THE STANDING SENATE COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
EVIDENCE
OTTAWA, Wednesday, October 25, 2023
The Standing Senate Committee on Legal and Constitutional Affairs met with videoconference this day at 4:18 p.m. [ET] to consider Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
Senator Brent Cotter (Chair) in the chair.
[English]
The Chair: Good afternoon, honourable senators, and welcome to this meeting of the Standing Senate Committee on Legal and Constitutional Affairs.
My name is Brent Cotter. I’m a senator from Saskatchewan and chair of the committee. I will now invite senators to introduce themselves.
Senator Jaffer: Welcome, minister and all of you. Mobina Jaffer, from British Columbia.
Senator Pate: Welcome, and it’s nice to see you again. I’m Kim Pate. I live here in the unceded, unsurrendered territory of the Algonquin Anishinaabe.
Senator Tannas: Scott Tannas from Alberta.
Senator Cardozo: Andrew Cardozo from Ontario.
Senator Simons: Paula Simons, Alberta, Treaty 6 territory.
[Translation]
Senator Clement: Welcome. Bernadette Clement from Ontario
[English]
Senator Prosper: Senator Paul Prosper. I’m from Nova Scotia, the traditional Mi’kmaq territory.
Senator LaBoucane-Benson: Senator LaBoucane-Benson, Treaty 6 territory, Alberta.
[Translation]
Senator Dupuis: Renée Dupuis, The Laurentides, Quebec.
Senator Audette: Good afternoon. [Innu-Aimun spoken]. Michèle Audette [Innu-Aimun spoken], from Quebec.
[English]
Senator D. Patterson: Dennis Patterson, senator for Nunavut, Inuit Nunangat.
[Translation]
Senator Dalphond: Good afternoon. Pierre Dalphond, De Lorimier, Quebec.
[English]
The Chair: Thank you.
Senators, witnesses and those watching our meeting today, it is with deep regret that I convey to all of you the news that the Honourable Senator Ian Shugart passed away earlier today. There will be an opportunity to pay tribute at a later time, but for right now, I want to extend, on the behalf of all of us and all those associated with this meeting, our sympathies to his wife, Linda; son, James; daughters Robin and Heather; and the entire Shugart family. I would invite you to pause and join me in a moment of silence in tribute to Mr. Shugart.
(Those present then stood in silent tribute.).
Thank you, colleagues.
Before we begin, I should acknowledge that the members of the Conservative Party who serve on this committee have been advised that Conservative caucus members are not to be participating in committee meetings today. As a result, the deputy chair, Senator Boisvenu, and Senator Batters have withdrawn from the meeting. We will proceed in any event as we have matters of some importance. In a private exchange with Senator Dalphond — if I may say this, Senator Dalphond — we agreed that Ian Shugart would want us to proceed.
Having said that, let me turn to the business at hand. Honourable senators, we are meeting to begin our study of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
Appearing on our first panel, we are pleased to welcome back the Honourable Arif Virani, Minister of Justice and Attorney General of Canada. He is joined by officials from the Department of Justice Canada: Jean-François Fortin, Associate Deputy Minister — welcome, Mr. Fortin; Laurie Sargent, Assistant Deputy Minister, Indigenous Rights and Relations Portfolio — welcome, Ms. Sargent; and Uzma Ihsanullah, Director General and Senior General Counsel — welcome, Ms. Ihsanullah. Thank you all for joining us.
I should take this moment to indicate to members of the committee that voting is taking place in the House of Commons, and Minister Virani has indicated that on one or two occasions — one of them just arising — he is required to vote remotely. It’s amazing how he was able to achieve that to avoid starting his remarks. I don’t think we will need to suspend, but we will just take a moment while Minister Virani votes.
Senator Dupuis, did you have a question?
[Translation]
Senator Dupuis: Since we’re waiting for the minister to join us anyway, here’s my question. During our last meeting, we made an observation in the report that was tabled in the Senate. The report hasn’t been adopted yet, but, in it, we asked for a GBA+ to be submitted to our committee for every bill before we begin our studies. May I ask if the committee received the Department of Justice’s GBA+ for Bill S-13?
[English]
The Chair: Do you mean in relation to this bill?
[Translation]
Senator Dupuis: Yes, Bill S-13.
[English]
The Chair: We have not received it at this point.
Minister Virani, the floor is yours.
Arif Virani, P.C., M.P, Minister of Justice and Attorney General of Canada, Department of Justice Canada: Thank you very much, senators. I’ll just advise you, as the chair has advised, that I still have one more vote to go. That will be in approximately 12 or 14 minutes. Thank you.
Good afternoon. It’s a pleasure to be back in front of the Senate committee to speak about Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.
I wanted to start with just acknowledging the passing of your colleague, Mr. Shugart. I appreciated taking the moment of silence. He is quite a legend in terms of this institution, his work as a very senior civil servant, as Clerk of the Privy Council and, most recently, as your colleague here in the Senate. His absence will be noted for many years to come.
In terms of addressing the comments I have before you, I want to say that the bill I’m speaking about, Bill S-13, has been a long time coming. 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. Such a clause would apply to all federal laws and be a reminder of the importance of Aboriginal and treaty rights, affirmed in section 35 of the Constitution Act, 1982.
[Translation]
In the context of the United Nations Declaration on the Rights of Indigenous Peoples Act action plan, which was released on June 21 of this year, Indigenous peoples stated that adopting a non-derogation clause remains a priority. Passage of this bill would achieve one of the priority measures set out in the action plan.
I’d like to take a moment to appreciate the hard word and tremendous dedication of the Indigenous partners who participated in the consultations and worked with us to move the bill forward. Indigenous peoples and the organizations that represent them took part in more than 70 meetings and submitted more than 45 briefs about the proposed legislation on the non-derogation clause. I’m extremely grateful to everyone who shared their perspective and their technical expertise.
[English]
I would just add parenthetically that literally this morning at 9 a.m., I was with the Assembly of First Nations, or AFN, executive committee, made up of the interim chief of the AFN as well as regional chiefs from around the country, both in person and joining us virtually. They were very cognizant of the fact I would be appearing today to speak to Bill S-13 and emphasized yet again the interests of various First Nations communities around the country in seeing the passage of this very bill and the important amendment to the Interpretation Act that it represents.
Let me now turn to the substance of the bill itself. Bill S-13 proposes to add a section 35-related non-derogation clause to the federal Interpretation Act and to repeal most existing non‑derogation clauses in other statutes.
Section 35 of the Constitution Act, 1982, recognizes and affirms Aboriginal and treaty rights. These rights are of fundamental importance to Indigenous peoples. They include rights in relation to lands, resources — including harvesting, hunting and fishing — culture, language, ceremonies and other collective rights that go to the core of Indigenous self‑determination and self-government. This means that these rights are constitutionally protected from infringement through government action, including through legislation, unless infringement is justifiable in accordance with the rigorous test set out by the Supreme Court of Canada in a case called Sparrow.
A section 35-related non‑derogation clause reflects this constitutional protection by stating that a piece of legislation should be interpreted in a way that upholds and does not negatively impact section 35 constitutional rights. The intention of a non‑derogation clause is therefore to highlight the importance of upholding section 35 rights and the importance of applying federal legislation in a way that avoids infringing these very rights.
Including a non‑derogation clause in the Interpretation Act would ensure that all federal laws and regulations are interpreted to uphold and not diminish the rights of Indigenous peoples affirmed in section 35 of the Constitution Act, 1982. It would therefore no longer be necessary to include a non‑derogation clause in individual federal laws going forward, which has been the case to this point.
[Translation]
The bill would ensure that all federal laws are interpreted in a manner compatible with section 35 of the Constitution. As a result, Indigenous peoples will no longer have to lobby for the inclusion of non‑derogation clauses every time the government introduces a new bill that could have implications for the rights recognized in section 35.
In addition, the bill promotes uniformity of federal law with respect to non‑derogation clauses. The ad hoc approach, combined with the evolution of the legal landscape and legislative drafting practices over the past 40 years, has resulted in non‑derogation clauses that differ from one to the next. That’s why we now have statutes containing different variations of non‑derogation clauses.
[English]
It is precisely in order to ensure the clarity and consistency of laws that this bill proposes that almost all non‑derogation clauses in existing laws would be repealed, subject to a very small number of exceptions. Where Indigenous peoples directly impacted by the respective pieces of legislation have indicated to us that it is important to retain a particular non‑derogation clause in a particular statute, that clause will be preserved. These are exceptional circumstances and are very limited and include the Mackenzie Valley Resource Management Act, the Shíshálh Nation Self-Government Act and the Kanesatake Interim Land Base Governance Act. Those are the only three examples.
This bill also builds on the important work done by the Senate Committee on Legal and Constitutional Affairs and its 2007 report. I’m looking at Senator Jaffer because she was a member of that committee some 16 years ago when it put out a report entitled: Taking section 35 rights seriously: non‑derogation clauses relating to Aboriginal and treaty rights. Indeed, this body was advancing reconciliation before people were uttering the term reconciliation. That report recommended that the Government of Canada introduce legislation to add a non‑derogation clause to the federal Interpretation Act and repeal such clauses in existing legislation. Many Indigenous leaders and experts participated in the Senate committee hearings leading to the 2007 report and have continued to advocate for its implementation ever since.
