On November 27, 2024, Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts, received Royal Assent and immediately came into force. This legislation adds a standardized non-derogation clause (NDC) to the federal Interpretation Act.
First Nations, Inuit and Métis have long advocated for legislation to signal that all federal legislation and regulations must be interpreted as upholding Aboriginal and treaty rights, as recognized and affirmed by section 35 of the Constitution Act, 1982.
Adding an NDC to the federal Interpretation Act clearly signals that all federal laws, including statutes and regulations, must be interpreted as upholding Aboriginal and treaty rights recognized and affirmed in section 35 of the Constitution Act, 1982.
What is a non-derogation clause?
Section 35-related non-derogation clauses are legal provisions that indicate the law must be interpreted as upholding, and not diminishing, the rights of Indigenous peoples as recognized and affirmed by section 35 of the Constitution Act, 1982.
Section 35 of the Constitution Act, 1982 recognizes and affirms Aboriginal and treaty rights of Indigenous peoples in Canada. At its core, section 35 serves to recognize the prior occupation of Canada by Indigenous peoples by recognizing their Aboriginal rights. Aboriginal rights are the collective rights of First Nations, Inuit and Métis. Treaty rights are rights set out in either a historical or modern treaty. Treaties define specific continuing rights, benefits and obligations for the signatories that vary from treaty to treaty.
Over many years, NDCs were included in federal laws with variations in language. They have often been added during the parliamentary process at the request of Indigenous peoples, governments, or organizations seeking to ensure that the specific legislation would be interpreted in a way that upholds section 35.
What does including a non-derogation clause in the federal Interpretation Act mean?
In 2007, after examining non-derogation clauses referring to section 35 of the Constitution Act, 1982 in federal legislation, the Senate Committee on Legal and Constitutional Affairs (Senate Committee) prepared a report entitled, "Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal rights". The Senate Committee recommended that the Government of Canada:
- introduce legislation to add a non-derogation clause to the federal Interpretation Act
- repeal current non-derogation clauses found in other federal statutes
Through a multi-step, broad and inclusive consultation and cooperation process from December 2020 to March 2023, Justice Canada engaged with First Nations, Inuit and Métis, including modern treaty organizations and governments, self-governing nations and historical treaty partners, as well as national and regional Indigenous representative organizations. Justice Canada posted a draft legislative proposal, which was based on feedback and input received through the consultation and cooperation process, on its website to allow for final review and feedback by First Nations, Inuit and Métis. The amendments to the Interpretation Act presented in Bill S-13 are aligned with the result of these consultations.
Having a universal NDC means that First Nations, Inuit and Métis no longer have to advocate to include an NDC in new bills introduced in Parliament It also contributes to implementing the United Nations Declaration on the Rights of Indigenous Peoples Act (UN Declaration Act) by responding to Shared Priorities Action Plan Measure 2 in the UN Declaration Act Action Plan.
By interpreting all federal laws as upholding the Aboriginal and treaty rights of Indigenous peoples affirmed in section 35, the Government of Canada is reinforcing its commitment to reconciliation and stronger nation-to-nation, Inuit-Crown, government-to-government relationships.
