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Opportunity for renewing treaty federalism, recognizing Canada’s legal pluralism

Tuesday, July 26, 2022 @ 11:02 AM | By Nick Leeson

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Nick Leeson %>
Nick Leeson
The relationship between the individual rights to freedom and equality secured under the Canadian Charter of Rights and Freedoms and the recognition of the collective rights of Indigenous Peoples under s. 35 of the Constitution Act, 1982, has long been a point of contention and uncertainty for Indigenous Peoples. The Supreme Court of Canada has the chance to resolve this conflict in a way that respects Indigenous laws, institutions and modern Crown-Indigenous treaties in the Dickson v. Vuntut Gwitchin First Nation case.

Indigenous self-government, Charter

In the Dickson case, a Vuntut Gwitchin First Nation (VGFN) member brought a Charter claim against the First Nation because of the residency restriction in its election code. Anyone elected to the First Nation’s Council must live in or move to the village of Old Crow on the First Nation’s settlement lands to hold elected office. Cindy Dickson, a member of the First Nation who lives outside the settlement lands, requested that the court rule the residency restriction invalid because it infringes on her s. 15 Charter rights.

The residency requirement is a provision of the First Nation’s modern constitution. It was established as part of its self-government agreement and treaty with Canada and is an integral expression of the Nation’s inherent right to self-governance (Dickson v. Vuntut Gwitchin First Nation 2020 YKSC 22 at paras. 145, 206; Dickson v. Vuntut Gwitchin First Nation 2021 YKCA 5 at paras. 1-36 (collectively, Dickson)).

The First Nation gave many reasons against the Charter’s application. Those arguments included that the Charter’s applicability is not addressed in either the First Nation’s self-government agreement or its modern treaty with Canada. It raises the question of whether the Charter applies to Indigenous governments with self-government agreements with the Crown and who wields inherent authority. The subsequent analysis is centred on this aspect of this case.

What’s at stake in Dickson v. Vuntut Gwitchin First Nation?

Despite finding that the Charter applied to VGFN legislation, the trial and appellate level courts upheld the disputed VGFN law by referring to s. 25 of the Charter to protect Indigenous authority. Nevertheless, there are significant ramifications for the meaningful recognition of Indigenous Peoples’ law and jurisdiction considering the court’s decision to apply the Charter to the Vuntut Gwitchin Constitution.

Nothing in the Charter, according to s. 25, “abrogates or derogates from any aboriginal, treaty, or other rights or freedoms that pertain to the aboriginal peoples of Canada.“ Although this drafting is clear, the extent of legal protection Canadian courts will give to it is relatively unknown. There is ongoing legal debate as to its scope, as well as whether it serves as a shield to protect Indigenous legal rights and orders or merely as an interpretive tool to direct the construction where there is a possibility of conflict with Charter rights.

It is important to protect s. 25’s original purpose as a broad shield against the Charter’s weakening of collective Indigenous rights, but Dickson should not start there.

Instead, the court needs to ask if the Charter should be read to apply to the VGFN Constitution at all? The VGFN Constitution is their supreme law. It is based on the First Nation’s customary laws, norms, unique institutions and internal governance practices. Recall that, unlike many others, the VGFN self-government agreement is silent on the Charter. VGFN did not adopt their constitution until after successfully negotiating its self-government agreement with Canada.

For modern treaty negotiations to be effective, First Nations must have confidence in their implementation. Significant compromises and difficult decisions are made during those negotiations. Many First Nations are motivated by the knowledge that their inherent right to govern themselves will be recognized and respected at the end of what seems to be an endless and exhausting process. The danger in the Supreme Court following the example of the lower courts in Dickson, is that it might show First Nations that the outcome may instead only be a partial recognition of Indigenous law and jurisdiction.

This is the first half of a two-part series. 

Nick Leeson is an associate with OKT LLP, a law firm in Toronto and Yellowknife. He is based out of OKT’s Yellowknife office, representing Indigenous clients and interests from coast to coast to coast.

Photo credit / Mumemories ISTOCKPHOTO.COM

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