Section 25 – Aboriginal and treaty rights

Provision

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including:

  1. any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
  2. any rights or freedoms that now exist by way of land claim agreements or may be so acquired.

Similar provisions

Section 35 of the Constitution Act, 1982 recognizes and affirms the existing aboriginal and treaty rights of the aboriginal peoples of Canada. 

See also the following international, regional and comparative law instruments that are not legally binding on Canada but include similar provisions: International Labour Organization Convention 107 and Convention 169 addressing Indigenous rights; The Organization of American States American Declaration on the Rights of Indigenous Peoples. None of these instruments, however, purport to reconcile potential conflicts between individual rights and collective aboriginal rights in the manner contemplated by section 25.

Of particular note, the Supreme Court of Canada has stated that section 25’s protection of collective rights and freedoms is consonant with the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), as brought into Canadian law by the UNDRIP Act, particularly Article 34, which provides “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards” (Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10 at paragraph 117).

Purpose

The purpose of section 25 is to ensure that the designated rights and freedoms of Indigenous peoples are protected where giving effect to conflicting individual Charter rights and freedoms would diminish Indigenous difference (Dickson, supra, at paragraph 117). When the application of the individual right would undermine in an essential or non-incidental way the Indigenous difference protected by the collective right, section 25 directs that the collective right be given primacy (Dickson, supra, at paragraph 143).

Analysis

Section 25 does not create any new rights but rather protects against the abrogation or derogation of existing aboriginal, treaty or other rights or freedoms by the protections in the Charter (Dickson, supra, at paragraphs 152 and 160).

Section 25 involves a four-step analysis:

  1. The Charter claimant must show that the impugned conduct prima facie breaches an individual Charterright. If no prima facie case is made out, then the Charterclaim fails and there is no need to proceed to section 25 (Dickson, supra, at paragraph 179).
  2. The party invoking section 25 — typically the party relying on a collective minority interest — must satisfy the court that the impugned conduct is a right, or an exercise of a right, protected under section 25. That party bears the burden of demonstrating that the right for which it claims section 25 protection is an Aboriginal, treaty, or other right. If the right at issue is an “other” right, then the party defending against the Charter claim must demonstrate the existence of the asserted right and the fact that the right protects or recognizes Indigenous difference (Dickson, supra, at paragraph 180).
  3. The party invoking section 25 must show irreconcilable conflict between the Charter right and the Aboriginal, treaty, or other right or its exercise. If the rights are irreconcilably in conflict, section 25 will act as a shield to protect Indigenous difference (Dickson, supra, at paragraph 181).
  4. Courts must consider whether there are any applicable limits to the collective interest relied on. When section 25’s protections apply, for instance, the collective right may yield to limits imposed by section 28 of the Charter or section 35(4) of the Constitution Act, 1982 (Dickson, supra, at paragraph 182).

It should be noted that where section 25 is found not to apply, the party defending against the Charterclaim may seek to establish that the impugned action is justified under section 1 of the Charter (Dickson, supra, at paragraph 183).

This above framework is consistent with a broad view of the application of the Charter to Indigenous governments, but it should be “given a flexible interpretation that takes account of the distinctive philosophies, traditions, and cultural practices of Aboriginal peoples” (Dickson, supra, at paragraph 51 citing Report of the Royal Commission on Aboriginal Peoples (“RCAP Final Report”), vol. 2, Restructuring the Relationship (1996), at page 234). Section 25 reflects a constitutional choice to protect the collective rights and freedoms associated with Indigenous peoples in Canada as a distinct minority (Dickson, supra, at paragraphs 51 and 108). This choice is consonant with the respect for minority rights, an underlying constitutional principle that infuses the Constitution as a whole (Dickson, supra, at paragraph 108 citing Reference re Secession of Quebec, [1998] 2 SCR 217 at paragraph 49).

Against this backdrop, the concept of “Indigenous difference” – understood as interests connected to cultural difference, prior occupancy, prior sovereignty, or participation in the treaty process – is central to section 25’s protective purpose (Dickson, supra, at paragraph 136, citing Macklem, Patrick, Indigenous Difference and the Constitution of Canada, Toronto: University of Toronto Press, 2001, and at paragraph 150). The clear relationship between sections 25 and 35 suggests that their purposes must also be related. Section 35 of the Constitution Act, 1982 speaks to how the Canadian Constitution protects Indigenous difference from unjustified legislative or executive infringement. Section 25 ensures that the individual rights in the Charter do not themselves undermine Indigenous difference (Dickson, supra, at paragraph 139).

1. Prima Facie Charter breach

To date, the Supreme Court of Canada has only had occasion to consider section 25 in the context of a discrimination claim under section 15 of the Charter. For details on its application, see section 15.

2. The scope of section 25’s protection

“Aboriginal or treaty rights”

Whether an asserted right is an Aboriginal or treaty right depends on the applicable law concerning the recognition of such rights (Dickson, supra, at paragraph 145).

“Other rights or freedoms”

The rights protected under section 25 are not limited to those that are constitutionally entrenched and may instead include ordinary statutory rights (Dickson, supra, at paragraph 149 citing Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203, at paragraph 52, per L’Heureux-Dubé J.). However, since section 25 was intended to protect rights associated with Indigenous difference, the scope of “other rights or freedoms” is limited in a substantive sense. A party seeking the protection of section 25 for an alleged “other” right must establish both the existence of the right and the fact that the right protects or recognizes Indigenous difference (Dickson, supra, at paragraph 150). It has yet to be decided whether “other” rights must have a “constitutional character” in a substantive, rather than a formal sense (Dickson, supra, at paragraph 151).

