Supreme Court applies Charter to Indigenous Governments, but protects “Indigenous difference”

Tuesday, April 23, 2024

The Supreme Court’s recent decision in Dickson v Vuntut Gwitchin interprets the relationship between individual Charter rights and freedoms, and Indigenous collective rights.¹ A majority of the court found that a self-governing First Nation’s law requiring elected leaders to reside in the community was valid, in the face of a Charter challenge that the law was discriminatory.

The court applied the Charter in the absence of the First Nation explicitly consenting to it in its self-government agreement. In doing so, the court diminished the promise of self-government and the right of Indigenous governments to determine the proper balance between governmental action and protections for the individual rights of its citizens.

However, a majority of the Court found that section 25 “shields” Indigenous collective rights from the Charter. The Charter cannot invalidate the exercise of Indigenous collective rights, as defined in section 25. However, the majority’s complicated process for analyzing section 25 leaves the door open for expensive and intrusive litigation for Indigenous governments. Dickson v Vuntut Gwitchin now stands as the leading authority on section 25 of the Charter.

VGFN’s Self-Government Arrangements

The Vuntut Gwitchin First Nation (the “VGFN”) entered a comprehensive land claim agreement with Canada and the Yukon in 1993 (“Final Agreement”). It entered a Self-Government Agreement with the same parties soon after (the “SGA”). Parliament and the Yukon Legislative Assembly passed legislation to implement the Final Agreement and the SGA.² The Final Agreement is a modern treaty protected under s. 35 of the Constitution Act, 1982. The SGA is not. As a result of the agreements and legislation, the Indian Act does not apply to the VGFN.³

The VGFN passed its own constitution as part of the requirements of the SGA (the “VGFN Constitution”). It contains detailed provisions about the governance of the nation. It also guarantees certain individual rights and freedoms for VGFN Citizens, including a right to equality. Any VGFN law, including a law set out in the VGFN Constitution, may be challenged in the Yukon Supreme Court until the VGFN establishes its own court. No court has yet been established.⁴

The Final Agreement, SGA, implementing legislation, and VGFN Constitution do not say anything about whether the Charter applies to the VGFN government.

Ms. Dickson Brings a Charter Challenge Against the VGFN

Cindy Dickson is a VGFN Citizen. In 2019, she challenged a law in the VGFN Constitution that requires individuals who successfully run for the VGFN Council to relocate to the village of Old Crow within 14 days of their election (the “Residency Requirement”). Old Crow is in the VGFN’s settlement land and is the seat of their government. It is a remote community in the northernmost part of the Yukon, 800 kilometres north of Whitehorse, where Ms. Dickson and more than half of all VGFN Citizens reside. Ms. Dickson claimed that the Residency Requirement prevents her from standing for an election as she needs to be in Whitehorse to access medical services for her son, among other reasons. She claimed that this was a violation of her right to equality.⁵

Ms. Dickson pursued her claim under both the equality provision of the VGFN Constitution and a similar right under section 15 of the Canadian Charter of Rights and Freedoms in Canada’s constitution (the “Charter”). Both the Yukon Supreme Court and the Yukon Court of Appeal decided this case on the Charter arguments alone. The lower courts found that the Charter does apply and that the Residency Requirement discriminated against Ms. Dickson on the basis of her residency status, violating her section 15 right to equality. However, the courts held that the Residency Requirement was saved by section 25 of the Charter.⁶

On appeal to the Supreme Court of Canada, Ms. Dickson argued that the courts below had improperly applied section 25. The VGFN cross-appealed the decisions, arguing primarily that the Charter did not apply at all. The Supreme Court split three ways in this case, producing three opinions. The ultimate outcome is that the Residency Requirement still stands.

