Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 – Case Summary

Photo credit: Gordon Lyall

Background

Vuntut Gwitchin First Nation (“VGFN”) is a self-governing Yukon First Nation. Following a 20-year process of negotiation, VGFN entered into a “Final Agreement” (modern treaty) and a “Self-Government Agreement” with Canada and Yukon, bringing the application of the Indian Act to VGFN to an end. Following this monumental achievement, the government of VGFN adopted the VGFN Constitution as the supreme law of VGFN. The authority to enact the VGFN Constitution was specifically contemplated in the Self-Government Agreement.

Among the provisions of the VGFN Constitution is a requirement that all members of the VGFN governing council reside on VGFN settlement lands or relocate there within 14 days of their election (the “Residency Requirement”). VGFN’s administration is in Old Crow, a fly-in/out community about 800 kilometers north of Whitehorse.

In 2018, Cindy Dickson, a VGFN citizen, sought nomination for election to VGFN council. Ms. Dickson, a resident of Whitehorse, asserted that she was unable to comply with the Residency Requirement to move to Old Crow for various reasons including caregiving commitments for her son. Ms. Dickson filed a petition in the Yukon Supreme Court seeking an order striking down the Residency Requirement, arguing that it infringes her equality rights under section 15 of the Canadian Charter of Rights and Freedoms (the “Charter”).

In response, VGFN argued that the Charter does not apply to the VGFN Constitution, as they are not a legislature or parliament, nor do they exercise delegated authority from those governments. They further argued that if the Charter applies, the Residency Requirement is protected from the effect of section 15 by operation of section 25 of the Charter, which protects “aboriginal, treaty or other rights or freedoms that pertain to the Aboriginal Peoples of Canada” from abrogation or derogation by claims under the Charter. Finally, VGFN argued, the Residency Requirement does not unjustifiably infringe Ms. Dickson’s right to equality and is nevertheless proportionate and justified.

Photo credit: Gordon Lyall

The Yukon Supreme Court dismissed Ms. Dickson’s petition. The Yukon Court of Appeal dismissed her appeal. Both courts concluded that the Residency Requirement was shielded by section 25. Ms. Dickson appealed to the Supreme Court of Canada, and VGFN cross-appealed on the issue of whether the Charter applies to the VGFN Constitution. The appeal was heard by the Supreme Court of Canada in February 2023.  In March 2024, the Supreme Court of Canada dismissed Ms. Dickson’s petition and upheld the VGFN Residency Requirement.

Importance of this Decision

This case addresses issues that are important to Indigenous groups and self-governing First Nations, and to the Canadian legal system as a whole. In addressing the question of whether the Charter applies to the Residency Requirement under the VGFN Constitution, the Court was asked to reckon with the meaning of a fundamental provision of the Charter and determine whether it applies to a self-governing First Nation who did not expressly agree to its application. In grappling with the Residency Requirement itself, and whether it is discriminatory and/or whether it is shielded by section 25, the Court addressed a significant question for many communities: how an Indigenous group can choose their elected representatives and identify their responsibilities, including where they reside.

The Supreme Court of Canada’s Judgment, March 28 2024

The Court upheld the Residency Requirement by applying section 25 of the Charter. The Court was divided and issued three sets of reasons.

The majority of the Court (four justices) held that the Charter applies to the VGFN Constitution, and that the residency requirement conflicts with subsection 15(1) of the Charter. However, the majority found that the residency requirement was shielded from the effect of section 15, being an “other right” under section 25 of the Charter. The majority defined that right as a right to set criteria for membership in a self-governing First Nation’s governing body.

In the majority’s view, although the Charter’s application provision (s. 32) does not expressly refer to Indigenous governments, it applies to VGFN because the VGFN government is a government by its nature: it consists of members who are elected by eligible voters of VGFN and are democratically accountable to their constituents, it has general taxation powers, it has the power to make and administer coercive laws, and it derives at least some of its power and authority from federal legislation. The majority held that the Charter applies to the VGFN residency requirement only to the extent that it “flows from an exercise of statutory power” of Parliament under its jurisdiction over “Indians, and Lands reserved for the Indians”; in this case, the majority found that VGFN’s law-making authority was in part enabled by Canada passing a statute to bring the Self Government Agreement into effect.  The majority declined to address whether an exercise of an inherent right of Indigenous self-government not connected to a federal law would be subject to the Charter.

