada. Aboriginal rights, also referred to as Indigenous rights, are the collective rights of First Nations, Inuit and Métis as the original peoples of Canada. Treaty rights are rights set out in either a historic or modern treaty. Treaties define specific continuing rights, benefits and obligations for the signatories that vary from treaty to treaty.
Bill S-13 proposes to amend the Interpretation Act by including a non-derogation clause to promote consistent legal interpretation across federal legislation. Input by Indigenous partners also identified which non-derogation clauses currently found in existing federal laws should be repealed or retained.
The proposed change would not grant new rights to Indigenous peoples, nor would it diminish the rights outlined in section 35 of the Constitution Act, 1982. Rather, it would promote a consistent approach by clearly stating that all federal laws (including statues and regulations) are to be interpreted as 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.
“First Nations, Inuit and Métis have long advocated for a clear statement that all federal laws should be interpreted to uphold Aboriginal and treaty rights affirmed in section 35 of the Constitution Act, 1982. Bill S-13 is a direct response to that advocacy and is part of the necessary work to uphold the rights of First Nations, Inuit and Métis. We look forward to doing this work in partnership with Indigenous peoples, as we build stronger nation-to-nation, Inuit-Crown, government-to-government relationships. Together we will build a stronger Canada that stands for the human rights of all.”
The Honourable David Lametti, P.C., K.C., M.P.
Minister of Justice and Attorney General of Canada
- The federal Interpretation Act is a technical law that provides a single uniform standard for the interpretation of all federal laws (including statues and regulations). A non-derogation clause in the Interpretation Act would establish that all federal laws (including statues and regulations) are to be interpreted as upholding, and not diminishing Aboriginal and treaty rights of First Nations, Inuit and Métis, as protected by section 35 of the Constitution Act, 1982.
- A report from the Senate Committee on Legal and Constitutional Affairs recommended that 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. Justice Canada’s early engagement with Indigenous peoples in 2021 revealed significant support for the 2007 Senate Committee recommendations.
- Over the course of many years, specific non-derogation clauses have been included in several federal laws with some variations in language. They were added mainly during the parliamentary process at the request of Indigenous peoples, governments, or organizations seeking to ensure that legislation would be interpreted in a way that upholds section 35 rights. Based on recent input by First Nations, Inuit and Métis, most existing NDCs, but not all, would be repealed if Bill S-13 is passed, as written.
- In 2020, Justice Canada began a phased consultation and cooperation process with First Nations, Inuit and Métis, including modern treaty organizations and governments, self-governing nations and some historic treaty partners, as well as national and regional Indigenous organizations regarding the use of non-derogation clauses in federal laws. In March 2023, Justice Canada engaged with First Nations, Inuit and Métis on a draft legislative proposal that was based on feedback and input received through previous engagement.
- Section 5 of the United Nations Declaration on the Rights of Indigenous Peoples Act states the Government of Canada must, in consultation and cooperation with Indigenous peoples, take all measures necessary to ensure that the laws of Canada are consistent with the Declaration. Bill S-13 would contribute to this work.
For more information, media may contact:
Office of the Minister of Justice and Attorney General of Canada
Department of Justice Canada