In response to this ongoing advocacy and leadership, in December 2020, Justice Canada launched a targeted consultation process to advance discussions on the non‑derogation clause initiative. The goals of this process were to determine if views had changed since the 2007 Senate report and gauge the level of support for moving forward with the non‑derogation clause initiative. This targeted process revealed to us that there was still considerable support for the proposal to amend the federal Interpretation Act.
[Translation]
From December 2021 to May 2023, a very broad group of Indigenous partners had opportunities to submit comments. This new consultation and cooperation process occurred in two additional phases.
The first of these two additional phases began in December 2021, when the previous justice minister announced a broader consultation and cooperation process in accordance with the requirements in the United Nations Declaration on the Rights of Indigenous Peoples Act.
In February 2022, meetings began with Indigenous partners to look at options for amending the Interpretation Act to include a non‑derogation clause.
[English]
During the final phase of the consultation and cooperation process, a draft legislative proposal was posted on the Justice Canada website from March 1, 2023, to April 14, 2023. This method allowed for further transparency in the consultation and cooperation process and enabled Indigenous partners to review the draft legislative proposal and provide comments.
Throughout the process, Indigenous partners were broadly supportive of the non‑derogation clause initiative, although there were differing views regarding the specific wording of the clause. Some preferred the expression “Indigenous peoples,” while others maintained the need to use 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 proposed by Indigenous partners.
[Translation]
The fate of non‑derogation clauses in existing laws was also the subject of lengthy discussions with Indigenous partners.
The Indigenous partners weren’t in favour of repealing all non‑derogation clauses. In fact, many Indigenous partners argued that non‑derogation clauses should remain in laws that have a direct impact on Indigenous peoples, if that was the wish of the people affected.
[English]
I think the important piece there is we have always been attentive and listening to Indigenous stakeholders, particularly the ones that we consulted with on that very issue.
To conclude, the changes contemplated by this bill complement and reinforce the constitutional protections that are set out in section 35. They will contribute to promoting, protecting, and affirming Indigenous rights at the federal level, at the same time as they bring greater coherence and consistency to the interpretation of all federal laws. In summary, this initiative demonstrates our commitment to work in partnership with Indigenous Peoples as we build stronger nation-to-nation, Inuit-Crown, government-to-government relationships.
Thank you.
The Chair: Thank you, minister.
We have a list of senators who would like to pose questions to you. I’m going to begin with the sponsor of the bill, and we will just hold off on that question until the vote is taken by Minister Virani. He’s timed it nicely to bookend his speech, which is good.
I invite Senator LaBoucane-Benson to pose the first question.
Mr. Virani: Voting has concluded. No more interruptions.
The Chair: Thank you, minister.
Senator LaBoucane-Benson: I believe we distributed the What we learned report to all senators in October. If you still need that report, I can get it to you.
I noticed that there were a few partners who were raising the possibility of including a reference to UNDRIP in the Interpretation Act. It’s not in this bill. Could you tell us why not and whether there are future plans to include it?
Mr. Virani: Thank you for that question, senator, and thank you for your sponsorship of this bill in this chamber.
We understand, for example, that there is an UNDRIP aspect to the non‑derogation clause included in the B.C. Legislature. What I also understand is that British Columbia did that after consulting with Indigenous peoples.
Going back all the way to 2007 and looking at the Senate study and then the interactions we’ve had with Indigenous communities, groups, national Indigenous organizations, et cetera, everyone had indicated to us that they want a non‑derogation clause that addresses section 35, but they had not indicated to us that they had wanted an UNDRIP feature included into this provision.
What’s really important about UNDRIP — all of you are probably quite familiar with it — is that if you’re going to move forward on a basis that really empowers and fulfills the meaning of the document and sets out a new path for relationships between governments and Indigenous people on this land, section 5 talks about doing so in consultation and coordination with Indigenous people. I raise that because if there were a desire to move in that direction, we would never wish to do so without having consultation with Indigenous leadership.
With respect, this, on its face, seems to be a fairly straightforward proposition of where we are with this bill and what we’re trying to do. Notwithstanding that fact, you heard me in my comments talk about two years of consultations just on the issue of a non‑derogation clause. I think it would be required to put in the work to do the consultations if we are going to incorporate UNDRIP into this particular provision.
Senator LaBoucane-Benson: Thank you.
Senator Jaffer: Thank you, minister. Now you have made everyone aware that I’m a relic on this committee.
I want to follow up to Senator LaBoucane-Benson’s question. Parliament has already enacted the United Nations Declaration on the Rights of Indigenous People. It came into force in June 2021. I still don’t understand why. I know you made the explanation, and I accept that. The reference of UNDRIP directly on this protection is more explicit than the Constitution Act, 1982, section 35. It is more explicit. Was that discussed at all out of respect for the people with whom you consulted?
Mr. Virani: I will defer to my officials as to whether it ever came up during the consultations, but they serve different purposes. Section 35 talks about Aboriginal and treaty rights. When we talk about never derogating from those Aboriginal treaty rights in terms of the way we interpret federal laws, that’s what we’re driving at with this specific amendment which is meant to reduce the need for raising the issue on a statute-by-statute basis and the inconsistency in some clauses — some clauses in one statute not matching those in another, et cetera. We heard loud and clear from Indigenous stakeholders — it would have been at your committee 16 years ago — the continued call for doing exactly that.
The link with UNDRIP is interesting insofar as we have an UNDRIP action plan, which we tabled just this June. There are measures in that action plan that are the equivalent to a call to action on the TRC side. We call them shared priorities. Shared priority 2(a), if I remember correctly, specifically speaks to making this amendment to the Interpretation Act.
Is there a connection between the two documents? Absolutely. Is UNDRIP more substantive? I’ll politely push back and say they address different things. UNDRIP is about the go-forward and how we’re meant to treat relationships with Indigenous people, and section 35 is about issues that relate to Aboriginal rights and treaty rights that really look retrospectively back to treaties that were signed literally hundreds of years ago. They both have importance.
If there is anything I have learned in this role and as a parliamentarian in the last eight-odd years, it is that doing anything without the active buy-in, participation and consultation with Indigenous peoples when we’re affecting their interests is never a prudent measure, so it would have to be carefully consulted upon before we move in that area.
Perhaps Ms. Sargent can comment on the consultation.
Laurie Sargent, Assistant Deputy Minister, Indigenous Rights and Relations Portfolio, Department of Justice Canada: Thank you so much for the question.
Just to supplement the minister’s response, yes, it did come up from some rights holders, definitely, in different parts of the country. I know you’ll hear some witnesses speak to that. But overall, we really heard the focus on section 35 for now.
I’ll just note that our UNDRIP act — I say “our,” sorry, because I was very involved — does speak to the role of the UN declaration in interpreting all federal laws already. That’s a bit different from B.C.’s equivalent declaration statute; it doesn’t have that interpretive provision. So we already have it to some degree in the UNDRIP act itself.
As the minister said, we will look forward to what additional changes might be made to the Interpretation Act, but in many ways it’s already, to some degree, covered through the UNDRIP act itself.
Senator Jaffer: Ms. Sargent, you have sort of covered my next question. I’m from British Columbia, and British Columbia amended its provincial interpretation law to be interpreted as being consistent with UNDRIP as well as those protected under section 35 of the Constitution Act, 1982. Why doesn’t the federal government follow suit? Why doesn’t it accept both?
Mr. Virani: You heard from Ms. Sargent in terms of the different components and, to a certain degree, about the overlap. I would say what I mentioned to Senator LaBoucane-Benson, which is that the B.C. officials, before they enacted that provision, had engaged with extensive consultations with First Nations. I’ll also say politely, Senator Jaffer, that it’s sometimes easier when you are dealing with First Nations in one province as opposed to First Nations, Inuit and Métis around the country. That’s more of an extensive exercise, as it needs to be, when you are the national government in a federated country. That consultation is the key feature. That consultation has not happened in any sort of rigorous manner, and that’s why I would be very leery to wade down that path at this point.
Senator Jaffer: Thank you, minister.
[Translation]
Senator Dalphond: Welcome, Minister. I have a somewhat technical question. Bill S-13 will amend the United Nations Declaration on the Rights of Indigenous Peoples Act by deleting a provision in paragraph 2(1) that reads as follows:
This Act is to be construed as upholding the rights of Indigenous peoples recognized and affirmed by section 35 of the Constitution Act, 1982[...]
The text that’s going to replace it is a bit different. It reads as follows:
Every enactment is to be construed as upholding the Aboriginal and treaty rights of Indigenous peoples recognized and affirmed by section 35[...]
Why did the department slightly change the terminology in the United Nations Declaration on the Rights of Indigenous Peoples Act, which was adopted not very long ago?
My question is very technical, so it may not be appropriate for you, Minister.
I think someone should have thought to add those words with dashes.
Mr. Virani: I’ll give that one to Ms. Sargent.
Ms. Sargent: Thank you for the question. I believe that was the result of a more general reflection on how the Interpretation Act is written. Our drafters, who are experts at what they do, decided that, since we had the opportunity to look at the text, we could improve it a little bit more without changing anything about the meaning of the terms or the wording. That’s why there’s a slight difference, but it has no legal effect, in our opinion.
Senator Dalphond: My second question is for the minister.
