CCF reacts to Supreme Court decision on application of Charter to Indigenous governments

CCF reacts to Supreme Court decision on application of Charter to Indigenous governments

OTTAWA: The Supreme Court of Canada has released the decision Cindy Dickson v Vuntut Gwitchin First Nation (Yukon Territory).  This important decision confirms that section 25 of the Canadian Charter of Rights and Freedoms will only act as a shield against Charter rights such as equality where the Indigenous entity invoking it can show an irreconcilable conflict between the Charter right and the Aboriginal, treaty or other right or its exercise. This means that the fundamental protections of the Charter will continue to apply in most cases despite Aboriginal self-government agreements.

The case involved an appeal of a Yukon Court of Appeal decision in a case brought by an Indigenous woman, Cindy Dickson. Ms. Dickson is a member of Vuntut Gwitchin (VGFN), a small First Nation located on territory in the far north of the Yukon. Ms. Dickson had sought to stand for election to the Council of VGFN. The Council rejected her candidacy on the basis that she would not relocate to the Settlement Land, a fly-in community called Old Crow approximately 800 km to the North of Whitehorse, if she were elected. Ms. Dickson wanted to bring a claim that the decision to reject her candidacy was a violation of her rights under section 15(1) of the Charter, and a form of discrimination on the basis of “Aboriginality residence”. The Band argued that section 25 of the Charter shielded the Band from Charter scrutiny.

The Canadian Constitution Foundation (CCF) intervened on the question of the scope of section 25 of the Charter and how it interacts with the other provisions of the Charter. The CCF argued that the purpose of section 25, when read in context, is to ensure the Charter is not used as a sword by non-Indigenous peoples to deny the special status of or a benefit for Indigenous peoples. The CCF argued section 25  is primarily concerned with precluding section 15 claims by non-Indigenous peoples, not to shield all Indigenous government conduct from Charter scrutiny.

The majority in the decision rejected the appeal and held that section 25 does have a shielding effect, but the scope of section 25 is only prioritized if there is an irreconcilable conflict between the collective right and the individual Charter right in question such that “giving effect to the Charter right would undermine the Indigenous difference protected or recognized by the collective right”.

They found that in this particular case, there was an irreconcilable conflict because applying section 15(1) of the Charter to the residency requirement would abrogate or derogate from the Band’s right to govern themselves in accordance with their values and traditions and the self government arrangements they have entered into.

The dissenting Justices Martin and O’Bonsawin would have allowed the appeal. They interpreted section 25 of the Charter more narrowly.  They found that the rights within the scope of section 25 do not extend to all matters in which Indigenous governments may act and that it should not be interpreted in a way that prohibits Indigenous claimants from accessing protections of the Charter even where the challenge is to their own community’s laws.  They found that intra-group distinctions based on a personal characteristic other than Indigeneity will generally fall outside of section 25. The dissent found that this would ensure that section 25 does not effectively create Charter-free zones which would be contrary to the intent of this section,  articulating a concern that the Canadian Constitution Foundation had raised in its factum.

Commenting on the decision, the CCF’s Executive Director Joanna Baron noted, “We were pleased to see some of the CCF’s concerns about creating Charter-free zones directly engaged with by the dissent. It raises serious problems for equality and liberty if Indigenous persons are not able to avail themselves of the same protections of the Charter that all Canadians enjoy. We are pleased to see the court confirm that the Charter in general applies both to governments and Indigenous governing entities in Canada.”

The CCF was represented in this intervention by Bryn Gray, Jesse Hartery and Sherry Ghaly of McCarthy Tétrault.

For interviews, please contact:

Joanna Baron
[email protected]
1-888-695-9105 x. 101

Christine Van Geyn – Litigation Director
1-888-695-9105 x. 103
[email protected]

Josh Dehaas, Counsel
1-888-695-9105 x. 104
[email protected]