The Supreme Court of Canada building shrouded in fog in Ottawa on Nov 4, 2022.Sean Kilpatrick/The Canadian Press
Self-governing Indigenous communities have a collective right to protect their cultural differences that trumps individual rights guaranteed by the Charter of Rights and Freedoms, the Supreme Court of Canada ruled on Thursday.
But the lone Indigenous judge dissented, joining with a second judge in saying the court was creating Charter-free zones that will deprive Indigenous peoples of their ability to challenge excessive uses of power by First Nations governments.
The court was ruling in a case involving the Vuntut Gwitchin First Nation in Yukon, which has been self-governing since 1993, and has its own constitution, under an agreement with the federal and Yukon governments. The fly-in community has fewer than 1,000 members, of whom just 280 live on its traditional lands. Anyone wishing to be a member of its elected council is required to live on those lands. Cindy Dickson, a citizen of the Vuntut Gwitchin who lives 800 kilometres to the south, in Whitehorse, challenged the residency requirement under the Canadian Charter’s Section 15, which protects the right to equality.
Her challenge put squarely before the court questions it had never definitively answered: whether the 1982 Charter of Rights applies to self-governing First Nations, and whether the Charter’s little-known Section 25 – which protects Indigenous collective rights – has primacy over individual rights.
The case, in other words, was about how to reconcile Indigenous legal orders and Canada’s legal framework. The court deliberated for 13 months, more than twice the average, before splitting three ways.
Six of the seven judges who heard the case said the Charter applies – Justice Malcolm Rowe was the only dissenter on that point. Four judges said Section 25 trumps other Charter rights in certain circumstances, and two said the four-judge majority was misusing Section 25.
On its face, the section appears to give primacy to the collective rights of Indigenous communities over the rights and freedoms protected elsewhere in the Charter.
“The guarantee in this Charter of certain rights and freedoms 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,” Section 25 says, in part.
The majority said Section 25 is a “counterweight” to the Charter’s individual rights protections, citing a statement by former University of Ottawa law professor Sébastien Grammond, now a Federal Court judge. Justice Grammond encouraged a flexible approach that would allow Indigenous communities to preserve the central elements of their societies.
Section 25, the majority said, “reflects a constitutional choice to protect the collective rights and freedoms of Indigenous peoples in Canada as a distinct minority.” The majority decision was co-authored by Justice Nicholas Kasirer and Justice Mahmud Jamal, and joined by Chief Justice Richard Wagner and Justice Suzanne Côté.
It said Section 25 does not confer “absolute” protection for Indigenous governments to go their own way; it is a trump card only where a community is protecting cultural differences and conflict with individual rights is real and irreconcilable. (The court stressed that all Charter rights, including Section 25, apply equally to men and women.)
It said the Vuntut Gwitchin’s residency requirement limited the rights of a disadvantaged group – non-residents – but there was no need for judges to analyze whether the limit was justified (the Charter’s Section 1 allows for reasonable limits on rights), because Section 25 was a “shield” in this case against Ms. Dickson’s equality rights. The requirement was based on the cultural value of ensuring leaders’ connection to the land, the majority said.
But two dissenters said Section 25′s purpose was to protect against claims by non-Indigenous people that benefits for Indigenous Canadians were discriminatory under Section 15′s equality provisions; it was not intended to protect against the claims made by Indigenous individuals.
“While this Court must make space in the Constitution for Indigenous peoples to develop their cultures and societies in the way they see fit, it must also be mindful that, due to the legacy of colonialism, Indigenous people face existing disadvantages and suffer from systemic discrimination. Reconciliation should not be a means by which they are further deprived of legal rights on their own lands,” Justice Michelle O’Bonsawin, an Abenaki member of the Odanak First Nation, and Justice Sheilah Martin, said in a co-written dissent.
They added: “As the contours of Indigenous self-government evolve, it is essential that no Charter-free zones in Canada be created, that everyone be equally protected by its constitutionally entrenched guarantees, and that all forms of government be constrained by its limits.”
Ms. Dickson was born and raised in Old Crow, the northernmost community in Yukon and the Vuntut Gwitchin seat of government, but she left for schooling and opportunity. She is executive director of the Arctic Athabaskan Council, which works with Indigenous communities in Yukon, the Northwest Territories and Alaska. She has a child with medical needs that can’t be addressed in Old Crow.
She said she needs a little more time to think about the ruling but is happy that Section 25 is not a “full shield. We’re still able to challenge our governments when we feel that something is not fair.”
She said she wanted to run for council because “people always say, ‘If you’re not happy with something, do something about it.’” She added that she is happy she had the opportunity to challenge the residency requirement, which she felt was unfair.
The Vuntut Gwitchin argued that the Charter did not apply to self-governing First Nations, and that the residency requirement was not discriminatory. But it applauded the ruling in a statement, calling it a “monumental” and long-overdue recognition and affirmation of Indigenous self-government.
“Today’s Supreme Court decision demonstrates respect for and deference to our First Nation’s inherent right to govern ourselves collectively in accordance with our Constitution, laws, values and our special relationship to our Traditional Territory,” Chief Pauline Frost said.