In what some are calling a landmark decision, the Supreme Court of Canada has upheld a self-governing Yukon First Nation’s requirement that its elected officials live on its traditional territory — even if the residency requirement violates an individual’s rights under the Charter of Rights and Freedoms.
The country’s highest court released its decision in Cindy Dickson v. Vuntut Gwitchin First Nation on Thursday, a case that dealt with conflicts between individual Charter rights and an Indigenous community’s collective rights.
In a 4-3 decision, the court said the First Nation was allowed to stop Cindy Dickson from running for a councillor position because she was unable to move to Old Crow, the seat of the First Nation’s government. Dickson’s son has medical needs that cannot be met in Old Crow, a fly-in community of about 248 people, and she has a job and family in Whitehorse.
The First Nation’s constitution dictates all elected officials must live in Old Crow.
This requirement violated Dickson’s right to equality under the Charter and “reinforced and exacerbated her existing disadvantage as a non-resident member of the Vuntut Gwitchin First Nation,” said the majority decision, written by Justices Nicholas Kasirer and Mahmud Jamal and joined by Chief Justice Richard Wagner and Justice Suzanne Côté.
But this violation was justified, the majority said, because of Section 25 of the Charter, which says Charter rights should not be used to diminish or repeal Indigenous, treaty “or other rights or freedoms that pertain” to Indigenous peoples.
The judges said the conflict between Dickson’s individual Charter rights and the Indigenous community’s collective rights were in “irreconcilable conflict.”
The residency requirement is “tied to ancient practices of government that connect leadership of the Vuntut Gwitchin First Nation community to the settlement land” and “protects Indigenous difference,” the justices wrote. The collective rights “shield” the First Nation from a challenge about Dickson’s individual equality rights, the decision says.
Justices Sheilah Martin and Michelle O’Bonsawin, the court’s first Indigenous judge, disagreed. They said the four judges were interpreting the rights under Section 25 too broadly.
In a separate dissent, Justice Malcolm Rowe also disagreed, because he did not think the Charter applied to the First Nation’s residency requirement.
‘Deeply rooted’
In 1993, the Vuntut Gwitchin First Nation negotiated a land claim agreement and self-governance agreement with the Yukon and federal governments. This removed the First Nation from the authority of The Indian Act and, among other things, allows it to determine its own government.
Eleven of the Yukon’s 14 First Nations have self-government agreements. There are 25 self-government agreements across all of Canada involving 43 Indigenous communities, according to the government’s website. There are more than 630 First Nations communities in Canada.
The Vuntut Gwitchin First Nation argued the Charter did not apply to them, and that if it did apply, they were protected by Section 25.
The majority of judges disagreed with the First Nation’s argument that the Charter does not apply to the residency agreement. But they agreed that the collective rights in Section 25 protected the First Nation from the challenge about individual equality rights.
Pauline Frost, chief of the Vuntut Gwitchin, said the residency requirement “ensures” the First Nation’s relationship with the land will continue. “We are deeply rooted in our way of life,” she said, noting the First Nation’s “interconnectedness” with the land and the animals, such as the caribou.
Justices Martin and O’Bonsawin cautioned against a broad application of Indigenous collective rights.
Collective rights must be “limited to those that are truly unique to Indigenous peoples because they are Indigenous,” they wrote. “Not everything that Indigenous governments do represents the exercise of a unique collective right stemming from the community’s distinctive culture.”
The Charter needs to apply to Indigenous governments, they said. “Members of Indigenous communities must be able to challenge the activities of their own governments.”
Objective of reconciliation
The Supreme Court was also asked if the Vuntut Gwitchin First Nation was considered a government for the purposes of the Charter. This matters because all laws and government actions are required to comply with the Charter.
On this point, nearly all the judges agreed that the Vuntut Gwitchin First Nation is a government for the purposes of the Charter. Only Justice Rowe dissented.
The Vuntut Gwitchin First Nation has its own constitution that deals with equality rights, Rowe wrote. “Ultimately, this case is about whether, in crafting their own constitution, the Vuntut Gwitchin can make their own choices about their affairs,” he wrote. “I conclude that the choice is theirs.”
Imposing the Charter “is not consistent with the objective of reconciliation and with the need to respect the ability and the right of the Vuntut Gwitchin to make decisions pursuant to their own laws, customs, and practices,” he said.
Lawyers for interveners in the case praised the decision for clearly stating that Indigenous governments are subject to the Charter.
The decision clarifies that Indigenous communities in Canada “exist within the Canadian legal order, not outside of it,” said Ian Knapp, who represented the Band Members Alliance and Advocacy Association of Canada. Indigenous individuals are often “very dependent” on Indigenous governments for support. “This decision provides a strong framework to ensure that … they can assert Charter rights within that context.”
The decision clearly says that “the indigeneity of the community is something that must be considered and weighed against any type of potential challenge,” said Bruce Slusar, who represented the Federation of Sovereign Indigenous Nations.
This decision will apply to Indigenous groups that do not have self-governance agreements as the Vuntut Gwitchin do, Slusar says.
“In a sense, all First Nations are self-governing from a perspective of their abilities to pass laws,” he said.
Andrew Lokan, who represented the Congress of Aboriginal Peoples, said he was “disappointed” with the final decision, but called it a “landmark” case regardless as it gives needed clarity about how the Charter applies to Indigenous governments. The congress represents Indigenous people who do not live on their community’s traditional lands.
This case “bookends” with last month’s Supreme Court decision that upheld the constitutionality of a federal law that allows First Nations to control their child protection and welfare services, Lokan said.
This case is important, especially because more First Nations are pursuing self-government agreements, as the Vuntut Gwitchin has, he says.
“As self-government picks up steam, then we are going to have more and more situations where courts have to navigate between the collective rights of the community and the individual rights of community members,” he said.
