Non-derogation Clauses in Federal Legislation

I've been working on this issue for several years now and have made some progress in getting it resolved, as I've reported from time to time in my articles in NewsNorth.  Last year the matter was referred to the Legal and Constitutional Affairs Committee but the Committee didn't report before the election was called in the Spring.  I intend to re-introduce the matter in the Senate when Parliament resumes in the Fall.

The following is the text of a letter I sent to the committee last year which explains the issue in some detail.  It's pretty technical and legalistic but it will give you a pretty good idea of the kind of work I often have to do.

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As your committee begins its deliberations on the inclusion in legislation of non-derogation relating to aboriginal and treaty rights, I felt it would be useful to acquaint you with the work and I and other Liberal aboriginal Senators (Senators Adams, Gill, Watt and Chalifoux) have done on this issue. 

 This issue first came to my attention in the fall of 2001, during the examination of Bill C-33, the Nunavut Waters and Nunavut Surface Rights Tribunal Act.  Since then, the matter has been debated in conjunction with several other Bills and in broader discussions with the Minister of Justice and other Ministers.  These discussions eventually culminated in the referral to the Legal and Constitutional Affairs Committee for the current review.

 There has been considerable correspondence between aboriginal Senators and the government and a number of proposals have been made by both sides for the resolution of this issue.  I would be pleased to provide the committee with a complete record of these discussions from my perspective.  However, by way of introduction to this issue, I would like to provide a brief history of non-derogation clauses in federal legislation and outline the proposed solutions agreed on by the above-named Senators and provided to the government last April.

 A non-derogation clause in legislation is a statement of Parliament’s intent, and is meant to assist the courts in interpreting legislation, which may abrogate or derogate from Aboriginal and treaty rights. The wording of such clauses, in terms of their certainty and clarity, is therefore of the utmost importance.

 Prior to 1996, the wording used in the vast majority of federal statutes to deal with the non-abrogation and non-derogation from section 35 rights was based on that found in the Charter of Rights and Freedoms, section 25, which states that the Charter shall not to be construed “so as to abrogate or derogate from any aboriginal, treaty or other rights and freedoms of the aboriginal peoples in Canada.”   Similar wording to the effect that “nothing in this Act shall be construed so as to abrogate or derogate from any existing aboriginal or treaty rights of the aboriginal peoples of Canada” appears in the Firearms Act as well as in the Sechelt Indian Band Self-Government Act the Canada Petroleum Resources Act, the Canada Wildlife Act, the Canada-Newfoundland Atlantic Accord Implementation Act and the Canada Nova-Scotia Offshore Petroleum Resource Act, 1994.

 The wording of non-derogation clauses is particularly important because of their role as interpretive guides to the courts. Even small changes in wording necessarily cause uncertainty, as the courts must evaluate each change in wording and try to surmise what it was that Parliament intended. Recently, however, the federal government proposed wording in a number of Bills which differed from the clear wording used in earlier legislation. This new wording stated that:

 For greater certainty, nothing in this Act shall be construed so as to abrogate or derogate from the protection provided for existing aboriginal or treaty rights of the aboriginal peoples of Canada by the recognition and affirmation of those rights in section 35 of the Constitution Act, 1982.

 The “new” wording first appeared in the MacKenzie Valley Resource Management Act in 1998 and has generally been used ever since. In 1998, however, the Canada Marine Act used wording which was different again, stating: “nothing in this Act shall be construed so as to abrogate or derogate from the application of section 35 ... to existing Aboriginal or treaty rights.…”  In 1999, the Social Union Framework Agreement, signed by the Governments of Canada and all the provinces and territories  (except Quebec ) reverted back to wording very similar to that contained in the Charter. 

 The proliferation of these differing non-derogation clauses creates uncertainty as to their legal effect.  Although this seems self-evident to me, it took some time to persuade the Minister of Justice that this created a significant problem for aboriginal people and their rights.  I think it is a credit to the Minister and the Government Leader in the Senate that they were open to persuasion and have now recognized the seriousness of this issue by referring it to your committee.

 Prior to that, however, there was a proposal by the Minister to simply remove non-derogation clauses from all legislation, both existing and future.  This may have arisen because that was the precise remedy that was applied to the Nunavut Waters and Nunavut Surface Rights Tribunal Act.  However, in that case there were other provisions in the Act and in the Nunavut land claim that protected aboriginal rights, which permitted the non-derogation clause to be removed.  The aboriginal Senators named above made it clear that this was not an acceptable approach and, after due consideration, the Minister agreed, partly because he recognized that in some cases, such as the Sechelt Indian Band Self-Government Act among others, these clauses were included in recognition as a specific result of negotiation with an aboriginal people.

 The goal has been, first and foremost, to restore the original wording of clauses, based directly on Section 25 of the Charter.  Stand-alone legislation should revise the changed non-derogation wording found since 1998 to the wording used in previous years.  Future legislation should contain the clause used prior to 1998.  Another approach would be to introduce strong non-derogation language in an amendment to the Interpretation Act.  In either case, the government’s solution should be consistent with the original objectives for including non-derogation clauses in the first place.

 The original objectives for including non-derogation clauses in federal legislation were two-fold.  The first was a legal objective.  The clauses were meant to direct the courts to be respectful of aboriginal and treaty rights in interpreting specific legislation.  Unlike Charter rights, aboriginal and treaty rights are not specified or defined in the Constitution and, moreover, apply in particular ways for each aboriginal people.  An assurance is necessary because legislation meant to serve the broader public good could easily infringe on aboriginal and treaty rights, without that being the intention of Parliament.  Aboriginal people justly expect that their aboriginal and treaty rights shall not be infringed other than in exceptional legislation.  The Supreme Court, in the Sparrow decision, agreed with that expectation.  This leads to the second objective, which was essentially political.  Aboriginal people (and other citizens) must be assured that aboriginal rights were not being ignored or treated casually.  Non-derogation clauses were meant to provide both comfort and certainty.

 The change in wording of non-derogation clauses – there have been several different versions of these changes – created confusion with respect to the legal objective and apprehension with respect to the political one.

 Any new legislation must continue to meet the two original objectives.  Ideally, it would do this by restoring the original wording to all legislation.  Alternatively, as has been done in the provinces of Saskatchewan and Manitoba , an amendment to the Interpretation Act could serve the purpose.  Last April, the five Senators agreed on an approach to amending the Interpretation Act that we felt would address both aboriginal and government concerns, which I have attached for your information.

 I believe that this represents a good starting point for the committee’s consideration of this issue.  Of course, you will also need to hear directly from aboriginal leaders and organizations on this matter.  Although we consulted a number of them in our work, it was be no means exhaustive and there may be other views or proposals on this matter from the aboriginal community.