Case Comment on R. v. Kapp: An Analytical
Framework for Section 25 of the Charter
Celeste Hutchinson*
There is a significant void in the jurisprudence
and literature regarding section 25 of the Canadian
Charter of Rights and Freedoms. Consequently, there is
no settled interpretation of either when it is triggered or
the specific analytical framework that should apply. In
R. v. Kapp, the British Columbia Court of Appeal
provides a groundbreaking analysis of section 25 that
addresses both constitutional questions.
The author first reviews the facts of the case, in
which ten non-Aboriginal persons accused of unlawful
fishing challenged regulations that restricted fishing in
an area to members of licensed First Nations bands on
the ground that they violated section 15 of the Charter.
A majority of the British Columbia Court of Appeal
dismissed the appeal, finding no infringement of
section 15.
While several members of the court declined to
consider the section 25 argument, Justices Low and
Kirkpatrick provide an in-depth analysis of the section.
The author shows how neither decision resolves the
debate about whether section 25 should be triggered
after a Charter right analysis has commenced or as a
threshold issue before beginning such an analysis.
a
Justice Kirkpatrick, however, provides
structured three-part framework for section 25 that the
author argues will serve as a starting point for future
courts undertaking a section 25 analysis. The author
addresses several problems with
the framework.
Finally, the author notes that the decision does not deal
with the potential conflict between an individual
Aboriginal right protected by the Charter and a
collective Aboriginal right protected by section 25.
la Charte afin de contester
Un important vide subsiste dans la jurisprudence
et dans la doctrine au sujet de larticle 25 de la Charte
canadienne des droits et liberts. Par consquent,
linterprtation de cet article demeure incertaine quant
la dtermination des critres selon lesquels cet article
est susceptible dtre invoqu ainsi quau choix du
cadre analytique appropri ou pouvant sy appliquer.
Dans laffaire R. v. Kapp, la Cour dappel de la
Colombie-Britannique a arbor une analyse sans
prcdent de larticle 25 qui aborde ces deux questions
constitutionnelles.
En guise dintroduction, lauteure prsente les
faits de la cause. Dix personnes non autochtones
accuses davoir pch sans autorisation invoqurent
larticle 15 de
la
constitutionnalit des rglements restreignant toute
pche dans la rgion aux membres de bandes de
premires nations pourvues de permis. La majorit de la
Cour dappel de la Colombie-Britannique a rejet
lappel refusant ainsi de reconnatre le bien fond de
lexistence dune violation en vertu de larticle 15.
Bien que plusieurs juges de cette cour aient refus
de considrer les arguments relatifs larticle 25, les
juges Low et Kirkpatrick offrirent quant eux une
analyse approfondie de la porte de larticle. Lauteure
souligne cependant quaucun de ces jugements ne
rsout le dbat quant savoir si larticle 25 devrait tre
invoqu aprs linitiation dune analyse fonde sur la
Charte, ou si un argument invoquant cet article devrait
tre considr comme une question de seuil avant
quune telle analyse ne soit dbute.
Lauteure soutient que le cadre danalyse en trois
parties de larticle 25 dvelopp par le juge Kirkpatrick
servira dornavant de point de dpart pour les analyses
fondes sur cet article. Lauteure soulve cependant un
nombre de problmes que pourraient
susciter
lutilisation de ce cadre danalyse, et note une lacune
importante dans le jugement : celui-ci naborde pas la
possibilit dun conflit ventuel entre un droit
autochtone individuel protg par la Charte et un droit
autochtone collectif protg en vertu de larticle 25.
* LL.B. candidate (2008), University of Saskatchewan.
Celeste Hutchinson 2007
To be cited as: (2007) 52 McGill L.J. 173
Mode de rfrence : (2007) 52 R.D. McGill 173
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174
Introduction
175
175
177
178
181
184
189
I. Facts and Case History
II. Constitutional Drafting
III. Jurisprudence
IV. Approach to Section 25 in Kapp
V. Analysis
Conclusion
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C. HUTCHINSON R. V. KAPP
175
I. Introduction
Since the enactment of the Constitution Act, 1982,1 most Aboriginal claims have
been brought before the courts within the context of section 35. As a result, little
attention has been given to section 25 of the Canadian Charter of Rights and
Freedoms.2 However, in R. v. Kapp3 the British Columbia Court of Appeal provided
an analysis of section 25 and its application in relation to the Charter. Although a
majority of the court held that it was not applicable in this case, Justice Low indicated
circumstances in which it may be invoked, albeit in a limited fashion. Justice
Kirkpatrick, agreeing in result, went further than the majority by holding that the
appeal could be dismissed solely by virtue of section 25.
As there is little reference to section 25 in Aboriginal rights cases, its significance
in relation to Charter interpretation has been somewhat speculative. Kapp provides
some insight into the direction the courts may take in its application. The majority in
this case followed prior jurisprudence in finding that section 25 is not applicable
unless a Charter issue arises in the context of Aboriginal rights. However, Kapp
differs from prior cases in two ways. First, it provides an analysis regarding the point
in time at which section 25 is triggered. As can be seen in Justice Lows decision,
there is an ongoing debate about whether section 25 is a threshold issue or whether it
is to be applied only once a Charter analysis has commenced. Second, Justice
Kirkpatrick establishes an analytical framework for the application of section 25.
