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Section Twenty-five of the Canadian Charter of Rights and Freedoms
Encyclopedia
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.
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 protest
s 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 appeased by the addition of sections 25 and 35 to the Constitution Act, 1982.
The rights to which section 25 refers explicitly 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.
Section 35 of the Constitution 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.
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.
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.
, 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.
case R. v. Kapp
as one that discusses section 25's application. She argues Kapp failed to resolve the issue of whether section 25 is only applied when the Charter is violated, or if applies earlier, when a Charter challenge is raised. Nevertheless, Hutchinson did feel Kapp provided some significant discussion of section 25. In Kapp, Justice Kirkpatrick endorsed the view that section 25 is first considered when a Charter challenge is raised, and made a three-step test asking (1) is the right in question a treaty, Aboriginal or other right related to Aboriginals? (2) if it falls in the "other" category, does it relate to a part of Aboriginal life? (3) would the remedy possibly given by the Charter limit Aboriginal rights?
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
, 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
Aboriginal peoples in Canada
Aboriginal peoples in Canada comprise the First Nations, Inuit and Métis. The descriptors "Indian" and "Eskimo" have fallen into disuse in Canada and are commonly considered pejorative....
, it does not create or constitutionalize rights for them.
The Charter is a part of the larger Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
. Aboriginal rights, including treaty rights, receive more direct constitutional protection under section 35
Section Thirty-five of the Constitution Act, 1982
Section thirty-five of the Constitution Act, 1982 provides constitutional protection to the aboriginal and treaty rights of Aboriginal peoples in Canada. The section, while within the Constitution Act, 1982 and thus the Constitution of Canada, falls outside the Canadian Charter of Rights and Freedoms...
of the Constitution Act, 1982.
Text
Under the heading "General," the section reads:Purpose
In other words, the Charter must be enforced in a way that does not diminish Aboriginal rights. As the Court of Appeal for Ontario held in R. v. Agawa (1988), the section "confers no new rights," but instead "shields" old ones.This is a stronger recognition for non-Charter rights than section 26
Section Twenty-six of the Canadian Charter of Rights and Freedoms
Section Twenty-six of the Canadian Charter of Rights and Freedoms, like other provisions within the section 25 to 31 bloc, provides a guide in interpreting how the Charter should affect Canadian society...
'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 protest
Protest
A protest is an expression of objection, by words or by actions, to particular events, policies or situations. Protests can take many different forms, from individual statements to mass demonstrations...
s 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
Congress of Aboriginal Peoples
Congress of Aboriginal Peoples founded in 1971 as the Native Council of Canada, is a Canadian aboriginal organization, that represents Aboriginal Peoples who live off Indian reserves, either in urban and rural areas across Canada.Each CAP affiliate has its own constitution and is separately...
), were appeased by the addition of sections 25 and 35 to the Constitution Act, 1982.
The rights to which section 25 refers explicitly include those in the Royal Proclamation of 1763
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
. They may also include those created by ordinary legislation, like the Indian Act
Indian Act
The Indian Act , R.S., 1951, c. I-5, is a Canadian statute that concerns registered Indians, their bands, and the system of Indian reserves...
, and constitutional scholar Peter Hogg
Peter Hogg
Peter Wardell Hogg, CC, QC, FRSC is a Canadian lawyer, author and legal scholar. He is best known as a leading authority on Canadian constitutional law....
has speculated that without this section, section 15
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
(the equality
Social equality
Social equality is a social state of affairs in which all people within a specific society or isolated group have the same status in a certain respect. At the very least, social equality includes equal rights under the law, such as security, voting rights, freedom of speech and assembly, and the...
provision) would have possibly threatened these rights, since they are particular to a race. Nevertheless, in the Supreme Court
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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.
Section 35 of the Constitution 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.
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. On the other hand, the Royal Commission on Aboriginal PeoplesRoyal Commission on Aboriginal Peoples
The Royal Commission on Aboriginal Peoples was a Canadian Royal Commission established in 1991 to address many issues of aboriginal status that had come to light with recent events such as the Oka Crisis and the Meech Lake Accord. The commission culminated in a final report of 4000 pages,...
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.
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
Section Thirty-two of the Canadian Charter of Rights and Freedoms
Section Thirty-two of the Canadian Charter of Rights and Freedoms concerns the application and scope of the Charter. Only claims based on the type of law contemplated by this section can be brought before the Court....
, 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.
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 formulaAmendments to the Constitution of Canada
Amendments to the Constitution of Canada are changes to the Constitution of Canada initiated by the government. Only since 1982 has there been an official protocol to amend the Constitution.- History :...
, 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.
Case law
Scholar Celeste Hutchinson remarks in an article that little has been done with section 25 by the courts. However, she points to the British Columbia Court of AppealBritish Columbia Court of Appeal
The British Columbia Court of Appeal is the highest appellate court in the province of British Columbia, Canada. The BCCA hears appeals from the Supreme Court of British Columbia and a number of boards and tribunals. The BCCA also hears criminal appeals from the Provincial Court of British...
case R. v. Kapp
R. v. Kapp
R. v. Kapp is a 2008 Supreme Court of Canada case dealing with an appeal from a British Columbia Court of Appeal decision that held that a communal fishing license granted exclusively to Aboriginals did not violate section 15 of the Canadian Charter of Rights and Freedoms...
as one that discusses section 25's application. She argues Kapp failed to resolve the issue of whether section 25 is only applied when the Charter is violated, or if applies earlier, when a Charter challenge is raised. Nevertheless, Hutchinson did feel Kapp provided some significant discussion of section 25. In Kapp, Justice Kirkpatrick endorsed the view that section 25 is first considered when a Charter challenge is raised, and made a three-step test asking (1) is the right in question a treaty, Aboriginal or other right related to Aboriginals? (2) if it falls in the "other" category, does it relate to a part of Aboriginal life? (3) would the remedy possibly given by the Charter limit Aboriginal rights?