[English]
Again, it is about the interrelationship between the Interpretation Act and UNDRIP. The action plan of the department that was published only in June, a few months ago, says:
2. Identify and prioritize existing federal statutes for review and possible amendment, including: …
- An interpretive provision in the Interpretation Act or other laws that provides for the use of the UN Declaration in the interpretation of federal enactments …
I understand it was always part of the action plan, but we’re not there yet because consultation has not been completed or is under way.
Mr. Virani: What is critical about the UN action plan — there are a number of provisions entrenched in it. There are 181 measures. One of the provisions is what I mentioned, I think, to Senator Jaffer, which is 2(a), which talks about doing a surgical amendment to the Interpretation Act to reflect this. Is there more work to be done? Absolutely there is more work to be done, but it requires extensive consultation.
The meeting that I referenced with the AFN this morning was about how we actually give meaning to the action plan and discussions about how those consultations will unfold, including resourcing the AFN to participate in those consultations. That is a ask we understand completely. There is a lot of work to be done, but there is also a five-year trajectory in terms of the prospective termination of those action plan measures, touching 25 different departments, I think.
The short answer is that there is a lot more work to be done. It is taking and will take time. What is important from the step-back reflection of this committee is that this is an important first step. It’s a step that’s been called for for many years. It’s one I feel strongly about us pursuing, if only to provide a bit more coherence and consistency in the law and to no longer burden Indigenous communities one by one to raise their hands and ask, “What about this health bill, this industry bill or this labour bill? Where is your non‑derogation clause?” This obviates the need to do that and allows us to be a bit more consistent in our approach.
Senator Pate: To follow up with my colleagues, I have been getting a lot of messages from Indigenous groups around the lack of inclusion of the UN declaration as well as the elimination of the non‑derogation clauses in a number of pieces of legislation. Could you please provide to the committee, if not today, then in written follow-up, the details about the consultations? Who was consulted? What was their input? Then we could actually see, regionally and by First Nations, Métis, Inuit groups, as well as gender representation, what the views were of the various groups. That would be extremely useful, particularly given the information many of us have been receiving in our offices.
Mr. Virani: I’ll give preliminary information now, Senator Pate, but we will undertake to provide some of the details you have asked for.
We did some preliminary discussions as an initial step with some of the partners who have been involved with the very committee that Senator Jaffer was on.
Then in December 2020, we sent a letter to about 60 different Indigenous rights holders and representative organizations inviting them to provide written submissions. We held meetings as a follow-up to that letter in 2021, and we received further written submissions at those meetings.
In December 2021, with the coming into force of the UN Declaration Act, we launched a next phase of the NDC consultation. A letter was sent to the same partners, and we received further feedback.
The last phase of the consult was in 2023, when we put together a draft legislative proposal and put that up on the website. I believe I mentioned that earlier in my comments. At the closing of the consultation period, the draft legislative proposal was removed from the website so that a formal bill could be prepared. That is effectively the bill that you see before you.
In terms of what was heard, I think we can undertake to provide you with as much detail as possible about how broad the consultation was and what inputs we received.
You recollect me saying that we’re removing and repealing non‑derogation clauses in about 26 statutes — Jean-François is nodding, so I must have got that number right — but there are three that remain. For the three that remain, that was based purely on input from those affected Indigenous communities, and they felt it very important to retain it as it relates to recent statutes that relate to their own self-governance that they had been involved in, and they wanted it maintained. Out of respect for that, we adhered to their wishes.
My official just advised me that in the What we learned report that Senator LaBoucane-Benson mentioned, Annex A actually lists the various partners that we heard from. That gives you a bit more guidance about who was there and who was not, as the case may be. That’s Annex A of the What we learned report.
Senator Pate: If we could still get more detail, that would be fabulous.
Mr. Virani: We will endeavour to do that.
Senator Pate: In the Taking section 35 rights seriously: non‑derogation clauses relating to Aboriginal and treaty rights the 2007 report that my colleague was involved with, some of the recommendations include, of course, the consultations, but a key feature that was recommended was that the Indigenous peoples not constantly be required to resort to the courts following a claimed rights violation that had been prevented through appropriate consultation and that the courts should be the body of last resort — I think most of us would agree with that — not the first. What steps is your government taking to ensure that the recommendations are enacted and that the courts aren’t ending up still being the body of first resort as a result of this legislation?
Mr. Virani: With your permission, I’ll zoom out a bit on that. It’s critical, and I’ll confess that I found it troubling when I had a meeting with an Indigenous leader in the last four weeks or so who said sometimes the only way we can get a meeting is if we threaten or commence litigation. That’s not going to happen under my watch, and I hope it doesn’t happen under any of my cabinet colleagues’ watch either.
I would also zoom out and say that the directive on litigation that was enacted by my predecessor two prior to me — that’s Jody Wilson-Raybould — I think really talks about how we address litigation and how we address the prospects of settlement. Just one or two days ago, we had a very historic settlement in the Indigenous child welfare litigation that was ratified by the Federal Court. That’s an important step in the right direction.
It’s unfortunately going to be a bit of a case-by-case model, but what I take some comfort with is that in this context, when you amend the Interpretation Act by saying you can’t derogate from section 35, you are giving a cue to judges, obviously, and hopefully the cue is received. I think it’s meant to be received by people much before the judicial process, much before a litigation situation. It’s meant to be a provision that helps us interpret as elected officials and also departmental officials. In that vein, the aspirational goal is to ensure that we all understand Aboriginal rights and treaty rights are important and should inform all of the actions we are taking vis-à-vis Indigenous communities around the country, hopefully preempting the need to get to that litigation. It’s a very long answer to a very important question.
The Chair: No, it actually was too long an answer, minister, but an excellent one, nevertheless.
[Translation]
Senator Dupuis: Welcome, Minister. I would like to revisit the choice of terms, because Ms. Sargent said, “They changed the terms, but it means the same thing.”
Generally speaking, in the law, lawmakers do not speak in vain. If they change the terms, that’s because there’s a reason for doing so. I’m trying to understand. If the term “Indigenous peoples”, which is introduced in subclause 8.3(1) of Bill S-13, if that’s really what is meant when it says in subclause 8.3(2) that it “has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982”?
In other words, from 1982 to now, the terms were “Aboriginal peoples, Aboriginal rights and treaty rights”. Now a new category is being introduced, and the term is “Indigenous peoples”. My understanding is that you consulted groups. Do I understand correctly that the reason you decided to use these terms is that a majority of the groups prefer the term “Indigenous peoples”? If so, what about those who don’t agree with this term? In principle, a general interpretation act that repeals a number of other acts seeks to capture, as broadly as possible, what those acts mean. That’s my first question, Minister.
Mr. Virani: I will try to answer in French and add some things in English.
Over the past 40 years, with the system of rights and the will to advance and promote reconciliation, there has been a change in vocabulary. Now, Autochtones is typically used in French, and Indigenous peoples is always used in English.
[English]
It was effectively out of a sense of reflecting both where we are as a nation in terms of the vocabulary that we use, being consistent with that, but also being consistent with the text of the document itself. We felt it necessary to talk about both — Aboriginal rights and treaty rights as it’s contemplated in section 35 of the Constitution, but also the term which has become very much the term that is accepted and promoted by Indigenous peoples is “Indigenous peoples.” If we excluded one to the detriment of the other, there is a danger of being under-inclusive and rendering potential problems on interpretation. That is the absolute thing that we want to avoid. This is the most elegant solution that we could devise to ensure clarity between the people that Senator Pate was mentioning, the jurists, the elected officials, the department officials, etc.
I’m not sure if the officials want to add anything to that.
[Translation]
Senator Dupuis: I had another question. I’m trying to understand. Does the English version of the Aboriginal and treaty rights of Indigenous peoples refer exclusively to the rights that are recognized in section 35? If my understanding of subsection 8.3(2) is correct, it does.
Why are you saying that section 35 is only for the past?
Basically, sections 35 and 37 of the Constitution Act also mention documents for the future.
In other words, it is not just the old treaties that are in section 35. Treaty rights are also the treaty rights of contemporary claims, land claims agreements. The provision appears to be saying that the new method is to use the term Indigenous peoples. That’s a matter of convenience. These words appeal to us more, and Aboriginal and treaty rights of Indigenous peoples would apply only to the past. Is that really what you are saying?
Mr. Virani: I would like to clarify. With respect to section 35, we are talking about Indigenous rights. Sometimes I am looking for the perfect words in French. For treaty rights and the rights of Indigenous peoples, what a test for treaty rights should be considered. For treaty rights, this is more straight forward. This relates to the treaties — that is, what is contained in the treaties as such.
[English]
The way the Aboriginal rights are discerned is from a legal test developed by Supreme Court jurisprudence that has very much a retrospective application. That’s the first point. When we talk about an Aboriginal right, it’s a custom, tradition or integral practice distinctive to the culture of an Indigenous group in relation to lands, resources, harvesting, hunting, fishing, cultures, languages, et cetera. That’s the legal test. However, when you look at the legal test and establish an Aboriginal right, undoubtedly — and I’m sorry if I wasn’t clear earlier — that has a prospective application. I say that because we can talk about the fishing rights of people on the East Coast — in Mi’kma’ki, for example — and some of the unfortunate tensions we’ve seen over the last two or three years vis-à-vis that in and of itself. So we look retrospectively to discern what an Aboriginal right is, but we then apply it on the prospective going forward.