As Kapp is one of the first cases to provide such extensive analysis, it is
important to look not only at the drafting history of section 25 but also at the
jurisprudence that predates it. Both are indicative of the purpose the provision was
designed to perform. By critically analyzing the reasoning behind the opinions of
Justices Low and Kirkpatrick, difficulties and weaknesses of the proposed framework
are exposed, as are possible issues that may arise in the future. While the position of
Justice Low may have merit, and while Justice Kirkpatricks approach is not without
its problems, there is a strong possibility that Justice Kirkpatricks more in-depth
analysis of section 25 will provide the building blocks for the future application of
this potentially valuable Charter provision.
I. Facts and Case History
After the decision in R. v. Sparrow,4 the federal government implemented the
Aboriginal Fisheries Strategy (AFS) to create increased economic opportunities for
Aboriginal people in Canadian fisheries. As part of the policy, Parliament, under the
1 Being schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
2 Part I of the Constitution Act, 1982, ibid. [Charter].
3 2006 BCCA 277, [2006] 56 B.C.L.R. (4th) 11, 3 C.N.L.R. 282, leave to appeal to S.C.C. granted,
31603 (14 December 2006) [Kapp].
4 [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385 [Sparrow].
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power granted to it by the Fisheries Act,5 enacted the Aboriginal Communal Fishing
Licenses Regulations,6 which granted communal fishing licences to three First
Nations as part of a Pilot Sales Program (PSP).7 Those three First Nation bands
were the Musqueam, the Burrard, and the Tsawwassen (MBT).
Kapp was one of ten non-Aboriginal persons charged with unlawfully fishing for
salmon with a gillnet, in or near Area 29, contrary to the Pacific Fishery Regulations,
1993,8 resulting in an offence under the Fisheries Act. The area in which the accused
were fishing was closed for a twenty-four-hour period, allowing only designated
members of the MBT to fish in the area pursuant to the ACFLR.
At trial, Justice Kitchen entered a stay of proceedings due to a breach of
subsection 15(1) of the Charter.9 This decision was overturned by the Supreme Court
of British Columbia as the PSPs were not found to have a purpose or effect that was
discriminatory under subsection 15(1).10
The appellant brought two challenges before the Court of Appeal: (1) the licences
created exclusive fisheries, which was not within the power of Parliament to delegate,
and was therefore ultra vires; and (2) the provisions of the ACFLR violated section 15
of the Charter. The matter was dismissed by a majority of the court on the non-
Charter argument regarding the delegation of authority to the minister. Justice Low,
in considering Parliaments delegation of the power to issue licenses and to make
regulations with respect to their issuance, held that there was no basis for concluding
that all of this is not regulation properly authorized by Parliament simply because the
communal licence was issued to the MBT and was not available to all Canadians.11
The majority of the Court of Appeal also dismissed the appeal on the Charter
equality issue. While there were some differences among the members of the court in
their analysis of the application of subsection 15(1), a majority found that there was
no infringement of the right.12 Justice Low held that although the regulation may
seem discriminatory at first glance, upon further examination the appellants were
given the right to fish under commercial licence during other openings of the fishery
… The MBT communal licence and the commercial licences under which the
appellants fished were both parts of the overall scheme by which the Minister
5 R.S.C. 1985, c. F-14, s. 43.
6 S.O.R./93-332 [ACFLR].
7 For a more thorough discussion of the historical context and development of the AFS and of PSPs,
see Andr Goldenberg, Salmon for Peanut Butter: Equality, Reconciliation and the Rejection of
Commercial Aboriginal Rights (2004) 3 Indigenous L.J. 61.
8 S.O.R./93-54.
9 R. v. Kapp, 2003 BCPC 279, [2003] 4 C.N.L.R. 238.
10 R. v. Kapp, 2004 BCSC 958, [2004] 31 B.C.L.R. (4th) 258, [2004] 3 C.N.L.R. 269.
11 Kapp, supra note 3 at para. 65.
12 Kirkpatrick J. did not provide a s. 15(1) analysis but rather based her decision solely on a s. 25
analysis.
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allocated the resource … 13 Thus [t]he licensing scheme did not constitute unequal
treatment of either the appellants or of the MBT14 as required by the first branch of
the test set out in Law v. Canada (Minister of Employment and Immigration).15 Justice
MacKenzie, in his concurring judgment, held that the appellants section 15 argument
failed on the third branch of the Law test.16 He found that although the licensing
scheme imposed differential treatment based on an enumerated ground, there was no
actual or objective disadvantage realized by the appellants.17
Although several members of the court found it inappropriate to consider the
section 25 argument brought forth by the intervenor Tsawwassen First Nation,
Justices Low and Kirkpatrick felt it necessary to address the issue. Justice Low held
that section 25 could not be triggered where a Charter violation had not occurred. As
no infringement or breach of subsection 15(1) had been found, section 25 was
inapplicable.18 Justice Kirkpatrick took an entirely different approach in holding that
the application of section 25 is a threshold issue that should be considered prior to a
Charter analysis.19 Justice Kirkpatrick went on to provide an analytical framework for
the application of section 25, ultimately finding that the appeal should be dismissed
as section 25 protected the Aboriginal right to fish commercially, as created under the
statutory scheme, from Charter challenge.20
the manner in which they relate to the Charter, will be considered.
For the purposes of this paper, only the section 25 arguments and analysis, and
II. Constitutional Drafting
Before considering the analysis provided by Justices Low and Kirkpatrick in
Kapp, it is helpful to briefly consider the history of section 25. This history will not
only help determine how interest groups, provinces, and Parliament envisioned the
sections role in relation to the rest of the Charter, but will help to determine the
purpose the section was intended to serve. Section 25 states:
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
(a) any rights or freedoms that have been recognized by the Royal
Proclamation of October 7, 1763; and
13 Kapp, supra note 3 at para. 81.
14 Ibid. at para. 82.
15 [1999] 1 S.C.R. 497, 170 D.L.R. (4th) 1 [Law].
