Introduction

In 1977, the Canadian Human Rights Act (CHRA) was passed, together with the exemption that was described at the time as an “interim” measure. That measure, section 67, effectively exempted the Indian Act from scrutiny under the CHRA. Section 67 was the only “sheltering” clause of the Act, and said, “Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act.” This “interim” status was important since the Indian Act was perceived as being discriminatory, particularly in terms of gender. It was expected that the sexual discrimination present in the Indian Act (and other forms of explicit, indirect, or latent discrimination) would lead to portions of it being found contrary to the principle objectives of the CHRA. Subsequent interpretation saw the CHRA as “quasi-constitutional” in nature and, therefore, holding sway over the Indian Act and other “ordinary” legislation. This could have led to arguments for the suspension of those Indian Act provisions that were seen to discriminate on the grounds of race or gender. Thirty-one years later, Bill C-21 was passed in 2008, finally repealing the “interim” section 67.

The question of how best to implement Bill C-21, and more specifically how to implement section 1.2, is the subject of this report. Section 1.2 calls for the following:

In relation to a complaint made under the Canadian Human Rights Act against a First Nation government, including a band council, tribal council or governing authority operating or administering programs and services under the Indian Act, this Act shall be interpreted and applied in a manner that gives due regard to First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.¹

This report explores, in particular, the concept of balancing individual and collective rights with First Nations legal traditions and customary laws. It addresses, but focuses less on, questions of gender equality. The report examines how First Nations communities and organizations are to implement the legislation, and suggests areas where the Commission, the Tribunal, First Nations, the federal government, and Parliament might assist in this goal. The complex issues surrounding the immediate application of Bill C-21 to government departments, agencies, and other non-First Nation entities whose activities are now covered by the CHRA are beyond our mandate.

Our study is also aimed at achieving a practical implementation of Bill C-21, in particular section 1.2, and acknowledging potential shortcomings, inadequacies, and areas of potential follow-up research.

In practical terms, section 1.2 has two major implications. First, the Government of Canada and any other federally regulated body, other than a First Nation government (as defined in exercising powers formerly exempted under the CHRA), is immediately subject to the CHRA, and must therefore defend their actions, as would any other organization subject to the CHRA since 1977. Second, and of most relevance to this report, First Nations governments are provided a three-year grace period (s.3), ending on June 18, 2011, before Bill C-21 applies to those actions formerly sheltered under section 67. During this grace period, Bill C-21 (s.4) also calls upon the federal government to undertake a study to identify the extent of the preparation, capacity, and fiscal and human resources required for First Nations communities and organizations to comply with the amended CHRA. This study is to be reported to both Houses of Parliament before the expiration of the three-year transition period. In effect, Bill C-21 acknowledges the need to clarify how section 1.2 is to be interpreted and applied in a process of consultation and joint study between the federal government and First Nations.

The report is presented in four main sections plus four appendices. Part one looks at the legal and legislative background of the new Bill, as well as relevant case law from both Canada and elsewhere, all of which sheds light on how to interpret and apply the new requirements. Part two examines academic literature from the areas of sociology, anthropology, history, and political science for further illumination. Part three explores the Indian Act itself, how it has been implemented, and how Bill C-21 will change its regime. Part four provides some conclusions and suggests ways for the Canadian Human Rights Commission to move forward.

The appendices provide the text of the bill itself (Appendix 1), a legal interpretation of key words and phrases (Appendix 2), a quick reference of key questions and conclusions (Appendix 3), and some samples of cases that might arise because of the new legislation (Appendix 4).

PART I: IMPLEMENTING SECTION 1.2: A LEGAL OVERVIEW AND ASSESSMENT

INTRODUCTION

For a short piece of legislation, Bill C-21 poses a variety of significant challenges to the Canadian Human Rights Commission (CHRC) and the Canadian Human Rights Tribunal (CHRT), and to all potential complainants and respondents, particularly First Nations governing authorities covered by the legislation. This is in part because of the wide and ultimately unresolved range of expectations, concerns, and interpretive approaches at play in the debates over how the individual rights advanced by the Canadian Human Rights Act (CHRA) can and should be balanced with broader, collective rights and interests specific to First Nations legal traditions and customary laws. In addition, there is little guidance in policy or case law about how to balance such potentially competing rights and interests.

