Section Twenty-five of the Canadian Charter of Rights and Freedoms

Section Twenty-five of the "Canadian Charter of Rights and Freedoms" is the first section under the heading "General" in the "Charter", and like other sections within the "General" sphere, it aids in the interpretation of rights elsewhere in the "Charter". While section 25 is also the Charter section that deals most directly with Canadian Aboriginals, it does not create or constitutionalize rights for them.

The "Charter" is a part of the larger "Constitution Act, 1982". Aboriginal rights, including treaty rights, receive more direct constitutional protection under section 35 of the "Constitution Act, 1982."

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Under the heading "General," the section reads:

cquote|25. The guarantee in this Charter of certain rights and freedoms shall not be construed 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:(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

Purpose

In other words, the "Charter" must be enforced in a way that does not diminish Aboriginal rights. As the Ontario Court of Appeal held in "R. v. Agawa" (1988), the section "confers no new rights," but instead "shields" old ones. [R. v. Agawa, (1988), 43 C.C.C. (3d) 266 (Ont. C.A.); Canadian Legal Information Institute, " [http://canlii.ca/ca/com/chart/s-25.html SECTION 25] ," "Canadian Charter of Rights Decisions Digest", URL accessed 22 August 2005]

This is a stronger recognition for non-"Charter" rights than section 26's requirement that the "Charter" cannot be interpreted to deny that non-"Charter" rights exist, as section 25 specifically states that Aboriginal rights will not only continue to exist but also cannot be derogated "by the Charter itself". The distinction came about during the negotiations of the "Charter". Section 25's content did not appear in the first version of the "Charter", in October 1980, but the original version of what later became section 26 did say that the existence of Aboriginal rights could not be denied. This sparked dramatic protests among Aboriginals, who viewed the proposed constitutional amendments as an insufficient protection of their rights. This persisted until some of their leaders, the National Indian Brotherhood, the Inuit Tapirisat of Canada, and the Native Council of Canada (now the Congress of Aboriginal Peoples), were finally appeased by the addition of sections 25 and 35 to the "Constitution Act, 1982." [Mandel, Michael. "The Charter of Rights and the Legalization of Politics in Canada." Revised, Updated and Expanded Edition. (Toronto: Thompson Educational Publishing, Inc., 1994), pp. 354-356.]

The rights to which section 25 refers explicitely include those in the Royal Proclamation of 1763. They may also include those created by ordinary legislation, like the "Indian Act", and constitutional scholar Peter Hogg has speculated that without this section, section 15 (the equality provision) would have possibly threatened these rights, since they are particular to a race. Nevertheless, in the Supreme Court case "Corbiere v. Canada" (1999), it was found that not all legislative distinctions relating to Aboriginals are protected by section 25, and section 15 was accordingly used to extend voting rights in Aboriginal reserves to Aboriginals who did not live in those reserves. As Hogg observes, what particular rights section 25 protects was in the mean time left uncertain. [Hogg, Peter W. "Constitutional Law of Canada". 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 631.]

Section 35 of that Act, which falls outside the "Charter", "does" constitutionalize some aboriginal rights. As Hogg notes, this makes section 25 altogether less important than section 35, but "Corbiere" leaves open the possibility that rights not constitutionalized by section 35 can have some protection under section 25. [Hogg, 631.]

Aboriginal self-government

The question of how the "Charter" applies to Aboriginals and Aboriginal government has involved section 25. On the one hand, it has been argued that Aboriginal governments are not bound by the "Charter". If section 35 includes a right to self-government, and section 25 ensures Aboriginal rights are not limited by the "Charter", then section 25 would also guarantee that self-government is not limited by the "Charter". [Kent McNeil, "Aboriginal Governments and the Canadian Charter of Rights and Freedoms," (Canada, Royal Commission on Aboriginal Peoples, 1996), p. 73.] On the other hand, the Royal Commission on Aboriginal Peoples once argued that while section 25 guarantees the existence of self-government itself, the powers of such Aboriginal governments will be limited to respect the "Charter" rights of individual Aboriginals. [McNeil, p. 74.]

Some bands receive a measure of autonomy under the "Indian Act", and the consequent powers of the councils would be protected by section 25. Meanwhile, section 32, which bounds the federal and provincial governments to the "Charter", may not include the band councils if their authority derives not only from the "Indian Act" but also tradition. [McNeil, pp. 87-89.]

Amendments to section 25

In 1983, with the passing of the "Constitution Amendment Proclamation, 1983", section 25 was amended to expand the protection provided for rights associated with land claims. Whereas the original wording made reference to rights acquired "by way of land claim settlement," the current version refers to rights that "now exist by way of land claims agreements or may be so acquired." While ordinarily, section 25 could have been amended with the standard 7/50 amending formula, this change was also carried out with agreement of aboriginal leaders. At the same time, the Constitution Act, 1982 was amended to add section 35.1. This new section suggests that, before section 25 is amended in the future, consultation with aboriginal leaders will again be requested by the prime minister.

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