Why should Indigenous Canadians not be entitled to the same rights as other Canadians?

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“Everyone has the following fundamental freedoms,” the Canadian Charter of Rights and Freedoms boldly proclaims – then immediately goes to work describing all the ways in which they don’t.

Indeed, even before the Charter gets to listing all the rights and freedoms it “guarantees” to “everyone,” it has already attached a large asterisk: “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

You’d think that would be caveat enough. But no. The Charter sets out more than two dozen different rights in its 34 sections – and at least a dozen different exceptions. There’s the exception, under the right to live and work in any province, for “laws providing for reasonable residency requirements” in the provision of social services. There’s the exception to the same right for affirmative-action programs “if the rate of employment in that province is below the rate of employment in Canada.”

There’s the exception to the right not to be deprived of “life, liberty and security of the person” if it is done “in accordance with the principles of fundamental justice.” There’s the exception, under the guarantee of equality (“every individual is equal before and under the law … without discrimination”) for laws that discriminate in favour of disadvantaged groups.

There’s the “multicultural heritage” hedge. There’s the “denominational schools” fudge. And of course there’s the biggest loophole of them all, Section 33, the notwithstanding clause.

And then there’s Section 25. “The guarantee in this Charter,” it reads in part, “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.”

What exactly does this mean? What, in particular, does it mean for the right of aboriginal or, as we would say these days, Indigenous self-government? What if, to be very specific, an Indigenous government were to pass a law that was in violation of the Charter? Whose rights would prevail – those claiming the protection of the Charter from this law, or the Indigenous government that passed it?

Are Indigenous governments, in other words, bound by the Charter? Which trumps what? Charter rights or Indigenous rights? Individual rights or collective rights? With the Supreme Court’s recent ruling in Dickson v. Vuntut Gwitchin First Nation, at last we have an answer: It depends.

Cindy Dickson is a member of the Vuntut Gwitchin First Nation, a tiny community in the Yukon that governs itself according to the terms of its self-government agreement with the federal and Yukon governments, and according to its own constitution. Ms. Dickson wishes to run for election to its council.

Unfortunately for her, she lives in Whitehorse, 800 kilometres to the south, and as such does not meet the Vuntut Gwitchin constitution’s requirement that all of its chiefs and councillors live on its territory, or relocate there within 14 days after election. Ms. Dickson, whose son requires medical care unavailable in such a remote community, challenged the requirement as an infringement of her equality rights under Section 15 (1) of the Charter, arguing she was being discriminated against on the basis of her non-resident status.

The questions facing the court were, in the main, three. One, does the Charter apply, i.e. can such a case even be brought against an Indigenous government? Two, if it does, does Ms. Dickson have at least a prima facie case that her rights have been violated? And three, supposing she does, is the VGFN nevertheless entitled to discriminate against her, as one of those “aboriginal, treaty or other rights or freedoms” Section 25 seeks to preserve against the encroachment of the Charter?

Overarching all of these is a more basic question: What is the law? What does it actually say, versus what we might prefer it said? Even the courts, some might say especially the courts, sometimes get this wrong, seeming to substitute their views of what the Constitution should say in place of what it does.

If I were asked what the law should say in response to the three questions before the Court, I would answer yes, no and it depends. Yes, the Charter should apply to Indigenous governments, as it does to any other government in Canada, because Indigenous Canadians are Canadians and entitled to the same rights as other Canadians.

No, a simple residency requirement for band council doesn’t sound like the sort of discrimination the Charter was intended to prevent. I get that non-resident status has some ugly history attached to it, but in this case it seems no more than common sense – if you want to govern Quebec, you don’t live in British Columbia – based on the principle that, if you are going to make laws for other people, the same laws should apply to you.

But as to the third question – whether Indigenous governments, even if the Charter applies, should nevertheless be given some extra wiggle room – my preference would be simply to take this under consideration in applying the reasonable limits test: minimal impairment, proportionality, all that rot.

That’s what the law should say, in my view. What does it in fact say? Or what, at any rate, does the Supreme Court say it says? Well, it doesn’t: The Court was split three ways.