This part of the study, guided by the principles of legislative interpretation, sets out the legal frameworks available for interpreting s.1.2. This section is intended to explore the principles, concepts, notions, and ideas about individual and collective rights as determined in Canadian jurisprudence regarding “First Nations legal traditions and customary laws, particularly the balancing of individual rights and interests against collective rights and interests, to the extent that they are consistent with the principle of gender equality.” Applicable foreign jurisprudence is also reviewed.

The Canadian human rights landscape is crafted by both legislative and constitutional principles. Section 1.2 (now part of the Canadian Human Rights Act) is not a constitutional provision, but it is informed by the Charter of Rights and Freedoms², which provides a set of guiding principles for the interpretation of legislation. However, through the incorporation of the “legal traditions and customary laws” of “First Nations,” s.1.2 also potentially incorporates the constitutional principles (found in s.35 of the Constitution Act, 1982) that protect Aboriginal and treaty rights.³ The Charter, Aboriginal and treaty rights, and human rights frameworks will be explored to establish the frameworks within which consideration of s.1.2 might take place. These provisions, and those of related legislation, form part of the legislative context. By adopting “the principle of interpretation that presumes a harmony, coherence, and consistency between statutes dealing with the same subject matter,”⁴ we can ascertain how the current legislation fits within the broader legislative landscape.

The principles of constitutional interpretation differ from normal legislative interpretation. Constitutional terms are difficult to amend. As such, the interpretation of the Constitution is not as strict as normal legislative interpretation. The Canadian Constitution, like constitutions in many countries, is treated as a “living tree” in order to facilitate changing times and circumstances.⁵ Thus, while the constitutional interpretive frameworks are essential for understanding the landscape in which s.1.2 exists, more pointed analysis is necessary to understand the precise meaning of s.1.2.

The interpretive landscape for s.1.2 will be filled out by examining the legislative history and intention of Parliament,⁶ and the scheme of the Act, which can be characterized by identifying its broad objects and methods. The most direct route to identifying the meaning of a piece of legislation is to look at the grammatical and ordinary meaning of the Act. This stage involves trying to provide a plain language understanding to the words used within a statute, unless there is some reason on the face of the Act to choose a technical or specialized meaning over following the normal rules of grammar and dictionary definitions.

This part of the report begins with the background of s.1.2 in order to discern the legislative intent behind it. The second section examines three frameworks—the Charter of Rights and Freedoms, Aboriginal and treaty rights, and human rights law—that inform the interpretation of s.1.2. The third section then examines jurisprudence relevant to legal traditions and customary laws. The fourth section analyses both broad and narrow interpretations of the wording of s.1.2. This section should be read with reference to Appendix 2 of this report, which discusses the wording in detail.

1. SCOPE AND INTENT OF SECTION 1.2

1.2. THE EXEMPTION AND CALLS FOR REPEAL

Bill C-21 has a unique origin. In 1977, the Canadian Human Rights Act (CHRA) was passed, together with what was described at the time as an “interim” measure—the exemption (in s.67) of the Indian Act from scrutiny under the CHRA. This was important because, in a most general sense, the Indian Act was perceived in 1977 as being discriminatory, particularly regarding gender. Decisions rooted in the Indian Act were seen as unlikely to survive a challenge under the new CHRA. Indeed, Sandra Lovelace’s challenge to the Indian Act’s denial of entitlement to formerly “out-marrying” women helped illustrate how the Indian Act was discriminatory. Lovelace’s challenge resulted in a decision by the United Nations Human Rights Committee⁷ that declared s.12(1)(b) of the Indian Act contrary to the International Covenant on Civil and Political Rights.
In defence of exempting s.67, note was made in the legislative debates about ongoing discussions with the National Indian Brotherhood (NIB) (now the Assembly of First Nations) and Native women’s groups about updating the Indian Act’s entitlement provisions. The NIB strongly supported the exemption, though only as an “interim” measure.

In 1985, Bill C-31 was enacted to eliminate all forms of sexual discrimination in the Indian Act. However, Bill C-31 itself has been successfully challenged on the grounds of discrimination based on sex and family status⁸. From the CHRA’s passage in 1977, thirty-one years passed before the passage of Bill C-21 in 2008, and the “interim” measure was successfully replaced.

