What is Section 25 of the Charter?
Answer
The interpretive clause that protects existing Aboriginal, treaty, and other rights of Indigenous peoples from being abrogated or derogated by the Charter itself.
Explanation
Section 25 of the Canadian Charter of Rights and Freedoms is an interpretive shield protecting Indigenous rights from being narrowed by the Charter. The full text reads: 'The guarantee in this Charter of certain rights and freedoms shall not be construed so 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'.
Section 25 is a 'shield' rather than a 'sword'. It does not create new rights; it ensures that Charter rights cannot be used to undermine existing Indigenous rights. The provision was added during the 1981 patriation negotiations to address Indigenous concerns that the Charter's individual-rights framework could be used to challenge collective Indigenous rights. The Royal Proclamation of 1763 specifically protected by section 25 is the foundational British constitutional document that recognised Indigenous title and required Crown-Indigenous treaties before settlement.
The substantive protection of Indigenous rights is in section 35 of the Constitution Act, 1982 (Part II of the same Act), which 'recognizes and affirms' the existing aboriginal and treaty rights of First Nations, Inuit, and Metis peoples. Section 35 is outside the Charter and is therefore not subject to the section 1 limitation clause or the section 33 notwithstanding clause. The Supreme Court of Canada has built a substantial body of section 35 jurisprudence including R. v. Sparrow (1990), R. v. Van der Peet (1996), Delgamuukw v. British Columbia (1997), Haida Nation v. British Columbia (2004), Tsilhqot'in Nation v. British Columbia (2014), and Mikisew Cree First Nation v. Canada (2018).
Section 25 has been invoked in cases such as Corbiere v. Canada (Minister of Indian and Northern Affairs) (1999), where the Supreme Court struck down the Indian Act provisions that denied off-reserve band members the right to vote in band elections. The court noted that section 25 protected on-reserve voting structures from Charter challenge, but that section 25 did not save provisions that simply discriminated against off-reserve members. R. v. Kapp (2008) addressed the relationship between sections 15(2) (ameliorative programmes) and 25 in the context of Indigenous fishing licences.
Why this matters for your test
Section 25 prevents the Charter from being used to undermine Indigenous rights. Recognising it as a shield (not a source of rights) and its link to the Royal Proclamation of 1763 anchors the answer to the constitutional structure.
Source: Canadian Charter of Rights and Freedoms, s. 25; Corbiere v. Canada [1999] 2 S.C.R. 203
