tansi ninôtemik,
In February of 2023, the ReconciliAction blog discussed Cindy Dickson’s appeal of her First Nation’s decision that she could not hold elected office while living outside of the settlement lands. Yesterday, the Supreme Court of Canada finally released a split decision dismissing Dickson’s appeal.[1] In this post, we will briefly explore the context and VGFN’s key arguments as addressed by the Majority decision.
Factual and Legal Context
The Vuntut Gwitchin First Nation [VGFN] is a self-governing Indigenous community in the Yukon. In 1993, the VGFN concluded landmark self-government and land claim agreements with the federal government which included adopting their own Constitution granting rights and freedoms specific to their community. Relevant to this case, the Constitution requires the Chief and Councillors to reside or relocate to the VGFN’s land within 14 days of their election.
Dickson wanted to run as a Councillor while remaining in Whitehorse - about 800km away - for personal reasons, including her son’s medical needs.[2] So, she put the VGFN Constitution under the scrutiny of Canada’s colonial Constitution. Specifically, she argued the residency requirement violated her right to substantive equality under s. 15(1) of the Charter.[3]
The Majority’s Treatment of Vuntut Gwitchin First Nation’s Key Arguments
The VGFN first argued that the Charter does not apply to VGFN’s actions as it is a self-governing First Nation. Essentially, the VGFN argued that the Charter‘s application is restricted to colonial government actors. The Majority rejected this argument by applying the common-law test outlined in Eldridge for whether an entity is a government actor.[4] Under this test, they found the self-governing Indigenous community was a government by nature, and this was their principal reason for rejecting VGFN’s claim.
In the alternative, the VGFN addressed that even if the Charter does apply and that their actions violated her s. 15 rights, her appeal should be dismissed due to the conflict with s. 25 of the Charter. The Majority accepted this argument, upholding that s. 25 of the Charter protects certain Indigenous legal traditions which derogate from colonial practices. The Majority’s interpretation found that s. 25 can uphold the unique laws, traditions, and customs of self-governing Indigenous communities where they irreconcilably conflict with other Charter rights as defined by a new test under s. 25.
In applying this test to Dickson’s claim, the Majority set a new precedent for Indigenous self-governance. The decision is dense and far from unanimous, with two dissenting opinions underlying the complex nature of upholding Indigenous self-governance under s 25. Join us next week to learn more about the Dickson decision.
Until next time,
The ReconciliACTION YEG team
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[1] Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10.
[2] Ibid, at para 10.
[3] Initially, Dickson also argued that the residency requirement also violated Article IV of the VGFN Constitution, but she only pursued her claim on the Charter breach.
[4] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624.