Upholding Section 35 Rights & Unfulfilled Obligations to UNDRIPA

By Emmaline English​​​​ and Nick Leeson

On Nov. 27, 2024, Canada took a step forward in safeguarding Indigenous rights with the passage of Bill S-13, An Act to amend the Interpretation Act and to make related amendments to other Acts. This bill adds a non-derogation clause (NDC) to the federal Interpretation Act, which legislates how federal laws are to be interpreted.

This NDC ensures that a law cannot be interpreted in a way that diminishes Aboriginal and Treaty rights as recognized and affirmed in section 35, Constitution Act, 1982. This amendment is significant because it means that all federal laws—including statutes and regulations—must be interpreted in a way that upholds section 35 rights.[1]

Previously, ad-hoc NDCs were individually added to 31 existing federal laws, which caused confusion and uncertainty about their impact on section 25 rights due to dissimilar wording. By creating a single standard for all Federal laws, Bill S-13 standardizes the principles across all existing laws and its Royal Asset repealed 28 of these ad-hoc NDCs. (Individualized NDCs in three laws remain in place at the request of the Indigenous peoples who are impacted by these laws.)

What’s Missing: UNDRIP

Notably missing from Bill S-13 is a requirement to ensure that all Federal laws must be interpreted as upholding the rights recognized and protected in the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).[2]

When Canada enacted the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) in 2021, it committed to “take all measures necessary to ensure that the laws of Canada are consistent with the Declaration.”[3] However, Canada stopped short of calling for an UNDRIP-based NDC in Bill S-13. Instead, it committed to creating an interpretive provision in the Federal Interpretation Act or other laws “that provides for the use of the UN Declaration in the interpretation of federal enactments.”[4]

This failure to include UNDRIP non-derogation language in this amendment calls into question this government’s commitment to its own Action Plan.

This is in contrast to the province of British Columbia, which amended its Interpretation Act in 2021 to include an NDC to uphold section 35 rights and the rights protected in the UNDRIP.[5] Despite the blueprint from British Columbia, the absence of UNDRIP in Bill S-13 signals a missed opportunity for Canada to fulfill its obligations under UNDRIPA. By addressing this gap, Canada could further strengthen its commitment to reconciliation, legal certainty, and Indigenous sovereignty.

Our firm would be happy to assist and support you in any undertakings that might be impacted by a non-derogation clause. Feel free to reach out to any lawyer or staff on our team. You can also read more here:

 

Our team would like to acknowledge the passing of Jim Aldridge who was instrumental in Bill S-13. His dedication to career to the advancement of Aboriginal rights throughout Canada will support Indigenous prosperity for years to come.

 

 

 

 

 

 

[1] Canada, Department of Justice, “Upholding section 35 rights through a non-derogation clause in the federal Interpretation Act: What we learned report” (October 5, 2023), online: <https://www.justice.gc.ca/eng/declaration/wwl-cna/cepos-apccr/index.html>.

[2] Shari Narine, “Canada seeks to update Interpretation Act to protect Indigenous rights, but draft fails to include UNDRIP” Windspeaker (8 March 2023), online: <https://windspeaker.com/news/windspeaker-news/canada-seeks-update-interpretation-act-protect-indigenous-rights-draft-fails>.

[3] United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14, s 5.

[4] Canada, “United Nations Declaration on the Rights of Indigenous Peoples Action Plan” (2023), online: <https://www.justice.gc.ca/eng/declaration/ap-pa/ah/index.html>.

[5] Interpretation Act, RSBC 1996, c 238.