Supreme Court to hear case on whether Indigenous governments are subject to Charter scrutiny: CCF to intervene

Supreme Court to hear case on whether Indigenous governments are subject to Charter scrutiny: CCF to intervene

OTTAWA: The Canadian Constitution Foundation (CCF) has been granted leave to intervene in a landmark case dealing with the scope of section 25 of the Canadian Charter of Rights and Freedoms, and how this provision’s guarantee of rights for Indigenous people interacts with the Charter.

Section 25 of the Charter provides that “[t]he 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 of the Charter has received very little judicial interpretation, and this case is an excellent opportunity for the court to clarify the scope of these Indigenous rights guarantees and how they interact with the other rights guaranteed by the Charter,” said CCF Litigation Director, Christine Van Geyn. “We will argue for the Charter to be applied broadly.”

This case involves an appeal of a Yukon Court of Appeal decision in a case brought by an Indigenous woman, Ms. 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.

Like many members of VGFN, Ms. Dickson lives in Whitehorse. She has a job in Whitehorse, and her son is hypoglycemic and needs to be near a full-service hospital. Old Crow does not have a full-service hospital.

For these reasons, as well as other socio-economic reasons, Ms. Dickson is not willing to relocate to Old Crow. However, the VGFN Constitution contains a requirement that any member of the VGFN’s Council must reside on the “Settlement Land” – effectively, in Old Crow. An individual who does not already reside on Settlement Land must relocate within 14 days of election day.

The Council rejected her candidacy on the basis that she would not relocate, and she brought a section 15 Charter claim for discrimination. The Supreme Court held in Corbiere that “Aboriginality residence” as it pertained to whether an Aboriginal band member lives on or off reserve is an “analogous ground” for purposes of section 15 of the Charter.

The lower court found that Ms. Dickson’s Charter rights were not breached, and that, even if they were, her claim was precluded by section 25 of the Charter. The Court of Appeal found that there was a Charter violation, but that it could not be remedied because of section 25 of the Charter. In other words, this self-governing First Nation was shielded from Charter scrutiny.

The core issue the CCF will address in this case is the scope of section 25 and how it interacts with the Charter.

“In this intervention we will argue 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. It is primarily concerned with precluding s. 15 claims by non-Indigenous peoples. Its purpose is not to shield all Indigenous government conduct from Charter scrutiny. We will notably argue that the purpose of section 25 is to recognize that, beyond the Charter, Indigenous peoples have additional rights. In that sense, it is akin to section 26 of the Charter, which recognizes the possibility of other rights beyond those entrenched in the Charter. We will argue that section 25 does not deprive an Indigenous person, like Ms. Dickson, from making a Charter claim against an Indigenous government, or indeed any other level of government,” continued Van Geyn. “We look forward to providing perspective on the development of the law on section 25, and advocating for the broad application of Charter guaranteed rights and freedoms,” concluded Van Geyn.

The CCF is one of 10 interveners that has been granted leave in this case.

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