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Section 25 of the Canadian Charter of Rights and Freedoms

Section 25 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 Aboriginal peoples in Canada , 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, section 35 of the Constitution Act, 1982.

Text

Under the heading “General,” the section reads: [1]

25. The guarantee in this Charter of Rights and Freedoms to be repealed or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada

(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that may exist.

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. [2]

This is a stronger recognition for non Charter rights than section 26 ‘s requirement que la Charter can not be construed to deny That non Charter rights exist, as section 25 SPECIFICALLY states That Aboriginal rights will not only continue to exist goal aussi can not 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 was made 26 This sparked dramatic protestsamong Aboriginals, who viewed the proposed constitutional amendments to an insufficient protection of their rights. This PERSISTED up to sacrifice part 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 . [3]

To which section 16 refers to the Royal Proclamation of 1763 . They include May aussi 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 This thesis rights, since They Are Particular to a race . Nevertheless, in the Supreme Court case Corbiere c. Canada (1999), it was found that not all of the provisions relating to aboriginals are protected by section 25, and section 15 wasreserves to Aboriginals who did not live in these reserves. As Hogg observes, what particular rights section 25 protects in the mean time left uncertain. [4]

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 it can not be protected under section 25. [5]

Aboriginal self-government

Main article: Aboriginal self-government in Canada

The issue of how the Charter Applies to Aboriginals and Aboriginal government HAS Involved section 25. On the one hand, it has-been argued That Aboriginal gouvernements 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 aussi That guarantee self-government is not limited by the Charter . [6] On the other hand, the Royal Commission on Aboriginal Peoples The Charter of Self-Governmentrights of individual Aboriginals. [7]

Somewhere in the Indian Act , and the 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 authority derives not only from the Indian Act but also tradition. [8]

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 . The current wording is based on the words “the way in which the claims are made”. While ordinarily, section 25 could have been amended with the standard 7/50 amending formula , which was also adopted 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,prime minister .

Case law

Scholar Celeste Hutchinson remarks in an article that has been made with section 25 by the courts. However, she points to the British Columbia Court of Appeal case R. v. Kapp as one that discusses section 25’s application. She argues Kapp failed to resolve the issue of whether or not it was not enforced. Nevertheless, Hutchinson did feel Kapp provided some significant discussion of 25. In Kapp, Justice Kirkpatrick endorsed the view that section is a review of the Charter of the United States, and is a test case for aboriginals? (2) If it falls in the “other” category, does it relate to a part of Aboriginal life? (3) would it be possible for the Charter to be limited? [9]

References

  1. Jump up^ “CANADIAN CHARTER OF RIGHTS AND FREEDOMS” . Department of Justice Canada . Retrieved August 30, 2012 .
  2. Jump up^ R. v. Agawa, (1988), 43 CCC (3d) 266 (Ont .: CA); “SECTION 25” . Canadian Legal Information Institute. June 1996. Archived from the original on June 19, 2006 . Retrieved August 22, 2005 .
  3. Jump up^ 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.
  4. Jump up^ Hogg, Peter W.Constitutional Law of Canada. 2003 Student Ed. (Scarborough, Ontario: Thomson Canada Limited, 2003), p. 631.
  5. Jump up^ Hogg, 631.
  6. Jump up^ Kent McNeil, “Aboriginal Governments and the Canadian Charter of Rights and Freedoms,” (Canada, Royal Commission on Aboriginal Peoples, 1996), p. 73.
  7. Jump up^ McNeil, p. 74.
  8. Jump up^ McNeil, pp. 87-89.
  9. Jump up^ Hutchinson, Celeste, “Case How On R. v. Kapp: An Analytical Framework for Section 25 of the Charter,”McGill Law Journal, 52.1 (Spring 2007): 173 (18).

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