16 Kapp, supra note 3 at para. 98.
17 Ibid. at para. 109.
18 Ibid. at para. 90.
19 Ibid. at para. 139.
20 Ibid. at para. 152.
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(b) any rights or freedoms that may be acquired by the aboriginal
peoples of Canada by way of land claims settlement.21
Section 25 was initially introduced to protect the rights of Aboriginal peoples.
From an Aboriginal perspective, at the time the Charter was being drafted the biggest
threat to Aboriginal rights, including treaty and other rights, was section 15 of the
Charter.22 Section 25 was created to address these concerns. According to the deputy
minister of justice at the time, Roger Tass, the provision was designed as an
interpretation clause [that] comes as a rule of construction for the charter in its
application to the rights of aboriginal peoples.23 Former Justice Minister Jean
Chrtien indicated that section 25 would not create rights for Aboriginal persons but
would protect Aboriginal rights in a negative way by preventing infringement of
those rights by other provisions of the Charter.24 Thus, the entire process leading to
the enactment of the Charter
suggests that the original and sustained intent of the drafters … was to ensure
that the protection of rights by the Charter would not affect the rights of
Aboriginal peoples in Canada. …
… [The] purpose for section 25 can be stated: to prevent Charter rights and
freedoms from diminishing other rights and freedoms of Aboriginal peoples in
Canada, whether those rights are in the nature of Aboriginal, treaty, or other
rights.25
In addition to the expressed intent of the drafters, there are other aids to
interpreting the Charter, such as the corresponding provisions of sections 26 to 29.
These sections coincide with the purpose of section 25, as they indicate that the
legislature intended to increase and protect the rights and freedoms of Canadians,
rather than restrict them.26
III. Jurisprudence
Prior to any substantial case law on section 25, there was speculation about the
potential methods of applying it. William Pentney considered section 25 an
interpretive prism that was intended only as an interpretive guide and not as an
21 Supra note 2.
22 See Jane M. Arbour, The Protection of Aboriginal Rights Within a Human Rights Regime: In
Search of an Analytical Framework for Section 25 of the Canadian Charter of Rights and Freedoms
(2003) 21 Sup. Ct. L. Rev. 3 at 43.
23 Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the
House of Commons on the Constitution of Canada, 32d Parl., 1st Sess., vol. 4, No. 49 (30 January
1981) at 93 [Special Joint Committee].
24 See ibid., vol. 1, No. 3 (12 November 1980) at 32-33.
25 Arbour, supra note 22 at 36.
26 See ibid. at 37.
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independently enforceable guarantee of aboriginal and treaty rights.27 This implied
that section 25 was a mere canon of interpretation that allowed for interpretive
flexibility, and that the judiciary should choose the interpretation that is the least
intrusive on aboriginal rights.28 However, if the conflict between the Aboriginal right
and the Charter right could not be reconciled, only the Charter right would be given
effect.29
In contrast, Bruce Wildsmith suggested that [t]he balancing of values required
by section 1 in other situations is, arguably, part of the process of applying the section
25 preference for native rights as well.30 He implied that while both a Charter right
analysis and a section 25 analysis would be required, the courts could possibly work
into the provision a justification feature similar to that of a section 1 analysis. As will
be seen, neither of these interpretations of section 25 was fully adopted by the courts.
As there has been little dialogue in regard to section 25, interpretation of this
provision remains relatively undeveloped. The lack of discussion of section 25 in
mainstream constitutional textbooks,31 in academic journals, and in case law is
indicative of this underanalysis. The lack of jurisprudence in this area has often been
attributed to the following: (1) the courts do not find a Charter violation and therefore
section 25 does not apply, or (2) the courts do not find adequate evidence to support
that an Aboriginal, treaty, or other right has been affected so as to trigger section
25.32 Nevertheless, to understand the interpretations of section 25 in Kapp, it is
necessary to consider not only the drafters intent, as discussed above, but also its
subsequent development and application in case law. Indeed, several cases have
provided some comments and direction as to how it is to be interpreted and applied.
The Supreme Court of Canada has clearly indicated that section 25, along with a
variety of other provisions, was included in the Charter to protect minority rights.33
While this may raise issues about whether Aboriginal rights should be included
within the lump category of minority rights, for the purposes of this paper it is only
necessary to consider this statement as an acceptance by the Court of the protective
purpose intended for the provision. This concept of protection has lead the courts to
27 William Pentney, The Rights of the Aboriginal Peoples of Canada and the Constitution Act,
1982: Part IThe Interpretive Prism of Section 25 (1988) 22 U.B.C. L. Rev. 21 at 28.
28 Thomas Isaac, Canadian Charter of Rights and Freedoms: The Challenge of the Individual and
Collective Rights of Aboriginal People (2002) 21 Windsor Y.B. Access Just. 431 at 436.
29 See Bruce H. Wildsmith, Aboriginal Peoples and Section 25 of the Canadian Charter of Rights
and Freedoms (Saskatoon: University of Saskatchewan Native Law Centre, 1988) at 10-11.
30 Ibid. at 25.
31 See e.g. Peter W. Hogg, Constitutional Law of Canada, student ed. (Toronto: Thomson Canada,
32 See Arbour, supra note 22 at 17.
33 See Reference Re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 82, 161 D.L.R. (4th) 385
2006) at 668-69.
