STATUTORY PROTECTIONS AGAINST INFRINGEMENT OF ABORIGINAL AND TREATY RIGHTS

Abstract

Parliament and three provincial legislatures have added non-derogation clauses to their interpretation statutes. These clauses are intended to protect Aboriginal and treaty rights from abrogation or derogation by other legislation. This article argues that the recent Supreme Court decision in Dickson v Vuntut Gwitchin First Nation has clarified the effect of these clauses. In that case, a majority decided that section 25 of the Canadian Charter of Rights and Freedoms prevents the Charter’s individual rights provisions from abrogating or derogating from the Aboriginal, treaty or other rights or freedoms of the Aboriginal peoples. If there is an irreconcilable conflict between a Charter right, such as a section 15(1) equality right, and a section 25 right, the section 25 right prevails.

The non-derogation clauses in the interpretation statutes mirror the language of section 25. It is therefore appropriate to apply the Supreme Court’s interpretation of section 25 to those provisions. Consequently, the laws of Canada, Saskatchewan, Manitoba and British Columbia must respect the Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982. If possible, those laws should be read as not abrogating or derogating from those rights, but if this is not possible because there is an irreconcilable conflict between them, the Aboriginal peoples’ rights should prevail. This means that, absent a clear, constitutionally-valid legislative intention that the relevant non-derogation clause does not apply to the law in question, it is no longer possible for governments in these jurisdictions to justify infringements of these rights.