Supreme Court of Canada clarifies application of the Charter of Rights and Freedoms to self-governing Indigenous peoples

In its recent decision in Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10 ("Dickson") the Supreme Court of Canada provided long-awaited clarification on the application of the Canadian Charter of Rights and Freedoms to Indigenous governments that have entered into self-government agreements.

Though several questions remain to be decided in future cases, the Court did provide significant guidance on the issue of when and how the Charter can apply to Indigenous governments. The implications and considerations arising from this decision are significant and important to Indigenous governments that are negotiating or have concluded self-government agreements.

There were two dissenting opinions. Justices Martin and O'Bonsawin co-authored one dissenting opinion, while Justice Rowe provided the other. Justices Martin and O'Bonsawin primarily disagreed with the majority's interpretation of s. 25 of the Charter and the scope of its application, while Justice Rowe disagreed with the other justices' interpretation of the Charter and its application to Indigenous self-governance, emphasizing the principle of Indigenous autonomy.

1. Background and Overview of the Supreme Court of Canada's Decision

Dickson centered on the Vuntut Gwitchin First Nation's ("VGFN") Constitution, which was adopted by VGFN during its negotiation of the Vuntut Gwitchin First Nation Final Agreement with the Governments of Canada and Yukon. VGFN's Constitution recognizes certain rights and freedoms for VGFN citizens, and establishes rules for the organization of VGFN government, along with electoral rules and standards. The VGFN Constitution required elected Chiefs and Councilors to either reside on VGFN settlement land in Old Crow, or to relocate there within 14 days of being elected. Ms. Dickson, a member of VGFN, was elected but lived in Whitehorse, which is 800 kilometres away from Old Crow – her residence in Whitehorse was due to medical service access needs.

Ms. Dickson challenged the residency requirement, arguing that it infringed upon her right to equality under s. 15(1) of the Charter. VGFN denied that the Charter applied to the VGFN Constitution, but if it did, the residency requirement was saved by section 25 of the Charter. Section 25 provides that the Charter "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."

In its decision, the Supreme Court dismissed Ms. Dickson's appeal in favour of VGFN, and made the following key rulings:

1. The Charter applies to the VGFN under s. 32 (1) of the Charter as its functions make it "government by nature."
2. The VGFN Constitution's residency requirement infringed Ms. Dickson's s. 15(1) Charter rights.
3. The VGFN Constitution's residency requirement, however, was saved by the application of s. 25, which gives primacy to a First Nation's "Aboriginal, treaty or other rights."  In so finding, the Court established a step-by-step framework for applying s. 25 where there is a conflict with Charter rights.
4. If, following application of the Court's framework, s. 25 does not apply, a defendant may still seek to apply the longstanding s. 1 defence set out in R. v. Oakes.

2. Procedural Background – Trial and Court of Appeal

The Trial Judge's Decision

The Supreme Court of Yukon initially found that, although the Charter applied to VGFN and the relocation rule did not infringe Ms. Dickson's rights, the 14-day relocation rule created the potential for arbitrary disenfranchisement. However, the trial judge also noted that if the broader residency requirement was found to infringe s. 15(1), it would still be "shielded" by s. 25 of the Charter. In particular, s. 25 would operate to protect VGFN's decision to adopt the residency requirement as part of its decision to self-govern.

The Court of Appeal's Decision

Ms. Dickson appealed to the Court of Appeal of Yukon. She argued that the trial judge had erred in concluding that only the 14-day relocation rule infringes s. 15(1) and that s. 25 would operate to shield the infringement from challenge. VGFN in turn argued that the trial judge erred in finding that the Charter applied to the VGFN and its Constitution, and in finding that the relocation rule infringed s. 15(1) of the Charter.

The Court of Appeal granted both Ms. Dickson's appeal and VGFN's cross-appeal. In so doing, the Court found that the Charter applied to VGFN, and the residency requirement as a whole infringed s. 15(1). However, the Court concluded that s. 25 shielded the residency requirement from abrogation or derogation by individual Charter rights such as s. 15(1). The Court of Appeal explained, "to apply s. 15(1) would indeed derogate from [VGFN's] rights to govern themselves" in accordance with their values, traditions and self-government arrangements.

Ms. Dickson with leave appealed to the Supreme Court of Canada on the issue of whether the residency requirement was constitutional, and VGFN with leave cross‑appealed on the issue of whether the Charter applied to the VGFN Constitution.

3. Supreme Court of Canada's Findings

The Supreme Court issued a complex decision in which it dismissed both the appeal and cross-appeal. However, the seven judges were split on various different issues and with reasoning that differed from the Courts below.

Two key issues were addressed in the Supreme Court's decision: whether the Charter applies to the VGFN Constitution, and the role of section 25 of the Charter (if it was found to apply).

