On March 28, 2024, the Supreme Court of Canada ("SCC") released Dickson v Vuntut Gwitchin ("Dickson"), an important decision for self-governing First Nations regarding the interplay between collective rights of Indigenous peoples and individual rights under the Canadian Charter of Rights and Freedoms (the "Charter").
This case was brought forward by Cindy Dickson, a member of Vuntut Gwitchin First Nation ("VGFN") who intended to run for election as a Councillor. VGFN is a self-governing Nation which had adopted its own Constitution. Their Constitution provided that all members of Council must reside on VGFN traditional territory or relocate there within 14 days of their election (the "Residency Requirement"). Ms. Dickson did not reside on VGFN traditional territory, nor did she plan to relocate there should she be elected. Ms. Dickson argued that the Residency Requirement infringed her right to equality under Section 15 of the Charter, discriminating against her based on her place of residence.
In turn, VGFN relied upon Section 25 of the Charter, which states:
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.
Section 25 operates to safeguard the collective rights and freedoms of Indigenous peoples.
VGFN argued that the Residency Right was protected under Section 25 because it preserved Indigenous difference by upholding VGFN's traditional governance structure.
Before addressing the relationship between Section 15 and Section 25 of the Charter, the SCC first determined whether the Charter would apply to VGFN as a self-governing First Nation. The SCC considered Section 32(1) of the Charter, which specifies the entities to which the Charter applies. Section 32(1) provides that the Charter will apply to an entity, beside federal and provincial governments, that are found to be "government" or that are governmental in nature.
The SCC found that the Charter applied to VGFN, stating it was governmental in nature for several reasons. Specifically, VGFN Council consisted of members who were elected by voters and who were accountable to their constituents, and has general taxing powers. Further, VGFN is empowered to make, administer, and enforce laws that are binding on its citizens and on the public within its settlement land, which has previously been categorized by the SCC as a "quintessential government function." The SCC also found that the Charter would apply to VGFN because the enactment and enforcement of the Residency Requirement is a specific "government activity."
In considering how an individual right under Section 15 of the Charter and collective Indigenous rights under Section 25 interact, the SCC provided a four-step framework. This framework requires the Court to consider whether (1) a Section 15 right has been breached, (2) whether the relevant conduct falls under Section 25, (3) whether the Section 15 right and Section 25 conflict, in that both cannot exist at the same time, and (4) whether there are any relevant limits to the collective Indigenous right.
In the first step of the four-part framework, the SCC determined that Ms. Dickson's Section 15 Charter right was infringed by the Residency Requirement. Ms. Dickson successfully demonstrated that Indigenous peoples who live off-reserve often face disadvantages that those living on-reserve do not experience. It was demonstrated that individuals who live off-reserve are often distanced from their community, while still being subject to its governance. As such, it was found that the Residency Requirement denied, or significantly deterred, Ms. Dickson from participating in the electoral politics of VGFN, which further distanced her from her community.
Although it was determined that Ms. Dickson's individual Charter right had been breached, the SCC held that the Residency Requirement falls under Section 25, and that it conflicted with Ms. Dickson's individual right in a way that both could not simultaneously exist.
In reaching this conclusion, the SCC stated that Section 25 protection will only be awarded for existing Treaty and Aboriginal rights, or "other rights" where it has been established that a right exists and that the right, or its exercise, protects interests with "Indigenous difference".
The SCC defined Indigenous difference as a concept which reflects four social facts between Aboriginal people and the Canadian state, including the Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty and Aboriginal participation in treaty processes. The SCC determined that the Residency Requirement protected Indigenous difference by upholding the traditional governance structure of VGFN.
Specifically, requiring VGFN leaders to reside on traditional territory helped preserve the leaders' connections to the land which is rooted in VGFN's culture and governance practices. Additionally, the Residency Requirement promoted VGFN's expectation that leaders maintain ongoing personal interactions with community members and aided VGFN's ability to resist outside forces that pull citizens away from its settlement lands.
As a self-governing Nation, the SCC recognized that VGFN has a right to provide for membership and the composition of its governing bodies, which includes the right to set parameters on that membership. In discussing the conflict between the rights, the SCC stated that giving effect to Ms. Dickson's Charter right would pose a risk to the continued vitality of the "Indigenous difference" of VGFN and would diminish the connection between leaders of VGFN and its settlement land.
Dickson is an important decision as it affirms the application of the Charter to self-governing First Nations and sets precedent for reconciling individual and collective rights under the Charter. It does, however, put the burden on the self-governing Nation to establish that its practices stem from some type of "Indigenous difference", rather than basing the Nation's ability to enact its own laws and requirements on its inherent right to self-government.
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