Senator Cardozo: Welcome, minister. It’s good to have you here.
For my question, I want to go back up to that height you were talking about earlier and talk about why we need this bill. If section 35 is in the Constitution, do we still need — you talked a bit about this and I wonder if you can say anything more — to have these non‑derogation clauses, and do we need to have this act? Isn’t it clear? Is there a possibility that, by being as specific as we are in this bill, we could unwittingly diminish or limit Indigenous rights?
Mr. Virani: With respect to the latter part of your question, I think definitely not. The more attention we’re paying to it as legislators in either chamber, the more that demonstrates that we are underscoring the importance — symbolic and substantive — in terms of asserting, protecting and advancing Indigenous rights and Aboriginal and treaty rights.
Is it necessary to address this despite the fact that it’s already in section 35 of the Constitution? It’s an interesting legal question, but I’d say to you that given the litigation I’ve seen in my 25-year legal career and the amount of Indigenous litigation we’ve seen around the country for many decades prior to that, we are far from a situation where all governments in this country are doing everything they need to do to not derogate from those very sensitive and important rights that Senator Dupuis and I were just discussing. Every effort we can take to ensure that every federal statute is interpreted in a manner that fulfills the promise of Aboriginal and treaty rights, every step we can take to ensure that fulfillment occurs, is the better one.
I will give you a case in point. Senator Pate talked to me about litigation, and there has actually been litigation. There is the case of the Gitxaala band. In that case, there was a B.C. Chief Gold Commissioner who made a decision to grant mineral claims without consultation with Indigenous peoples. In that case, it moved up the process. The eventual court came to the conclusion that the decision was improper because of the lack of consultation with Indigenous peoples in reliance on a very specific non‑derogation clause in that context in B.C.
So this actually has practical utility for cases that have been in the courts recently. On the go-forward, I think it can only help enhance those rights that are incumbent on all of us.
Senator Cardozo: So it’s kind of like an additional safeguard.
Can I ask, since this is an interpretation act, how it affects the lives of people on a regular basis? I might try and steer you into the issue of online harms and whether this kind of issue would affect that. If you can say anything about what your plans are on that bill, I’d be appreciative.
Mr. Virani: You’re betraying our common interest, Senator Cardozo, in terms of combatting discrimination.
What it means for legislation that is on the books and legislation that is on the go-forward is that when we’re enacting, drafting and thinking about the considerations that inform that legislation, what we are meant to do is ensure that we are never derogating from Aboriginal and treaty rights. I think the broader piece with respect to online harms is about just advancing reconciliation generally and combatting discrimination against Indigenous people. That’s something I’m very committed to doing, but I can’t breach parliamentary privilege in terms of discussing with you a bill that hasn’t been tabled yet. It’s important to understand that it’s all moving in the same direction, which is rights fulfillment, rights protection and rights advocacy, which, I think, is critical.
The important piece is that section 35 talks about treaty right and Aboriginal rights, such as hunting and fishing — as discussed with Senator Dupuis — and that’s what we want to ensure is not derogated from. Currently, we’re on the go-forward with respect to federal legislation.
Senator Cardozo: Thank you.
Senator D. Patterson: Welcome, minister.
The legislation is welcome. I thank you for acknowledging the work of this committee in 2007 in studying and recommending on this legislation, which has been long awaited. I think it’s great that Senator Jaffer is here with us. I also want to just mention in passing the dogged pursuit of this issue by former senator Charlie Watt, who didn’t have the support of the government of the day, despite his efforts.
Following on Senator Pate’s comments about consultation — she asked the question I was going to ask about giving us more detail — the committee in 2007 recommended that your department develop a process to include consultation with broadly representative Aboriginal groups for reviewing federal laws — every bill and draft regulation — for their potential interaction with section 35 Aboriginal and treaty rights. Even Recommendation 4 recommended the establishment of what the committee called an Aboriginal Affairs portfolio within the Department of Justice with responsibility for maintaining that ongoing dialogue. Your department was the lead on the UNDRIP bill. Do you have that capacity within the department — you may not call it a portfolio — to follow up on what the committee recommended, including consulting with Aboriginal groups and reviewing every federal law and every draft regulation for its potential interaction with section 35 Aboriginal and treaty rights?
Mr. Virani: The short answer is that we’re working on that capacity. The specific reference going back to the 2007 report — thank you for informing me about the role that Charlie Watt played; that’s important to underscore — is that we looked specifically in terms of the list of people who had been engaged by the committee in 2007, and we started from there in terms of the stakeholders that we engaged with. However, we didn’t stop there. That’s an important point. We built on it, and we were trying to ascertain if they still had the same views and if there was anything we can do slightly differently in terms of perfecting this notion. But the broad piece about ensuring that all statutes and regulations of the federal government are meeting and fulfilling this idea about what section 35 is meant to do, it’s a work in progress. I’ll be candid with you. That’s a pretty large task, but it’s a task that we are seized with and we’re dedicating the resources to do just that, and it’s taking time, as it should.
Senator D. Patterson: Okay. Well, that’s promising.
The previous versions of non‑derogation clauses have gone along the lines of — and, of course, there’s a mix and some would say a mess of slightly different wordings that this bill is cleaning up quite nicely, almost exhaustively. But the previous wording has generally been, “Nothing is to be construed as abrogating or derogating from Aboriginal and treaty rights.” Now we have the new wording here: “Every enactment is to be construed as upholding the Aboriginal and treaty rights …”
Could you comment on why this different wording is recommended by the department? Where did that come from? I know you consulted widely, but I’m just curious. That seems to be a different approach. Maybe it’s stronger wording. Could you elaborate on why that approach was taken?
Mr. Virani: That would be my speculation in terms of elegance of drafting. It’s a bit more simplistic and stronger wording. I’ll defer to Ms. Sargent in terms of this specific choice.
Ms. Sargent: Senator Patterson, if the question is about upholding the use of the positive framing, that is very much a reflection of the Senate’s own recommendation; it was to bring forward a positive statement and then also keep the notion of not abrogating or derogating.
Senator D. Patterson: So “nothing is to be construed” is more of a negative approach rather than “every enactment is to be construed as upholding.” Okay, that’s helpful. Thank you.
Senator Simons: The prerogative of being one of the last to ask a question is that so many other good questions have been asked ahead of me.
I want to drill down into the three exceptions that you enumerated. What is it about those three particular instances that it was decided to maintain the original non‑derogation clause? What makes them so particular?
Mr. Virani: Thank you, Senator Simons, for the question.
What came across during the consultations is that, in the context of legislation, particularly legislation that was enacted recently and that related to self-governance agreements that different First Nations, Inuit and Métis groups had engaged upon, in the context of those particular individuals and entities, they had asked for a retention of their particular non‑derogation clause. I’m going to presume a little bit here — and Ms. Sargent can correct me if I’m incorrect — but they felt because they had worked so extensively on the drafting of the legislation itself, they wanted to maintain that as a way of preserving their rights. Out of respect for them, we deferred to that wish.
Senator Simons: Okay.
Is there any potential that it could create a precedent down the road where somebody else might want to hang onto their non‑derogation clause, or if there’s a new thing going forward, that they’ll insist on having their own?
Mr. Virani: It’s difficult to say. You should never say “never,” but I guess that’s a possibility. It’s one that we would hope to avoid, if I’m being candid with you, Senator Simons, and you deserve candour.
What we’ve heard from the consultations and everything I’ve learned from this file is the vast majority of Indigenous groups have said that it’s cumbersome and fatiguing, even, to have to constantly be put in a role where they have to advocate for a non‑derogation clause to be inserted into different statutes and pieces of legislation. The difference, qualitatively, might be legislation that relates to a particular land claim of an Indigenous group versus an amendment to general free-standing federal legislation about — pick your legislation — the online harms legislation that I’m working on, the Immigration Act, health legislation, et cetera. They are different, qualitatively. When the advancement of the legislation itself was done by Indigenous peoples, they were looking out in respect of advocating for their own self-governance, and they negotiated a particular clause. In three instances, they said they wanted to keep that clause intact.
Senator Simons: An umbrella clause does provide more clarity and efficiency.
I have another follow-up. A number of other senators have referenced the 2007 report. One of the recommendations touched upon in that report is the idea of giving First Nations, Métis and Inuit legal traditions, including customary and oral law, greater respect in Canada’s legal system, somehow. Can you talk a little bit about what your department has done and is doing around that recommendation?
Mr. Virani: I will talk generally about what we’re doing with respect to that. There are so many different fronts on which we’re working, but if you’re talking about oral histories and oral law in Indigenous legal traditions, we are trying to empower self-government.
There are four fronts that we’re working on: the TRC Calls to Action; MMIWG calls to justice; the shared priorities, of which there are 181; and I’m waiting attentively on recommendations on the unmarked graves and the special interlocutor’s report. All of those in total are about giving more meaning and more fulfillment to and empowering Indigenous communities to be delivering on self-governance themselves with respect to their own laws and traditions, including their oral laws. In terms of how we give meaning to that, the best guide would be the UNDRIP legislation itself, because it’s meant to guide us in that journey. The best I can give you is that broad analysis in terms of what we’re trying to do to empower it.
