Canadian law students are reporting for JURIST on national and international developments in and affecting Canada. Mélanie Cantin is JURIST’s Chief Correspondent for Canada and a 2L at the University of Ottawa.
The Supreme Court of Canada heard arguments Tuesday in the case of Dickson v Vuntut Gwitchin First Nation. The ruling in this case will undoubtedly impact the relationship between Indigenous self-government in Canada and the Canadian Charter of Rights and Freedoms in a major way. The case has several high-profile intervenors, including the Canadian Constitution Foundation and the attorneys general of Canada, Alberta, and Québec, and it has been the topic of much discussion in legal circles.
Arising from the Yukon Court of Appeal, the case involves an Indigenous woman named Cindy Dickson who wanted to stand for election to the governing authority of her First Nation, the Vuntut Gwitchin First Nation (VGFN) council. However, the council rejected Ms. Dickson’s candidacy because she lives in Whitehorse (the capital of the Yukon territory in Canada’s north) and was not willing to relocate if she were to be elected. VGFN is located in the small fly-in community of Old Crow, and its government has a policy that a person must either live within Old Crow or relocate to it within 14 days of being elected to the council if they want to be a council member. Ms. Dickson could not move to Old Crow because she could not afford to leave her job in Whitehorse and her hypoglycemic son needed to be near a full-service hospital, which Old Crow does not have. Despite this, she still wanted the opportunity to serve her nation as a council member, but the VGFN council held firm to its policy and refused to let her run in the election.
As such, Ms. Dickson took her Nation’s government to court, alleging discrimination under section 15(1) of the Charter. This section states that “[e]very individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.” In the decades following the enactment of the Charter in 1982, the Supreme Court has also recognized what it calls “analogous grounds”, which are other grounds of discrimination that, while not explicitly enumerated in the Charter, benefit from Charter protection. Recognized analogous grounds under section 15(1) include sexual orientation (Egan v Canada), citizenship status (Andrews v Law Society of British Columbia), and marital status (Miron v Trudel).
The key case of Corbiere v Canada (Minister of Indian and Northern Affairs) was crucial at the appellate level in assessing Ms. Dickson’s section 15(1) argument and seems to have remained so before the Supreme Court. In Corbiere, the respondents were members of the First Nations Batchewana Band who resided either in another nearby reserve or off the reserve entirely. This was in part due to the historical forced displacement and scattering of the Batchewana peoples following an unfulfilled treaty with settlers. Despite the band regaining some of their lands over time, not all its people made their way back to physically living on those lands. At the time of the Corbiere case, only those who lived on the reserve were eligible to participate in the Batchewana Band elections. Mr. Corbiere alleged that this was discriminatory on account of his off-reserve status. His challenge went all the way to the Supreme Court of Canada, and he was ultimately successful. Aboriginal residence (often referred to as “on- or off-reserve residence”) thus became recognized as an analogous ground under section 15(1) of the Charter.
Corbiere will undoubtedly be discussed by the Supreme Court in its reasons, but a key difference between it and Ms. Dickson’s case is that the court does not just have to consider whether section 15(1) was indeed infringed upon, but also whether that portion of the Charter should apply to VGFN at all. Indeed, VGFN’s argument is that section 25 of the Charter effectively shields it from needing to comply with section 15(1). Section 25 goes as follows: “The 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 […]” This is the argument that succeeded at the Yukon Court of Appeal.
On the one hand, some argue that forcing Indigenous governments like VGFN to comply with section 15(1) would take away from their independent authority, thus going against the entire purpose of Indigenous self-government. After all, the Charter does not apply in other countries to the subjects of other governments, so overriding internal Indigenous laws and policies with Canadian law would effectively send the message that Indigenous governments are not to be viewed as truly independent governments in Canada. Again, this position was taken by the Yukon Court of Appeal in their judgement; they found that while VGFN’s policy was discriminatory on the basis of off-reserve residence under section 15(1) of the Charter, section 25 effectively shielded the policy from section 15(1), because striking it down would effectively mine the authority of VGFN as a self-governing entity.
On the other hand, robbing members of an already vulnerable population of the important individual rights the Charter confers on account of section 25 seems to be an antithesis to the goals of the entire document. Is effectively preventing individual Canadian citizens from benefitting from the same protections as their non-Indigenous counterparts on account of their additional membership to an Indigenous nation truly the right approach?
Whatever the ultimate answer to that question, in my opinion, the Supreme Court is unlikely to accept this option anyway, at least not as smoothly as the Yukon Court of Appeal does, since a broad right to self-government for Indigenous nations has not yet been recognized by the Supreme Court. Considering the Yukon Court of Appeal’s ruling and the very limited jurisprudence on section 25, the Supreme Court will likely have to interpret this section of the Charter more thoroughly than it ever has before. Indeed, the application of other parts of the Charter to Indigenous governments in light of section 25 is a contentious, as-of-yet undecided issue whose importance cannot be overstated.
At stake, therefore, beyond the matter at hand, is the potential expansion of Indigenous rights in Canada, along with clarification from our highest court on a jurisprudentially obscure part of the Constitution. Both can only benefit Canada as a whole.