[cited to S.C.R.].
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find that section 25 does not create new rights, but rather ensures that rights and
freedoms held by Aboriginal peoples are not diminished by the Charter.34
More recent cases have described this protective feature in section 25 not as an
interpretive prism or as a means of balancing rights, but as a shield. In
Campbell v. British Columbia (Attorney General), Justice Williamson summarized
prior cases as showing that the section is meant to be a shield which protects
aboriginal, treaty and other rights from being adversely affected by provisions of the
Charter.35 He proceeded to suggest that a purposive approach to section 25 should
be taken, and that the purpose of this section is to shield the distinctive position of
aboriginal peoples in Canada from being eroded or undermined by provisions of the
Charter.36 The Federal Court of Appeal came to the same conclusion about the
interpretation of section 25 as a shield in Shubenacadie Indian Band v. Canada
(Human Rights Commission).37
While section 25 has, in some cases, been held to be a shield to protect against
the infringement of Aboriginal rights, the courts have been clear that it does not create
new rights. In R. v. Redhead, Justice Oliphant stated that the section does not confer
new rights upon aboriginal people. It merely confirms certain rights held by
aboriginal people prior to the inception of the Charter.38 The fact that substantive
rights are not created by section 25 was also addressed in Campbell.39 However,
Justice LHeureux-Dub suggested in her minority judgment in Corbire v. Canada
(Minister of Indian and Northern Affairs) that although no rights are created by
section 25, the rights that are protected by it are broader than those in section 35 of
the Constitution Act, 1982.40
Finally, the case law surrounding the provision refers to the point at which
section 25 is triggered. As illustrated by the diverging opinions of Justices Low and
Kirkpatrick in Kapp, however, there has been no definitive determination on the
subject. In Corbire, the minority held that [s]ection 25 is triggered when s. 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.41 The language from Corbire was
adopted by the Court in Campbell.42 The interpretation of section 25 in these cases
seems to suggest that there need only be a Charter claim whose remedy would
34 See e.g. R. v. Steinhauer (1985), 63 A.R. 381 at paras. 19, 58, 3 C.N.L.R. 187 (Q.B.) [Steinhauer].
35 2000 BCSC 1123, 189 D.L.R. (4th) 333 at para. 156, 79 B.C.L.R. (3d) 122 [Campbell].
36 Ibid. at para. 158.
37 (2000), 187 D.L.R. (4th) 741 at para. 43, [2000] 4 C.N.L.R. 275 (F.C.A.) [Shubenacadie cited to
38 (1995), 103 Man. R. (2d) 269 at para. 83, [1996] 3 C.N.L.R. 217 (Q.B.).
39 Supra note 35 at para. 156.
40 [1999] 2 S.C.R. 203 at para. 52, 173 D.L.R. (4th) 1, [1999] 3 C.N.L.R. 19 [Corbire cited to
S.C.R.].
41 Ibid.
42 Supra note 35 at para. 156.
D.L.R.].
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infringe an Aboriginal right for the section to be triggered,43 and that therefore
section 25 is a threshold issue. As discussed below, this is the line of reasoning
embraced by Justice Kirkpatrick in Kapp.
Prior to Corbire, however, the lower courts often interpreted section 25 so as to
consider a section 25 argument only when a Charter issue was raised or a Charter
violation proven.44 Since Corbire, this interpretation of the section has been
maintained in several cases. In Shubenacadie, the court held that [t]he section can
only be invoked as a defence if it had been found that the appellants conduct had
violated subsection 15(1) of the Charter.45 In Grismer v. Squamish Indian Band46 the
court proceeded with the Charter analysis first, and upon determining that there was a
justifiable infringement of subsection 15(1), held that there was no need to consider
the subsection 25 arguments. These cases indicate that section 25 is not triggered as
a threshold issue, but rather is only invoked once a Charter infringement is
established or a violation of a Charter right proven. As will be seen, Justice Low in
Kapp preferred this interpretation of section 25.
IV. Approach to Section 25 in Kapp
In Kapp, the judgments rendered by Justices Low and Kirkpatrick provide some
insight as to how section 25 could be interpreted in future cases. Justice Low suggests
that there are two ways to approach the provision. First, section 25 could be viewed
as a threshold issue, triggered any time a Charter breach is claimed and an Aboriginal
right engaged. Alternatively, he proposes that the provisions wording, shall not be
construed, suggests it should be applied only once a Charter breach has been
proven, rather than merely claimed.47 Justice Low prefers the latter interpretation,
though it is unclear whether he intends that the protection should be triggered when
infringement of a Charter right is established or only after it has been determined that
the breach of that Charter right is not saved by section 1.48
Justice Low is clearly uncomfortable with creating any strict rule of application,
saying that he does not wish to lay down a stringent rule regarding the stage in the
overall analysis at which s. 25 must be considered.49 He fears that creating a
stringent rule might frustrate the use of section 25 as he is unable to predict all the
scenarios in which it could potentially arise: The proper view might be that the point
43 The issue of remedy sought is addressed in Part V, below.
44 See Steinhauer, supra note 34. See also Thomas v. Norris, [1992] 2 C.N.L.R. 139, 31 A.C.W.S.
(3d) 558 (B.C.S.C.).
45 Supra note 37 at para. 43.
46 2006 FC 1088, 146 C.R.R. (2d) 68, [2007] 1 C.N.L.R. 146.