As to how it relates on the ground in terms of what I’m doing — and I’m sorry if I’m going on too long here — is empowering restorative justice and community justice centres, and doing that in collaboration with some provinces. I was pleased to learn that Ontario has launched some community justice centres, including one in Kenora. They rethink how we deliver justice for Indigenous people in Indigenous communities. Those are steps in the right direction that empower some of those Indigenous legal traditions you’re talking about.
[Translation]
Senator Audette: Thank you for giving me a few minutes. First of all, Minister, thank you for being here.
I see a lot of legal experts around me, including passionate lawyers. I participated in the National Inquiry into Missing and Murdered Indigenous Women and Girls, MMIWG, before coming to the Senate. We are asking governments to eventually recognize us as another level of government; this was recommended by the Royal Commission on Aboriginal Peoples.
Can you reassure us, Minister? I remember that nations were really hopeful. With Bill S-13, we will continue to engage with Indigenous leaders and Indigenous women for the exercise on the United Nations Declaration Act to eventually add them. Can you reassure us? We are suffering injustices and this bill will somewhat help resolve things that should have been resolved already. I am not a lawyer, but this is a step-by-step process. We would like to be a government already, but that’s not the case.
Can you reassure us and tell us that we are going to come together as part of the UN declaration to push even further what the report of the National Inquiry into Missing and Murdered Indigenous Women and Girls stated by speaking about truth, reconciliation and so on?
Mr. Virani: Senator, I think so. I think there are steps we are taking as a government to create a new future for the Government of Canada and the provincial governments with Indigenous peoples. As I just mentioned to Senator Simons, certainly the National Inquiry into MMIWG is part of our great project to deliver justice in this context and to achieve true reconciliation.
Are we completely dedicated to the fact that we need to hold consultations in good faith, in a very strong and thorough way with Indigenous communities, especially Indigenous women? Absolutely.
Senator Audette: Thank you.
[English]
Senator Prosper: Thank you, minister. I certainly benefitted from the questions by my colleagues and the answers provided by you, your learned guests and people helping out.
I just want to underscore the need to have this type of legislation, because it’s essentially an access to justice issue. Litigation should be the last resort, but at times, First Nation people are often faced with going to court to prove rights. It’s very costly, and not many can afford it. You spoke about your predecessor talking about directives for litigation, which is an important element here. Another element that doesn’t fall within the purview of this but which I feel inclined to mention is that when you have a right that has been recognized and affirmed, it often happens through the courts, and then it’s up to government to implement and respect that right. When you don’t have the political will to actually have a mandate — because Aboriginal and treaty rights are often negotiated through government mandates — but when you don’t have a mandate to negotiate a right, what alternatives are there for First Nations people when you already have a right that is proven within the highest court as a constitutional right? Often, First Nations find themselves in that particular situation. I just wanted to share that with you and with the group. Thank you very much.
Mr. Virani: Thank you, Senator Prosper. I appreciate where that question and observation are coming from. It’s important.
I’ll fall back on the idea that it was important to entrench section 35 in the Constitution itself in 1982, but it’s important to really give it as much meaning as possible. It goes back to what Senator Cardozo was saying: Is this symbolic? Isn’t it already there? If it were enough to just have it there, we wouldn’t need to be amending the Interpretation Act to ensure the derogation doesn’t occur on the go-forward. That’s an important point.
The lawyer in me, which is important particularly in this role I now have, also recognizes that there is also Supreme Court jurisprudence regarding once a right has been established, if a government needs to infringe it for a limited duration, as the case might be, there’s a test for doing that, but you have to meet certain parameters of that test, such as the Sparrow decision I mentioned at the outset.
What you’re seeing from our government and what I’m starting to see from different provincial governments — I hope to see great strides in Manitoba, for example, under their new premier. Wab Kinew — is that governments are really trying to give meaning to treaties and Aboriginal rights, including some of the ones I mentioned. That’s a good step in the right direction. Is there going to be conflict going forward? Absolutely. But if you couple this initiative with the fact you’re seeing provinces pick up on the UNDRIP component, with B.C. leading first — the Yukon and the N.W.T. are thinking about these kinds of issues — that’s a step in the right direction. It’s something that even came up this morning with the AFN. There is cause for optimism. Is it going to be smooth sailing? Absolutely not, but there is cause for optimism.
The Chair: Mr. Virani, we are asking you to indulge us. All senators but two have posed questions. I hope you can hang with us for another five or eight minutes.
Mr. Virani: I’m getting a sign of five from my team.
Senator Clement: Thank you for being here.
How is your government going to track how effective this legislation is? How is your government going to communicate around the action plan? Canadians are understanding that they have individual responsibilities and collective responsibilities. I’d like to know more about how your government is going to talk about this and track success or the lack thereof.
Mr. Virani: The success will be contingent upon how confrontational, litigious and fractious the relationship is with Indigenous communities going forward. I’ll be honest and say that most Canadians, including the Canadians I represent, gravitate toward some of the more basic service-delivery components, such as how we are funding Indigenous children and what we are doing with boil-water advisories, et cetera. I haven’t had too many discussions about the Interpretation Act with my constituents —
Senator Clement: No, but it’s a piece of an action plan.
Mr. Virani: It is, exactly. Also, what’s incumbent upon us as the government is to distill some of the commonalities that relate to MMIWG, TRC Calls to Action, what might be forthcoming from the special interlocutor on unmarked graves and this UN action plan, and piece them together and find concrete things to hang on. Then we need to communicate where success has happened and also where success needs to occur on the go-forward. This is a critically important piece of legislation, but it’s very macro. It doesn’t have a lot of retail digestibility, if I can articulate it that way.
The Chair: I have two questions, minister.
First, on behalf of the committee, the Senate is considering a report on legislation that includes an observation regarding the need for GBA Plus analyses in timely ways, including at the beginning of our consideration of bills. This is a bit of an unusual bill. As you say, you don’t discuss this much with your constituents. To the extent there is such an analysis, we’d very much like to receive that in a timely way.
Second, and this question builds upon a few others’ questions, including Senator Patterson’s, in 1982, we held off implementing the equality provision of the Charter so there can be an audit done by governments of all of the provisions that violate the Charter. I’d be interested in knowing whether you are contemplating, in an almost equally important piece of legislation, a similar exercise, and whether you have a unit that is going to be screening for potential legislative or regulatory violations of the Interpretation Act on this provision, as you do for Charter analyses.
Mr. Virani: Thank you for the question, chair.
We already do an analysis at the DOJ with respect to section 35 as a precept. I have not been told of any notions of having a phase-in period, like a cooling off. That cooling-off period for section 15 was enacted only three years after the main body of the Charter. I tip my hat to you, sir. I have not been told or advised of the need to do a similar interim or phase-in period pending the Royal Assent on this legislation. We’re confident of the place we’re in right now with our legislation. On the go‑forward, we’re extremely confident.
I don’t know if Laurie wants to add anything to that.
Ms. Sargent: I’ll take the opportunity to say that my portfolio exists in part because of the work of this committee. Mine is now called the Indigenous Rights and Relations Portfolio, but it is our role to do the review for section 35 constitutionality of all legislation and regulations. Could we do more and better? Of course, but it is our role.
The Chair: It seems to me it would not be a bad idea to contemplate an Indigenous rights piece like you do with respect to the Charter pieces you provide us.
We aren’t going to have time for a second round. We’ve asked the minister to extend his time with us beyond the normal time.
I want to extend thanks to you, minister and your colleagues. Perhaps this bill, which, in my mind, is being informally named the “Mobina Jaffer bill,” will be continued to be studied in the coming weeks. We very much thank you for leading us off.
For our second panel, we welcome, from the Indigenous Bar Association, Naiomi Metallic, Board Member, joining us by video conference; and as an individual, from Melbourne, Australia, Lorne Neudorf, Deputy Dean and Professor of Law, La Trobe Law School, La Trobe University, also by video conference. I think it’s about 8:30 tomorrow morning, Dean Neudorf. What’s it like tomorrow?
Lorne Neudorf, Deputy Dean and Professor of Law, La Trobe Law School, La Trobe University, as an individual: That’s exactly right. It’s rainy and cool, so there you go.
The Chair: Welcome to you both.
Mr. Neudorf: Thank you.
The Chair: We will begin with remarks from Ms. Metallic, to be followed by Professor Neudorf, approximately five minutes each, and that will be followed by questions from senators who are in the room today.
Naiomi Metallic, Board Member, Indigenous Bar Association: Thank you, wela’lin. I’m a Mi’kmaw lawyer and law professor who specializes in constitutional and Aboriginal law. I appear today on behalf of the Indigenous Bar Association, whose mandate includes promoting the advancement of legal and social justice for Indigenous peoples in Canada.
Further to parliament’s commitment to implement the United Nations Declaration on the Rights of Indigenous Peoples, the IBA respectfully submits certain revisions must be made to Bill S-13 in keeping with this objective. The IBA’s proposed revisions are nuanced but crucial.
It is important to remember that under section 35 case law, a law or regulation that derogates or infringes on an Aboriginal or treaty right will be held to be unconstitutional if such an infringement cannot be justified by government. Thus, laws and regulations must be read to uphold and respect Aboriginal and treaty rights or risk being held unlawful. The purpose of proposed section 8.3(1) of the Interpretation Act is to remind those who apply and interpret Canadian laws that Aboriginal and treaty rights are a central part of our constitution. It is not creating new law.
