Amendments to come to federal legislation following First Nations input
ANISHINABEK NATION TERRITORY— The government of Canada is looking to amend the federal legislation known as the Interpretation Act, the first act passed by the new Parliament of Canada after the Confederation.
The purpose of the Interpretation Act is to provide guidance and assistance for the interpretation of laws where their meaning is not clear. The Interpretation Act helps to provide meaning to all federal acts, regulations, and laws. It helps people to interpret federal legislation by giving definitions and guidance on commonly used terms in federal legislation. As an example, federal legislation often refers to a certain amount of “days” to file an appeal or for some other event. The Interpretation Act essentially defines the term “day” to exclude holidays, weekends, etc.
The federal government is reaching out to First Nations on what is called the non-derogation clause, which they are considering adding to the Interpretation Act. This is the clause that generally says:
“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 under section 35 of the Constitution Act, 1982.”
A non-derogation clause is used to protect treaty and Aboriginal rights from being negatively impacted by legislation or agreements. [1]It is extremely important to ensure that consultation occurs with Anishinabek Nation First Nations as there are a significant number of variations of the non-derogation clauses that are found in various Acts. For instance; An Act respecting First Nations, Inuit and Métis children, youth and families (S.C. 2019, c. 24), s.2 derogation clause differs in the Act to amend the Canadian Human Rights Act (S.C. 2008, c.30), s.11.
[2]Within an Anishinabek News article from 2013, the author was concerned that word games were being used to extinguish Native rights. The Department of Justice experimented with various wording for non-derogation language for use in the 2015, Safe Drinking Water for First Nations Act, which contradicts promises made to Indigenous peoples in the treaties. For example;
“For greater certainty, nothing in this Act or the regulations is to be construed so as to abrogate or derogate from any existing Aboriginal or treaty rights of the Aboriginal peoples of Canada under section 35 of the Constitution Act, 1982, except to the extent necessary to ensure the safety of drinking water on First Nation lands.”
This clause generally means that First Nation’s rights are protected; however, if government needs to violate them to carry out the Safe Drinking Water for First Nations Act, they can carry on to complete their legislative duties. This may or may not be something First Nations would agree with.
The Anishinabek Nation’s Legal Department encourages Anishinabek First Nation leadership, staff, and citizens to assist in embarking on changing Indigenous history and paving a way forward towards improving the road ahead for our future generations. Feedback for the non-derogation clause can be submitted by e-mail to non-derogation@justice.gc.ca.
The non-derogation clause generally works to affirm that Aboriginal people’s rights will be upheld. This is part of its support for the United Nations Declaration on the Rights of Indigenous People Act. This Act provides a road-map for the Government of Canada and Indigenous peoples to work together to implement the Declaration based on reconciliation, healing, and cooperative relations. Under the Act, the Government of Canada will work in consultation and cooperation with Indigenous people.
If you are interested in providing feedback, please contact Kristy Jones, Anishinabek Nation Justice Manager: kristy.jones@anishinabek.ca
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[1] https://www.afn.ca/wp-content/uploads/2022/07/5-AFN-Discussion-Paper-Non-Derogation-Clause-Issues-for-First-Nations.pdf
[2] http://anishinabeknews.ca/2013/04/16/feds-using-word-games-to-extinguish-native-rights-2/