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Treaty Federalism: Recognizing Legal Pluralism

Tansi Nîtôtemtik,


The Canadian Charter of Rights and Freedoms and the recognition of Indigenous collective rights under s.35 of the Constitution has long been a point of contention. The Supreme Court of Canada (SCC) has a chance in Dickson v. Vuntut Gwitchin First Nation (Dickson), along with another case, Attorney General of Quebec, et al. v. Attorney General of Canada et al. (which we will talk about next Thursday), to determine when it “comes to modern Aboriginal laws, how pre-existing Indigenous law, jurisprudence and self-government reconciles within Canada’s constitutional architecture.”[1]


Vuntut Gwitchin Government Logo retrieved from: http://www.vgfn.ca/logo/

This week, the SCC began hearing arguments in Dickson v. Vuntut Gwitchin First Nation (Dickson). Members of the Vuntut Gwitchin First Nation (Vuntut) brought a Charter claim against the First Nation because of a residency requirement in their election code. In order to hold an elected office, the individual must live or move on to the First Nation settlement lands.[2] Cindy Dickson, a member of the First Nation, lived outside the settlement lands and requested a ruling that the requirement was invalid because it infringed on her Charter rights. We are talking about this case today in regard to this month's topic of Indigenous law because the residency requirement is a provision in the First Nation's modern constitution. Modern constitutions have been established across the country as part of self-government agreements with Canada. They are an integral expression of the Nation's right to self-governance.[3]


In response to Ms. Dickson’s Charter application, the First Nation's arguments included that the Charter's applicability does not extend to the First Nation’s self-government agreement or their modern treaty with Canada. This ultimately raises the question- does the Charter apply to Indigenous Governments with self-governing agreements and have inherent authority?


Dickson's appeal asks the Court to look in depth at “Indigenous sovereignty, jurisdiction and self-government in a way that the court has avoided for a while.”[4] The court will begin its examination by looking at section 25 of the Charter. Section 25 of the Charter states that there is nothing that abrogates or derogates from any aboriginal, treaty, or other rights or freedoms that pertain to the aboriginal peoples of Canada.”[5] S. 25 extends to any “right or freedom that now exists by way of land claim agreement or may be so acquired.”[6] While it would appear that the drafting appears to be explicitly clear, there is a legal debate about the scope. Particularly if it should serve as a shield protecting Indigenous legal rights and orders or if it is just an interpretive tool meant to direct where there is the possibility of conflict.


Before arriving at the SCC, the Yukon Court of Appeal ruled that the residency requirement, while a violation of s. 15 of the Charter, the rule was shielded by s. 25.[7] Despite this positive ruling, there is the risk that the SCC will follow the ruling in the lower court, where there was limited recognition of Indigenous law and jurisdiction. [8]


It is the view of this author that the Yukon Court of Appeal got it right. In order for modern treaties to be effective, Indigenous nations must be confident that their drafting can be implemented without interference. Negotiating modern treaties is an extensive process with significant costs, compromise and endless decisions, and Indigenous nations need to know that at the end of this exhausting process, there will be recognition and respect.


This case and the above-mentioned Attorney General of Quebec case are important as they will ultimately determine how Indigenous laws and legal orders will interact alongside Canadian law.[9]


Until next time,

Team Reconcili-ACTION YEG

[1] Aidan Macnab, “Two upcoming SCC cases could have significant implications for Indigenous law” (12 September 2022), online: Canadian Lawyer Magazine<https://www.canadianlawyermag.com/practice-areas/litigation/two-upcoming-scc-cases-could-have-significant-implications-for-indigenous-law/369831> [MacNab]. [2] Ibid. [3] Dickson v Vuntut Gwitchin First Nation, 2020 YKSC 22 at paras 145, 206. [4] MacNab, supra note 1. [5] Canadian Charter of Rights and Freedoms, s 25, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [6] MacNab, supra note 1. [7] Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5. [8] Dickson, supra note 3. [9] MacNab, supra note 1.

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