As discussed in last Friday’s post introducing the Supreme Court of Canada’s (SCC) recent decision in Dickson v Vuntut Gwitchin First Nation [1], the majority in this case held that s. 25 of the Charter protects Indigenous rights, including legal traditions, from being abrogated or derogated by guarantees in other sections of the Charter in certain circumstances. In this post we will discuss the framework for applying s. 25 outlined by the majority of the SCC in Dickson.
There has been relatively little SCC consideration or application of s. 25 and none in circumstances involving a dispute between a self-governing First Nation and one of its members. [2] This lack of existing jurisprudence meant the SCC needed to build a new framework as part of its analysis in this case.
The SCC held that “[t]he purpose of s. 25 is to uphold certain collective rights and freedoms of Indigenous peoples when those collective rights conflict with an individual’s Charter rights.” [3] When rights under s. 25 are engaged, the limitations on a Charter right do not need to be justified as they would under s 1 of the Charter. [4] However, in order for s. 25 to apply, the right must be a collective Indigenous right in actual conflict with an individual’s Charter right. [5]
The SCC in Dickson outlines the below framework for the application of s. 25:
“The Charter claimant must show that the impugned conduct prima facie breaches an individual Charter right,” [6]
The party invoking s. 25 “must satisfy the court that the impugned conduct is a right, or an exercise of a right, protected under s. 25,” [7]
The party invoking s. 25 “must show irreconcilable conflict between the Charter right and the Aboriginal, treaty, or other right or its exercise,” [8]
Courts must consider “whether there are any applicable limits to the collective interest relied on,” [9] and
If s. 25 is found not to apply, “the party defending against the Charter claim may show that the impugned action is justified under s. 1 of the Charter. [10]
When a party invokes s. 25 in response to a Charter claim, courts should apply s. 25 as early as possible, while ensuring they do not unduly prejudice the individual Charter challenge. [11] This will likely be once the Charter claimant has shown a prima facie breach of their Charter right. [12]
S. 25 protects “aboriginal, treaty or other rights or freedoms.” [13] The SCC determined, based on this wording, the rights protected by s. 25 did not need to be Constitutional in nature. [13] A party seeking to use the protection of s. 25 for “other rights or freedoms” must establish two things: first, that the right exists, and second, that the right protects or recognizes “Indigenous difference.” [14]
Once the existence of the right has been established, it may then be determined that there is irreconcilable conflict between the Charter right and the s. 25 right that would result in the Charter right undermining the Indigenous difference protected by the s. 25 right. The SCC took a somewhat narrow view of what this conflict must entail, holding that “the conflict between the rights must be real and irreconcilable, such that there is not way to give effect to the individual Charter right without abrogating or derogating from the right within the scope of s. 25.” [15] The conflict must not be merely possible or hypothetical. If the infringement affects the s. 25 right incidentally or in a non-essential manner,” then it would be “inappropriate” to give priority to the s. 25 right. [16]
This framework applies to all applications of s. 25, regardless of whether the conflict is internal or external to the Indigenous group the s. 25 right belongs to. [17] However, the SCC recognized “the need for great caution” for “internal” claims brought by an Indigenous person against their own community, so the courts “avoid unnecessarily or unwittingly imposing incompatible ideas or legal principles upon the distinctive Indigenous legal system.” [18]
The SCC also addressed limitations to the application of s. 25. S. 25 cannot create inequality between male and female persons, as outlined in both s. 28 of the Charter and s. 35(4) of the Constitution Act, 1982.[19] However, the SCC declined to specifically outline the limits of s. 25 protections until it is presented with a case where they arise on the facts.
Dickson has taken up the position of being the leading case regarding the application of s. 25. The majority of the SCC seems to have taken a moderate approach. It affirmed the primacy of Indigenous laws over Charter rights in situations of real conflict. However, it still limited the power of Indigenous Governing Bodies by requiring “real conflict” between the rights and requiring the s. 25 right claimed to be based on “Indigenous difference.”
Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10.
Ibid at paras 104-105.
Ibid at para 107.
Ibid at para 108.
Ibid at para 110.
Ibid at para 178.
Ibid at para 180.
Ibid at para 181.
Ibid at para 182.
Ibid at para 183.
Ibid at para 177.
Ibid.
The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 s 25.
Dickson, supra note 1 at para 149.
Ibid at para 150.
Ibid at para 161.
Ibid at para 164.
Ibid at para 165.
Ibid at para 172.
Ibid at para 173.