Section 25 of the Canadian Charter of Rights and Freedoms facts for kids

Section 25 of the Canadian Charter of Rights and Freedoms is an important part of Canada's main law book, the Charter. It helps us understand other rights listed in the Charter. Even though Section 25 talks about Indigenous peoples, it doesn't create new rights for them. Instead, it protects rights they already have.

The Charter is a part of a bigger law called the Constitution Act, 1982. Rights for Indigenous peoples, including those from treaties, are more directly protected by Section 35 of the Constitution Act, 1982.

What Section 25 Says

Section 25 is found under the "General" part of the Charter. It says:

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.

This means that the Charter must be understood and used in a way that does not take away or reduce any existing rights of Indigenous peoples. These rights include those mentioned in the Royal Proclamation of 1763 and rights from land claims agreements.

Why Section 25 is Important

Section 25 makes sure that the Charter does not accidentally harm or reduce the rights that Indigenous peoples already have. The Court of Appeal for Ontario said in a case called R. v. Agawa (1988) that Section 25 doesn't give new rights. Instead, it acts like a "shield" for older rights.

This protection is stronger than what Section 26 offers. Section 26 just says that the Charter can't be used to deny that other rights exist. But Section 25 specifically states that Indigenous rights will not only continue to exist but also cannot be weakened by the Charter itself.

This special protection came about during the talks to create the Charter. The first version of the Charter in 1980 did not include Section 25. This made many Indigenous people upset, and they held big protests. They felt their rights were not being protected enough. Their leaders, like the National Indian Brotherhood, the Inuit Tapirisat of Canada, and the Native Council of Canada, kept pushing. Eventually, Section 25 and Section 35 were added to the Constitution Act, 1982, which helped calm their concerns.

Section 25 clearly mentions rights from the Royal Proclamation of 1763. It might also protect rights from other laws, like the Indian Act. Some experts, like Peter Hogg, thought that without Section 25, Section 15 (which is about equality) might have accidentally threatened these rights because they are specific to Indigenous peoples.

However, in a Supreme Court case called Corbiere v. Canada (1999), the court decided that not all laws about Indigenous peoples are protected by Section 25. In that case, Section 15 was used to give voting rights in reserves to Indigenous people who lived outside those reserves. This showed that what exactly Section 25 protects can sometimes be unclear.

Section 35 of the Constitution Act, which is outside the Charter, does create and protect some Indigenous rights. This makes Section 25 less important than Section 35 in some ways. But the Corbiere case suggests that Section 25 could still protect rights that Section 35 doesn't cover.

Indigenous Self-Government

The question of how the Charter applies to Indigenous peoples and their governments often involves Section 25. Some people argue that Indigenous governments should not have to follow the Charter. They say that if Section 35 includes a right to self-government, and Section 25 protects Indigenous rights from being limited by the Charter, then Section 25 should also make sure that self-government is not limited by the Charter.

On the other hand, the Royal Commission on Aboriginal Peoples once suggested that while Section 25 protects the right to self-government itself, the powers of these Indigenous governments should still respect the Charter rights of individual Indigenous people.

Some Indigenous communities have a degree of independence under the Indian Act. The powers of their councils would be protected by Section 25. Also, Section 32 says that the federal and provincial governments must follow the Charter. But it might not include Indigenous band councils if their power comes from their traditions, not just from the Indian Act.

Changes to Section 25

In 1983, Section 25 was changed to offer more protection for rights related to land claims. The original wording talked about rights from "land claim settlement." The new version says rights that "now exist by way of land claims agreements or may be so acquired." This change was made with the agreement of Indigenous leaders.

At the same time, Section 35.1 was added to the Constitution Act, 1982. This new section suggests that if Section 25 is ever changed again in the future, the Prime Minister should ask Indigenous leaders for their thoughts first.

Court Cases and Section 25

A scholar named Celeste Hutchinson noted that courts haven't used Section 25 very often. However, she pointed to a case from the British Columbia Court of Appeal called R. v. Kapp as one that discussed Section 25. She felt that Kapp didn't fully answer when Section 25 should be used – only when the Charter is violated, or earlier when a Charter challenge is first made. Still, she thought Kapp offered important discussions about Section 25.

In the Kapp case, Justice Kirkpatrick suggested that Section 25 should be looked at early on when a Charter challenge is brought up. She created a three-step test to decide if Section 25 applies:

• Is the right in question a treaty, Indigenous, or other right related to Indigenous peoples?
• If it's an "other" right, does it relate to an important part of Indigenous life?
• Would the solution given by the Charter possibly limit Indigenous rights?