1.2. THE LEGISLATIVE DEBATES ON BILLS C-44 and C-21

The legislative context for the implementation of s.1.2 may provide clues about legislative intent, but since the clause itself was not extensively debated, these clues may be of limited utility.

The Government Position

As introduced, both Bills C-44 and its successor C-21⁹ were sparse, and therefore attracted considerable criticism. A five-year impact review and reporting requirement was limited to either a House or Joint Committee, and there was a six-month transition clause suspending complaints against “an aboriginal authority that was made in the exercise of powers or the performance of duties and functions conferred or imposed by or under the Indian Act.”¹⁰

The government did not include an “interpretive” clause in either Bill C-44 or Bill C-21. However, the two previous legislative efforts (Bill C-7 and S-45) had included interpretive clauses. These earlier legislative proposals are worth examining before looking at the background of Bill C-44.

Bill C-7: In 2002, the government included a repeal provision as part of a much broader First Nations Governance Act (Bill C-7), in which a single interpretation provision for the CHRA was included:

In relation to a complaint made under this Act against an Aboriginal governmental organization, the needs and aspirations of the Aboriginal community affected by the complaint, to the extent consistent with principles of gender equality, shall be taken into account in interpreting and applying the provisions of this Act.¹¹

Due to the focus of C-7 on governance, elections, and financial accountability, there was little discussion about its proposed repeal of the s.67 exemption. Both the Native Women’s Association of Canada and the National Aboriginal Women’s Association supported extending the CHRA fully into all aspects of the Indian Act regime. There was no mention of the proposed repeal provision by other First Nations witnesses, and next to no discussion within the Parliamentary Committee. The Bill died on the Order Paper in 2003.

Bill S-45: A private Senate Bill, S-45, was introduced in November of 2005 to propose the simple repeal of s.67, without any review or transition periods, but with the identical interpretive clause as set out in C-7. This Bill also died on the Order Paper.

Bill C-44

The Minister of Indian and Northern Affairs introduced the new government’s first attempt to repeal s.67 in 2006. Appearing on March 22, 2007, before the House of Commons Standing Committee on Bill C-44, the Minister anticipated questions about the absence of an interpretive clause and provided a detailed rationale for excluding one:

I share the view that the Canadian Human Rights Act should be applied in a manner that is sensitive to particular circumstances of aboriginal communities, but the truth is that three factors preclude the need for an interpretive clause in the legislation. The first is that laws already exist that provide for a balancing of individual and collective rights. I refer to the constitutional protection already in place for the recognition of collective aboriginal and treaty rights in section 35 of the Constitution Act, which remains as the paramount authority in our legal system.

Given these protections, members of the Canadian Human Rights Tribunal… are required by the act to be sensitive to human [rights] issues as they pertain to aboriginal and treaty rights. They can also be expected to interpret the existing defences in the act, bearing in mind these concerns. With these protections in place to help guide the application of the …Act and the commission, there’s no need to add an interpretive clause to Bill C-44. In effect, the Constitution Act provides that overall interpretive umbrella itself.

The second factor has to do with the critical role of the Canadian Human Rights Commission itself. The Commission is charged with the administration of the …Act, which means that it not only processes complaints but also engages in educational activities….

The Act already grants the commission the power to establish guidelines or regulations on how the Act should be applied to a particular class or group of complaints. … I have full confidence that, given its mandate, its track record, and in dialogue with First Nations, the Canadian Human Rights Commission is best placed to offer advice on how the Act should be applied…

Thirdly, we know from experience with the interpretive clause, which was originally proposed in …Bill C-7, that it is extremely difficult to capture in a single clause fail-proof language that would address all the competing considerations for handling a …complaint in a First Nations context. Additionally, an interpretive clause …would have to be interpreted by the commission and the …Tribunal …in specific cases, and would obtain clarity really only after the litigation of many complaints and conflicts, undoubtedly, with the Charter.¹²

While this intriguing rationale touches upon a great many things, it points above all to one justification: the government felt that between s.35 and Charter law, and given the capacity of the Commission to issue guidelines and regulations for interpreting breaches of the Canadian Human Rights Act, there was no need for a specific interpretive clause. Indeed, there was concern expressed about the dangers of over-specificity or over-generality in the introduction of such a clause.

