The Charter versus Aboriginal Rights? Supreme Court Releases Decision on Dickson v Vuntut Gwitchin

Thursday, March 28, 2024

Today, the Supreme Court released Dickson v Vuntut Gwitchin, 2024 SCC 10 (Dickson), an important decision that interprets the relationship between individual Charter rights and freedoms, and Indigenous collective rights protected in s. 35 and other parts of the Canadian Constitution.

The Supreme Court found that a law of an Indigenous government (the Vuntut Gwitchin First Nation’s Constitution and its requirement that their elected leaders must reside in their community) were valid, in the face of a Charter challenge that the law was discriminatory. This short analysis provides a quick summary of the case, but OKT will provide a more detailed analysis in the near future.

In its decision released on March 28, 2024, the Supreme Court of Canada provides important clarifications about the relationship between Aboriginal and Treaty rights (protected by s. 35 of the Constitution), individual rights such as equality rights under the Charter, and s. 25 of the Charter, which is meant to prevent individual rights under the Charter from eroding collective Indigenous rights.

It was inevitable that conflict would occur, and legal interpretation would be needed from Canada’s highest court, for situations where emerging Indigenous self-government structures conflict with individual rights protections under Canada’s Charter of Rights and Freedoms (the Charter). This is exactly what happened in the Dickson case.

What is the Dickson Case About?

The case was brought by Cindy Dickson, a member of the Vuntut Gwitchin First Nation (Vuntut Gwitchin) in the Yukon. The Vuntut Gwitchin are an Indigenous community that has modern land claim and self-government agreements with Canada. The Vuntut Gwitchin have residency requirements in their own Constitution (passed by their government, which has self-government authority). Those requirements impose a condition that, in order to be elected to leadership, a Vuntut Gwitchin member must live in the First Nation’s community at Old Crow or move there. Dickson lives 800 km away in Whitehorse.

Dickson brought a case saying that her s. 15(1) Charter rights (protecting equality and freedom from discrimination) were violated by the Vuntut Gwitchin’s residency requirements. In summary, the Vuntut Gwitchin argued that the Charter doesn’t apply to their Constitution’s residency requirements, or if it did, then s. 25 of the Charter (which prevents erosion of collective Indigenous rights) acted as a “shield” to prevent the application of the Charter in this case. Both the Yukon Supreme Court and Yukon Court of Appeal ruled that, although Dickson had a s. 15(1) equality right (not to be discriminated against based on her place of residence, as an Aboriginal person), nevertheless s. 25 of the Charter means that the Vuntut Gwitchin’s residency requirements are a type of collective right ‘shielded’ from the Charter’s application.

What Did the Supreme Court Find?

The Supreme Court decision split three ways – there are three verdicts. Still the majority of judges (5 of 7) confirmed that the Vuntut Gwitchin Constitution, including the election code, did not breach the Charter.

Two of the sets of decisions (6 of the 7 judges) found that the Charter applied to the Vuntut Gwitchin’s Constitution and that the residency requirement infringed Dickson’s equality rights under s. 15 of the Charter. However, in making this finding, they assert that the Vuntut Gwitchin Government was a government by nature: it draws its authority from having been “self-governing since time immemorial” and being a legal entity under federal law.

The majority of the judges (4 judges, with Justices Kasirer and Jamal writing the decision) held that the residency requirement was saved by s. 25 of the Charter. The majority found that the purpose of s. 25 is to protect the collective rights of Indigenous peoples as a distinct minority group where they conflict with individual Charter rights. The majority held that s. 25 was both a ‘shield’ and an ‘interpretive aid’. After interpreting both Dickson’s s. 15 right and the Vuntut Gwitchin’s collective right to protect “Indigenous difference” by preserving its traditional governance structure, the majority held it was not possible to give effect to Dickson’s individual Charter right without undermining the collective right.

Two judges (including Canadas’s first Indigenous Supreme Court judge, Justice O’Bonsawin) found that not only had Dickson’s Charter rights been infringed, but also interpreted the role of s. 25 much more narrowly. They found that s. 25 was meant to be an ‘interpretive aid’ only. These two judges found that the residency requirement did not fall within the protections guaranteed under s. 25 because, the judges reasoned, a self-governing Indigenous Nation’s right to regulate the composition of its governing bodies was not a unique collective right that only belongs to Indigenous people by reason of being Indigenous.

One judge (Justice Rowe) found that the Charter didn’t even apply because that would be “fundamentally inconsistent with the nature, status and purpose of Indigenous self-government.” Justice Rowe found that the Vuntut Gwitchin’s governance choices should not be scrutinized by imposing the Charter on the Vuntut Gwitchin as they did not participate in the drafting of the Charter nor did they consent to its application as part of their self-government agreement. Rowe also found that individual rights are respected by the Vuntut Gwitchin and its citizens are not deprived of fundamental rights; nor do they exist in a rights-free zone. The VGFN’s Constitution includes protections for equality rights.

What Does the Case Mean?

The Dickson decision has implications for Indigenous governments navigating issues regarding the exercise of self-government powers, customary laws including election codes, or making decisions which could have Charter implications.

The Supreme Court has provided more clarity on some important points: the majority of the judges are clear that the self-governing Vuntut Gwitchin’s election laws can require elected councillors or chiefs to reside in the community, so that their laws reflect their cultural needs and practices. This decision is important because the interpretation of s. 25 is broad enough to apply to Indigenous governments with current self- government agreements, and to Indigenous governments that assert self- government powers in any way (even without formal agreements with Canada). For instance, the decision likely applies to any First Nations that have enacted custom election codes or other customary law.

The decision still leaves many questions, however. There is a significant spectrum of perspectives across the three sets of opinions about whether and how the Charter applies to Indigenous laws enacted under self-government mechanisms. The decisions ranges from the majority “yes the Charter applies, but” decision that finds the Charter applies but the Vuntut Gwitchin’s residency law is shielded by s. 25, to the “we cannot create Charter-free zones” opinion of Justices Martin and O’Bonsawin, to the ”applying the Charter is fundamentally contradictory to the whole purpose of self-government” reasoning of Justice Rowe.

OKT will provide a more detailed analysis in the upcoming week – watch our website, blog, and social media for more details.