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Should the Charter apply to Indigenous communities? Read the first Indigenous Supreme Court Justice’s take in the Dickson dissent

tansi ninôtemik,

Today, we conclude our discussion of the March 28th Supreme Court of Canada decision in Dickson v Vuntut Gwitchin First Nation, as previously highlighted here.[1] Today we will focus on the court’s dissent. 

For reference, Dickson is a member of the Vuntut Gwitchin First Nation (“VGFN”), an Indigenous community governed by their own Consitution.[2] In this case, Dickson challenged a requirement within the VGFN Constitution in which elected leaders are required to reside on VGFN land within 14 days of an election, arguing it violated her Charter right to substantive equality, under section 15(1)[3] due to her son’s medical needs, her son’s father and her employment all being in Whitehorse.[4] The VGFN Constitution also includes a right to equality.[5] VGFN argued the Charter should not apply to them as a self-governing Nation, but if it does apply, this requirement would fall within the scope of section 25 of the Charter, as previously discussed here.[6]

There were two dissents in this decision.[7] First, Justice Martin and Justice O’Bonsawin dissented in-part,[8] followed by Justice Rowe, who also dissented in-part.[9]

Justices Martin and O’Bonsawin disagreed with the majority on the application of section 25 and the justification under section 1 of the Charter, while Justice Rowe's dissent focused on the inapplicability of the Charter to Indigenous governance in general.[10]

Justice Martin and Justice O’Bonsawin's dissent: [11]

  • Concurred with the majority on the application of the Charter and its breach, but disagreed on the application of s. 1 of the Charter

  • Agreed with the majority that VGFN is a government by nature, therefore requiring Charter scrutiny

  • Held that the residency rules were not justified by s. 1 of the Charter

  • Interpreted the role of section 25 much more narrowly–as an ‘interpretive aid’ only

  • Found that s. 25 did not protect VGFN’s residency requirement because a self-governing Indigenous Nation’s right to regulate the composition of its governing bodies was not a unique collective right belonging only to Indigenous people by reason of being Indigenous

  • Despite incorporating Indigenous perspectives into the s. 1 analysis, they found that the residency rules were not minimally impairing

  • Argued for a nuanced understanding of Indigenous self-determination within the Canadian legal system, using a balanced approach to respect both individual and collective rights regarding Indigenous communities and their rights to self-governance 

Justice Rowe's dissent: [12]

  • Found that the Charter does not apply to the VGFN because VGFN is not an arm of the federal or provincial government within the meaning of s. 32(1) of the Charter

  • Held VGFN should not have the Charter imposed upon them because they did not participate in its drafting nor consent to its application to them in their self-governance agreement 

  • Argued that imposing the Charter on the VGFN is not consistent with the objective of reconciliation nor the need to respect VGFN’s collective rights and ability to make its own decisions using their Indigenous laws

  • Recognized that the Charter does not necessarily reflect the worldview of Indigenous collectives in Canada

  • Upheld the autonomy and self-determination of VGFN, because their Constitution includes equality rights protections, making the Charter inapplicable to Indigenous governance 

It will be interesting to see if any of these dissents will be used in future court decisions. There are benefits and drawbacks for Constitution-yielding Indigenous communities to be seen as governments within a colonial framework, and forcibly applying the Charter to them. It remains to be seen how these dissents may impact the application of the Charter to Indigenous Nations and overall rights to self-governance.

Until next time,

The ReconciliACTION YEG team


[1] Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10.

[2] Ibid.

[3] The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11 s 15(1).

[4] Supra note 1 at para 10.

[5] Ibid at para 424.

[6] Ibid at para 4.

[7] Ibid.

[8] Ibid at paras 232-416. 

[9] Ibid at paras 417-523.

[10] Ibid at paras 232-523.

[11] Ibid at paras 414-416.

[12] Ibid at paras 522-523.

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