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 sparked dramatic protests among Aboriginals, who viewed the proposed constitutional amendments as an insufficient protection of their rights.
[7] Some bands receive a measure of autonomy under the Indian Act, and the consequent 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 if their authority derives not only from the Indian Act but also tradition.
Whereas the original wording made reference to rights acquired "by way of land claim settlement," the current version refers to rights that "now exist by way of land claims agreements or may be so acquired."
However, she points to the British Columbia Court of Appeal case R. v. Kapp as one that discusses section 25's application.
In Kapp, Justice Kirkpatrick endorsed the view that section 25 is first considered when a Charter challenge is raised, and made a three-step test asking (1) is the right in question a treaty, Aboriginal or other right related to Aboriginals?