The new provision clarifies and safeguards Section 35 rights across federal statutes and regulations
Bill S-13 has received Royal Assent and has been implemented with immediate effect as of Wednesday.
The bill was described by the justice department as “an Act to amend the Interpretation Act and to make related amendments to other Acts.” In particular, the legislation incorporates a standardized non-derogation clause into the federal Interpretation Act.
“This clause ensures that all federal laws, statutes, and regulations are interpreted in a way that upholds, and does not diminish, Aboriginal and treaty rights recognized and affirmed in Section 35 of the Constitution Act, 1982,” Justice Minister and Attorney General Arif Virani said in a statement.
NDCs related to section 35 are legal provisions specifying that the law must not be interpreted in ways that diminish the rights of Indigenous peoples as recognized under the Constitution Act, 1982. Such clauses have been integrated into federal laws over several years with language variations; they were often integrated into laws during the parliamentary process on the request of Indigenous peoples, governments, or organizations looking to ensure that specific legislation would be interpreted in line with section 35.
The government noted that the addition of an NDC to the Interpretation Act through Bill S-13 aligns with recommendations made in a 2007 report by the Senate Committee on Legal and Constitutional Affairs. In the report, the committee suggested that in addition to incorporating an NDC into the federal Interpretation Act, the government should repeal existing NDCs in other federal statutes.
“For over two years, a wide range of First Nations, Inuit and Métis governments and representative organizations worked in close collaboration with the Department of Justice Canada to develop a standard NDC that now applies across all federal laws,” Virani said. “Previously, 31 federal acts had individual non-derogation clauses, many with slightly different wording. This inconsistency created uncertainty. With the passage of Bill S-13, 28 NDCs will be immediately repealed, while three will remain, following the recommendations of Indigenous peoples.”
Justice Canada engaged with First Nations, Inuit and Métis in an extensive multi-step consultation process from December 2020 to March 2023. During this time, the government held discussions with treaty organizations and governments, self-governing nations and historical treaty partners, as well as national and regional Indigenous representative organizations.
Based on feedback from the consultation, Justice Canada drafted a legislative proposal for a final evaluation by First Nations, Inuit and Métis. The consultations informed the changes to the Interpretation Act as laid out in Bill S-13.
“Having one universal NDC is a significant step forward. First Nations, Inuit and Métis no longer need to advocate for its inclusion in every new bill introduced in Parliament. The new NDC will now apply automatically, through the Interpretation Act,” Virani said. “This change also advances our work on 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.”
