Charter applies to Nation but Section 25 gives collective rights primacy over individual rights.
On March 28, 2024, the Supreme Court of Canada (SCC) released its decision in Dickson v Vuntut Gwitchin First Nation. The Court dismissed Cindy Dickson's Charter challenge to the Vuntut Gwitchin First Nation (VGFN) requirement that Chief and Council reside on the Nation's settlement lands.
The SCC's decision was split three ways. Five out of seven justices agreed that Ms. Dickson's appeal should be dismissed but came to that conclusion in different ways. The majority decided that the Charter applied to VGFN's government but that the residency requirement was protected by section 25 of the Charter. Section 25 protected the VGFN government's collective right to require that their Chief and Council reside in their traditional territory – a practice which is rooted in Vuntut Gwitchin culture and tradition.
Background
VGFN is a self-governing Indigenous nation in Yukon. VGFN has a Self-Government Agreement as well as its own Constitution which provides rights and freedoms of citizens, rules for governmental organization, and electoral rules and standards. The VGFN Constitution requires that Chief and Council reside on Settlement Land or relocate there within 14 days of being elected. VGFN's government is based in Old Crow, a remote, fly-in community 800 kilometres north of Whitehorse. More than half of the VGFN members reside in communities other than Old Crow (primarily Whitehorse).
Ms. Dickson is a VGFN member who lives in Whitehorse. She challenged the residency requirement on the basis that it violates her equality rights under section 15 of the Charter. Ms. Dickson wanted to run for Council but could not relocate to Old Crow due to her son's medical needs. She argued she was effectively barred from being on Council.
The SCC had to decide the following issues:
- Whether the Charter applies to the VGFN's residency requirement;
- If the Charter applies, whether the residency requirement unjustifiably infringes section 15 of the Charter; and
- How section 25 of the Charter operates to protect Aboriginal rights and freedoms in the face of a Charter challenge.
This decision is the first time that the SCC has dealt in-depth with section 25 of the Charter, which provides that individual Charter rights and freedoms must not be interpreted in a manner that abrogates or derogates from Aboriginal, Treaty, or "other rights or freedoms" pertaining to the Aboriginal peoples of Canada.
The four-step framework
The SCC identified a four-step framework that applies where a Charter right is asserted against a self-governing Indigenous nation.
- The Claimant must establish that a Charter right has been breached.
- If the Claimant establishes a Charter breach, the Indigenous government needs to establish that the government action being challenged is based on an Aboriginal, Treaty, or "other" right.
- The Indigenous government must show that there is an irreconcilable conflict between the Charter right and the section 25 right and the two cannot coexist. In this case, section 25 acts as a shield and it will take precedence over the individual Charter right.
- Consider whether there are any limits on the section 25 right. For example, if the section 25 right discriminates against women, the right could be limited because both the Charter and section 35 of the Constitution Act, 1982 provide that those constitutional rights are guaranteed equally to "male and female persons."
The Charter applies
The first question in any Charter challenge is always whether the Charter applies. The Charter only applies to protect individuals from government actions and it does not apply to private entities or individuals. Although the Charter does not expressly state that it applies to Indigenous governments, the SCC decided that the Charter applies to self-governing Indigenous Nations.
The SCC recognized that the Vuntut Gwitchin people themselves have been self-governing since time immemorial, but differentiated VGFN from the Vuntut Gwitchin people, holding that VGFN is a separate, legal entity that derives some (but not all) of its lawmaking authority from Parliament. The majority clarified that it was not saying the inherent right of Indigenous self-government is always subject to the Charter, but in this case the Charter applied to the residency requirement because it flowed from the exercise of federal power over "Indians, and Lands reserved for the Indians" which in this case was conferred to VGFN through the federal legislation that implemented the VGFN's Self-Government Agreement. Two justices in the minority disagreed, stating that self-governing Indigenous Nations are governments in their own right and not because of any delegated federal power.
Application of the four-step framework
First, the SCC agreed that the residency requirement breached Ms. Dickson's section 15 equality right because it created a distinction based on non-resident status.
Second, the SCC agreed with VGFN that the residency requirement in the VGFN Constitution is an exercise of an "other" right—the right of VGFN to set membership criteria for its governing body—which protects Indigenous difference. There was evidence that Vuntut Gwitchin society places distinctive emphasis on its leaders' connection to the land.
Third, the SCC determined that Ms. Dickson's individual equality right was in irreconcilable conflict with the VGFN's section 25 right to include the residency requirement in its Constitution. The VGFN's right to decide on the membership of their governing bodies would be undermined by allowing even one Councillor to reside outside of Old Crow, since the protection of Vuntut Gwitchin culture is critically linked to the seat of their government being in Old Crow.
Conclusion
The SCC's reasons provide some clarity on how individuals can challenge the laws of a self-governing Indigenous Nation on a Charter basis, as well as how section 25 of the Charter interfaces with the other Charter rights and may shield Indigenous governments from Charter scrutiny. The Dickson decision also provides much food for thought for any self-governing Indigenous nation seeking to have its own unique cultural practices and beliefs integrated into its Constitution.
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