A majority of the Supreme Court found the Charter applies to the VGFN

The application of the Charter is set out in section 32(1). The text of this provision clearly captures the federal, provincial, and territorial governments and their legislatures. There is no mention of Indigenous governments here or anywhere else in the Charter. However, the Supreme Court established a test in a previous case to determine when the Charter applies to an entity that is not explicitly named in section 32(1).⁷ There are two ways the Charter can apply under that test. The first is where the entity is governmental by its very nature or operates under extensive government control. Band councils under the Indian Act are an example of this “governmental by nature or control” branch of the test. The second way for the Charter to apply is where a non-governmental body implements a specific government policy or program. In this way, a private entity like a hospital can be subject to the Charter where it engages in activity that has a direct and precisely defined link to a specific government policy. An example would be providing emergency services under health-related legislation.⁸

Writing the majority opinion for themselves and two other judges, Justices Jamal and Kasirer held that the Charter applied based on both branches of the test but focused on the first. They found that the VGFN was a government by its very nature, principally because the VGFN derived at least some of its lawmaking authority from Canada via the implementing legislation.⁹ This finding is the most contentious part of the majority’s Charter analysis. It is based on their interpretation of section 91(24) of the Constitution Act, 1867, which gives Parliament the authority to pass laws concerning Indigenous peoples and their lands. This includes the implementing legislation. According to the majority, the parties used this legislation as the mechanism to make self-government a reality for the VGFN by passing some of Parliament’s lawmaking authority under section 91(24) to the VGFN.

The difficulty here is that Indigenous peoples never consented to be ruled by the Crown and Canadian legal institutions. It certainly had no part in negotiating the division of powers between Parliament and the provincial legislatures, including section 91(24). It is section 91(24) that is the basis for Indian Act, one of the most egregious examples of Canada’s interference in the self-governance of First Nations like the VGFN. Detecting this problematic association, the majority hastens to clarify that an Indigenous government is not necessarily an extension of federal authority in the way a band council would be. Rather, there is still room for the Indigenous nation’s inherent right to self-government to play a role, although the majority refrains from describing what that role might be.¹⁰

The two other opinions criticize the majority’s reasoning here, and rightly so. These Justices agreed with the VGFN that the effect of the implementing legislation is to confirm the agreements and make space for the VGFN to exercise its lawmaking authority, independent of Canada. They also highlight how the majority fails to give the VGFN’s self-governing status the significance it deserves.¹¹ Moreover, as Justices Martin and O’Bonsawin correctly point out, it was not necessary to find the VGFN exercises delegated lawmaking authority in order to conclude it is a government by nature. The list of factors the majority considered was not exhaustive and no single factor was determinative. Although the majority found the VGFN exhibited other characteristics, like a democratically elected Council and taxation powers, it is evident from the rest of the reasons that the delegation of lawmaking authority was decisive.¹²

It seems like the majority may have emphasized the effect of the implementing legislation to narrow the reach of this decision. By doing so, they could avoid answering the question of whether the Charter would apply to an Indigenous people exercising an inherent right of self-government outside of an agreement recognized by implementing legislation.¹³ A First Nation enacting laws pursuant to established Aboriginal title could be one example of this. The opinion of Justices Martin and O’Bonsawin does not leave open this possibility. This is due to their interpretation that the Charter applies where an entity exercises lawmaking powers that may negatively affect the rights of those it governs. For these Justices, the purpose of section 32 is to address the power imbalance that arises in this kind of situation.¹⁴ Whether the authority to make laws is inherent or delegated, the Charter would still apply to them.

One Justice found the Charter could not apply without the VGFN’s express consent

Justice Rowe is the sole judge to agree with the VGFN that the Charter does not apply. His opinion stands out for its insistence on respecting the decisions of Indigenous governments. Consider this statement, for instance:

It is not for this Court to scrutinize the wisdom or fairness of the VGFN’s choices by transposing an instrument designed by and for the federal governments onto the Vuntut Gwitchin, who did not participate in its creation or agree to its terms. To do so would be to subject the Vuntut Gwitchin to the sort of federal oversight from which it sought to remove itself through the VGFN Arrangements.¹⁵

His clarity on this point serves to highlight the other Justices’ discomfort with giving full expression to Indigenous peoples’ right to self-determination.