Systemic discrimination and the denial and downplaying of Indigenous peoples’ inherent rights continues today and is encouraged by ambiguities and omissions in Canada’s legislation concerning Aboriginal and treaty rights. A general non‑derogation provision in the Interpretation Act is necessary to eliminate these ambiguities and omissions.
This same purpose, countering systemic discrimination and denial of Indigenous rights, forms the basis of the revisions we are proposing, a provision alongside the non‑derogation clause stating that federal enactments will be construed to be consistent with the UN declaration. This exact amendment is proposed as shared priority 2 in the government’s action plan on implementing the declaration, yet to our bewilderment, the legislative process in respect of Bill S-13 has completely overlooked this commitment.
This revision is consistent with section 4(a) of the UN Declaration Act which states that the declaration is “a universal international human rights instrument with application in Canadian law.” Ideally, this should be sufficient to inform those who interpret and apply Canadian law that our laws must be interpreted in conformity with the UN declaration.
Unfortunately, there is still a considerable amount of work needed to shift our collective thinking. Systemic denial and downplaying of Indigenous people’s fundamental rights internationally is what spurred the need for the UN declaration in the first place. Even following the UN General Assembly’s vote in favour of the instrument and Canada’s endorsement of it, many political and legal actors within Canada continue to dismiss the declaration as non-binding. This occurs despite the clear rule of legal interpretation that domestic law ought to be interpreted in conformity with international human rights norms.
A decision from the B.C. Supreme Court last month said that the B.C. equivalent to section 4(a) in the UN declaration act did not show sufficient government intention to implement the declaration. The significant flaws in the judge’s reasoning confirmed the IBA’s apprehension that considerable confusion over and resistance to the UN declaration runs deep. Again, we are back to the same theme of systemic denial of Indigenous rights. An interpretive clause in the B.C. Interpretation Act, which is closely replicated in our proposed revision, caused the judge in the above case to conclude he was required to interpret B.C. law in accordance with the UN declaration.
It is noteworthy that this is the same provision that Canada credits drawing inspiration from for Bill S-13. However, the B.C. law introduced both a non‑derogation clause and a declaration conformity clause simultaneously. It is true that Canada had yet to pass the UN Declaration Act when it initially started consulting on Bill S-13, but this is no reason not to include it now, especially when the government receives significant feedback from Indigenous communities on the need for this in consultations over its UN declaration action plan. Why put off until tomorrow what you can do today?
Canada’s objectives for Bill S-13 are incomplete without these revisions. The government says the bill is being introduced to ensure consistency with the UN declaration but fails to provide this in the actual document. In 2016, Canada’s Minister of Justice promised to implement the UN declaration to “breathe life” into section 35. Further, Canada’s 10 principles respecting the government’s relationship with Indigenous peoples states that section 35 contains a “full box of rights” to be guided by the declaration.
By stating clearly in the Interpretation Act that federal laws and regulations must be interpreted in conformity with both section 35 and the UN declaration, Canada can truly achieve what it has already promised. Citing the need for more consultation to delay such a revision would be unfortunate, in our view. This is a no-brainer. All those Indigenous communities and organizations who supported passing the UN declaration would clearly support this change because it only makes more clear and more effective what that law purports to do: affirm the declaration’s application to the interpretation of domestic law. The UN declaration should be sufficient on its own to achieve this, just as section 35 of the Constitution Act should be sufficient to ensure respect of Aboriginal and treaty rights. However, the pervasiveness of systemic denial of Indigenous peoples’ rights requires more. Please do more.
Thank you.
The Chair: Thank you, Ms. Metallic.
We’ll now invite Professor Neudorf to present for approximately five minutes.
Mr. Neudorf: Good evening and good morning from Melbourne. I’m the Deputy Dean and a Professor of Law at La Trobe University in Melbourne, Australia, and I also serve as legal advisor to the Australian Senate Standing Committee for the Scrutiny of Delegated Legislation. Thank you for providing me with an opportunity to speak with you today about Bill S-13.
If enacted, Bill S-13 will amend the Interpretation Act to insert a new section 8.3, which would provide that every federal act and regulation 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 to abrogate or derogate from them. In my view, the brevity of this provision in Bill S-13 belies its significance.
In my academic writing, I have called for the greater use of the Interpretation Act as a powerful tool that has the ability to cross-cut the entire statute book. Rules contained in the Interpretation Act apply to all federal acts and regulations whenever those laws were made. The importance of the Interpretation Act is evident for at least two reasons: First, it was the very first act of the new Canadian Parliament in 1867. Second, it is frequently cited by all levels of court across Canada. If court citations were retweets or “likes” on social media, the Interpretation Act would certainly have one of the biggest followings.
What is the legal and practical effect of Bill S-13? My opening statement sets out my views on how this bill might affect the interpretation and operation of federal legislation and government action.
As a starting point, it is important to reiterate that the non‑derogation provision introduced by Bill S-13 would not be legislated into a legal or constitutional vacuum. It would instead be intermeshed within the existing jurisprudence and overarching framework of Aboriginal rights recognized and affirmed by section 35 of the Constitution Act, which courts have found to include rights such as the rights to land, hunting, fishing and other practices, customs and traditions integral to the distinctive culture of an Aboriginal community.
Because section 35 rights are already constitutionally protected, one might wonder whether there is any purpose to the amendment introduced by Bill S-13. If the government already has an obligation to uphold these rights, why is it necessary to enact a non‑derogation provision that applies across the entire statute book?
Part of the answer is that the rights recognized and affirmed by section 35 are not absolute. The Supreme Court of Canada has held that these rights may be limited by legislation with a compelling objective and that minimally impairs rights. When it comes to government action, the same court has held that executive decisions limiting section 35 rights must be made in an appropriately consultative manner that upholds the honour of the Crown.
In my view, the non‑derogation provision introduced by Bill S-13 will have a real legal effect. Without this provision, the operation of ordinary legislation could, even implicitly, limit section 35 rights. The non‑derogation provision makes clear that legislation is not to be interpreted in a way that cuts down section 35 rights. For example, in a case where there are two equally plausible interpretations, with one having a limiting effect on a protected right, the non‑derogation provision is likely to tip the scales toward a rights-affirming outcome.
It also has the potential to apply to the executive branch, which receives its legal powers principally through legislative delegations. Such delegation provisions with the non‑derogation provision read into them would seemingly restrict the authority of the government to take action that would impair section 35 rights. It might also impose limits on the making of regulations, which are similarly made under the authority of an enabling act.
This view of the impact of Bill S-13 is strengthened by the case law. In a 2002 decision of the Supreme Court of Canada in Kitkatla Band v. British Columbia, for instance, the court considered a provincial statute with a similar non‑derogation provision. The unanimous court held that the provision was a key interpretive principle in the interpretation and implementation of that act and that it was designed to protect Aboriginal and treaty rights of First Nations. It meant that the act could not authorize the minister to order the destruction of Aboriginal heritage objects or sites subject to an established Aboriginal or treaty right.
In other cases, non‑derogation clauses have been seen as a guarantee that the government will not impair recognized rights. This argument has been adopted by the federal government before the federal court, and that court has held that non‑derogation clauses have a real effect and cannot be seen as useless.
While the non‑derogation provision introduced by Bill S-13 does not, in my view, impose a positive duty on the government to take new action, it telegraphs that section 35 rights are to be taken seriously. I read the provision as upholding or protecting the full strength of section 35 rights, not a version of those rights watered down by limitations. This is the best interpretation of Bill S-13, which aligns with the interpretive principle that Parliament does not legislate in vain and that every statutory provision must be given meaning.
Limitations should themselves be seen as derogations because they diminish the scope and protection of the underlying right. In my view, therefore, the non‑derogation provision introduced by Bill S-13 means that any limitation to section 35 rights must be made clear in federal law through either express language or by necessary implication where there is no sensible interpretation available to uphold rights. Limitations are still possible because the rules contained in the Interpretation Act operate as a series of default rules by virtue of subsection 3(1), which applies them unless there is a contrary intention expressed in federal law. This means that a departure from the full protection of section 35 rights must be planned and deliberate, which promotes greater accountability by making such choices clear for all to see. Using the words of a witness quoted in this committee’s 2007 report, Bill S-13 will prevent a casual, unintentional infringement of section 35 rights.
In conclusion, because it relates to constitutionally recognized rights, the non‑derogation provision introduced by Bill S-13 is a special kind of provision that is qualitatively different from other rules contained in the Interpretation Act. While it does not and could not alter the Constitution, it confirms the Canadian Parliament’s approach to lawmaking that seeks to avoid removing or limiting Aboriginal and treaty rights within the framework of section 35. In a sense, it is a kind of quasi-constitutional provision that will become part of the jurisprudential landscape that continues to evolve in Canadian courts.
Thank you very much, chair, and I look forward to your questions.
The Chair: Thank you, Professor Neudorf.
We will begin the round of questions.
Senator Dalphond: Thank you to the witnesses. You live through these types of questions and spent a lot of time looking at this and studying that, and this is very valuable for us. Thank you very much.
