In Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10 ("Dickson"), the Supreme Court of Canada (the "Supreme Court") addressed complex issues affecting the coexistence of collective Indigenous rights and the individual rights guaranteed by the Canadian Charter of Rights and Freedoms1 (the "Charter"). This case raised novel issues regarding the application of the Charter to a self‑governing Indigenous community, namely:
- Whether, pursuant to s. 32(1) of the Charter, the VGFN is considered a government or whether it exercises a governmental activity, so that the Charter would apply to its legislation (specifically to an electoral rule requiring residency on the settlement land)
- If so, whether the residency requirement unjustifiably infringes on s. 15(1) of the Charter, and
- Subsidiarily, whether s. 25 of the Charter can be invoked to shield the residency requirement from a Charter challenge.
Both the Supreme Court of Yukon and the Court of Appeal of Yukon held that the Charter applied and that s. 25 shielded the residency requirement against Ms. Dickson's challenge.
Background
The Appellant Cindy Dickson ("Ms. Dickson") is a citizen of the Vuntut Gwitchin First Nation (the "VGFN"). The VGFN's seat of government is based in Old Crow, Yukon. The VGFN is a self-governing Indigenous community whose constitution provides that a community member is only eligible to sit as an elected official if they reside on the settlement land of the VGFN in Old Crow or relocate there within fourteen (14) days of the election.
Ms. Dickson resides in Whitehorse, 800 km south of the village of Old Crow. She wished to run for election as a VGFN Councillor, and argued that the residency requirement unjustifiably violated her right to equality under s. 15(1) of the Charter and her right to equality under the VGFN constitution. She stated that she could not move to Old Crow, largely because her son requires access to medical care unavailable there.
The VGFN countered that the Charter does not apply to the residency requirement provided in its constitution or, if it did, that the requirement is nevertheless valid as it is shielded by s. 25 of the Charter.
Decision
The Supreme Court found that the Charter applies to the VGFN and to its citizens, principally because the VGFN is a government by nature, and that the VGFN's enactment and enforcement of the rules of electoral eligibility (including the residency requirement) constitute a specific governmental activity under s. 32(1) of the Charter.
The Supreme Court also found that the residency requirement constituted a prima facie infringement of Ms. Dickson's right to equality under s. 15(1) of the Charter.
However, the majority also found the VGFN constitution's residency requirement to be an exercise of an "other right or freedom" that pertains to the Aboriginal peoples of Canada under s. 25 of the Charter, as it protects Indigenous difference.2 Therefore, even if there is an infringement of Ms. Dickson's right to equality, the residency requirement, which constitutes the VGFN's exercise of an "other" right under s. 25 of the Charter, takes precedence over Ms. Dickson's individual rights, even though she is Indigenous.
The Supreme Court explained that s. 25 "acts as a counterweight by providing protection for collective Indigenous interests as a social and constitutional good for all Canadians. Properly understood, s. 25 allows for the assertion of individual Charter rights except where they conflict with Aboriginal rights, treaty rights, or other rights or freedoms that are shown to protect Indigenous difference."3
i) The Charter's Applicability to a Self‑Governing Indigenous Community and its Residency Requirement
In its analysis, the Supreme Court reviewed the historical and policy context for Indigenous self-government in Canada. It noted that, although the Supreme Court has yet to recognize an inherent right to Indigenous self-government as an Aboriginal right protected under s. 35 of the Constitution Act, 1982,4 such a right "has now been affirmed on the international plane by Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples".5 As part of this case, the Supreme Court also considered the report of the Royal Commission on Aboriginal Peoples, which concluded in 1996 that "the Charter applies, but in accordance with s. 25, it should be "given a flexible interpretation that takes account of the distinctive philosophies, traditions and cultural practices of Aboriginal peoples".6
In its reasons for judgment, as to whether the Charter applies on the basis that the VGFN is a "government by nature", the Court noted that a full spectrum of views was presented, including the view that "the Charter does not apply to the exercise of an inherent self-government right unless an Indigenous people expressly consents to this".7
Under the framework established in Eldridge, the Supreme Court found that the VGFN did not qualify as government under the "control" test because, under the Self-Government Agreement,8 it operates autonomously from, and is not substantially controlled by, either the federal or the Yukon government.9 The Court found, however, that the Charter applies to the VGFN's residency requirement under its constitution because the VGFN is a "government" by nature, as it has the four features set out in Godbout for determining whether an entity performs governmental functions. These are (1) having an elected council; (2) having a general taxing power; (3) being empowered to make, administer, and enforce coercive laws binding on the public; and (4) deriving its existence and lawmaking authority from the federal or provincial government.10 It is interesting to note that with respect to the latter feature, the Supreme Court was careful to specify that "the Vuntut Gwitchin have been self‑governing since time immemorial, and even if the VGFN has lawmaking authority under an inherent right to self‑government, the VGFN is also recognized as a legal entity under the federal implementing legislation."11 The Supreme Court further stated that:
[u]nlike municipalities, which have no independent constitutional status, are entirely creatures of statute, and exercise only those powers conferred by legislation, Indigenous peoples are expressly recognized under the Constitution Act, 1867 (s. 91(24)), the Charter (s. 25), and the Constitution Act, 1982 (ss. 35 and 35.1). Indigenous peoples pre‑existed the arrival of European settlers and the founding of Canada as a country; they do not depend on federal, provincial, or territorial legislation to exist as autonomous self‑governing peoples.12
The Supreme Court continued its analysis of whether the Charter applied to the VGFN's residency requirement in light of the second branch of Eldridge, and found that it did, because the enactment and enforcement of the residency requirement is a "governmental activity" operating under a statutory power of compulsion.13
The Supreme Court mentioned at the end of its written analysis that it would "expressly refrain from commenting on whether the Charter would apply to an Indigenous government exercising an inherent self-government authority untethered from federal, provincial, or territorial legislation."14
ii) Applicability of Section 25 of the Charter
Noting that the existing jurisprudence provided only a modest guide as to the full application and effect of s. 25 of the Charter, the Court emphasized the importance of accurately describing the issue before it, namely: "determining how s. 25 applies to the residency requirement in the constitution of a self-governing First Nation challenged by one of its members under s. 15(1) of the Charter."15
As such, the Supreme Court reaffirmed that s. 25 protects the rights and freedoms that protect Indigenous difference, but that this protection is not absolute. Priority is given to collective Indigenous rights only when they conflict with an individual's Charter right. This primacy is also subject to the equality guarantee for "male and female persons" under s. 28 of the Charter and s. 35(4) of the Constitution Act, 1982.16
Using the analytical framework that it developed for applying s. 25 to the circumstances of Dickson, the Supreme Court first considered s. 25 in light of its purpose, and second, addressed the "other" collective rights and freedoms under s. 25 and their relationship to Indigenous difference.