47 Kapp, supra note 3 at para. 87.
48 See ibid. at paras. 87-88.
49 Ibid. at para. 89.
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at which s. 25 must be considered will depend on the circumstances of the particular
case.50
While he does not elaborate further on how section 25 could be applied in
relation to either a Charter infringement or breach, one could envision issues with
either situation. For example, if only an infringement is required before section 25 is
applicable, would a section 1 analysis even be required? It has been suggested by
some commentators that if section 25 were to act as a complete shield to other
Charter rights, section 1 would be unnecessary and even redundant.51 That is, any
Charter right that may abrogate and derogate from an Aboriginal right would not
be enforced, whether infringement of that Charter right were justifiable or not. But, if
it is the case that section 1 is unnecessary, why engage in a Charter analysis at all? It
would seem appropriate that if section 25 were to act as a complete shield, then it
should be addressed as a threshold issue.
Conversely, if a complete Charter analysis, including a section 1 analysis, is to be
undertaken first, further issues could arise. For example, assuming that there is an
infringement of a Charter right and that the infringement cannot be justified under
section 1, where does that leave section 25? It has been suggested that if section 25 is
an interpretive clause designed to act as a rule of construction for the Charter, it
should be applied so as to modify the usual definition or scope of the substantive
guarantee. Only after this modification has occurred should the section 1 analysis be
undertaken.52 Or, in the alternative, it could be argued that the purpose of section 25
should be considered throughout the Charter analysis. As Arbour writes, [S]ection
25 may have a role to play in the section 1 analysis to the extent that it can be seen to
be a directive to fully integrate Aboriginal perspectives into the contextual
approach.53 In light of the above issues with Justice Lows approach and his
reluctance to set a specific rule of application, it is difficult to determine how much
weight his analysis will be given in future cases.
In contrast to Justice Lows reluctance in creating a rule of application, Justice
Kirkpatrick takes a strong and definitive approach to the interpretation of section 25.
She begins by stating that a purposive analysis of section 25 affords a complete
answer to the appellants s. 15 equality challenge54 and that accordingly the section
15 argument need not be addressed. Essentially, she adopts the threshold
application of section 25 that Justice Low has difficulty accepting.
Upon determining that section 25 operates as a threshold issue, Justice
Kirkpatrick proceeds to establish an analytical framework for section 25:
50 Ibid.
51 See Arbour, supra note 22 at 43.
52 See Pentney, supra note 27 at 57.
53 Supra note 22 at 65.
54 Kapp, supra note 3 at para. 118.
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(a) Is the right or freedom a treaty right, aboriginal right or other right or
freedom pertaining to the aboriginal peoples of Canada?
(b) If the right or freedom is an other right or freedom pertaining to the
aboriginal peoples of Canada, does it relate to a significant aspect of aboriginal life,
culture or heritage, and does it relate to aboriginal peoples as aboriginal peoples?
(c) Would the remedy sought by way of the Charter challenge result in the
abrogation of or derogation from the aboriginal right or freedom?55
It appears as though the purpose of the first two steps in her analysis is to determine
whether an Aboriginal right exists that is sufficient to trigger section 25. Essentially,
they serve to incorporate the threshold issue into the framework. Justice Kirkpatrick
makes clear that in the context of section 25, the ordinary meaning of aboriginal
peoples in the provision implies that the rights protected must be group rights.56 If no
Aboriginal right is found, then section 25 is not invoked and the court should proceed
with the Charter analysis.
The second step in the framework is based on the reasoning of Justice
LHeureux-Dub in Corbire that section 25 may include statutory rights, but that
such rights may not necessarily be within the scope of other rights or freedoms.57
Justice Kirkpatrick elaborates by holding that
in order for s. 25 to apply, other rights or freedoms must relate to a significant
aspect of aboriginal life, culture or heritage, and relate to aboriginals as
aboriginals. In my view, it is the content of the right and not the manner in
which it is acquired that is significant, given the obligation on the Crown to
negotiate with aboriginal peoples … 58
This statement suggests that though rights may be created by statute, such as the right
of an Aboriginal member of the MBT to fish under the ACFLR, if that right
sufficiently relates to the persons culture and heritage as an Aboriginal person, it is
irrelevant whether the right is created by statute, treaty, or some other method. While
her focus in the decision is entirely on the meaning of other rights and freedoms,
she provides little or no elaboration on the meaning or method of interpretation for
the specific rights mentioned in the provisionnamely, Aboriginal, treaty, and Royal
Proclamation rights, and rights by way of land claims. She provides no reason for
failing to address these rights, though it could be presumed that the relation of their
content to aboriginal life, culture or heritage is self-explanatory and therefore
requires little discussion. Alternatively, she may not have addressed these rights
because they were not at issue in this case.
55 Ibid. at para. 138.
56 Ibid. at paras. 124-25. This raises particular issues in regard to individual versus collective rights
that are addressed in Part V, below.
57 Supra note 40 at paras. 52-53.
58 Kapp, supra note 3 at para. 138 [emphasis added].
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The final step in the framework requires section 25 to provide protection based
on the remedy that the claimant is pursuing in their Charter challenge. While Justice
Kirkpatrick does not produce an example of the remedies that would result from an
affirmative answer to the final question, she does state that s. 25 is triggered if the
outcome of a Charter challenge might abrogate or derogate from aboriginal rights or
freedoms.59 As she does not engage in a discussion of the meaning of abrogate or
derogate, it is difficult to determine what remedies would be prevented by the
provision. It seems clear that the remedy sought in this case was to completely
eliminate the licences granted under the PSP.60 It can therefore be inferred that
striking down a provision or statute would qualify as a remedy that abrogates or
derogates from Aboriginal rights, and against which section 25 exists to protect.
