Top court hears argument on whether First Nations’ constitutions must conform to Canada’s Charter protections

Thursday, February 9th, 2023 2:20pm


Image Caption

Bridget Gilbride, legal counsel for Cindy Dickson, and Kris Statnyk, legal counsel for Vuntut Gwitchin First Nation.


“Yes, we have the case in front of us, but we have national implications.” —Justice Michelle O’Bonsawin.
By Shari Narine
Local Journalism Initiative Reporter

The Supreme Court of Canada was told Feb.7 that when it comes to final agreements and self-government agreements negotiated under the umbrella of the Council of Yukon First Nations with the Canadian and Yukon governments, those First Nations’ constitutions are their “supreme law.”

“Our constitution should be treated as a constitution and understood through the Vuntut Gwitchin perspective as our supreme law… We define Vuntut Gwitchin law as including our constitution,” said Kris Statnyk, legal counsel for Vuntut Gwitchin First Nation (VGFN).

The argument was raised by Statnyk as the Supreme Court heard the appeal of Cindy Dickson v. Vuntut Gwitchin First Nation. The case reached the highest court in Canada as Dickson appealed and VGFN cross-appealed the decisions by two lower courts.

In contention is Dickson’s inability to run for Vuntut Gwitchin council in 2019. According to the Vuntut Gwitchin constitution, if she were successful in her bid, she had to relocate from Whitehorse to Old Crow, the seat of VGFN government, within 14 days of her election. Because of her refusal to relocate, her candidacy for councillor was rejected.

The Yukon Supreme Court ruled the residency requirement was not a violation of Dickson’s Canadian Charter equality rights as found in Sect. 15, although the 14-day requirement to move was. The Yukon Court of Appeal ruled the residency requirement did violate her Charter equality rights. However, both levels of the lower court ruled that the Charter infringement was shielded by Sect. 25 of the Charter which states “…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 in Canada…”

While Sect. 35 of Canada’s Constitution recognizes and affirms existing Aboriginal treaty rights and includes land claim agreements as “treaty rights”, it is open to interpretation as to where self-government agreements and modern-day treaties fit into the Constitution. This is what the Supreme Court is grappling with. They heard from 13 interveners, representing Attorneys General of Canada, Yukon, Quebec and Alberta; First Nations; and Indigenous and non-Indigenous organizations.

Statnyk argued that Dickson’s concerns should have been dealt with by Vuntut Gwitchin as there is an ability within the nation’s constitution to challenge laws.

The Council of Yukon First Nations and the British Columbia Treaty Commission said that Crown-Indigenous agreements were important and had to be respected by Canadian courts.

“Final agreements are modern treaties that create a legal basis for the nation-to-nation relationship. And the self-government agreements, and First Nation constitutions that flow from them, fulfill commitments made in them,” said legal counsel for the Council of Yukon Nations. “It's the most fundamental expression of its inherent and affirmed self- government rights.”

However, Bridget Gilbride, legal counsel for Cindy Dickson, argued that any powers VGFN held through the self-government agreement, which included its constitution, had “to conform with the Constitution of Canada”.

She said her client’s individual rights had been trampled on because VGFN’s constitution ignored the Charter of Rights and Freedoms and the protection it affords individuals.

Gilbride stressed that Dickson supported self-government and did not dispute that VGFN had legislative authority over all Vuntut Gwitchin citizens. However, said Gilbride, VGFN’s self-government “sits squarely within the Constitution of Canada.”

She said legislation enacted by the federal and Yukon governments was how the laws of VGFN were given force.

“Parliament and the Yukon here cannot transfer their authorities absent their accompanying Charter protection,” said Gilbride.

Supporting the view that the Charter applied to Indigenous governments were Quebec, the Band Members Advocacy Alliance Association of Canada, and the Congress of Aboriginal Peoples.

However, Statnyk said it was not federal legislation that allowed VGFN to exercise its power.

“It’s a vacating of space by the federal government,” said Statnyk. “They were now vacating that space so that our constitution, enacted in accordance with our inherent right, would have space to exist within the constitutional fabric.”

He added that Sect. 25 of the Canada Constitution acted as a shield with “it’s clear purpose being one of protection, in its unambiguous wording, and as correctly interpreted by both courts below.”

Sect. 25 states, “The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from an aboriginal, treaty or other rights or freedoms that person to the aboriginal peoples of Canada…”

Sect. 25 provides an important shield, said legal counsel for the Federation of Sovereign Indigenous Nations in Saskatchewan, as the strength of Indigenous societies is not in its individuals but in its institutions.

If individual rights prevailed over collective rights, counsel argued, it “could ultimately result in a deterioration or a diminishment of the cultural and institutional fabric of an Indigenous society, which is integral to its existence such that the Indigenous society may eventually cease to function.”

Gilbride argued that Sect. 25 was not an automatic shield.

Legal counsel for Attorneys General of Canada and Quebec, as well as the Canadian Constitution Foundation held that Sect. 25 had a partial shielding function. It didn’t deprive an Indigenous person from making a Charter claim against an Indigenous government.

“Because of the language of Sect. 25…it may be that after you go, proceed through the framework, that it may be that the collective right will prevail over the individual right to the extent necessary to give effect to maintain the distinctive culture,” said Canada’s legal counsel Anne Turley.

Sect. 25, which is located in the general section of Canada’s Constitution, is a provision that has not received much judicial attention.

“If, in each and every instance, collective rights and individual rights were entirely (in harmony) and could not diverge, Sect. 25 would not need to exist,” said Justice Malcolm Rowe.

Sect. 32, which states the Charter applies to federal, provincial and territorial governments, was also raised as a means to deal with self-government agreements.

Justice Sheilah L. Martin said Yukon government put forward that “the real purpose of Sect. 32 was to make the Charter applicable to actions that governmental bodies take vis-à-vis people subject to their jurisdictions, which would fit a self-government model.”

What framework would be used to analyze and justify a breach of Sect. 15 was also discussed, along with the impact such Charter challenges would have on Indigenous governments.

“The cost, complexity and impact of defending Charter challenges to Indigenous laws and governance practices, even if such challenges are upheld in a nation’s favour, will compromise their capacity to do the work connected to reassertion of their legal orders…in a time when safe legal space is being created for this work,” said Gavin Gardiner, legal counsel for Carcross/Tagish First Nation.

Jason Madden, legal counsel for the Métis Nation of Ontario and Métis Nation of Alberta, implored the Supreme Court to develop a framework instead of going case-by-case.

“How Indigenous self-government, as an inherent right to Indigenous people, that finds its original source outside of Canada’s Constitution is ultimately recognized and brought into Canada’s constitutional framework desperately needs an overarching and organizing framework from this court,” said Madden.

“The case law is increasingly strained…Those strains flow from trying to fit concepts…that do not fit with our constitutional architecture that has Sect. 35 within in it.”

However, Gilbride said that the Supreme Court didn’t have to “solve the issue of Indigenous self-government in the abstract” as it had a detailed agreement with specific terms before it.

“Yes, we have the case in front of us, but we have national implications,” said Justice Michelle O’Bonsawin.

The Supreme Court reserved its decision to an unspecified date.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.