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From the Final Report of the Standing Senate Committee on Legal and Constitutional Affairs

39th Parliament – 2nd Session

December 2007

Summary of Recommendations

Recommendation 1

The Committee recommends that the Government of Canada take immediate steps to introduce legislation to add the following non-derogation provision to the federal Interpretation Act:

Every enactment shall be construed so as to uphold existing Aboriginal and treaty rights recognized and affirmed under section 35 of the Constitution Act, 1982, and not to abrogate or derogate from them.

Recommendation 2

The Committee recommends that the legislation to amend the Interpretation Act also provide for the repeal of all non-derogation clauses relating to Aboriginal and treaty rights included in federal legislation since 1982.

Recommendation 3:

(a) The Committee recommends that the Government of Canada require the Minister of Justice or her/his Deputy, as the case may be, to examine every bill and draft regulation for its potential interaction with section 35 Aboriginal and treaty rights, with a view to ensuring consistency with those rights. This requirement should be analogous to that found in section 4.1 of the Department of Justice Act and section 3 of the Statutory Instruments Act in respect of Charter rights;

(b) The Committee recommends that the Government of Canada ensure that adequate resources are made available to the Department of Justice to enable it to carry out this additional responsibility;

(c) The Committee recommends that concurrently, the Department of Justice undertake an administrative process, in collaboration with other federal departments as well as Aboriginal organizations representing a broad cross-section of First Nations, Inuit and Métis men and women, to develop criteria to evaluate all new federal legislation and regulations for their potential interaction with section 35 Aboriginal and treaty rights, with a view to ensuring consistency with those rights;

(d) The Committee recommends that the Department of Justice develop a process, to include consultation with broadly representative Aboriginal groups, for reviewing federal laws and regulations already in place based on these criteria, and report to Parliament on its findings.

Recommendation 4

The Committee recommends that the Aboriginal Affairs Portfolio within the Department of Justice include a unit with broad responsibilities

(a) for monitoring compliance with section 35 Aboriginal and treaty rights within the Department and across departments,

(b) for maintaining ongoing dialogue with broadly representative Aboriginal communities and organizations, and

(c) in particular for assisting the Minister in respect of the requirement described under Recommendation 3.

Recommendation 5

The Committee recommends that the Department of Justice, in collaboration with other departments and broadly representative Aboriginal organizations, expedite its completion of comprehensive consultation policies with respect to the legislative process and Aboriginal stakeholders. The objective is to develop statutory instruments consistent with section 35 rights. The Department of Justice should provide yearly progress reports to the Committee until the policy is finalized and in place.

Recommendation 6

The Committee recommends that the government take immediate steps, in close collaboration with First Nations, Inuit and Métis people having expertise in their respective domestic legal traditions, to both (a) undertake comprehensive identification of those traditions, including customary and oral laws, and (b) develop policies related to their recognition and their integration into Canadian law alongside the common and civil law.

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Conclusion

In bringing our report to a conclusion, the Committee underscores its recognition of the inclusion of section 35 in the Canadian Constitution in 1982 as a watershed development in the history of Aboriginal and non-Aboriginal relations in this country, and the culmination of Aboriginal peoples’ lengthy struggle for recognition of their legal rights.

We also recognize that, in constitutional terms, the “living tree” of section 35 remains in its relative infancy.

The Crown’s complex and far-reaching obligations under section 35 have yet to be fully defined, as do section 35 rights themselves. We acknowledge the ongoing work of the Department of Justice, as well as the Department of Indian Affairs and Northern Development and other government departments and agencies, to address the demands of a shifting legal and constitutional context. The practical, feasible solutions set out in this report are intended to assist the government in that task.

Committee members realize that our recommendations will not exhaust the need for ongoing parliamentary scrutiny of government action in relation to section 35 implementation. Challenges remain before the reconciliation purpose of section 35 is truly realized and its full implementation achieved. As one witness reminded us,

Section 35 was the promise of rights' enjoyment by Aboriginal peoples  here in this country. We are still on that quest.

Committee members remain confident that these challenges are not insurmountable, with the concerted good faith collaborative efforts of all parties.

http://www.parl.gc.ca/39/2/parlbus/commbus/senate/com-e/lega-e/rep-e/rep05dec07-e.htm