1. Does the Charter apply to the VGFN Constitution?

A majority of the Supreme Court, per Kasirer, Jamal, Wagner and Côté JJ., found that the Charter did apply to the VGFN Constitution, and that Ms. Dickson had successfully demonstrated that the residency requirement infringed her right to equality under s. 15(1) of the Charter. However, the majority found the residency requirement to be an exercise of an "other right or freedom" under s. 25 of the Charter. Accordingly, because Ms. Dickson's s. 15(1) claim would "abrogate or derogate" from this s. 25 right, her s. 15(1) claim could not have effect.

In reaching this decision, the Court reviewed s. 32 of the Charter and related case law. Section 32 sets out the application of the Charter to Parliament, the Government of Canada and the legislature and governments of each province. In reference to its previous decision in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624, the Court noted that the Charter applies to entities that are governmental by nature or that are significantly controlled by federal or provincial governments.

The Court concluded that VGFN is a government entity under s. 32 based on the four indicia of government: (i) democratic election processes and accountability to its electorate, (ii) a taxation power, (iii) an authority to enact, implement, and enforce laws, and (iv) VGFN's establishment as a legal entity that derives a source of its lawmaking authority from federal legislation. The Court also notes that federal and territorial legislation authorized the VGFN Constitution, providing it with the force of federal law and effect of statutory compulsion over others, further supporting its conclusion under the Eldridge framework.

2. If the Charter does so apply, does the residency requirement violate s. 15(1) of the Charter, and what is the proper role for s. 25 of the Charter in that analysis?

At the outset, the Supreme Court clarified that the purpose of s. 25 of the Charter is to safeguard Indigenous collective rights against conflicts with individual Charter rights or freedoms "when such application would diminish the Indigenous difference protected and recognized by the collective rights."

Having found that s. 32 applies to the VGFN Constitution, the Court outlined a four-step framework for reconciling conflicts between individual s. 15(1) Charter rights and s. 25 of the Charter, in the specific context of challenges to residency restrictions by members of a self-governing Indigenous nation. This framework is as follows:

1. First, a person claiming rights under s. 15(1) the Charter must establish a prima facie violation of the individual Charter right they are claiming under the existing legal framework relating to s. 15(1). This is a threshold question, and if the claimant fails to demonstrate such Charter right violation, the claim ends.
2. Second, if an Indigenous nation defends a Charter violation on the basis that it is protected by s. 25, the Indigenous nation must prove that the Charter violation "would abrogate or derogate from an Aboriginal, treaty, or other right" recognized under s. 25. This includes demonstrating both the right's existence and its role in protecting the "Indigenous difference."
3. Third, there must be an irreconcilable conflict between the individual Charter right and the s. 25 right "such that there is no way to give effect to the individual Charter right without abrogating or derogating from the right within the scope of s. 25."
4. Finally, courts must assess any potential limitations on the s. 25 right in question, considering other Charter provisions such as s. 28 or s. 35(4) of the Constitution Act, 1982. If s. 25 does not apply, the defendant may still justify the action under s. 1 of the Charter, which requires a balancing of rights and societal interests under the well-established test from R. v. Oakes, [1986] 1 SCR 103.

The Court also clarified that the application of the s. 25 framework is uniform across both internal and external Charter challenges when Indigenous collective rights are at issue. This means the same analysis is applied regardless of a claimant's identity, or whether the challenge comes from within or outside of an Indigenous community. However, the SCC acknowledged "the need for great caution when the claim is brought by an Indigenous person against their own community."

In applying this framework to the case at bar, the Court found that although Ms. Dickson had demonstrated a prima facie violation of her individual rights under s. 15(1), VGFN had established an "other right" in respect of its right to provide for membership and composition of its governing bodies and the protection of interests associated with "Indigenous difference." In the Court's view, these interests were sufficient to be "associated with various aspects of Indigenous difference, including [VGFN] cultural difference and prior sovereignty, as well as their participation in the treaty process that culminated in the enactment of the VGFN Constitution."

Notably, the Court declined to comment on the scope of what may be considered an "other right" and whether the "other right" must have a constitutional character. Despite its reluctance to comment on this issue, the Court reiterated that the residency requirement was constitutional in nature due to its presence in VGFN's Constitution and the fact that it's an "aspect of their law that preserves and enshrines an important dimension of VGFN leadership traditions and practices, and VGFN leaders' connection to the land."

Turning to the third step of the above framework, the Court confirmed that VGFN had successfully established an irreconcilable conflict between its "other right" and Ms. Dickson's s. 15(1) Charter right, invoking s. 25 to protect the residency requirement under the VGFN's Constitution. Specifically, the residency requirement's essence – which was to safeguard the connection between VGFN leadership and the Nation's land – was deemed crucial for preserving the Indigenous difference. While Ms. Dickson proposed alternatives to reconcile the conflicting rights (i.e., such as allowing one councilor to be selected from Whitehorse), the Court sided with the Court of Appeal's viewpoint that allowing exceptions, such as permitting a councilor to live outside the traditional territory, would significantly dilute the VGFN's governance integrity and the cultural significance of their land connection.

Finally, in applying the fourth step of the framework, the Court reaffirmed that while s. 25 can be constrained by other legal provisions, those potential further limitations were not relevant or need to be addressed to resolve this case.