Six of the seven judges who heard the case held, in response to the first question, that the Charter applied. If it looks like a government, walks like a government and acts like a government, they ruled (I’m paraphrasing: the precise legal phrase is it “is a government by nature”), it’s a government, and bound by the Charter like any other.

Only Justice Malcolm Rowe dissented, on the not-unreasonable grounds that Section 32 (1) of the Charter says it applies to the “government of Canada” and the “government of each province,” and to no other. To imply, he wrote, that because the VGFN’s self-government agreement was “authorized by federal legislation,” this makes its government “somehow an emanation of federal authority, is fundamentally inconsistent with the nature, status and purpose of Indigenous self-government.”

The six other judges also agreed that Ms. Dickson had a prima facie case that her rights had been violated by the residency requirement. But they split on what to do about it, reaching different conclusions about the general circumstances under which Section 25 could save a law that would otherwise run afoul of the Charter, and therefore whether this particular law should be allowed to stand.

For the four justices in the majority, the purpose of Section 25 was not to preserve just any old aboriginal, treaty or other right from Charter scrutiny – even if it says “any” – but only those that “protect or recognize Indigenous difference.”

Even then, they argued, the exemption did not apply absolutely, but only where there is “irreconcilable conflict” between the claimed Charter right and Section 25. “The conflict between the rights,” they wrote, “must be real and irreconcilable, 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.” Otherwise, the courts are instructed to find a compromise, through “careful interpretation.”

The rest is hand-waving. Finding, after much convoluted reasoning, that the residency requirement was indeed related to “protecting Indigenous difference,” the majority soon brings itself around to finding that what they had previously found was unjustifiable discrimination was justified all the same.

The minority, by contrast, sees Section 25 as strictly an “interpretive tool” intended to “resolve challenges posed by competing collective Indigenous rights and individual Charter rights.” In place of the strict categorization of the majority (“Indigenous difference,” “irreconcilable conflict”), the minority seems to prefer something closer to a “reasonable limits” approach, in which the court “must assess whether giving effect to an individual Charter right would impact the collective right in more than a minor or incidental way, and whether the impugned exercise of the collective right is necessary to the maintenance of the Indigenous community’s distinctive culture.”

In the present case, they found, contra the majority, “a self-governing Indigenous nation’s right to regulate the composition of its governing bodies cannot be said to be a unique collective right, belonging to Indigenous peoples because they are Indigenous. Rather, the residency requirement is directed at the internal regulation of the VGFN and is not aimed at recognizing the special status of Indigenous collectives within the broader Canadian state.” So, out you go, residency requirement.

The minority differ with the majority also on the question of whether the identity of the claimant matters. For the majority it was of no consequence: Indigenous or non-Indigenous, the same issues were at stake. For the minority, it was critical. Section 25 could be used, in their view, to justify laws that discriminated against outsiders (“s. 25 could capture laws that distinguish between Indigenous people and non-Indigenous people”) but not those that discriminate against their own people.

“Members of Indigenous communities,” they wrote, “must be able to challenge the actions of their own governments – they must not be denied important Charter protections which are intended to apply to every person.” Otherwise, Section 25 risks creating “Charter-free zones” across Canada.

Agree or not with the minority’s reasoning, it highlights an issue at the heart of this debate. Come down from the mountaintop of abstraction – self-government, inherent right, decolonization etc. etc. – and you find a flesh-and-blood human being whose rights are being violated: if not in this case, then in other cases. Why should these be less worthy of protection than any other Canadian’s?

It is not the Charter, viewed in this light, that Section 25 protects Indigenous governments from – it is their own citizens. It is not “Indigenous difference” from the mainstream that is thereby upheld, but sameness within the Indigenous community; not the right to be different, but the obligation to conform.

The Charter is not, as it is so often caricatured, an atomizing force, homogenizing every expression of cultural difference into a bland universal pablum. It protects, rather, a deeper diversity: the profound uniqueness of each and every individual, whose interests and dignity must never be sacrificed on the altar of cultural relativism.