Donald-Potskin v Sawridge First Nation, 2025 FC 648 — Case Summary

On April 8, 2025, the Federal Court released its decision in Donald-Potskin v. Sawridge First Nation, 2025 FC 648. This is the first decision to consider the application of section 25 of the Charter of Rights and Freedoms in relation to a claim alleging discrimination in the provisions of an election code enacted by a First Nation since the decision of the Supreme Court of Canada in Dickson v Vuntut Gwitchin First Nation (“Vuntut Gwitchin”).

Background

The Sawridge First Nation (“Sawridge”) enacted and is governed by its own Constitution and Elections Act. Pursuant to the Sawridge Constitution, only those who reside on or within 10kms of Sawridge Lands are eligible to run for Chief. In 2023, the Applicant submitted a nomination to run for Chief, however the nomination was rejected as she did not meet the residency requirement required within the Sawridge Constitution. The Applicant applied for judicial review of the decision seeking, among other things, that the election be set aside and a new election for Chief be undertaken including her as a candidate.

Analysis

The Applicant argued that the residency requirement in the Sawridge Constitution discriminated against her, contrary to section 15(1) of the Charter and that the residency requirement “to run” for Chief could not be saved by section 25 of the Charter, which protects Indigenous difference, as it lacked constitutional character. The Applicant further argued that the residency requirement was intrinsically related to gender-based discrimination in the Indian Act, and that a “gender-blind” application of section 25 would perpetuate discrimination of those who had previously lost status because of marriage and could not establish residence on reserve as a result.

Applying Vuntut Gwitchin, the Court held that the residency requirement in the Sawridge Constitution was protected by section 25, as the residency requirement to run for the position of Chief is intrinsically connected to the preservation of Sawridge’s culture and traditions by ensuring the Chief is connected to Sawridge Lands. The Court acknowledged that while Vuntut Gwitchin had left open the possibility that sections 28 of the Charter and section 35(4) of the Constitution Act, 1982 (guarantee of equal rights to male and female persons) may limit the application of section 25, it was not applicable to this case as the definition of “resident” in the Sawridge Constitution was expanded to include those living in the nearby town of Slave Lake – recognizing the difficulties members may face in obtaining housing on reserve.

Key Takeaways

Despite not providing a rigorous analysis on the application of Vuntut Gwitchin, this case is a win for First Nations exercising self-government in any form, whether by way of agreement or pursuant to a law enacted through a provision of the Indian Act.

This case also provides some clarification as to how the Court may consider the application of section 28 of the Charter and section 35(4) of the Constitution Act, 1982. This is something First Nations may want to consider in the drafting and enactment of laws that could disproportionately affect those impacted by gender-based discrimination in the Indian Act.