Canada seeks to update Interpretation Act to protect Indigenous rights, but draft fails to include UNDRIP

A constitutional law professor doesn’t believe the Liberal government is going far enough with proposed amendments to the federal Interpretation Act.

Justice Canada is soliciting feedback from Indigenous partners on draft legislation which includes a non-derogation clause associated with upholding section 35 Aboriginal and treaty rights, which would apply to all federal laws.

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

A non-derogation clause (NDC) 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. The federal Interpretation Act is a technical statute that provides a single uniform standard for the interpretation of all federal laws.

A 2022 discussion paper prepared by the legal affairs department of the Assembly of First Nations stated that non-derogation clauses are not “a complete shield to the infringement of First Nations rights and do not broaden ‘Aboriginal and treaty rights’ as referred to in s. 35 of the Constitution Act, 1982. Under the existing jurisprudence, these rights remain subject to review and potentially ‘justifiable infringement’ by Canada…There have been no examples where an NDC has been relied on to absolutely shield First Nations rights.”

It’s a “curious omission” that amendments to the draft Interpretation Act do not include the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), says associate professor Naiomi Metallic, chancellor's chair in Aboriginal Law and Policy at the Schulich School of Law at Dalhousie University.

“In the same way that they want section 35 to be very clear in the Interpretation Act, (UNDRIP) would equally be as clear,” said Metallic, a member of the Listuguj Mi’gmaq First Nation.

British Columbia amended its Interpretation Act in 2021 to include both a non-derogation clause and a statement of consistency with its provincial Declaration on the Rights of Indigenous Peoples Act, she says.

In a nine-page “What we learned” document prepared in June 2022 by Justice Canada, the department says that consultations on a non-derogation clause were “proactively raised” by Indigenous partners during discussions on the United Nations Declaration Act (UNDA), the federal government’s implementation legislation for UNDRIP. However, there was no context in which including UNDA as part of the Interpretation Act was discussed.

The AFN’s discussion paper also does not reference including UNDA within the Interpretation Act.

“There’s no reason why Canada shouldn’t do it if they’re actually serious about UNDRIP,” said Metallic.

She points out that legislation must already be interpreted by taking section 35 rights into consideration, and with the passage of UNDA in 2021, all federal legislation must now be consistent with the UNDRIP framework.

However, section 35 doesn’t itemize what the existing Aboriginal and treaty rights are, and even though the Supreme Court has said the purpose of section 35 is to achieve reconciliation, she says that ambiguity has resulted in multiple court cases.

But UNDRIP “puts this in a different ballpark because they’re so explicit” in the UNDRIP preamble and 46 articles with several subsections.

Metallic draws on the findings of the Truth and Reconciliation Commission on the legacy of Indian residential schools which set UNDRIP as the framework for reconciliation.

“I think it’s actually a better thing to say, ‘And the law will be followed to be consistent with UNDRIP,’ which is already the law, (so) again redundancy. I think it’s a better cue than just saying, ‘Governments must exercise their jurisdiction in a way to be consistent with reconciliation,’” said Metallic.

She said redundancy serves to “make things crystal clear.”

In adding the non-derogation clause to the Interpretation Act, Canada is also proposing to remove non-derogation clauses that appear in 27 pieces of existing legislation. Wording of the non-derogation clauses are not consistent throughout all of the identified pieces of legislation.

The AFN’s discussion paper observes that “the view of the majority (of Indigenous partners) is to keep NDCs in certain specific pieces of legislation where Indigenous peoples have voiced a desire to retain them.”

The purpose of the draft proposal, said Diana Ebadi, spokesperson for Justice Canada, “is to seek broader input from Indigenous partners to see if there are others beyond those identified that they would like to be amended, or if there are certain non-derogation clauses that should not be repealed.”

Metallic doesn’t believe it’s necessary to remove the non-derogation clauses from the individual pieces of existing federal legislation.

“I think the issue with Indigenous rights is that they are often not on people’s radar or agenda. They’re easily forgotten. And I think…it’s important for government employees to be reminded on a regular basis that this is important and also for courts,” she said.

The draft Interpretation Act legislation will remain open for comments until April 14.

Metallic is asking her colleagues to respond.

“This is a perfect opportunity to include a similar provision (as in BC) in our Interpretation Act, and it would give additional clarity to Canada’s position on the UN Declaration,” said Metallic in a March 8 email to her colleagues.

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