This case marked the first application of section 25 of the Charter by a majority of the Supreme Court. The majority held that the purpose of section 25 is to uphold collective rights and freedoms of Indigenous Peoples over individual rights when the two come into irreconcilable conflict. The majority held that the Aboriginal, treaty, or other rights protected by section 25 are associated with Indigenous difference, “understood as interests connected to cultural difference, prior occupancy, prior sovereignty, or participation in the treaty process.” The majority clarified that, in this context, “Indigenous difference” means “Indigenous difference as understood and established by the collective, rather than by individual community members” (emphasis in original). An Indigenous government claiming section 25 protection must establish both the existence of the right and that the right recognizes or protects Indigenous difference.

The majority held that section 25 only operates to protect Indigenous rights where there is an irreconcilable conflict between a collective Indigenous right and an individual Charter right “such that giving effect to the Charter right would undermine the Indigenous difference protected or recognized by the collective right.”

The majority held that the Residency Requirement infringed Ms. Dickson’s right to equality based on her status as a non-resident member of a self-governing Indigenous community. This new analogous ground of discrimination under section 15 is similar to, but distinct from, the analogous ground of “Aboriginality-residence” recognized in the Court’s 1999 decision in Corbiere. In the majority’s view, the Residency Requirement perpetuated Ms. Dickson’s pre-existing disadvantage as a non-resident citizen of VGFN by preventing her from running for council. However, the majority held that VGFN’s adoption of the Residency Requirement was a protected “other right” under section 25, noting that it protects and recognizes interests associated with Indigenous difference by preserving the VGFN tradition of having its leaders reside in VGFN territory. VGFN succeeded in establishing that its land-based leadership tradition was, “deeply rooted in the VGFN’s distinctive culture and governance practices,” and that, in substance, the Residency Requirement is of a “constitutional character.” Finally, the majority found that the conflict between Ms. Dickson’s right to equality and the Residency Requirement cannot be reconciled. As a result, the majority held that section 25 shielded the Residency Requirement from the effect of the Charter challenge, and dismissed the appeal.

In dissent, Justices Martin and O’Bonsawin would have allowed Ms. Dickson’s appeal. They agreed with the majority that the Charter applies to VGFN, but for reasons other than that VGFN exercises delegated federal legislative authority. They also disagreed that section 25 shields Indigenous rights from Charter claims. They would have held that section 25 is an interpretive tool and only applies to rights that draw distinctions between Indigenous and non-Indigenous people, not to rights that draw distinctions within an Indigenous group as the VGFN Residency Requirement does. They also considered that the Residency Requirement’s infringement of Ms. Dickson’s right to equality was not justified under section 1 of the Charter and would have struck it down.

Justice Rowe, writing for himself, agreed with the majority that Dickson’s appeal should be dismissed but would have allowed VGFN’s appeal on the basis that the Charter does not apply to VGFN as an Indigenous government. In his view, the Charter applies only to federal, provincial, and territorial governments. Justice Rowe agreed with VGFN’s submission that to impose the Charter on VGFN, despite VGFN never agreeing to its application, is inconsistent with the objectives of reconciliation.

Key Takeaways

This decision has important implications for Indigenous governments. The majority’s approach to the question of the application of the Charter to VGFN suggests that the Charter will apply to laws made by self-governing First Nations in many cases. An Indigenous government may rely on section 25 of the Charter as a defence to a challenge but only to the extent that the government can establish an irreconcilable conflict between the Charter right asserted by the party mounting the challenge, and a collective Indigenous right associated with Indigenous difference. Whether the concept of Indigenous difference proves to be a workable basis to define the scope of the protection provided by section 25 of the Charter remains to be seen.

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