This is a summary of the Supreme Court of Canada's (the "Court") decision in Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (the "Decision"). It has been prepared by Jason Madden, Alexandria Winterburn and Erika Voaklander of Aird & Berlis LLP. This summary is not legal advice.

Jason Madden, Alexandria Winterburn, and Alex DeParde acted as counsel for the Métis Nation of Ontario and the Métis Nation of Alberta who jointly intervened to ensure that the Métis Nation's unique perspective was before the Court.

Key Takeaways from the Decision

  1. The Charter Applies To Recognized Indigenous Governments, Including Those With Self-Government Agreements and Modern-Day Treaties, As They Are "By Their Very Nature" Governments: A majority of the Court relied on the federal legislation implementing Vuntut Gwitchin First Nation's ("VGFN") modern-day treaty and self-government agreement with the Crown to find the Charter applied. They did not answer the question whether the inherent right of Indigenous self-government or a s. 35 self-government right—"untethered from federal legislation"—would also be subject to the Charter.

  2. Indigenous Governments "Do Not Depend On Federal, Provincial, or Territorial Legislation To Exist As Autonomous Self-Governing Peoples": The Court rejected the argument that by virtue of entering into a modern-day treaty or self-government agreement that was implemented through legislation, the VGFN became under the "control" of federal or territorial governments or was entirely dependent on those governments for its authority.

  3. Indigenous Governments Can—And Have—Enacted Laws Aimed At Protecting Their Citizens' Fundamental Rights and Freedoms: The Court recognized that the VGFN Constitution included a section on its citizens' rights that mirrored the protections in the Charter. While the Court did not use this section to determine the issues before it, they noted that it was open to Ms. Dickson to pursue her claim under the equality rights provision in VGFN Constitution, rather than s. 15(1) of the Charter.

  4. Section 25 of the Charter Can Operate To "Shield" Choices of Indigenous Governments, In Certain Circumstances, Based On Indigenous Difference: A majority of the Court held that this shield is not absolute. Rather, it is a "pop up shield" to protect rights related to "Indigenous difference" when "the conflict between the rights is real and irreconcilable, such that there is no way to give effect to the individual Charter right without abrogating or derogating from the right within the scope of s. 25."

  5. The "Other" Rights and Freedoms Protected By s. 25 Are Broader Than Those Rights Within s. 35 of the Constitution Act, 1982: A majority of the Court confirmed that these "other" rights include statutory rights as well as rights related to "Indigenous difference" (e.g., "interests connected to cultural difference, prior occupancy, prior sovereignty, or participation in the treaty process"). Notably, "other" rights do not necessarily have to be of a "constitutional character" in order to fall within the scope of s. 25.

  6. Courts Are Now Placed In A Role of "Continued Oversight of Indigenous SelfGovernment" for Charter Compliance: This will likely result in increased litigation and costly court processes for Indigenous governments trying to justify choices based on "Indigenous difference" and balance the rights of their citizens under both Canadian and Indigenous law. As Justice Rowe noted in his dissent, this "will have far-reaching consequences for the relationship between the courts and Indigenous self-government."

  7. Going Forward, Indigenous Courts Will Have "A Meaningful Role To Play" In Interpreting and Balancing The Rights and Freedoms of Citizens Vis-à-Vis Their Governments: As Indigenous governments increasingly enact legislation governing the relationship with their citizens, it will be important for decisions interpreting, applying, and balancing these decisions to be made by Indigenous peoples themselves. This is an important part of reconciliation and respecting Indigenous self-government.

Background and Context: Vuntut Gwitchin Self-Government

This Decision arises in the context of the ongoing "national project" of reconciliation between Indigenous peoples and the Crown, and the negotiation and implementation of modern-day treaties and land claim agreements.

In the Yukon, this process included the 1993 Yukon Umbrella Final Agreement ("UFA") as a road map for the negotiation of subsequent modern-day treaties and self-government agreements between Canada, the Yukon government, and 14 Yukon First Nations, including VGFN.

VGFN reached a treaty (protected by s. 35 of the Constitution Act, 1982) with Canada and the Yukon government in 1993, and a self-government agreement that same year. These agreements were approved and given effect by federal and territorial implementation legislation.

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