V. Analysis
Based on the different positions of the members of the court in Kapp, the case
addresses two overarching issues in regard to section 25: (1) the point at which a
section 25 analysis arises in relation to a Charter challenge, and (2) the specific
analytical framework that should apply to section 25. While each member of the court
addresses the first issue, only Justices Kirkpatrick and Levine address the latter.
As can be seen from previous case law, and from Kapp itself, there is no clear
indication as to when section 25 is triggered. Both approaches taken in this case have
their flaws. For example, it could be argued that the reasoning of Justice Low leads to
an interpretation of section 25 that is too narrow in that it fails to properly consider
the purpose behind the provision. The purpose of section 25 is to protect Aboriginal
and treaty rights and other rights and freedoms of Aboriginal peoples. As previously
indicated, it was intended to function as an interpretive provision, acting as a rule of
construction for the Charter. The approach suggested by Justice Low, whereby
protection of Aboriginal rights are only considered once an infringement of a Charter
right has been established and the section 1 analysis completed, fails to give the
section the weight it was intended to have and fails to consider the function the
provision was intended to perform.
Section 25 is the only provision in the Charter that refers to the protection of a
specific minority group, and is one of the few provisions in the Charter that uses the
words abrogate or derogate. This specific reference to Aboriginal peoples and the
use of strong language indicate the importance of the protection of Aboriginal rights.
It could be suggested that based on a purposive approach to section 25, other Charter
rights are irrelevant if an Aboriginal or treaty right, or other right or freedom, can be
established. As such, it is only necessary to consider other Charter rights if such an
Aboriginal right does not exist.
59 Ibid. at para. 150.
60 Ibid. (The appellants s. 15 Charter challenge seeks to eliminate the PSP. Section 25 exists to
prevent such abrogation at para. 152).
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Although Justice Lows approach may be criticized for too narrowly interpreting
section 25, Justice Kirkpatricks interpretation is not without its problems. One
problem in her application of section 25 as a threshold issue is that, unlike Justice
Low, she provides little or no indication as to why she has taken her approach.
Instead, she seems to simply assume that section 25 is raised as a threshold issue, and
proceeds immediately with her framework for the interpretation and application of
section 25. Should subsequent courts definitively adopt the approach taken by Justice
Low, it is therefore difficult to foresee whether this framework would be applicable at
all.
In addition to such a practical problem with Justice Kirkpatricks approach,
there are conceptual problems. It could be argued that her approach gives too little
significance to Charter rights. As was indicated in Reference Re Secession of Quebec,
many of the Charter rights were created for the protection of minorities.61 This
general protection of all minorities appears to suggest that while section 25 appears to
override certain rights and freedoms guaranteed in the Charter, it should not
necessarily be granted preference to Charter rights in an analysis. The Charter right
analysis and the section 25 analysis could both be considered. Moreover, the purpose
of section 25 would not be lost if the Charter right were to be considered first. The
protective purpose of the provision could still be fulfilled, though it would just be
delayed until it was deemed that there was a conflict between the Charter right and
an Aboriginal right. In addition, the interpretive function of section 25 could be best
realized if its protective purpose were incorporated throughout a Charter analysis.
While it seems clear that the debate as to when section 25 should be triggered is
not resolved in Kapp, Justice Kirkpatricks decision does appear to take a step toward
laying down an analytical framework for section 25. Putting aside the practical
problems with the framework, it is worthwhile to critically examine its components as
they will likely form the basis for analysis in future cases.
The first component of the framework involves identifying an Aboriginal or
treaty right, or other right or freedom. Justice Kirkpatrick spends the majority of her
analysis discussing what constitutes other rights or freedoms. It can only be
assumed that she does this because there is already extensive case law on determining
the existence of an Aboriginal right or treaty right,62 and because the facts in Kapp
give rise to neither of these.
61 Supra note 33 at paras. 81-82.
62 See e.g. R. v. Van der Peet, [1996] 2 S.C.R. 507, 137 D.L.R. (4th) 289 [Van der Peet cited to
S.C.R.] (Aboriginal rights); Sparrow, supra note 4 (Aboriginal rights); Delgamuukw v. British
Columbia, [1997] 3 S.C.R. 1010, 153 D.L.R. (4th) 193; R. v. Marshall, 2005 SCC 43, [2005] 2 S.C.R.
220, 255 D.L.R. (4th) 1 (Aboriginal land rights); R. v. Simon, [1985] 2 S.C.R. 387, 24 D.L.R. (4th)
390; R. v. Sioui, [1990] 1 S.C.R. 1025, 70 D.L.R. (4th) 427; Mikisew Cree First Nation v. Canada
(Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, 259 D.L.R. (4th) 610
(Aboriginal treaty rights).
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Her interpretation of other rights or freedoms includes statutory rights granted
to Aboriginal peoples by Parliament. This is not a new concept. Bruce Wildsmith
suggests that these rights would include all exercises of power that can be attributed
to Parliaments exclusive legislative authority over Indians, and Lands reserved for
the Indians set out in section 91(24) of the Constitution Act, 1867.63 He later states,
[I]t seems likely that other rights or freedoms includes statutory and contractual
sources of rights and freedoms that can be attributed to the unique position of the
native peoples.64 In finding that statutory rights are included in section 25, Justice
Kirkpatrick states that due to the liberal interpretation that should be granted to
Aboriginal and treaty rights, [t]he ejusdem generis rule of statutory construction is of
limited value when discussing statutes related to aboriginal peoples.65
The problem with allowing statutory rights to be protected by section 25 is that
they become elevated to constitutional rights. Such statutory rights could include
anything within the power of the legislature to create. Essentially, by including
statutory rights under other rights or freedoms, Justice Kirkpatrick allows section
25 to achieve indirectly what the drafters denied it from doing directlynamely, the
creation of substantive rights. The drafters intended, as indicated by former Justice
Minister Chrtien, to protect Aboriginal rights, not create them.66 Therefore, this
broad interpretation of other rights or freedoms by Justice Kirkpatrick seems to fly
in the face of what the drafters and previous case law have interpreted section 25 to
mean.