In Dickson, supra, the Vuntut Gwitchin First Nation (“VGFN”), a self-governing Indigenous nation with a self-government agreement, successfully invoked section 25 with regard to a provision in its constitution requiring office-holders to reside in its traditional territory. The provision was found to constitute an “other right” under section 25 (Dickson, supra, at paragraph 204). The Supreme Court majority noted that it would be impossible to provide for a governing body’s membership without setting out the parameters of such membership. The First Nation therefore has a right to restrict the membership of its governing body (Dickson, supra, at paragraph 209). Further, the evidence showed that the residency of VGFN leaders in the Traditional Territory had been important historically (paragraphs 210-217). The residency requirement helps preserve the leaders’ connection to the land, which is deeply rooted in the VGFN’s distinctive culture and governance practices. It also bolsters the VGFN’s ability to resist the outside forces that pull citizens away from its settlement land and prevents erosion of its important connection with the land. Such interests are associated with various aspects of Indigenous difference, including Vuntut Gwitchin cultural difference and prior sovereignty, as well as their participation in the treaty process that culminated in the enactment of the VGFN Constitution (at paragraph 217).

It remains to be determined whether an “other right” must always be of a “constitutional character” in a substantive, rather than formal sense. In Dickson, supra, the VGFN’s residency requirement clearly met that standard, being part of the VGFN Constitution, and as an aspect of the First Nation’s law that preserves and enshrines an important dimension of VGFN leadership traditions and practices, and VGFN leaders’ connection to the land (paragraph 218).

3. The Operation of Section 25

The proper approach to the operation of section 25 includes elements drawn from both the “shield” and “interpretative prism” approaches found in the jurisprudence and academic commentary (Dickson, supra, para. 158): For the “shield” approach, see, for example, R. v. Kapp, [2008] 2 SCR 483, per Bastarache J., concurring in the result; R. v. Desautel, [2021] 1 SCR 533, at paragraph 39; Campbell v. British Columbia (Attorney General), 2000 BCSC 1123, 79 B.C.L.R. (3d) 122, at paragraphs 156-58; for the “interpretative prism” approach, see Kapp, supra, per McLachlin C.J. and Abella J. for the majority at paragraph 64, in obiter).

Section 25 can be said to have a “shielding” effect because it affords primacy to Aboriginal, treaty or other rights. At the same time, a right within the scope of section 25 is only prioritized after an interpretive exercise demonstrates that there is an irreconcilable conflict between the collective right and the individual Charter right in question (Dickson, supra, at paragraph 158). For the section 25 protection to operate, the conflict between the Charter and the section 25 right must be real and irreconcilable, such that there is no way to give effect to the individual Charter right without abrogating or derogating from the right within the scope of section 25 (Dickson, supra, at paragraph 161).

If giving effect to a Charter right would only affect incidentally or in a non-essential manner the section 25 identified rights – in the sense that it would not undermine Indigenous difference – or if the Charter right can be interpreted in a manner consistent with the Aboriginal, treaty, or other right, then it would be inappropriate to give priority to the right within the scope of section 25 (Dickson, supra, at paragraph 164). Determining whether there is an irreconcilable conflict is an interpretive exercise requiring courts to interpret the substance of both the Charter right and the Aboriginal, treaty, or other right at issue. This interpretive exercise must be informed by, and respectful of, Indigenous perspectives. At the same time, courts must be careful not to depart from the generous interpretation of individual Charter rights and freedoms mandated by the Supreme Court’s jurisprudence (Dickson, supra, at paragraph 163).

In Dickson, supra, the conflict between the claimant’s section 15 right and the VGFN’s “other right” was found to be irreconcilable, enabling the invocation of section 25 to protect the First Nation’s residency requirement (paragraph 219). The Court rejected the argument that the two rights could be reconciled by allowing one elected VGFN Councillor to live in Whitehorse, outside the Traditional Territory. Such an arrangement would undermine, in a non-incidental way, the VGFN’s right to decide on the membership of its governing bodies. Further, the Indigenous difference protected by the residency requirement is inextricably tied to leaders’ connection to the settlement land (paragraph 225).

Finally, even when section 25 would otherwise prioritize an Aboriginal, treaty, or other right, there may be other relevant limitations on the application and effect of section 25. Examples include section 28 of the Charter and section 35(4) of the Constitution Act, 1982. These provisions, which apply notwithstanding any other provision in the Charter or the Constitution Act, 1982 respectively, ensure that a right protected under section 25 does not shelter gender-based discrimination (Dickson, supra, at paragraph 173).

The same framework applies regardless of whether the Charter claimant is Indigenous or non-Indigenous, and whether the party invoking section 25 is an Indigenous or non-Indigenous government (Dickson, supra, at paragraph 165). At the same time, when considering a claim brought by an Indigenous person against their own community, courts should proceed cautiously to avoid unnecessarily or unwittingly imposing incompatible ideas or legal principles upon distinctive Indigenous legal systems (Dickson, supra, at paragraph 172).

The content is current up until 2024-03-31.