Unsettling the Royal Proclamation of 1763: A Substantive Analysis of Section 25 of the Charter

Abstract

The Canadian Charter of Rights and Freedoms has a significant impact on rights discourses in Canada. Section 25 of the Charter protects Aboriginal rights from infringements of the rights and freedoms endorsed elsewhere in the Charter. Section 25 also protects and codifies rights created by the Royal Proclamation of 1763. Despite this inclusion, Royal Proclamation rights have remained relatively undefined in the history of the Crown- Indigenous relationship. In this article, I investigate the content of Proclamation-based Aboriginal rights protected by section 25 by focusing on the Proclamation, the legislative development of section 25, and recent jurisprudence of section 25. I then take these insights and apply them to two recent Aboriginal rights cases: Rice v. Agence du revenu du Québec and Restoule v. Canada. In doing so, I problematize the argument of section 25 as a savings provision and argue that there is a disconnect created by section 25, as the legislative intent of these rights was for their content to be determined at a later date, and yet, they never were determined. Accordingly, if the settled interpretation of the Proclamation were to become unsettled, there could be an expansion of Aboriginal rights within Canada.