However, as indicated by Justice LHeureux-Dub in Corbire, section 25 rights
are meant to be broader than section 35 rights.67 To limit other rights or freedoms to
those that were currently existing at the time section 25 was enacted would be to
ignore the intentional exclusion of the word existing from the provision.68 It is
difficult to envision what, if not statutory rights, other rights or freedoms could
entail.
In light of the above problem, the second component of the framework provides
somewhat of a limitation on what initially appears to be a fairly broad interpretation
of other rights or freedoms. Justice Kirkpatrick states that only those other rights
or freedoms that relate to a significant aspect of aboriginal life, culture or heritage,
63 Supra note 29 at 33; See also Patrick Macklem, Indigenous Difference and the Constitution of
Canada (Toronto: University of Toronto Press, 2001) at 225.
64 Ibid. at 35.
65 Kapp, supra note 3 at para. 123. The ejusdem generis rule arises when a general term follows a
list of specific terms, thereby requiring the general term to be interpreted so as to include only items of
the same type as those listed. See generally Pierre-Andr Ct, The Interpretation of Legislation in
Canada, 3d ed. (Scarborough, Ont.: 2000) at 315-20.
66 See Special Joint Committee, supra note 23, vol. 1, No. 3 (12 November 1980) at 32-33.
67 Supra note 40 at para. 52. While LHeureux-Dub J. is writing a concurring minority decision, her
statements on s. 25 are not treated by the majority.
68 See Brian Slattery, The Constitutional Guarantee of Aboriginal and Treaty Rights (1983) 8
Queens L.J. 232 at 238. See also Arbour, supra note 22 at 29; Pentney, supra note 27 at 56.
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and … to aboriginals as aboriginals will be protected by section 25.69 This accords
with case law in the area of Aboriginal rights, in that the right must have a strong
connection to the community that is claiming it. For example, in Van der Peet, the
Court held that an Aboriginal right must be an element of a practice, custom or
tradition integral to the distinctive culture of the aboriginal group claiming the
right.70 This second component in Justice Kirkpatricks framework therefore appears
to serve as a restriction on what constitutes an other right or freedom.71
The final component of the analytical framework suggested by Justice
Kirkpatrick considers the remedy that the party claiming the Charter right is seeking.
This is the most obvious means of determining whether a Charter right might
abrogate or derogate from an Aboriginal right,72 as it represents the outcome that
would result should the Charter right be violated. Two obvious issues arise. First, the
use of the word might by Justice Kirkpatrick has implications that are not clarified
in her decision. It seems to indicate that only a potential violation of an Aboriginal
right would be required in order to apply section 25. This again raises issues as to
whether Justice Kirkpatrick is placing too little significance on Charter rights. If only
a potential, and not actual, abrogation or derogation of an Aboriginal right is required,
one can imagine a variety of situations in which Charter rights would essentially
become meaningless. This approach does not allow for reconciliation of the Charter
right with the Aboriginal right, and therefore appears to undermine the importance of
Charter rights.
The second issue is what type of remedy would in fact abrogate or derogate from
an Aboriginal right. In Charter challenges, several remedies may be sought. Based on
Justice Kirkpatricks analysis in Kapp, it seems clear that in most cases, if the party
69 Kapp, supra note 3 at para. 138.
70 Supra note 62 at para. 46.
71 The potential significance and impact of other rights or freedoms should not be understated.
Because of the breadth of these words, the question arises whether an Aboriginal right must be proven
to exist in order to engage s. 25that is, whether the tests for establishing an Aboriginal right under s.
35 in Van der Peet and Sparrow would always apply or even be necessary in developing a s. 25
argument.
There is a concern that the use of s. 25 might lead to circumventing the strict requirements found
in these tests. For example, it could be argued that an Aboriginal interest, which may not hold the
status of a right under s. 35, may nevertheless fall within the scope of other rights and freedoms. It
could therefore be possible for s. 25 to protect such an interest as a freedom, thus evading the tests
established in Van der Peet and Sparrow. This could then lead to the further complication of allowing
an interest to defeat a Charter right.
In addition, should s. 25 be interpreted in a wide manner, it may provide protection for Aboriginal
self-government in a way that has not yet been recognized under s. 35. While these issues are not
addressed in the context of this case, and therefore beyond the scope of this comment, they will likely
need to be addressed in future cases. In any case, it seems clear that placing a limitation on this
broad provision, as suggested by Kirkpatrick J., may play an important function in the development of
s. 25 analysis.
