Related instruments

Canadian Charter of Rights and Freedoms

Section 35 is part of the Constitution Act, 1982, but not of the Canadian Charter of Rights and Freedoms (Charter) (Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55).

Section 25 of the Charter recognizes that the exercise of Charter rights and section 35 rights may sometimes need to be reconciled. Section 25 provides:

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.

The purpose of section 25 is to uphold certain collective rights and freedoms of Indigenous peoples when those collective rights conflict with an individual’s Charter rights (Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10). It 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. Where the application of the individual Charter 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. This purpose aligns with the broad goals of section 35.

The resolution of challenges posed by competing collective Indigenous rights and individual Charter rights involves a four-step process (Dickson, SCC):

  1. The Charter claimant must show that the impugned conduct prima facie breaches an individual Charter right. If no prima facie case is made out, then the Charter claim fails and there is no need to proceed to section 25.
  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.
  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.
  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 .

Rights that are protected under the “other rights and freedoms” aspect of section 25 are limited to rights that protect Indigenous difference. Indigenous difference is understood as the “interests connected to cultural difference, prior occupancy, prior sovereignty, or participation in the treaty process” by Indigenous peoples. Where section 25 does not apply, limits on individual rights need to be justified under s. 1 of the Charter for the infringement to be reasonable (Dickson, SCC).

For additional information about section 25, see section 25 Charterpedia.

United Nations Declaration on the Rights of Indigenous Peoples

The United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration) is annexed to a resolution adopted by the United Nations General Assembly on September 13, 2007. The Government of Canada endorsed the UN Declaration in 2016 and committed to implementing it in accordance with the Canadian Constitution. In 2021, the UN Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (UN Declaration Act), came into force, setting out a framework for implementing the Declaration at the federal level. For more information on the history of the UN Declaration, visit the Department of Justice Canada’s website.

The UN Declaration consists of 24 preambular provisions and 46 articles that describe the individual and collective rights of Indigenous peoples, the duties of States to secure the enjoyment of these rights and the limits that they may place on these rights. It also acknowledges the need to take into consideration the national and regional particularities of Indigenous peoples in one of its preambular clauses.

These provisions cover a range of civil, political, economic, social and cultural rights and reflect human rights found in binding international human rights instruments to which Canada is a party (for example, International Covenant on Civil and Political Rights: right to self-determination, rights to life, liberty and security of persons, right to enjoy one’s own culture; International Covenant on Economic, Social and Cultural Rights: right to self-determination, rights to an adequate standard of living, education and health). In addition, the UN Declaration draws from documents relating to the right to development as well as the Indigenous and Tribal Peoples Convention of the International Labour Organization (also known as ILO Convention 169), an international treaty to which Canada is not a party.

Some provisions of the UN Declaration, such as Article 19, build on and go beyond what is found in previous international instruments. Article 19 calls on States to “consult and cooperate in good faith with [I]ndigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” The phrase “[f]ree, prior and informed consent” (FPIC) appears in six articles of the UN Declaration in total in relation to specific rights.Footnote 2  In each case, FPIC serves as a qualifier on State action to protect the rights and interests of Indigenous peoples and to ensure their participation in decisions that affect them, their communities and territories. Although section 35 and FPIC are distinct, both section 35 and FPIC are qualifiers on government decision-making that seek to protect core Indigenous rights and interests from adverse effects of government action.

Articles 25 to 30 concerning land, territories and resources are quite novel, relative to other international instruments, and intersect with section 35 rights. These articles reflect the particular experience of Indigenous peoples dispossessed of their lands and traditional territories through colonial doctrines and practices.

Non-binding sources of international law, such as the UN Declaration, can be relevant and persuasive sources to the interpretation of the Canadian Constitution, depending on a number of factors. As an international human rights instrument adopted by the UN General Assembly, the UN Declaration, like any other international human rights instruments for which Canada has expressed support, has application in Canadian law as a source that can be drawn upon to inform the interpretation of domestic law and evaluate the exercise of administrative discretion under domestic law (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817); Health Services and Support - Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27); Kazemi Estate v Islamic Republic of Iran, 2014 SCC 62).

Use of the UN Declaration as an interpretive aid is also applicable to the interpretation of the Canadian constitution, including section 35. For example, Article 26 on lands could be relevant to the interpretation and understanding of section 35’s protection of Aboriginal title, Articles 18 and 19 on involvement in decision-making may be looked to in interpreting the scope of the duty to consult, and paragraph 46(2), which states that “in the exercise of the rights enunciated in the present [UN] Declaration, human rights and fundamental freedoms of all shall be respected”, could be relevant to the interpretation of section 25 of the Charter and section 35. 