The majority demonstrates this discomfort by choosing to locate the VGFN’s lawmaking authority in section 91(24). In doing so, they could avoid answering whether an Indigenous government exercising an inherent right to self-government is beyond the reach of the Charter simply by having withheld consent to it in their self-government arrangements. Although Justices Martin and O’Bonsawin reject the majority’s reasoning on delegated lawmaking authority, they fall short of respecting Indigenous self-determination in their overwhelming concern about creating Charter-free zones. It is fair to be concerned about an individual’s vulnerability to their better resourced and more powerful government. It is less defensible to presume that the Charter is the only way to protect that person from potential harm. As Justice Rowe points out, this does not give space for Indigenous peoples to determine how best to reconcile the interests of individual members with the collective, according to their own worldviews, practices, traditions, and values. None of these are frozen in time. An Indigenous nation could very well embrace the Charter. The point is that this is a policy decision best left to the individual nation.¹⁶

Looking at the facts of this case, the VGFN may not have consented to the Charter, but they did include protections for individual rights and freedoms in their Constitution, including equality rights. These protections are like the Charter’s but inflected by the VGFN’s own customs. Even if the court had held that the Charter did not apply, that would not have been the end for Ms. Dickson. She can still pursue her claim under the VGFN Constitution.¹⁷ Further, only the General Assembly may amend the VGFN Constitution, and any Citizen may serve on that assembly, regardless of residency status. That body considered and declined a proposal to amend the composition of its government to address the issues presented by Citizens like Ms. Dickson.

The Residency Requirement thus embodies the considered choices, priorities, and practices of the Vuntut Gwitchin. Underlying Justices Martin and O’Bonsawin’s dissent is the mistaken belief that the Canadian courts and government can better protect Indigenous peoples than their own governments, although Canadian institutions do not have a good track record of doing so. Applying the Charter without the VGFN’s express consent flies in the face of reconciliation and respect for the pre-existing sovereignty of Indigenous peoples.

A majority of the Supreme Court found that section 25 can shield Indigenous difference from the Charter

In the second part of their reasons, the Supreme Court interprets section 25 of the Charter, which protects Aboriginal, treaty, and other rights from other Charter rights. Even if the Charter applies to VGFN under section 32, section 25 of the Charter may still protect VGFN’s right to have a residency requirement in its election laws. Section 25 states that:

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.”

These rights include, “(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.”

What is an “aboriginal, treaty, or other right”?

First, both the majority and Justices Martin and O’Bonsawin interpret the words “aboriginal, treaty or other rights or freedoms that pertain to the Aboriginal peoples of Canada” in section 25. They sometimes call these rights “Indigenous collective rights” as a shorthand.

The majority found that Aboriginal and treaty rights carry the same meaning in section 25 as they do under section 35 of the Constitution.¹⁸ They explain that treaty rights include “an exchange of solemn promises between the Crown and various Nations” and include rights in land claim agreements.¹⁹ Aboriginal rights are practices that are integral to the distinctive culture of the Indigenous group and have been exercised with some continuity since the period prior to European contact.²⁰

However, section 25 does not only protect Aboriginal and treaty rights: it also protects “other rights or freedoms that pertain to the Aboriginal peoples of Canada”. In order to determine which rights are protected by s. 25, the majority opined on the meaning of those words. They found that these other rights are rights that protect or recognize Indigenous difference. Indigenous difference relates to:

“four complex social facts [that] lie at the heart of the relationship between Aboriginal people and the Canadian state” (p. 4). These are: “. . . Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty, and Aboriginal participation in a treaty process . . .” (p. 4)²¹

In this case, the majority found that VGFN’s residency requirement did fall under the definition of “Indigenous difference” because “the Vuntut Gwitchin show a preference for leaders who demonstrate a knowledge of the land and traditions, commitment to community service, effective communication skills and wealth”, and that “the consistent leadership theme narrated by the Elders is being accountable to the VGFN Citizens on a daily basis in Old Crow and at the annual General Assembly”.²² However, they did not find that any exercise of Indigenous sovereignty qualifies as “Indigenous difference”. Notably, although the Residency Requirement is not a treaty right according to the SGA, the Court did not undertake any analysis to determine if VGFN’s Residency Requirement was an Aboriginal right.

