(Chair) in the chair.

[English]

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.

Welcome, minister and all of you. Mobina Jaffer, from British Columbia.

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.

Scott Tannas from Alberta.

Andrew Cardozo from Ontario.

Paula Simons, Alberta, Treaty 6 territory.

[Translation]

Welcome. Bernadette Clement from Ontario

[English]

Senator Paul Prosper. I’m from Nova Scotia, the traditional Mi’kmaq territory.

Senator LaBoucane-Benson, Treaty 6 territory, Alberta.

[Translation]

Renée Dupuis, The Laurentides, Quebec.

Good afternoon. [Innu-Aimun spoken]. Michèle Audette [Innu-Aimun spoken], from Quebec.

[English]

Dennis Patterson, senator for Nunavut, Inuit Nunangat.

[Translation]

Good afternoon. Pierre Dalphond, De Lorimier, Quebec.

[English]

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 As a result, the deputy chair, Senator Boisvenu, and Senator Batters have withdrawn from the meeting.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]

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]

Do you mean in relation to this bill?

[Translation]

Yes, Bill S-13.

[English]

We have not received it at this point.

Minister Virani, the floor is yours.

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.

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.

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.

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.

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.

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.

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.