My question is for Ms. Metallic. You said that we should take the opportunity today to add another amendment to the Interpretation Act to deal with the UNDRIP. I don’t know if you were listening to the previous panel, but the minister said that they could not do it because the consultations were not conducted and that the consultations were limited to section 35 of the Constitution Act. What do you say to that?
[Translation]
Ms. Metallic: Thank you. I can speak French, but my English is better.
[English]
I was listening to his comments, and as I said at the end of my submissions, everything should be reasonable. Consultations should be reasonable. We shouldn’t use consultation as an excuse not to do something that obviously should be done. This recommendation for the non‑derogation clause comes from a Senate report from 2007. My math is terrible, and I became a lawyer not to do math, but that is many, many years, over a decade, 16 years. Is that how long it’s going to take to do this?
There is a clear need for this based on the call in the UN declaration plan. I also participated in the comments to this bill, and I, among others, did say you should add a clause with respect to consistency with the UN declaration as you are doing this, like B.C. has on their last round. I wasn’t the only one, because I told many other people to go do it and I know that they did as well. I don’t know why the government has not done this.
As I say, I don’t understand why consultation should be a hurdle here. It’s obvious that if groups supported the UN Declaration Act and section 4(a) in particular, this proposed provision is only strengthening section 4(a) in the Interpretation Act. It would be obvious that this would be desired, and we shouldn’t use consultation as an excuse to do the right thing when it’s clearly supported by Indigenous peoples.
Senator Dalphond: Thank you. So that I understand, if we have other witnesses, especially from Indigenous groups, that say, “We need to be consulted, it was not done yet, and we would ask you not to do it,” we should respect that? The process of consultation is also part of reconciliation.
Ms. Metallic: It certainly is. But there has been consultation on this. Clearly, in their report on the last round of consultations, after the UN Declaration Act took effect, people raised it. Before that, people wouldn’t have thought to raise it. They couldn’t be consulted on what wasn’t a possibility at that time. But afterwards, people started raising it. People raised it in the actions around the plan. You have to look at a reasonable overview of all of this in order to determine what’s the right approach.
Senator Dalphond: Thank you.
Senator Jaffer: Thank you both for being here.
I have a question for you, Ms. Metallic. From what I have heard, what you are going to say is obvious, but I want your reason again on the record. Do you agree with the Native Women’s Association of Canada’s position to include a direct reference to UNDRIP? If so, why?
Ms. Metallic: I absolutely agree with that recommendation because section 35 and the UN declaration go together. I disagree a bit with the minister’s view on this. Section 35 takes life from the UN declaration, and it’s really important, for us to move forward on reconciliation, to see them as operating together, and so the amendments to this act should go together. The TRC told us that section 35 as is wasn’t cutting it and that the framework for reconciliation ought to be the UN declaration. We recognized this. Parliament recognized this, and it should take that extra final step that will provide the greatest amount of clarity to ensure that lawmakers and judges will turn to the UN declaration when interpreting Canadian law. Thank you.
Senator Jaffer: Thank you. You were listening to what the minister was saying. I mentioned to him that B.C. has included it in their act. What did you think of his explanation, saying there were some errors?
Ms. Metallic: What I heard him say was that the B.C. act is written differently than the UN Declaration Act and that’s why they needed it. They are essentially the same. I have the provision on my other screen here. I wanted to double-check because I thought I might be asked this. The B.C. act has a purpose clause that says the purpose of this act, among others, is, “… to affirm the application of the Declaration to the laws of British Columbia …” That is this clause that says, essentially, that we should be reading UNDRIP in conformity with provincial laws. Then it’s a very similar clause — it’s also a purpose clause — in section 4 of the federal act that is, essentially, almost written identically. It also refers to the UN declaration being an international human rights instrument with application in Canadian law. They are virtually the same.
The way the B.C. courts interpreted the B.C. act and this provision, they said it’s a purpose clause. It’s not clear whether the provincial government actually intended this to be read as changing Canadian law. I dispute the reasoning of the judge, but, nonetheless, it shows us that if they are going to find a way to skirt around interpreting law under UNDRIP, they will, and so it needs to be very clear, in an Interpretation Act, that that’s exactly what you are going to do so that the judge could not skirt the provision in the Interpretation Act in B.C. That’s why we feel very strongly that there should be a similar provision in the Canadian Interpretation Act.
Senator Jaffer: Okay. If you say that, then how would including a direct reference to UNDRIP affect federal law?
Ms. Metallic: It would apply similarly in the same way that Professor Neudorf was explaining how the non‑derogation would apply. If you have two potential interpretations of a law that are either inconsistent or one is more consistent with section 35 and one is not, or one is more consistent with the UN declaration and one is not, then you choose the interpretation that is most consistent with those instruments. That’s how it would affect the law. It would send a direct message, as Professor Neudorf was saying, that lawmakers and interpreters and the executive have to be acting in accordance with this and thinking about it more regularly.
Senator Simons: Professor Neudorf, since we got you up very early, in fairness, I should ask a question to you. You explained very eloquently the very particular way that putting this clause in the Interpretation Act would change the interpretation of the constitution. Let me ask you what your view is on including UNDRIP in the legislation. Is that the appropriate place for it, or how would it be in conversation or would it be in conflict with the constitutional elements?
Mr. Neudorf: Thank you, senator, for the question.
Being in Australia, a pretty common approach is referring to international instruments to breathe life into legislative frameworks. I would view a reference to that international instrument as essentially reinforcing the idea of this proposed amendment to the Interpretation Act and maybe furthering the objective of facilitating government decision-making and lawmaking in accordance with those protected rights. It will form part of the matrix on which the court will draw in the appropriate cases to look at that as an interpretive aid. It’s flowing in the same direction, essentially, as what this amendment is, as far as I understand it.
Senator Simons: This question is for Ms. Metallic. As I understand it, ever since UNDRIP became law, some legislation has had reference to UNDRIP written into it. If this non‑derogation master clause would mean that some of those laws are amended to take out those individual references, is it possible that our recognition of UNDRIP could actually go backwards?
Ms. Metallic: I don’t think so. UNDRIP can be used for different things at different times. What we’re talking about is using UNDRIP as a framework for interpreting existing law, and so, like I say, if you add a possible way to interpret something two ways and one is more consistent with UNDRIP, then you go that way. Then there are other ways the declaration is being used. Let’s take Bill C-92, An Act respecting First Nations, Inuit and Métis children, youth and families. That’s actually an example of the government more substantively incorporating UNDRIP principles into legislation and developing the law. They’re not inconsistent with each other. In fact, the government, by recognizing the inherent right to self-government, is acting on the provisions in UNDRIP about self-determination and self-government. They’re not inconsistent; they’re just different ways of working with UNDRIP.
We do need government to follow the rest of the UNDRIP act and pass new legislation to more clearly incorporate UNDRIP provisions. In the meantime, nothing is stopping us from — we certainly should be, in terms of international human rights law — interpreting our current law to be consistent with UNDRIP. We should be sending the message to legislatures that they should be doing this, very clearly.
Senator Simons: Thank you very much.
Senator Pate: Thank you to both of our witnesses.
Professor Metallic, you were asked to represent the Indigenous Bar Association, but as a professor and as a scholar, this is an area of your expertise, an area on which you have provided advice to many, including the Indigenous Bar Association. Did the Minister of Justice consult with you and request your assistance in drafting this legislation?
Ms. Metallic: No, I wasn’t consulted. As I said, I sort of went on like a normal person when there was the opportunity to give comments, and I solicited other academic friends to give comments, but I was never approached to give any feedback on this.
Senator Pate: To your knowledge, were any of the other scholars who are experts on section 35 and the UN declaration consulted on the drafting of these provisions?
Ms. Metallic: Not to my knowledge.
Senator Pate: You’ve been very clear, but perhaps you’d like to elaborate on why it is crucial. Your comments are clear that the plan or the impetus for this legislation is a 2007 report — 16 years ago. The UN declaration is not nearly that old, yet it has not been included here. How crucial is it to you that this be included?
Professor Neudorf, if you have anything to add, we’d be happy to hear those comments as well.
Ms. Metallic: I do think it’s absolutely crucial. I don’t want to be here 16 years from now talking to senators about why this would be an important amendment. We will not be much ahead in reconciliation if people continue to say that the UN declaration is merely aspirational or non-binding and that it doesn’t affect decision-making today in Canada.
Mr. Neudorf: I would just echo those comments. I’ve scrutinized this bill as drafted, but, certainly, amending the bill in such a way would further the policy goals behind this proposal.
Senator Pate: Great. Thank you very much.
Professor Metallic, you provided us with some suggested wording. Could you provide that in writing to the committee?
Ms. Metallic: Yes, I’m happy to provide that. Some proposed wording is appended to the back of my speaking notes which were circulated this afternoon, I believe.
Senator Pate: Great. I don’t think we have them yet because they are awaiting translation. That would be great. We’ll get those.
The Chair: They’ll be circulated shortly. Thank you, Professor Metallic.
[Translation]
Senator Dupuis: I thank both witnesses for being here today.
I have a question for Ms. Metallic. In your mind, is there a nuance, legally speaking, between Indigenous peoples and rights holders?
According to what the minister told us, all sorts of concepts are being introduced without necessarily specifying the meaning ascribed to these terms.
In your mind, does the term rights holders refer to a concept in law that is well known, well determined and well delimited?