This position was maintained throughout the discussion of Bill C-44, and, though the Minister of Indian Affairs did not specifically deal with the issue, the same position was held throughout the debate over Bill C-21.

Main Witnesses on Bill C-44

The positions of the main witnesses before the Committee on Bill C-44 (since there were no witnesses called for C-21 other than in the Senate) are summarized below:

The Assembly of First Nations (AFN)

The AFN proposed two main amendments to C-44 that are relevant to our inquiry a non-derogation clause and an interpretive clause:

• A non-derogation clause, based largely on s.25 of the Charter:

The repeal of Section 67 of the Canadian Human Rights Act shall not be construed in a manner which abrogates or derogates from any Aboriginal or treaty rights, including customary laws and traditions that pertain to the First Nation peoples of Canada such as:

1. any rights or freedoms that have been recognized by the Royal Proclamation of 1763; and
2. any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
   

1. The Interpretation and application of the Canadian Human Rights Act shall take into account: the entitlement of a First Nation government to provide programs and services whether exclusively or on a preferential basis to its members;
2. The entitlement of a First Nation government to give preference to its members in training and hiring of employees and contractors; and
3. The entitlement of a First Nation government to give preference to its members in the allocation of land, resources or other economic benefits to its members; and
4. The entitlement of a First Nation government to give preferential or elusive treatment to its members in matters relating to the exercise of cultural, spiritual or other traditional practices or activities; and
5. The entitlement of a First Nation government to consider and apply indigenous legal traditions and customary laws in a manner in keeping with principles of equality and justice.¹³ 

The Native Women’s Association of Canada (NWAC)

NWAC did not propose specific interpretive language in its appearance before the committee studying C-44. They did call, however, for an interpretive clause “to enable the CHRC to adequately balance collective and individual rights, whereby the CHRC could rely on an exemption that would explicitly allow discrimination where a preference or advantage is granted to aboriginal peoples and is not discriminatory in any other respect.” NWAC insisted that any interpretive clause must be developed in consultation between the government, First Nations organizations, and NWAC.¹⁴

The Canadian Human Rights Commission (CHRC)

The Chief Commissioner of the CHRC appeared on April 19, 2007, and argued that an interpretive provision was:

… imperative to give application to the inherent right of self-government and is fundamental to developing an appropriate system for First Nations human rights redress. An interpretive provision would help to ensure that individual claims are considered in light of legitimate collective rights and interests.¹⁵

The Adoption of Section 1.2

Bill C-44 died on the Order Paper but without any clause-by-clause discussion of amendments. It was brought back to Committee as Bill C-21 after the start of the new session of Parliament. Following procedure, no witnesses were called other than government officials to assist in responding to questions about the intent of the government’s draft.

The central reference now contained in s.1.2 to “legal traditions and customary laws” emerged in an opposition motion of December 2007 during clause-by-clause consideration. To explain the intent of the language, the mover of the motion commented:

It could be as simple, for example, as always giving our elders preferential treatment, so that they are dealt with first…¹⁶

Aside from support from one other MP, this was the sole example given as to the potential impact of the interpretive language proposed before the Committee adopted the clause. The Committee spent far more time negotiating and debating the transition and review clauses.

However, we can see that the crafting of s.1.2 owed much to the witness presentations. NWAC reinforced the need for an interpretive clause. The AFN’s contribution was to introduce the concept of “legal traditions and customary laws,” both in its draft non-derogation clause and in its proposed interpretive provision. The CHRC may well have inspired s.1.2’s reference to a “balancing” of collective and individual rights and interests. Between these witnesses, s.1.2 was born.

2. FRAMEWORKS FOR CONSIDERATION OF THE LEGISLATIVE AND LEGAL CONTEXT

In considering the broader legislative and legal landscape surrounding s.1.2, it is important to consider human rights law as well as constitutional law. The three subsections below help illustrate key areas essential to interpreting s.1.2.

