This is a summary of the Supreme Court of Canada's (the "Court") decision in Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (the "Decision"). It has been prepared by Jason Madden, Alexandria Winterburn and Erika Voaklander of Aird & Berlis LLP. This summary is not legal advice.
Jason Madden, Alexandria Winterburn, and Alex DeParde acted as counsel for the Métis Nation of Ontario and the Métis Nation of Alberta who jointly intervened to ensure that the Métis Nation's unique perspective was before the Court.
Key Takeaways from the Decision
- The Charter Applies To Recognized Indigenous
Governments, Including Those With Self-Government Agreements and
Modern-Day Treaties, As They Are "By Their Very Nature"
Governments: A majority of the Court relied on the federal
legislation implementing Vuntut Gwitchin First Nation's
("VGFN") modern-day treaty and self-government agreement
with the Crown to find the Charter applied. They did not
answer the question whether the inherent right of Indigenous
self-government or a s. 35 self-government
right—"untethered from federal
legislation"—would also be subject to the Charter.
- Indigenous Governments "Do Not Depend On Federal,
Provincial, or Territorial Legislation To Exist As Autonomous
Self-Governing Peoples": The Court rejected the
argument that by virtue of entering into a modern-day treaty or
self-government agreement that was implemented through legislation,
the VGFN became under the "control" of federal or
territorial governments or was entirely dependent on those
governments for its authority.
- Indigenous Governments Can—And Have—Enacted
Laws Aimed At Protecting Their Citizens' Fundamental Rights and
Freedoms: The Court recognized that the VGFN Constitution
included a section on its citizens' rights that mirrored the
protections in the Charter. While the Court did not use
this section to determine the issues before it, they noted that it
was open to Ms. Dickson to pursue her claim under the equality
rights provision in VGFN Constitution, rather than s. 15(1) of the
Charter.
- Section 25 of the Charter Can Operate To
"Shield" Choices of Indigenous Governments, In Certain
Circumstances, Based On Indigenous Difference: A majority
of the Court held that this shield is not absolute. Rather, it is a
"pop up shield" to protect rights related to
"Indigenous difference" when "the conflict between
the rights is 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."
- The "Other" Rights and Freedoms Protected By
s. 25 Are Broader Than Those Rights Within s. 35 of the
Constitution Act, 1982: A majority of the Court
confirmed that these "other" rights include statutory
rights as well as rights related to "Indigenous
difference" (e.g., "interests connected to cultural
difference, prior occupancy, prior sovereignty, or participation in
the treaty process"). Notably, "other" rights do not
necessarily have to be of a "constitutional character" in
order to fall within the scope of s. 25.
- Courts Are Now Placed In A Role of "Continued
Oversight of Indigenous SelfGovernment" for Charter
Compliance: This will likely result in increased
litigation and costly court processes for Indigenous governments
trying to justify choices based on "Indigenous
difference" and balance the rights of their citizens under
both Canadian and Indigenous law. As Justice Rowe noted in his
dissent, this "will have far-reaching consequences for the
relationship between the courts and Indigenous
self-government."
- Going Forward, Indigenous Courts Will Have "A Meaningful Role To Play" In Interpreting and Balancing The Rights and Freedoms of Citizens Vis-à-Vis Their Governments: As Indigenous governments increasingly enact legislation governing the relationship with their citizens, it will be important for decisions interpreting, applying, and balancing these decisions to be made by Indigenous peoples themselves. This is an important part of reconciliation and respecting Indigenous self-government.
Background and Context: Vuntut Gwitchin Self-Government
This Decision arises in the context of the ongoing "national project" of reconciliation between Indigenous peoples and the Crown, and the negotiation and implementation of modern-day treaties and land claim agreements.
In the Yukon, this process included the 1993 Yukon Umbrella Final Agreement ("UFA") as a road map for the negotiation of subsequent modern-day treaties and self-government agreements between Canada, the Yukon government, and 14 Yukon First Nations, including VGFN.
VGFN reached a treaty (protected by s. 35 of the Constitution Act, 1982) with Canada and the Yukon government in 1993, and a self-government agreement that same year. These agreements were approved and given effect by federal and territorial implementation legislation.
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