On June 21, 2021, the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021 c. 14 received Royal Assent and entered into force. Section 4 (a) of the UN Declaration Act affirms the UN Declaration as a universal human rights instrument with application in Canadian law, noting in the preamble that the UN Declaration can be used as a source for the interpretation of Canadian law. The Supreme Court of Canada has emphasized the applicability of the UN Declaration in Canadian law, as affirmed in the UN Declaration Act (Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5; Dickson, SCC).

The UN Declaration Act recognizes that the UN Declaration offers “a framework for reconciliation”. The UN Declaration Act’s preamble underscores the Government’s commitment to achieve the UN Declaration’s objectives by taking effective measures, including administrative, policy and legislative, in consultation and cooperation with Indigenous peoples. The UN Declaration Act requires that the Government of Canada, in consultation and cooperation with Indigenous peoples (i) take all measures necessary to ensure that the laws of Canada are consistent with the UN Declaration (section 5), (ii)  prepare and implement an action plan to achieve the objectives of the UN Declaration (section 6) and (iii) present an annual report to Parliament on the progress made on sections 5 and 6 of the UN Declaration Act.  The deadline for the Action Plan to be prepared was June 21, 2023. The Government of Canada released the Action Plan on this date. The Action Plan contains 181 measures, which are organized into five chapters that reflect shared and distinctions-based priorities identified by these groups: Shared priorities, First Nations priorities, Inuit priorities, Métis priorities and Indigenous Modern Treaty Partner priorities. Several of the Action Plan measures relate to section 35 constitutional rights, including Shared priorities 31, 35, 53 and 65 and Métis priorities 1, 3 and 4.

Importantly, the section 35 constitutional duty to consult is distinct from the legal requirement to consult and cooperate under the UN Declaration Act. Consultation and cooperation under the UN Declaration Act applies to legislation and regulations (section 5), Action Plan measures (section 6) and the annual report (section 7). In contrast, the section 35 duty to consult is often engaged when administrative decisions are involved or through other types of government action. Unlike the section 35 duty to consult, the UN Declaration Act does not limit the consultation and cooperation requirement to potential adverse impacts, nor is it confined to potential or established section 35 rights.

Moreover, since the UN Declaration deals with both individual and collective rights, and a broader range of interests, the obligation to consult and cooperate under the UN Declaration Act applies in a wider range of potential circumstances than the section 35 duty to consult. In the context of section 35, government action is often tied to a particular geographic area. In the context of sections 5 and 6 of the UN Declaration Act, legislative, regulatory or Action Plan measures may be geographically targeted but typically will be national in scope. However, it is possible that both the legal duty to consult and the obligation to consult and cooperate to be applicable in particular circumstances.

American Declaration on the Rights of Indigenous Peoples

On June 15, 2016, the General Assembly of the Organization of American States (OAS) adopted the American Declaration on the Rights of Indigenous Peoples (American Declaration). The American Declaration builds on the international standards set by 169 ILO Convention and the UN Declaration. The American Declaration addresses issues that were not covered by the UN Declaration, including specific situations relevant to the region such as the rights of Indigenous peoples in “voluntary isolation or initial contact,” and Indigenous peoples affected by armed conflict. Comprised of forty-one articles divided into six thematic sections, the American Declaration recognizes a wide-ranging series of individual and collective rights deemed “indispensable for [Indigenous peoples’] existence, well-being and integral development as peoples.” According to its terms, these rights constitute the minimum standards for the survival, dignity, and well-being of the Indigenous peoples of the Americas. It is an international instrument which expresses Member States’ commitments on the rights of Indigenous peoples of the Americas.

To date, Canada has not taken a position on the American Declaration. As such, while it might still be looked to as a potentially relevant source for interpreting domestic law, it is unlikely to be given as significant weight as the UN Declaration.

Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples

Released by the Government of Canada on July 14, 2017, the Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples (Principles) are a guide to ensure that the Government’s relationships with First Nations, Inuit and Métis are based on recognition of rights, respect, cooperation and partnership. The Principles are rooted in section 35, guided by the UN Declaration, and informed by the Report of the Royal Commission on Aboriginal Peoples and the Truth and Reconciliation Commission’s Calls to Action. They cover five main themes:

The Principles and associated commentary serve to guide the federal government and its officials in their approaches to Indigenous issues and engagement with Indigenous peoples in all circumstances.  They also serve as a tool to identify gaps in laws, policies and operational practices and to develop solutions in partnership with Indigenous peoples.