72 See Kapp, supra note 3 at para. 150.
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seeks to strike down the provision that grants the Aboriginal right, the remedy would
be abrogating or derogating from that right and section 25 would serve to protect the
right from such a remedy. What is less obvious is how the remedy of reading in
would affect this framework. If the remedy sought were inclusion of the non-
Aboriginal claimant in a statutory scheme rather than elimination of the Aboriginal
right altogether, would the protection granted by section 25 still be required? The
answer to this would depend solely on the interpretation given to the words abrogate
or derogate; but, as previously indicated, Justice Kirkpatrick does not provide any
guidance as to their meaning. Potentially, a purposive analysis of section 25, the
ordinary meaning of the words, the drafters intent in using those words, and case law
discussing the meaning of the words in other Charter provisions (such as sections
2629) could all be used in applying the framework. In any case, it appears that this
matter will need to be decided in future cases.
One last issue not addressed in this case that may arise in the future, and that may
or may not create problems for the analytical framework laid out by Justice
Kirkpatrick, is how the framework would apply to the interaction between an
individual Aboriginal right protected by the Charter and a collective Aboriginal right
protected by section 25. This issue addresses specific conflicts that may arise in
Aboriginal communities. For example, a situation may arise where an Aboriginal
person claims a Charter right that conflicts with a right held by his or her Aboriginal
community. If Justice Kirkpatricks interpretation of section 25 were adopted, which
right would prevail? For example, what if the collective Aboriginal right threatened
an Aboriginal individuals security of person? This factual scenario arose, to some
degree, in Thomas v. Norris.73 In that case, an Aboriginal initiation ceremony
allegedly involved the assault of an Aboriginal individual. As the case was between
private parties, the Charter was not applicable. However, if the fact scenario were to
be altered slightly so that a statute created an Aboriginal right of the community to
perform the initiation ceremony, a conflict might arise in which section 7 would
potentially be violated and section 25 could then arguably be invoked. It is unclear at
this point how the interaction between the two Charter provisions would play out
based on the framework suggested by Justice Kirkpatrick. The question that would
need to be addressed is, should section 25 protect a collective Aboriginal right that
may lead to bodily harm of an individual over the Aboriginal individuals Charter
right to security of the person?
While this could likely be easily rectified by amending the statute to exclude such
circumstances, a more difficult situation would arise in regard to a law passed by an
Aboriginal community operating under self-government. If, for example, an
Aboriginal person were to claim an infringement of a Charter right based on an
enactment by an Aboriginal self-government, which right would be protectedthe
individual Charter right or the collective right to self-government? The framework
suggested by Justice Kirkpatrick may not properly address this question, as it appears
73 Supra note 44.
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to focus solely on Aboriginal collective rights in conflict with non-Aboriginal
Charter rights.
Several commentators have suggested that the need to limit the collective right in
favour of an individual Aboriginal right may arise in certain circumstances, and that
determining those circumstances may require a balancing of the rights.74 However,
if the courts undertook such balancing, would this not defy the purpose of section 25
as a protective measure, or shield, against Charter rights? Other commentators have
indicated that [b]ecause of the constitutional significance of indigenous difference,
the judiciary ought to extend a wide margin of appreciation to Aboriginal forms of
social and political organization when assessing the constitutionality of an internal
restriction,75 but that such restrictions will need to be justified by the Aboriginal
community.76 While a full analysis of this issue is beyond the scope of this paper,77 it
seems clear that courts will be left with the responsibility of adapting Justice
Kirkpatricks section 25 framework to address not only the interaction of non-
Aboriginal Charter rights with section 25, but also the rights of individual Aboriginal
persons in relation to the collective rights protected under section 25.
Conclusion
What seems obvious from the above analysis is that section 25 is more than an
interpretive provision. It acts as a shield to protect Aboriginal peoples rights from
Charter provisions that may abrogate or derogate from those rights. Both the
legislative and jurisprudential history of section 25 supports this interpretation.
Confusion arises, however, in the case law as to when and how to apply section
25. Until Kapp, little had been written on either of these issues. Several cases
suggested that in the context of a claimed Aboriginal right, section 25 could only be
used once a Charter infringement or breach had been established. Other cases have
indicated that section 25 could be triggered as soon as a Charter claim is made.
Each of these approaches can be seen in Kapp, which implies that the debate remains
unresolved. However, the combination of the decisions rendered by both Justices
Low and Kirkpatrick provide an analysis of section 25 in greater detail than any court
before them.
74 See Isaac, supra note 28 at 447-48. Isaac also provides an in-depth discussion of the inclusion of
the Charter in Aboriginal self-government agreements and of the application of Charter rights in
relation to these governments enactments (ibid. at 449-51). See also Arbour, supra note 22 at 14.
75 Macklem, supra note 63 at 226 [footnotes omitted].
76 This argument appears to suggest a s. 1 analysis adapted to apply only in circumstances where a
Charter infringement is due to an enactment by an Aboriginal government. While it is an interesting,
possibly even viable solution to this particular dilemma, it raises a host of other issues. Most notably,
is it just to treat s. 25 as a complete shield from non-Aboriginal Charter rights, but not as a complete
shield to Aboriginal Charter rights?
77 For further discussion of this issue, see generally Isaac, supra note 28; Macklem, supra note 63.
See also Timothy Dickson, Section 25 and Intercultural Judgment (2003) 61 U.T. Fac. L. Rev. 141.
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What is especially significant is the tentative framework suggested by Justice
Kirkpatrick. While there are problems with her analysis, she has provided a method
by which future courts may approach section 25. Although she had no concurring
decision from any other member of the court, Justice Levine did comment that she
anticipated that Kirkpatrick J.A.s reasons for judgment will form the basis for the
development of s. 25 jurisprudence in future cases.78 All this considered, it seems
plausible that Kapp will become the starting point for future section 25 analysis,
possibly securing its place as the leading case on this section of the Charter.
78 Kapp, supra note 3 at para. 161.