The majority’s definition of Indigenous difference has some overlap with definitions of Aboriginal rights and treaty rights. The majority states that section 35 rights protect aspects of Indigenous difference, although Indigenous difference includes a broader set of rights than section 35 rights.²³ However, the definition of “Indigenous difference” is not as strict as the test for Aboriginal rights. Where an existing Aboriginal or treaty right has not already been recognized, “Indigenous difference” might be an easier bar to meet than the tests for section 35 rights. This broad characterization should ensure that section 25 will encompass a broad set of Indigenous collective rights.

In their partial dissent, Justices Martin and O’Bonsawin argue the majority’s definition of “other rights” is too broad. They specify that these “other rights” do not include all rights that relate to Indigenous peoples, or all laws made by Indigenous governments.²⁴ Their preferred definition of “other rights” is a “collective right … [that] is unique to an Indigenous community on the basis of Indigeneity.”²⁵ The Residence Requirement does not qualify as such a right, in their view.26 The dissent’s definition of “other rights” is strikingly similar to the existing test for Aboriginal rights. As a result, they narrow the meaning of “other rights” to the point of nearly erasing them. Their narrow interpretation restricts the recognition of a broader array of Indigenous collective rights and leads them to find that VGFN’s Residency Requirement is not covered by section 25.

Interpretive prism or shield?

The Supreme Court was also tasked with interpreting the relationship between Charter rights and “aboriginal, treaty, and other rights” under section 25. More specifically, they had to interpret the words “shall not be construed so as to abrogate or derogate” in section 25.

There are two opposing approaches to this question in academic literature. These approaches were first described by the Supreme Court in its 2008 decision, R v. Kapp, as the “shield” approach and the “interpretive prism” approach. A shield approach interprets section 25 to mean that it protects Indigenous difference from the Charter. However, under the interpretive prism approach, courts will interpret a Charter right in such a way that it limits Indigenous difference as little as possible. Unlike the shield approach, the interpretive prism approach will still give effect to the Charter right in the event of an irreconcilable conflict between the two. Fundamentally, the shield approach better protects Indigenous collective rights because it allows these rights to take precedence over Charter rights.

The majority lands somewhere in between these two approaches: its approach could be called a “small shield”, or a “pop-up shield”. The majority finds that section 25 can act as a shield to Charter rights because it can block the Charter right where it conflicts with an Indigenous collective right, or “Indigenous difference”. However, these collective rights will only take precedence over Charter rights if (1) they irreconcilably conflict with Charter rights and (2) if the Charter right would diminish these rights in a non-essential or non-incidental way.²⁷ The majority finds, in this case, that the Residency Requirement is not invalid, even though it breaches section 15 of the Charter, because it protects a form of Indigenous difference that is irreconcilable with section 15.²⁸

In our view, the majority’s reasons are a “small shield” because of the constraints they add before a party can rely on section 25’s protection. They specify that there must be a “true” irreconcilable conflict, not a mere possibility of conflict, due to the seriousness of infringing on an individual’s Charter right.²⁹ Thus, the court must first make a finding about the breach of a Charter right, and then it must decide if it irreconcilably conflicts with the Indigenous collective right or if there is a way that would reconcile the two. This forces Indigenous governments to be subject to the scrutiny of the Charter and will require them to prove that the conflict with the Charter cannot be reconciled.

A minority of the Supreme Court, Justices Martin and O’Bonsawin, view section 25 as an interpretive prism.³⁰ They agree with the majority that courts must undertake a full Charter analysis of the individual’s rights, in order to see if it conflicts with the Indigenous collective right.³¹ However, they read the historical record and purpose of the Charter in such a way that Charter rights take precedence only when “the impugned exercise of the collective Indigenous right is necessary to the maintenance of the Indigenous community’s distinctive culture.”³² Justices Martin and O’Bonsawin’s analysis of section 25, like their analysis of section 32, substantially rely on the fear that Indigenous individuals will be left without protection from their own governments’ overreach, in Charter-free zones.