Ms. Metallic: I’m not entirely sure I can answer that question. I know that the current convention adopted by the federal government, according to subclause 8.3(2) of Bill S-13, is to use the word Indigenous instead of Aboriginal. However, I haven’t really considered the issue in depth.
I think they’re using that word because it’s consistent with the declaration, but on the other hand, they’re also relying on subsection 35(2). I think you have to use the declaration to interpret section 35, because it’s a Canadian statute.
I think it’s a bit of a circle. I’m not entirely sure I’ve answered your question, but I haven’t studied it in depth.
Senator Dupuis: Is there a slip of meaning in what I’m seeing? Is this a new convention at the Department of Justice to use the term rights holders? Does it imply that they’re not necessarily Indigenous peoples as defined in section 35? It could be different groups using section 35 or declaration.
My second question is this. Bill S-13 states that subsection 2(2) of the United Nations Declaration on the Rights of Indigenous Peoples Act is repealed.
Basically, the United Nations Declaration Act provides that this act is to be construed as upholding the recognized and affirmed rights of Indigenous peoples.
In your opinion, doesn’t the introduction of Bill S-13 diminish the recognition that was made in the United Nations Declaration Act? The United Nations Declaration Act stands on its own, and it is intended to uphold the rights of Indigenous peoples.
If we’re specifying here that this means that none of this affects the constitutional rights provided for in section 35, aren’t we reducing the scope of this act?
Ms. Metallic: I have not interpreted the repeal of subsection 2(2). I know it was a fairly important provision for some Indigenous groups during the debates on the United Nations Declaration Act.
On the other hand, yes. Maybe I don’t understand all the nuances in terms of how this could change the scope of the act. Maybe you could explain it to me a bit, because I’m not sure I understand, actually.
Senator Dupuis: Passing Bill S-13 and changing the wording from Aboriginal peoples to Indigenous peoples opens up the category of groups or individuals who could claim to fall under the United Nations Declaration Act or section 35.
Ms. Metallic: I think not, but if one refers to the other, it comes full circle. I find it hard to see how others.... There are peoples claiming rights that are not recognized. There are tests from the Supreme Court that help us determine this. In addition, we have the declaration itself that guides us somewhat on this matter.
These are the tools we’ll use to decide on these matters. In my opinion, the two would work together; we would use both tools to answer this question.
I apologize, but I can’t shed any more light on this.
Senator Dupuis: Thank you.
[English]
Senator D. Patterson: My question is for Professor Metallic. It’s great to see you back before a Senate committee again. I’d like to see your proposed wording for the proposed amendment, and I’m glad we will see it once it’s translated.
I’d like to share with you a question that’s on my mind. This bill is about how to interpret Canadian laws with respect to section 35 Aboriginal and treaty rights. You’re proposing that we also amend the Interpretation Act to ensure consistency between UNDRIP and other federal laws that may be inconsistent with UNDRIP. As I understand it, the UNDRIP bill contained a pledge to overhaul all federal laws to identify laws that are inconsistent with the UN declaration, and the action plan was the first step. My question came to my mind while listening to your presentation. Would your proposed amendment also require related amendments, as was done in this bill, to make enactments more consistent with UNDRIP?
Ms. Metallic: I don’t think so because all you’re doing is confirming an interpretation rule that we shouldn’t have even needed the UNDRIP legislation for. There’s this principle of interpretation called “the presumption of conformity with international law,” which says that we will read domestic law to be consistent with international human rights norms.
It was being applied by some courts, but not all courts. I was successful in a case in 2012 in arguing the UN declaration informed the procedural rights under administrative law. That wasn’t because of systemic discrimination and the ongoing neglect or denial of Indigenous rights. That interpretive rule was not well understood, so we put it in the UNDRIP Act, section 4(a), which essentially encapsulates that rule. It confirms or affirms that rule.
This was a similar answer to one of the previous senators. UNDRIP does different things. It informs the interpretation of law, but then it can also inform more substantive work on making provisions of the law into Canadian law. Those are two different things. They are not inconsistent. It’s simply confirming a rule that should be followed by everyone already, which is that we should interpret Canadian law, as much as we can, to be consistent with UNDRIP.
Hopefully, I’ve gotten to your question.
Senator D. Patterson: I think you have. Well, that is in the UNDRIP statute; isn’t it?
Ms. Metallic: Yes, section 4(a).
Senator D. Patterson: Yes. But you believe that we should reinforce that with the amendment you propose to the Interpretation Act as well?
Ms. Metallic: Exactly.
Senator D. Patterson: Okay, that’s helpful. Thank you.
The Chair: I have a brief question.
We have heard in the discussion from Professor Neudorf about the power of the Interpretation Act. I’m thinking that Senator Dalphond in his previous life probably used it a lot in court decisions. That’s meaningful in the context of considering section 35 and the provision that is before us for consideration.
Professor Metallic, am I understanding that the addition or supplement that you described takes us not necessarily inconsistently but beyond questions of section 35 rights? In fact, the amendment that you propose is really an amendment related to a general linkage between Canadian law and UNDRIP and not really even focused on section 35 specifically.
Ms. Metallic: I tend to disagree because I see the UN declaration and section 35 as linked, and so does this government, who has said, as I said in my remarks, that the UN declaration will breathe life into section 35. The 10 principles document also talks about section 35 now providing a full box of rights guided by the UN declaration. It’s only if you see section 35 as being quite narrow and not capable of growing do you see them as being separate and distinct things. I think the view of Indigenous peoples and the Truth and Reconciliation Commission is that one should inform the other. One must, because it is the minimum standards of fundamental human rights of Indigenous peoples that were guaranteed and recognized by the UN General Assembly.
The Chair: I’m just going to ask a brief supplementary out of what almost sounds like semi-ignorance. I haven’t read UNDRIP in a little while, but my memory seems to be that the provisions of UNDRIP cover territory that go beyond the kinds of things that one normally thinks about as section 35 rights. Am I seeing that too narrowly and shallowly or not rich enough with respect to UNDRIP? What’s your perspective?
Ms. Metallic: I think that that’s correct. You are seeing section 35 too narrowly, and the UN declaration is the minimum standards of rights that the international law has seen fit that Indigenous people are entitled to. Section 35 is not a closed box or an empty box. Our Constitution, you know well, is a living tree. The critique of most Indigenous scholars over the last 20 years, as well as the TRC, has been that our rights are more than just fishing and hunting. I heard a bit of that in the last panel. We need to get beyond that. We’re not going to get reconciliation if we simply see section 35 as hunting and fishing rights. We are more than that, and a lot more needs to be addressed. The UN declaration helps us do that.
The Chair: Thank you.
We have a small amount of time for a second round.
Senator Dalphond: I will be brief.
[Translation]
Ms. Metallic, I don’t know if you’re aware of the Native Women’s Association of Canada brief that was submitted to our committee on October 5. They recommended adding to the United Nations Declaration on the Rights of Indigenous Peoples that any act and regulations must be consistent with the declaration.
Are you proposing the same approach?
Ms. Metallic: Yes, pretty much. I didn’t know about that. It’s a happy coincidence that they submitted a brief with the same proposal.
Senator Dalphond: Thank you.
Senator Dupuis: My question is similar to Senator Dalphond’s, but a little different. If we add clause 8.3 of Bill S-13, which states, “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,” we have an interpretive clause to section 35. We also add a provision to the effect that any text will uphold the rights recognized by the United Nations Declaration. Aren’t we just including two interpretative clauses from two different types of documents, including section 35 of the Constitution Act, 1982, without necessarily making the connection that you make between the two? That was my question to the minister.
You are talking to us about section 35 as if it were only for the past, when on the contrary, it’s prospective. It’s artificial to say that one is forward-looking and the other is for the past. I’d like you to think about your wording to ensure that, if you submit a text to us, we make sure that there’s a link between the two, that they’re not just two interpretative clauses that have nothing to do with each other, and that judges continue to interpret article 35 for the past, and that when we have time, we’ll look at the declaration — we’ll keep that for the future.
Ms. Metallic: This is an interesting point that I thought about yesterday and today while writing this. I used the wording from the British Columbia Interpretation Act because I want to suggest something that is doable and not too big. It works. The declaration dictates the minimum standards of fundamental right for Indigenous peoples. That can also help us interpret section 15 of the Canadian Charter of Rights and Freedoms, other sections of that charter and other legislation. Putting all this together, I wondered if it might reduce the scope of the declaration. It’s really a tool for interpreting section 35 on collective rights for some.
There are also individual rights mentioned in there; there are both. That’s what I think, but it’s a good question and I’m thinking about it, too.
Senator Dupuis: Thank you.
[English]
The Chair: That concludes the round of questioning from senators.
Let me take a moment to thank our two witnesses for joining us from relatively near, Professor Metallic, and from quite far, Professor Neudorf. Perhaps it is not unbelievably early morning, but we do appreciate you taking the time out of your early day to join us and inform us with respect to this important bill.
Colleagues, this brings me to close this session of our consideration of this bill. We will be continuing again tomorrow with Indigenous witnesses from Indigenous organizations. We look forward to two hours of tomorrow’s session.
Thanks again, Professor Metallic and Professor Neudorf. We appreciate your time and the insights you provided.
(The committee adjourned.)