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David Smith

The Hon. David P. Smith, P.C., Q.C., B.A. LL.B. Appointed to the Senate by the Rt. Honourable Jean Chrétien, Senator David Smith represents Ontario, and has served in the Senate since June 25, 2002.

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Second reading of Bill S-207, An Act to amend the Interpretation Act (non-derogation of aboriginal and treaty rights)

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Statement made on 08 February 2012 by Senator Chalie Watt

Please click play to listen to the audio recording of this speech.


Hon. Charlie Watt:

Honourable senators, today I rise to speak on Bill S-207, An Act to amend the Interpretation Act. My bill deals with the Aboriginal and treaty rights of the Aboriginal peoples of Canada. Those rights are expressly recognized and affirmed by section 35 of the Constitution Act, 1982.

It is my responsibility as an Aboriginal senator to continue the process of shaping Canadian legislation for the betterment of our people.

Honourable senators, my bill is offered to this chamber as a small step toward upholding the rights of Aboriginal peoples and standardizing the manner in which these constitutionally recognized rights are considered and respected in federal legislation.

Our statute books are sprinkled with what we refer to as "non-derogation clauses," but the wording of those clauses is not consistent, and they are absent from many pieces of legislation.

My bill proposes to amend the Interpretation Act to provide that no enactment — that is, no federal statute or regulation — is to be construed so as to abrogate or derogate from Aboriginal and treaty rights. This rule of interpretation provides a lens through which every bill should be evaluated for compliance with section 35 of the Constitution. It presumes a parliamentary intention to honour Aboriginal and treaty rights. This approach does away with the need to add a non-derogation clause to each and every bill in order to ensure that the bill contains no infringement of those rights.

Please keep in mind that the proposed new section 8.3 of the Interpretation Act would be subject to subsection 3(1) of that act, which provides that:

Every provision of this Act applies, unless a contrary intention appears, to every enactment, whether enacted before or after the commencement of this Act.

Honourable senators, I remind you that in 2007, the Standing Senate Committee on Legal and Constitutional Affairs undertook their study on section 35 of the Constitution Act, 1982, which examined the use of non-derogation clauses in Canadian legislation.

In their report, they proposed some very fine recommendations to address the shortcomings in Canadian legislation. Honourable senators on both sides of the chamber participated in the committee work and expressed willingness and a desire to bring a resolution to this unfinished business.

The details of this can be found in the Standing Senate Committee report entitled Taking Section 35 Rights Seriously: Non-derogation Clauses relating to Aboriginal and treaty rights.

Honourable senators, the Senate has agreed to these important principles — including that a non-derogation provision should be added to the Interpretation Act — and my bill simply implements what has already been adopted.

For all these reasons, I am seeking your support to send this bill to committee for what I hope will be a short but meaningful stage on its way to the other place.

During the committee clause-by-clause consideration of this bill — if it is referred — a correction, by way of amendment, will be required to address a problem of the use of a double negative in the French version. The French word "pas" in clause 1, line 6, will need to be removed to reflect the English version and the intent of this bill.

I believe the Canadian public has an appetite for a healthier relationship with Aboriginal peoples. This bill is one way that we as senators can contribute something positive and meaningful to Aboriginal and non-Aboriginal Canadians.

We as Aboriginal people will need the support of parliamentarians in both houses to bring this bill into legislation. I hope that honourable senators will take the time to read the committee report to give you the full background on my bill so that you can be an active participant in this process.

Thank you for this opportunity to share my work, and I trust this bill will make it to committee for further study.

Nakurmiik.

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