Several interesting findings emerged:
The purpose of s. 25 of the Charter is to ensure that the designated rights and freedoms of Indigenous peoples are protected where giving effect to conflicting individual Charter rights and freedoms would diminish Indigenous difference. This purpose aligns with the broad goals of s. 35 of the Constitution Act, 1982 and is in step with the framework embraced by th[e Supreme] Court to reconcile the sovereignty of the Crown with the reality that Indigenous peoples lived here, in distinct societies with laws, traditions, and customs, long before European contact.17
The Court noted that protecting collective rights and freedoms in this way is also consonant with the United Nations Declaration on the Rights of Indigenous Peoples.18
The Supreme Court held that "Indigenous difference is an appropriate criterion for circumscribing the "other rights or freedoms" under s. 25"19 and explained that "[w]hen Indigenous difference is not shown to underlie the competing collective interest, the ultimate justification for setting aside the individual Charter right falls away."20 Moreover, the "other" collective rights and freedoms protected under s. 25 are not limited to those that are constitutionally entrenched and may instead include ordinary statutory rights,21 subject to substantive restrictions yet to be defined.22
The Court determined that the protections of s. 25 apply only if there is a real and irreconcilable conflict between the claimed Charter right and the s. 25 right. It stressed the need to move away from an absolutist approach to s. 25, which is inconsistent with the harmonious operation of individual and collective rights.23
For cases like Dickson, where a claim is brought by an Indigenous person against their own community, the Supreme Court rejected creating a distinct analysis for so-called "internal" claims24, but recognized the need for great caution in such cases.25
The Supreme Court thus established that the analytical framework for s. 25 requires first determining whether the Charter claimant showed that the impugned conduct prima facie breaches an individual Charter right. If so, the party invoking s. 25 must satisfy the court that the impugned conduct is a right, or an exercise of a right, protected under s. 25 and must then show irreconcilable conflict between the Charter right and the Aboriginal, treaty, or other right or its exercise. Finally, courts must consider whether there are any applicable limits to the collective interest relied on.26 For a party seeking s. 25 protection for an "other" right or freedom, it must demonstrate the existence of the right and also show that the right, or its exercise, protects interests associated with Indigenous difference.27
Using this framework, the Supreme Court found that the VGFN residency requirement constituted a prima facie breach28 of Ms. Dickson's s. 15(1) Charter right, "as a result of the distinction drawn on the basis of the analogous ground of non-resident status in a self-governing Indigenous community".29 The Supreme Court held the VGFN residency requirement to be an exercise of an "other" right under s. 25 of the Charter, "namely, the right to set criteria for membership in its governing body — a right that protects Indigenous difference"30 and found the residency requirement to have a significant constitutional dimension.31 The Supreme Court also found that the VGFN had demonstrated that the exercise of these two rights resulted in an irreconcilable conflict in that "giving effect to Ms. Dickson's Charter right [...] would pose "a real risk to the continued vitality of [I]ndigenous difference",32" thus infringing on the VGFN's s. 25 identified right. Finally, the Supreme Court held that no relevant restrictions apply in this case, and that s. 25 therefore operates as a shield to protect the residency requirement from Ms. Dickson's claim.
Footnotes
1 Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11.
2 Decision, summary: "understood as interests connected to Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty, or Aboriginal participation in the treaty process."
3 Ibid at para 5.
4 Decision at para 47.
5 United Nations Declaration on the Rights of Indigenous Peoples, Doc. U.N. A/RES/61/295, 2 October 2007.
6 Decision at para 51.
7 Ibid at para 74.
8 First Nations (Yukon) Self-Government Act, s. 2, "Self-Government Agreement Approved".
9 Decision at para 76.
10 Ibid at para 77.
11 Ibid at para 82.
12 Ibid at para 88.
13 Ibid at paras 94, 101.
14 Ibid at para 101.
15 Ibid at para 106.
16 Ibid at para 110.
17 Ibid at para 117.
18 United Nations Declaration on the Rights of Indigenous Peoples; art. 34 inter alia.
19 Decision at para 138.
20 Ibid at para 138.
21 Ibid at para 149.
22 Ibid at para 151.
23 Ibid at para 159.
24 Ibid at para 166.
25 Ibid at para 172.
26 Ibid at paras 178-183.
27 Ibid at para 209.
28 Ibid at paras 188-190.
29 Ibid at para 221.
30 Ibid at paras 185, 201-217.
31 Ibid at para 218.
32 Ibid at para 226.
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