Section Twenty-five of The Canadian Charter of Rights and Freedoms - Purpose

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'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 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.