Overview
On March 28, 2024, the Supreme Court of Canada ruled in Dickson v. Vuntut Gwitchin First Nation 2024 SCC 10 that the Canadian Charter of Rights and Freedoms (the “Charter”) applies to Vuntut Gwitchin First Nation (“VGFN”) as it governs pursuant to its Final and Self-Government Agreements.
The Court also determined that although the residency requirement for Council members set out in VGFN’s Constitution discriminated against citizens living away from VGFN’s primary community, it is shielded and allowed to stand by section 25 of the Charter. The residency requirement was found to fall under section 25 of the Charter because it was part of a collective right protecting “Indigenous difference” and was prioritized over Ms. Dickson’s individual Charter right.
This decision sets out for the first time a framework for section 25 of the Charter and provides new analysis on how an Indigenous government is subject to the Charter.
Ratcliff’s Kate Blomfield, Grace Hermansen, Jeffrey Nicholls represented the intervener Teslin Tlingit Council in the SCC’s hearing of the appeal.
Background
Cindy Dickson, a citizen of the Vuntut Gwitchin First Nation, challenged a rule in VGFN’s Constitution that required members of VGFN Council to live on VGFN Settlement Land. Ms. Dickson claimed that this residency requirement infringed her right to equality under Section 15 of the Canadian Charter of Rights & Freedoms. VGFN took the position the Charter does not apply to VGFN’s Constitution, or in the alternative, that s.25 of the Charter (a provision addressing “aboriginal, treaty or other rights or freedoms pertaining to aboriginal peoples”) protects the residency requirement. The main questions the Supreme Court of Canada (“SCC”) had to consider were:
- Does the Charter Apply to VGFN?
- If the Charter applies, does s.25 shield the residency requirement and allow it to stand?
The case is a very important one as it is the first time the SCC has considered the applicability of the Charter to self-governing First Nations and the role and function of s.25 in detail.
Summary of Decision
The Supreme Court of Canada decision is long (over 300 pages, available at and divided into three separate parts:
- The majority of the Court decided the Charter applies to VGFN, but that section 25 protects the residency requirement as a shield from Ms. Dickson’s claim. This is the binding ruling of the Court.
- In dissent, Justices O’Bonsawin and Martin agreed the Charter applies to VGFN but did not agree s.25 ‘shields’ the residency requirement – both Justices advocated for a narrower application of s.25. They concluded that s.25 should only apply to challenges from outside a community, rather than from within.
- In dissent, Justice Rowe did not agree the Charter applied to VGFN, relying on the text of s.32 of the Charter which references only provincial legislatures and the federal Parliament. Justice Rowe expressed the view that the decision of the majority requiring detailed evaluation and review of actions of Indigenous government for Charter compliance will engage courts “in a role of permanent oversight of Indigenous self-government.”[1]
Core to the majority decision are the following conclusions:
- The Charter applies because the VGFN Self-Government Agreement, and by extension the VGFN Constitution and the residency requirement, are sufficiently connected to the federal government for VGFN to be a “government by nature” under s.32 of the Charter.[2]
- The residency requirement appears to discriminate because it treats non-resident citizens differently which reinforces and makes worse an existing disadvantage.
- 25 of the Charter operates to protect certain Indigenous collective rights from conflicting individual Charter rights and applies here to protect the residency requirement
- A step-by-step framework is set out for the application of s.25 when an Indigenous government’s laws or actions are alleged to breach a Charter right.
S.25 Application Framework: Guiding Principles for Charter Challenges
The framework set out for how to apply s.25 in the context of a Charter challenge is as follows:
- The person bringing the Charter claim must demonstrate that the conduct complained of (normally, conduct or laws of an Indigenous government) prima facie (or on a preliminary analysis) breaches an individual Charter right.
- If the individual Charter right is prima facie breached, the party wanting to rely on section 25, usually an Indigenous government, must satisfy the court that the conduct is a right protected under section 25.
- The party relying on section 25 must show irreconcilable conflict between the Charter right and the Aboriginal, treaty or other right. If the rights are irreconcilable in conflict, section 25 will act as a shield to protect “Indigenous difference”.
- Court must consider whether there are any applicable limits to the collective interest relied on (for example, a right under section 25 cannot shelter gender-based discrimination).
Actions for First Nations Following the Dickson Ruling
Some steps that First Nations may consider taking in light of the Dickson decision are:
- Communicate with citizens regarding the court decision so that accurate information and the opportunity to discuss are available.
- Review First Nations’ laws to identify potential conflicts with the Charter.
- When passing new laws and/or making decisions, consider potential conflicts with the Charter – where the Nation supports a collective right taking priority over an individual right, identifying a rationale (e.g., an aboriginal right, a treaty right or an ‘other right’ that supports Indigenous difference) may be appropriate.
- Consider pursuing or advancing dispute resolution alternatives to Court that have jurisdiction to address disputes, including Charter challenges.
Conclusion
The Supreme Court of Canada’s Dickson v. Vuntut Gwitchin First Nation decision is of significant importance, clarifying the Charter’s applicability to self-governing First Nations and emphasizing the pivotal role of section 25 in balancing collective and individual rights.
Ratcliff LLP is pleased to answer any questions regarding the decision and is available to assist clients in navigating the implications of the ruling.
[1] Dickson v. Vuntut Gwitchin First Nation 2024 SCC 10, para. 452
[2] Setting aside the issue of whether or not the Charter applies to exercises of inherent Indigenous rights.
