Quilting Canada’s Patchwork Rights: Supreme Court of Canada Confirms Indigenous Collective Rights Protected by Charter

On March 28, 2024, the Supreme Court of Canada (SCC) released its long-awaited decision in Dickson v. Vuntut Gwitchin First Nation, in which it addressed two novel and previously unresolved questions: (i) the extent to which the Canadian Charter of Rights and Freedoms (Charter) applies to Indigenous governments, and (ii) the effect of section 25 of the Charter, which provides that “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.” This decision will have wide ranging implications for self-governing Indigenous nations and their members across Canada, including in negotiations involving the Crown.

Background

Cindy Dickson, a member of the Vuntut Gwitchin First Nation (VGFN), challenged a requirement in the VGFN constitution that elected Chief and Councillors reside on VGFN settlement land in northern Yukon (Residence Requirement). Ms. Dickson, who lives in Whitehorse, alleged that the Residence Requirement violated her right to equality under section 15 of the Charter.

The Supreme Court of Yukon dismissed her challenge, holding that the Residence Requirement did not infringe the Charter. The Yukon Court of Appeal held that while the Residence Requirement infringed Ms. Dickson’s equality rights, the Residence Requirement was “shielded” by section 25 of the Charter.

SCC Decision

The SCC upheld the decisions of the courts below, and the constitutional validity of the Residence Requirement.

The first key question before the SCC was whether the Charter applies at all to the activities of the VGFN. The majority of the SCC held that the Charter applies to the VGFN because it is a government by nature, for several reasons — an outcome concurred in by six of the seven judges who heard the case. The VGFN Council is elected by eligible voters and is democratically accountable. The VGFN has general taxing powers comparable to those of Parliament and provinces. The VGFN can make, administer, and enforce coercive laws that are binding on VGFN citizens and the public within its settlement land. Finally, the VGFN is recognized as a legal entity under federal legislation and derives at least some lawmaking authority from federal law. 

The second key question was whether section 25 of the Charter may shield governmental conduct that infringes individual Charter rights (here, Ms. Dickson’s right to non-discriminatory treatment by the VGFN). This case was the first time the SCC set out a framework for the application of section 25. In doing so, the SCC faced strong arguments from multiple participants as to the appropriate extent of protection of Indigenous collective rights in the face of a challenge by a member of the Indigenous nation. The SCC was more divided on this issue, with four of the seven judges upholding the VGFN Residence Requirement. In analyzing this issue, the majority held that, first, the court must be satisfied that the Charter is engaged by the distinction drawn between members who live on VGFN settlement lands versus those living elsewhere. Second, the Indigenous nation must satisfy the court that its law is an “aboriginal, treaty or other right” and protects or recognizes Indigenous difference. Third, there must be an “irreconcilable” conflict between the individual right and the group right. Fourth, courts must consider other relevant limitations, such as the guarantee of equality to female and male persons under section 28 of the Charter. 

Based on this framework, the majority held that section 25 protects the Residence Requirement, despite infringing Ms. Dickson’s Charter right to equality. 

Conclusion

The SCC’s near-unanimous judgment that the Charter applies to the VGFN is a strong indication of likely results in future cases involving other Indigenous governments in Canada. However, there may be more uncertainty in future cases involving the protection of Indigenous collective rights under section 25 of the Charter, since there was a greater divide regarding its application. This was only the second case in which the SCC considered section 25 at any level, and the first case in which the SCC directly decided its effect. With Indigenous self-government increasingly being recognized and exercised, we can expect section 25 to arise in more cases in the future.

The authors were counsel for the intervener, the British Columbia Treaty Commission, at the Supreme Court of Canada.

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