Canada Supreme Court finds collective Indigenous rights supersede individual Charter rights News
© WikiMedia (D. Gordon E. Robertson)
Canada Supreme Court finds collective Indigenous rights supersede individual Charter rights

The Supreme Court of Canada (SCC) upheld a rule on Thursday, requiring members of a Yukon First Nation to live in its community if they wish to serve on its council.

Cindy Dickson, a Canadian citizen and member of the Vuntut Gwitchin First Nation (VGFN), challenged a residency requirement imposed by the VGFN Constitution. The requirement mandates that all chiefs and councilors reside on the VGFN’s settlement land or relocate there within 14 days of their election. Living in Whitehorse and unable to move to Old Crow due to her son’s medical needs, Dickson argued that this requirement unjustifiably infringed upon her right to equality under Section 15(1) of the Charter.

The VGFN’s response can be broadly understood through three key arguments: First, as a self-governing First Nation, the Canadian Charter of Rights and Freedoms does not apply to them. Second, if the Charter were found to apply, the residency requirement does not infringe upon Dickson’s equality rights. Third, even if it were considered an infringement, they maintained that the requirement is protected by Section 25 of the Charter, which prioritizes collective Indigenous rights and freedoms over individual Charter rights in cases where the two exist in conflict.

The SCC’s decision confirmed that the Charter does indeed apply to the VGFN, as it exhibits the following four key indicators of a government entity:

  1. The VGFN Council is democratically elected by the members of the VGFN and is accountable to its constituents, similar to the democratic accountability seen in federal and provincial governments.
  2. The VGFN Council possesses taxing powers indistinguishable from those of Parliament and provincial legislatures.
  3. The VGFN has the authority to make, administer and enforce laws within its jurisdiction, akin to the law-making powers held by other levels of government.
  4. The VGFN derives part of its lawmaking power from federal law because it is officially recognized as a legal entity by federal legislation. This does not imply that Indigenous self-government is merely an extension of federal authority. Rather, in cases like this, federal legislation forms a basis for their self-governance, which, in turn, necessitates the application of the Charter.

After concluding that the VGFN does attract Charter scrutiny, the SCC further decided that the residency requirement constituted an infringement of Dickson’s Section 15 equality rights. The SCC found the residency requirement is discriminatory because it creates a disadvantage for Dickson by treating VGFN members differently based on where they live. This difference in treatment is considered an analogous ground of discrimination, exacerbating the challenges faced by non-resident members like Dickson.

Despite determining that the residency requirement breached Section 15’s equality rights, the SCC deemed this challenge irrelevant because Section 25 took precedence and made the violation inapplicable. The SCC recognized the residency requirement’s vital role in maintaining the VGFN leaders’ connection to their land and culture, interpreting these factors not as mere governance preferences but as expressions of rights essential to the community’s Indigenous identity and sovereignty.

Given this analysis, the SCC concluded that Dickson’s claim, while valid under Section 15, directly conflicted with the collective rights protected by Section 25. This conflict was deemed irreconcilable, meaning accommodating Dickson’s individual right would significantly undermine the collective right of the VGFN to self-determination and cultural preservation.

Therefore, the SCC ruled that Section 25 can act as a shield to protect these collective Indigenous rights against individual Charter rights in some instances.

THIS DAY @ LAW

UK parliament rejected J.S. Mill's proposal to give women the vote

On May 20, 1867, the British Parliament rejected by 196-73 an amendment to the 1867 Reform Act presented by John Stuart Mill that would have permitted women to vote. Review Mill's 1869 work The Subjection of Women.

Supreme Court applies Free Exercise Clause to state governments

On May 20, 1940, the United States Supreme Court held that the Free Exercise Clause of the First Amendment applied to state governments in Cantwell v. Connecticut under the incorporation doctrine, which applied the protections of the Bill of Rights to state governments through the Due Process Clause of the Fourteenth Amendment. Learn more about the Incorporation Doctrine from the Cornell Law Schools' Legal Information Institute.