Moved second reading of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.

She said: Honourable senators, I am pleased to take the floor today to begin second reading of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts.

The bill proposes, quite simply, to make a single addition to the federal Interpretation Act, which is the law that guides the interpretation of all other federal laws. The Interpretation Act sets out a single uniform standard for reading all acts of Parliament. It includes things like an explanation of what preambles are for and how to apply coming-into-force provisions. If Bill S-13 is adopted, it will also include this:

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

This is what is known as a “non-derogation clause.” Currently, several dozen Canadian laws include a clause like this, such as the Fisheries Act, the Firearms Act, the Species at Risk Act and many others.

But some laws have them, and others don’t. Over the past 40 years, these clauses have been added to various bills in an ad hoc manner. Often, Indigenous peoples have had to advocate for their inclusion during the parliamentary process, meaning these clauses were often tacked on at committee and are often phrased differently in different acts.

Bill S-13 proposes to remove the non-derogation clause from most laws that currently have one and instead add this provision to the Interpretation Act to create a uniform standard for the interpretation of all federal laws. In other words, if Bill S-13 is adopted, it will be as though every act of Parliament has the same non-derogation clause, ensuring that all federal laws and regulations are interpreted to uphold and not diminish the rights of Indigenous peoples as affirmed by section 35 of the Constitution Act, 1982.

Indigenous organizations have been advocating for this for many years, colleagues. The specific engagement process that led to this bill began in 2020, when officials from the Department of Justice Canada initiated preliminary discussions with certain key partners.

In December 2020, a targeted consultation process was launched. The goal of the early part of this process was to inform Indigenous partners of the initiative, provide opportunities for input and fulfill statutory requirements of the Yukon Act and the Mackenzie Valley Resource Management Act, both of which require consultation before they can be amended.

This targeted process revealed that there was considerable support among Indigenous partners for the proposed amendment to the federal Interpretation Act. In December 2021, the Minister of Justice announced a second phase to undertake broader consultation and cooperation consistent with the United Nations Declaration on the Rights of Indigenous Peoples Act, or UNDRIP Act, passed in 2021.

Meetings were held throughout 2022 to consider options and discuss potential legislative approaches. More than 70 meetings were held with Indigenous peoples and their representative organizations, and more than 45 written submissions were received from Indigenous peoples and their representative organizations. The process respected the distinctions-based approach requested by Indigenous partners. Most meetings were bilateral so that partners could focus directly on what was most important and relevant to them.

The final phase of consultation and cooperation began with the posting of a draft legislative proposal on the Department of Justice Canada website from March 1, 2023, to April 14, 2023. This method of proceeding allowed for further transparency in the consultation and cooperation process.

One of the main points of discussion that arose during consultations was the specific wording of the new provision in the Interpretation Act. In particular, some partners wanted to include the term “Indigenous peoples,” while others maintained that there was a need to use the expression “Aboriginal and treaty rights of the Aboriginal peoples of Canada,” which is the wording of section 35 of the Constitution Act, 1982.

Ultimately, Bill S-13 reflects a compromise. It refers to “. . . the Aboriginal and treaty rights of Indigenous peoples . . . .” with a clarification that the term “Indigenous peoples” has the same meaning as “. . . aboriginal peoples of Canada. . . ” in the Constitution.

Another point of discussion was what to do with existing non‑derogation clauses in other legislation. In the end, most Indigenous partners preferred repealing all of the other existing ones to achieve the objective of having one single non-derogation clause applied consistently and uniformly to all federal laws. That is the approach Bill S-13 proposes with three notable exceptions: the Mackenzie Valley Resource Management Act, the shíshálh Nation Self-Government Act and the Kanesatake Interim Land Base Governance Act. In these three cases, the acts directly involve particular First Nations that wanted to keep the non-derogation clause specific to them. Their wishes are being respected.

This approach of having one overarching non-derogation clause in the Interpretation Act and generally repealing the rest is also in keeping with the recommendation of the 2007 report from the Standing Senate Committee on Legal and Constitutional Affairs, entitled, Taking Section 35 Rights Seriously: Non‑derogation Clauses relating to Aboriginal and treaty rights.

I note that our colleague Senator Jaffer is the one remaining member of that committee still in our chamber today, so this has, obviously, been a long time coming, and I hope this is a satisfying moment for Senator Jaffer, in particular. Colleagues, this should also be a satisfying moment for Indigenous people and all Canadians.

By passing this bill, we promote compliance with the UNDRIP Act, which requires that measures be taken to ensure that the laws of Canada be consistent with the United Nations declaration. We would be eliminating the need for Indigenous peoples to press for a new non-derogation clause each time Parliament considers new legislation potentially affecting their section 35 rights, and we would be underscoring the importance of section 35 rights phrased in both the positive and the negative. With Bill S-13 in place, all laws adopted by the Parliament of Canada will be interpreted so as to uphold Indigenous rights, and no federal law could be interpreted as derogating from them.

Indigenous peoples have been pushing for this ever since section 35 was added to the Canadian Constitution over 40 years ago. Indigenous peoples came to the Senate 16 years ago to make their pitch, and I would just like to take a moment to acknowledge all the chiefs, leaders, Indigenous lawyers and Indigenous scholars who have asked for this change to the Interpretation Act for years. Particularly, I am thinking about the late Harold Cardinal. I would love to have a coffee with him right now to talk about this change and how monumental it is.

For the last three years, Indigenous peoples have been working with the government through extensive and cooperative consultations to finally make this happen. This bill is one more step on the road to reconciliation, and it is a major one, because it affects every existing and future federal law.

As the Standing Senate Committee on Legal and Constitutional Affairs wrote back in 2007:

. . . non-derogation clauses serve the important purpose of expressing to all Parliament’s clear intention that legislation is to be interpreted and implemented consistently with section 35.

. . . we find it preferable, in the interests of upholding the honour of the Crown, to make inclusion of a non-derogation clause in all legislation the default position through the insertion of a provision in the Interpretation Act . . . .

That is exactly what this bill proposes to do. Given where we’re at in the calendar, the Government Representative Office, or GRO, will work with the Department of Justice to schedule a technical briefing early in the fall. In the meantime, I encourage you to reach out to me or to my office to discuss this bill further, and I hope all honourable senators will support it when we return in September.

Hiy hiy.