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

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Canadian Charter of Rights and Freedoms
Guarantee of Rights and Freedoms
1
Fundamental Freedoms
2
Democratic Rights
3, 4, 5
Mobility Rights
6
Legal Rights
7, 8, 9, 10, 11, 12, 13, 14
Equality Rights
15
Official Languages of Canada
16, 16.1, 17, 18, 19, 20, 21, 22
Minority Language Education Rights
23
Enforcement
24
General
25, 26, 27, 28, 29, 30, 31
Application of Charter
32, 33
Citation
34

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 section reads:

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.

In other words, the Charter must be enforced in a way that does not diminish aboriginal rights. As the Ontario Court of Appeal explained in R. v. Agawa (1988), the section "confers no new rights," but instead "shields" old ones. [1] 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 Charter negotiations. 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, until some of their leaders, the National Indian Brotherhood, the Inuit Tapirisat of Canada, and the Native Council of Canada, were finally appeased by the addition of section 25 of the Charter and section 35 of the Constitution Act, 1982 to the constitution of Canada.^[2]

The rights to which section 25 refers 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.^[3]

The Charter is of course a part of the larger Constitution Act, 1982, and 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.^[4]

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.

Footnotes

1. ^  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.
2. ^  Hogg, Peter W. Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 631.
3. ^  Ibid.