Why is S.35 considered outside the charter rights?

Section 35 of the Constitution Act, 1982, recognizes and affirms the rights of Indigenous peoples in Canada, including their rights to land, culture, and self-governance. This section is distinct from the Canadian Charter of Rights and Freedoms, which primarily addresses individual rights and freedoms.

The reason it is often considered outside the charter rights context is that it does not require the application of the Oakes test, a legal framework established by the Supreme Court of Canada to determine whether a law that limits a Charter right can be justified under Section 1 of the Charter. Since Section 35 pertains to the collective rights of Indigenous peoples rather than individual rights, it does not engage the same evaluative process applied to Charter rights under the Oakes test. This delineation emphasizes the unique status and rights of Indigenous peoples and recognizes their rights as pre-existing and inherent, rather than derived solely from the Charter framework.

Therefore, recognizing that Section 35 operates under a different paradigm than the Charter and does not invoke the same legal thresholds further underscores its unique role in the constitutional framework of Canada. This distinction plays a vital role in understanding how Indigenous rights are protected within Canadian law, separate from individual human rights provisions laid out in the Charter.