Aboriginal rights and freedoms not affected by Charter 25
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.
Equality Rights
Equality before and under law and equal protection and benefit of law 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Affirmative action programs
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Legislative Authority of Parliament of Canada 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
24. Indians, and Lands reserved for the Indians.
RIGHTS OF THE ABORIGINAL PEOPLES OF CANADA
Recognition of existing aboriginal and treaty rights 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
Here, there is a
prima facie case of discrimination pursuant to
s. 15(1). The right given by the pilot sales program is limited to Aboriginals and has a detrimental effect on non‑aboriginal commercial fishers who operate in the same region as the beneficiaries of the program. It is also clear that the disadvantage is related to racial differences. The native right falls under
s. 25. The unique relationship between British Columbia aboriginal communities and the fishery should be enough to draw a link between the right to fish given to Aboriginals pursuant to the pilot sales program and the rights contemplated by
s. 25. The right to fish has consistently been the object of claims based on aboriginal rights and treaty rights, the enumerated terms in the provisions. Furthermore, the Crown itself argued that these rights to fish were a first step in establishing a treaty right and
s. 25 reflects the notions of reconciliation and negotiation present in the treaty process. Finally, the right in this case is totally dependent on the exercise of powers given to Parliament under
s. 91(24) of the
Constitution Act, 1867, which deals with Indians. The
Charter cannot be interpreted as rendering unconstitutional the exercise of powers consistent with the purposes of
s. 91(24), nor is it rational to believe that every exercise of the
s. 91(24) jurisdiction requires a justification under
s. 1 of the
Charter.
Section 25 is a necessary partner to
s. 35(1) of the
Constitution Act, 1982; it protects
s. 35(1) purposes and enlarges the reach of measures needed to fulfill the promise of reconciliation. There is also a real conflict here, since the right to equality afforded to every individual under
s. 15 is not capable of application consistently with the rights of aboriginal fishers holding licences under the pilot sales program.
Section 25 of the
Charter accordingly applies in the present situation and provides a full answer to the claim. [116] [119‑123]