In his dissent, Justice Rowe criticizes his colleagues for their complex analysis of s. 25.³³ He found that the Charter does not apply and did not engage in an extensive analysis of section 25. In his view, its role is limited to protecting measures by the federal and provincial governments to safeguard Indigenous peoples’ rights from being undermined by the Charter.³⁴

Conclusion

We cannot get to the revitalization of Indigenous societies if the courts continue to impose the settler state’s law and norms on self-governing Indigenous nations. If the Charter’s protection of Indigenous difference is fundamentally about protecting the space for Indigenous peoples to be who they are, on their own terms, then respect for their choices is paramount. In our view, the proper place to have given effect to Indigenous difference in this case was in the Charter application analysis where the VGFN’s chosen constitutional arrangements and their lack of explicit consent to the Charter ought to have settled the matter.

Even an interpretation of section 25 that treats it as a “small” shield does not fully correct for this original misstep as it subjects the VGFN to the scrutiny of an external standard, the very thing it sought to remove itself from in pursuing a self-government agreement. The majority’s complicated section 25 analysis means that the process for Indigenous governments to defend their laws from Charter scrutiny may still be long and expensive.

That said, the VGFN are in an unusual position. Most SGAs since 1995 contain a provision that explicitly applies the Charter, while the VGFN’s SGA is one of the few SGAs signed prior to 1995. In that sense, the court’s direction on section 25 will be increasingly important for SGAs that refer to the Charter. It will also be relevant to band councils enacting customary laws. While it is anticipated that further litigation is inevitable to flesh out the meaning and scope of “Indigenous difference”, and irreconcilable differences between Charter claims and collective rights, the majority’s test at least avoids the much more restrictive framing that Justices Martin and O’Bonsawin would apply.

¹ 2024 SCC 10 (“Dickson”).
² Yukon First Nations Land Claims Settlement Act, S.C. 1994, c. 34; An Act Approving Yukon Land Claim Final Agreements, R.S.Y. 2002, c. 240; Yukon First Nations Self-Government Act, S. C. 1994, c. 35. First Nations (Yukon) Self-government Act, R.S.Y. 2002, c. 90.
³ Dickson, at paras. 17-23.
⁴ Dickson, at paras. 24-27.
⁵ Dickson, at paras. 7-11.
⁶ Dickson, at paras 28-37.
⁷ [1997] 3 SCR 624.
⁸ Dickson, at paras. 63-70.
⁹ Dickson, at paras. 82-86.
¹⁰ Dickson, at para. 82.
¹¹ Dickson, at paras. 263-65, 275, 462, 481-82
¹² Dickson, at paras. 263-65, 462.
¹³ Dickson, at para. 91.
¹⁴ Dickson, at paras. 251, 269.
¹⁵ Dickson, at para. 502.
¹⁶ Dickson, at paras. 497-505.
¹⁷ Dickson, at para. 230.
¹⁸ Dickson, at para. 132.
¹⁹ Dickson, at para. 134, referencing R. v. Badger, [1996] 1 SCR 771, at para. 41.
²⁰ Van der Peet, [1996] 2 SCR 507, at paras. 46, 60; this test is slightly modified for the Metis, see R v. Powley, 2003 SCC 43.
²¹ Dickson, at para. 136, 150.
²² Dickson, at para. 211.
²³ Dickson, at paras. 139, 149.
²⁴ Dickson, at para. 328.
²⁵ Dickson, at para. 334.
²⁶ Dickson, at para. 388.
²⁷ Dickson, at para. 285.
²⁸ Dickson, at paras. 219, 229.
²⁹ Dickson, at para. 161.
³⁰ Dickson, at para. 285.
³¹ Dickson, at para. 338.
³² Dickson, at para. 341.
³³ Dickson, at para. 450.
³⁴ Dickson, at para. 446.