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 United Nations Declaration on the Rights of Indigenous Peoples; 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.

Purpose

There is insufficient judicial consideration of this provision to state the purpose with any certainty. In R. v. Kapp, [2008] 2 SCR 483) the federal government proposed that section 25 is a mechanism for the reconciliation of conflicts between the rights and freedoms guaranteed by the Charter and aboriginal, treaty, or other rights and freedoms of the aboriginal peoples of Canada. 

Analysis

There is little clear judicial direction on section 25. The section has been discussed briefly by the Supreme Court of Canada in five cases, but it has yet to have had occasion to apply it in a majority decision (Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203; Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238; Kapp, supra; Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 SCR 103). What little judicial treatment there has been, as well as the plain wording of the provision, make it clear that 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 (Corbiere, per L’Heureux-Dubé J., concurring in the result; Quebec Secession Reference; Kapp, per Bastarache J., concurring in the result but writing for himself on section 25; R. v. Agawa, [1988] O.J. No. 1248 (ONCA), leave to appeal denied [1988] S.C.C.A. No. 501 (S.C.C.); Campbell v. B.C. (Attorney General), [2000] B.C.J. No. 1524; Rice v. Agence du revenu du Québec, 2016 QCCA 666). It is “…triggered when section 35 aboriginal or treaty rights are in question, or when the relief requested under a Charter challenge could abrogate or derogate from ‘other rights or freedoms that pertain to the aboriginal peoples of Canada’” (Corbiere, per L’Heureux-Dubé J., concurring in the result, at paragraph 52).

Courts have discussed two main alternative approaches to the application of section 25: (1) it is a “shield” which renders section 25 protected rights immune from Charter review: Kapp, per Bastarache J. (concurring in the result but writing for himself on section 25, with the majority expressing reservations about his approach in obiter); Campbell; R. v. Steinhauer (1985), 63 A.R. 381 (Alta.Q.B.); R. v. Nicholas and Bear et al. (1988), 91 N.B.R. (2d) 248 (Q.B.); Schubenacadie Indian Band v. Canada (Canadian Human Rights Commission) (re Macnutt), [1998] 2 F.C. 198 (T.D.); affirmed, [2000] 4 C.N.L.R 275 (F.C.A.); leave to appeal denied, [2000] S.C.C.A. No. 398 (S.C.C.); or (2) it is an “interpretive provision informing the construction of potentially conflicting Charter rights”: Kapp, majority reasons in obiter at paragraph 64; Ontario (A.G.) v. Bear Island Foundation, 49 OR (2d) 353 (Ont. High Court), affirmed without addressing section 25 in (1989), 68 O.R. (2d) 394 (C.A.) and [1991] 2 S.C.R. 570.

In Kapp, Bastarache J. (concurring in the result but writing for himself on section 25) found that section 25 is a threshold consideration that does not require full analysis of the substantive Charter claim (only whether there is a prima facie Charter violation), and which operates to shield aboriginal rights and freedoms from erosion by the protection of Charter rights and freedoms. However, McLachlin and Abella JJ. for the majority decided the case without reliance on section 25, and, in obiter, signaled concerns with aspects of Bastarache J.’s analysis. They queried whether section 25 would constitute an “absolute bar” to the appellants’ section 15 claim rather than an “interpretive provision informing the construction of potentially conflicting Charter rights” (paragraph 64). While their full section 15 analysis, notwithstanding a party’s invocation of section 25, might be taken as an implicit rejection of the view that section 25 obviates full analysis of the Charter right asserted, it may also simply have been a function of the majority’s “prudence” in declining to address section 25 where not strictly necessary (paragraph 65).

The one case in which section 25 has been interpreted and applied is Campbell, supra, in which the British Columbia Supreme Court found that section 25 serves to shield the treaty rights of aboriginal people (Nisga’a Final Agreement) from the provisions of the Charter, obviating the Charter analysis.

1. Scope

Section 25 protects three categories of rights and freedoms against Charter claims: (1) aboriginal rights, (2) treaty rights, and (3) other rights or freedoms that pertain to the aboriginal peoples of Canada. The nature and scope of the claimed section 25 protected right must be assessed in order to determine if section 25 is triggered in any given situation. Much of the jurisprudence in the lower courts is focused on whether section 25 is triggered.

The phrase "other rights or freedoms that pertain to the aboriginal peoples of Canada" indicates that the rights included in section 25 are broader than the "aboriginal rights" and "treaty rights" recognized and affirmed by section 35 of the Constitution Act, 1982: “This latter phrase indicates that the rights included in section 25 are broader than those in section 35, and may include statutory rights. However, the fact that legislation relates to Aboriginal people cannot alone bring it within the scope of the "other rights or freedoms" included in section 25” (Corbiere, per L’Heureux-Dubé J., concurring in the result, at paragraph 52).

In Kapp, Bastarache J. (concurring in the result but writing for himself on section 25) found that a fishing license granting three First Nations exclusive access to the Fraser River commercial salmon fishery for a 24-hour period constituted an “other right” within the meaning of section 25. However, McLachlin and Abella JJ. (for the majority) queried in obiter whether such an interest falls within section 25. In their view, “…the wording of section 25 and the examples given therein…suggest that not every aboriginal interest or program falls within the provision’s scope. Rather, only rights of a constitutional character are likely to benefit from section 25” (paragraph 63).

Interim agreements in the context of treaty negotiations do not automatically generate “other rights” within the meaning of section 25. Specifically, a Parks Canada policy allocating one-third of all tourism licenses in Gwaii Haanas National Park Reserve to Haida-owned businesses does not come within the meaning of “other rights” in section 25 (Moresby Explorers Ltd. v. Canada (Attorney General), [2005] F.C.J. No. 723, 2005 FC 592 (F.C.T.D.)).

Bearing in mind that section 25 does not create new rights, and also that the Royal Proclamation of 1763 is not a source of rights but rather a recognition of rights that existed at the time, the reference to the Royal Proclamation in subsection 25(a) of the Charter does not support a right of Mohawk gasoline retailers to be exempt from the collection and remittance of taxes from fuel sales (Rice, supra).

Where a First Nation failed to establish an aboriginal right under section 35 to block the adoption of a First Nations child by a non-First Nations family, section 25 was not engaged (R.T. (Re), [2004] S.J. No. 771, 2004 SKQB 503, [2005] 1 C.N.L.R. 289).

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