Thank you, Madam Chair.
Good afternoon, everyone. I'm pleased to be back here at the justice committee to speak about Bill S-13, an act to amend the Interpretation Act and to make related amendments to other acts.
Bill S-13 is a long time coming, colleagues. Indigenous peoples have been the driving force behind this bill for decades. I want to acknowledge that, in the room behind me, we have members of ITK. They were some of the principal movers of the bill, among others. I want to acknowledge their hard work, advocacy and dedication in advancing this important legislation. I also want to thank all members of the House for putting aside the gridlock to allow this important piece of legislation to pass.
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. This clause would be standardized and signify the importance of upholding “aboriginal and treaty rights” in Canadian law, as affirmed in section 35 of the Constitution Act, 1982. It would apply to all federal laws.
As part of the United Nations Declaration on the Rights of Indigenous Peoples Act Action Plan, released on June 21, 2023, indigenous peoples have determined that the proposed adoption of a non-derogation clause is an ongoing priority.
Passage of this bill would mark the successful implementation of some of the measures outlined in the Action Plan's chapter entitled “Shared Priorities”. Consultations were held with several indigenous partners. They worked with us to move this bill forward. Indigenous peoples and organizations that represent them participated in more than 70 meetings and filed more than 45 submissions on the non-derogation clause legislative initiative.
I'm extremely grateful to all those who shared their perspectives and technical expertise.
This brings us now to the substance of this bill. Bill S-13's purpose is to add a section 35-related non-derogation clause to the federal Interpretation Act and to repeal most currently existing section 35-related non-derogation clauses found in other statutes. In this context, a non-derogation clause is a clause that states laws should be interpreted to uphold, and not diminish, the aboriginal and treaty rights affirmed in section 35 of the Constitution Act, 1982.
Section 35 rights are of fundamental importance to indigenous peoples. These rights are constitutionally protected from infringement by government action, including through legislation, unless infringement is justifiable in accordance with the rigorous test set out by the Supreme Court in Sparrow.
At its core, section 35 serves to recognize indigenous peoples’ pre-existing rights and systems of governance, as well as to recognize the rights from treaties that have been concluded between Canada and indigenous peoples over past centuries. A section 35-related non-derogation clause aims to affirm and uphold this constitutional protection, highlighting the importance of applying federal legislation in a way that avoids infringing on these rights.
Bill S‑13 would ensure that all federal statutes are interpreted in a manner consistent with section 35 of the Constitution. It would therefore no longer be necessary, in the future, to add a non-derogation clause to each federal act. As such, Bill S‑13 would also remove the onus on indigenous peoples to advocate for a non-derogation clause to be added to each new bill that they believe could infringe on section 35 rights.
The rights of indigenous peoples should be respected by default. It shouldn't be necessary to repeat this in every act, regulation and order in council. The bill makes that possible. It also contributes to the government's reconciliation efforts with indigenous peoples. In addition, the bill promotes the consistency of federal legislation with respect to non-derogation clauses. Over the past 40 years, an ad hoc approach, combined with the changing legal landscape and legislative drafting practices, has led to non-derogation provisions that differ from one another.
Currently, there are several federal statutes that contain non-derogation clauses, with inconsistent wording. 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. The only exceptions would be a small number of laws where indigenous peoples who are directly impacted by specific legislation have indicated that it is important to retain the non-derogation clause in question.
I would underscore that the bill also builds on the important work done by the Standing Senate Committee on Legal and Constitutional Affairs, culminating in its 2007 report entitled “Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights”. Many indigenous leaders and experts participated in the Senate committee hearings leading to the 2007 report. Indigenous peoples continued to advocate for a non-derogation clause after the release of the Senate report back in 2007.
In response to this ongoing advocacy and leadership, my department launched the consultation and co-operation process that led to the bill that is before all of you today. This started with preliminary conversations with key indigenous partners who had been involved with the Senate report. Then, in December 2020, letters were sent to nearly 60 indigenous rights holders and representative organizations, inviting them to meet with Justice officials or to provide written submissions, which occurred over the following year.
From December 2021 to May 2023, a significantly expanded group of indigenous partners had the opportunity to provide feedback on the initiative. This new consultation and collaboration process took place in two additional phases. The first began in December 2021, when the previous Minister of Justice announced an expanded consultation and collaboration process, consistent with the requirements of the United Nations Declaration on the Rights of Indigenous Peoples Act. Starting in February 2022, additional meetings were held with indigenous partners and several provided written responses to explore options for amending the Interpretation Act to include a non-derogation clause.
From March 1, 2023, to April 14 of the same year, the final phase of the consultation and co-operation process involved posting a draft legislative proposal on the Justice Canada website. This method enabled indigenous partners to review and comment on the draft legislative proposal. The draft legislative proposal was used to inform the language of Bill S-13, which remained identical.
Throughout the process, indigenous partners were broadly supportive of the non-derogation clause amendment, although there were differing views regarding the specific wording of the clause. Some preferred the expression “indigenous peoples”, while others preferred the expression “aboriginal and treaty rights” as it more closely reflects section 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.
The fate of the non-derogation clauses found in existing laws was also the subject of sustained discussions with indigenous partners. Many indigenous partners argued that non-derogation provisions should remain in laws that directly impact indigenous peoples, if that is the wish of the affected peoples.
The amendments proposed in the bill reflect what we heard from indigenous peoples during the consultation and collaboration process. Those exchanges enriched and clarified the wording of the non-derogation clause.
The bill and the process that brought us here are other examples of what can be accomplished when we work together. The bill marks an important step in respecting the rights of Canada's indigenous peoples.
As a federal government, we are very proud to be able to move forward with Bill S-13 as a further demonstration of our commitment to reconciliation and the recognition and implementation of indigenous rights.
As parliamentarians, I think we can all be proud of the work we're doing together to ensure that all federal laws are interpreted in a way that upholds section 35 of the Constitution. This initiative will contribute to promoting, protecting and affirming indigenous rights at the federal level and bring greater coherence and consistency to the interpretation of all federal laws.
At the same time, I would emphasize that it is indigenous peoples who laid the foundation for this bill by maintaining their resolve to see this initiative come to fruition. In that way, Bill S-13 demonstrates the important lessons of working in partnership and collaboration with first nations, Inuit and Métis in order to build stronger nation-to-nation, Inuit-Crown and government-to-government relationships.
Thank you very much, Madam Chair.
