Supreme Court of Canada confirms Canadian Charter applies to Indigenous governments but cannot be used to override or diminish Aboriginal rights

May 23, 2024

Katie Bellett and Ian Knapp recently represented the Band Members Alliance and Advocacy Association of Canada, an intervenor at the Supreme Court of Canada in one of the most significant Indigenous governance cases in recent memory.

As a self‑governing Indigenous community in the Yukon, the Vuntut Gwitchin First Nation (VGFN) has its own Constitution that provides for certain rights and freedoms for its citizens, rules for the organization of its government, as well as electoral rules and standards.

At the heart of this appeal was a requirement in the VGFN Constitution that the elected Chief and Councillors live on the settlement land of the First Nation, or relocate there within 14 days of the election. The VGFN’s government is based in Old Crow, a village located about 800 km north of Whitehorse in the traditional territory of the Vuntut Gwitchin. The village constitutes the VGFN’s main community in its settlement land.

Cindy Dickson, a citizen of the VGFN and of Canada, lives in Whitehorse. She cannot move to Old Crow because her son needs access to medical care unavailable there, and because her job and her son's father are in Whitehorse.

Dickson wishes to stand for election as a VGFN Councillor and says the residency requirement discriminates against her as a non‑resident of the settlement land. She brought a petition in the Supreme Court of Yukon arguing that the requirement violates both her right to equality guaranteed under s. 15(1) of the Canadian Charter of Rights and Freedoms and her right to equality guaranteed by Article IV of the VGFN Constitution. In the Supreme Court of Canada, Dickson did not pursue her original challenge based on the equality guarantee in the VGFN Constitution.

This case was a test of constitutional law, and the court was called on to determine the extent to which the Charter applies to Indigenous forms of government.

Both the majority and one of the dissenting judges cited arguments by Knapp and Bellet of Mackenzie Fujisawa LLP in several key places:

  1. That the VGFN, as an Indigenous government, is a “government by nature” and subject to the Charter.
  2. Where there is an irreconcilable conflict between an individual Charter right and the meaningful exercise of a collective Aboriginal right, section 25 of the Charter will act as a shield to protect the exercise of that Aboriginal right, despite infringement of the Charter right.
  3. Reconciliation efforts should not further deprive Indigenous people of their legal rights, but requires enabling “colonial” law to co-exist with Indigenous social and legal orders, including providing Indigenous peoples the space to develop their cultures and societies in the way they see fit.
  4. Indigenous peoples’ right to self-determination and the Charter can peacefully co-exist.

The Supreme Court of Canada ultimately dismissed Dickson’s appeal, on the basis that the residency requirement is a collective right held by VGFN to protect Indigenous difference that is irreconcilable with Dickson’s individual Charter right. As such, the Charter does not apply to the VGFN’s enactment of the residency requirement. The majority of the Court did accept that the Charter does apply to all forms of Indigenous government in Canada.

This decision (Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10) will have significant impacts on future constitutional challenges arising between the Canadian Charter of Rights and Freedoms and the constitutions of self-governing Indigenous nations.

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