A. CONSTITUTIONAL LAW: THE CHARTER OF RIGHTS AND FREEDOMS

When assessing a Charter case, the Court must ask if a specific right guaranteed under the Charter has been infringed. If there has been an infringement of a Charter right, then the Court needs to determine if the infringement is justified under s.1. In Oakes, the Supreme Court called for a “stringent standard of justification,” with the standard of proof for limitation being “proof by a preponderance of probability.”¹⁷

For a limitation to be allowed, the objective of the infringing legislation must be significant and the means chosen must be reasonable. Passing this level of scrutiny requires that the infringing measure meet three tests:

1. “First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.”¹⁸
   
2. “Second, the means, even if rationally connected to the objective in this first sense, should impair ‘as little as possible’ the right or freedom in question.”¹⁹
    
3. Third, “there must be a proportionality between the deleterious effects of the measures limiting the rights or freedoms in question and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures.”²⁰

Section 1 of the Charter provides the only provision for a “balancing mechanism.” However, s.1 “balancing” potentially removes the shield from protected rights where legislative intrusion can meet a test of justification.²¹ While this is a somewhat limited form of “balancing,” it might be useful for gender equality analysis. Adapting this approach to the principle of gender equality mentioned in s.1.2, any collective interest that exists in conflict with gender equality might have to undergo a structured justification analysis. However, “balancing” in contexts that do not involve gender equality might strive to find a middle ground that ensures that individual interests are respected while trying not to impair the ability of the collectivity to express its own rights or interests.

Section 25 of the Charter is also brought into view in the interpretation of s.1.2. It reads as follows:

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 and 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.”²²

The relevance of s.25 of the Charter is largely based, not on the specific language of s.1.2 (which is quite different from s.25) but on the characterization of the goal of an interpretive clause by many witnesses before the House of Commons, and in some previous legislative proposals of a similar nature. However, s.25 has received little judicial treatment. At the Supreme Court, s.25 has only been given careful analysis in a few minority opinions.²³

The most extensive treatment of s.25 was provided by Justice Bastarache in R. v. Kapp²⁴, in which he made several key determinations:

• First, s.25 is an interpretive provision and does not create new rights.²⁵
  
• Second, s.25 acts as a shield designed to address the tension between individual Charter rights and collective Aboriginal and treaty rights.²⁶
  
• Third, the s.25 shield is not absolute:

“… it is restricted by s. 28 of the Charter which provides for gender equality ‘[n]otwithstanding anything in this Charter’. Second, it is restricted to its object, placing Charter rights and freedoms in juxtaposition to aboriginal rights and freedoms.”²⁷

The final Charter section that might provide insight into how s.1.2 will ultimately be treated is s.28, which is the gender equality provision.²⁸ Typically serving as an interpretive declaration of overriding importance, this section may be highly influential in providing a guide for how the “principle” of gender equality should be treated.

The Charter principles reviewed above are one source for interpreting s.1.2. These provisions provide a foundation of Constitutional level principles similar to some of the aspects of s.1.2. Specifically, s.1 of the Charter reveals an example of balancing that can be used as a guide. Similarly, the guarantee of gender equality in s.28 of the Charter may provide a comparable example for the “principle of gender equality.” Finally, s.25 of the Charter has the potential to operate as a shield against any application of s.1.2 that interferes with Aboriginal and treaty rights. The case law is lacking on this latter point.

