Canada

Last edited Fri May 15, 2026, 12:54 AM - Edit history (1)

The notwithstanding clause allows use to restrict court oversight of specific clauses, basically fundamental freedoms (analogous to the U.S. First Amendment), legal rights (defendant rights including Habeas Corpus, and the rights similarly enumerated in U.S. 4/5/6/8A), and equality/nondiscrimination rights. Everything else is not subject, including the rights related to free elections, language, and in this case, indigenous rights.

The Charter doesn't say much about indigenous rights, it just says that nothing in it is meant to curtail aboriginal rights granted previously, and the Constitution pretty much just affirms prior rights, in this case based on crown treaties and the Royal Proclamation of 1763 (and it's wild for an American-born person like me to think that history class tidbit is still around).

So in this case, the treaties are subject to court enforcement.

As to the theory, it goes back to the concept of "responsible government", understood in its 19th Century democratic meaning as a government whose personnel are ultimately put there, retained, and replaced by popular consent. The Charter debate that led to the notwithstanding clause centred around balancing individual rights against what would be potential court intrusions against the power of parliaments, who were the ones ultimately responsible to the people.

Living for 40 years south of the Mason-Dixon Line and then Alberta, I find the argument that core liberties can be entrusted in individual subdivisions problematic at best. But I've turned into that guy, like the old guys I used to see living in Miami as a kid whose politics were dominated by not wanting to see the problems of their old country in their new one.

On edit: Canadians, please correct misunderstandings you see here