Footnotes

1. See Appendix 1 for the full text of Bill C-21 that amends the CHRA.
2. Canadian Charter of Rights and Freedoms, Schedule B, Constitution Act, 1982.
3. Aboriginal peoples are defined in Section 35(2), which states “In this Act, ‘aboriginal peoples of Canada’ includes the Indian, Inuit, and Metis peoples of Canada.”
4. R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867 (S.C.C.) (Q.L.) at para. 52.
5. Ruth Sullivan, Statutory Interpretation 2nd ed. (Toronto: Irwin Law, 2007): 100–101.
6. R. v. Ulybel Enterprises Ltd., [2001] 2 S.C.R. 867 (S.C.C.) (Q.L.) at para. 33 where the Court writes: “To understand the scope of (a statutory provision), it is useful to consider its legislative evolution. Prior enactments may throw some light on the intention of Parliament in repealing, amending, replacing or adding to a statute.”
7. Lovelace v. Canada, [1983] Can. Human Rights Yearbook 305 (U.N.H.R.C.) confirming the admissibility of the complaint, by discarding the failure to exhaust domestic remedies argument made by Canada, on the basis of the Supreme Court’s 1973 decision on the same point in the Lavell case (Attorney General of Canada v. Lavell; Isaac v. Bedard, [1974] S.C.R. 1349); and by the U.N.H.R.C. in 1981 on the merits of the complaint.
8. McIivor v. Canada (Registrar of Indian and Northern Affairs), CanLII B.C.C.A. (2009) 153. The Government of Canada announced on June 1, 2009, that it would not be appealing this decision and instead would bring forward amendments to the Indian Act to implement the Court’s directions, http://www.ainc-inac.gc.ca/ai/mr/nr/m-a2009/nr000000339-eng.asp. Ms. McIvor and her son were unsuccessful in obtaining leave to appeal from the Supreme Court of Canada.
9. Bill C-44 was introduced in one session of Parliament but then died on the Order Paper. It was revived the next session as Bill C-21.
10. This language was in the First Reading version of Bill C-44, and was incorporated in the adopted version of Bill C-21.
11. s. 16.1, First Nations Governance Act, (Bill C-7) 2002.
12. Hon. Jim Prentice, Minister of Indian and Northern Affairs, before the Standing Committee of Aboriginal Affairs and Northern Development on Bill C-44, Hansard: March 22, 2007: 1105.
13. Assembly of First Nations, First Nations Perspective on Bill C-44 (Repeal of Section 67 of Canadian Human Rights Act): a submission to the House of Commons Standing Committee on Aboriginal Affairs and Northern Development, available at http://www.afn.ca/misc/C-44.pdf.
14. Ellen Gabriel, Quebec Native Women’s Association, Evidence, Standing Committee on Aboriginal Affairs and Northern Development on Bill C-44, Hansard, March 17, 2007: 1115.
15. Jennifer Lynch, Chief Commissioner of the Canadian Human Rights Commission, Evidence, Standing Committee on Aboriginal Affairs and Northern Development on Bill C-44, Hansard, April 19, 2007: 1110.
16. Nancy Karetak-Lindell, M.P. Standing Committee on Aboriginal Peoples and Northern Development, (39th Parliament, 2nd Session), Hansard, January 30, 2008: 1605.
17. R. v. Oakes, [1986] 1 S.C.R. 103 (Q.L.) at para. 67.
18. Ibid. at para. 70.
19. Ibid.
20. Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (Q.L.) at para. 95.
21. Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772 at para. 94, per L’Heureux-Dubé J. (dissenting): “The Charter makes no provision for directly balancing constitutional rights against one another. It is aimed rather at governmental and legislative intrusion against the protected rights.”
22. Canadian Charter of Rights and Freedoms, s.25.
23. See, L’Heureux-Dubé J. in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 (Q.L.) at para. 52: “Section 25 is triggered when s. 35 Aboriginal or treaty rights are in question, or when the relief requested under a Charter challenge could abrogate or derogate from “other rights or freedoms that pertain to the aboriginal peoples of Canada.” This latter phrase indicates that the rights included in s. 25 are broader than those in s. 35, and may include statutory rights. However, the fact that legislation relates to Aboriginal people cannot alone bring it within the scope of the “other rights or freedoms” included in s. 25.”
24. [2008] S.C.J. No. 42 (S.C.C.).
25. Ibid. at para. 79: “Most authors believe that s. 25 is an interpretative provision and does not create new rights.” And at para. 93 “It was made abundantly clear that s. 25 creates no new rights. It was meant as a shield against the intrusion of the Charter upon native rights or freedoms.”
26. Ibid. at para. 82.
27. Ibid. at para. 97 where Bastarache also states: “This means in essence that only laws that actually impair native rights will be considered, not those that simply have incidental effects on natives.” Also at para. 101: “In this case, what is significant about the scope of s. 25 protection is the meaning of the words “other rights or freedoms.” These words are “all-embracive,” as mentioned by Lysyk, at p. 472; this indicates that the protection was meant to be very broad. But the rights and freedoms are only those that “pertain to the aboriginal peoples of Canada,” those that are particular to them. In French, the Act speaks of “droits ou libertés ancestraux, issus de traités ou autres des peuples autochtones du Canada.”
28. Canadian Charter of Rights and Freedoms, s. 28 reads: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”