The Globe and Mail: Self-governing Indigenous communities have a constitutional right to protect their cultural differences – a collective right that trumps individual rights protected by the Canadian Charter of Rights and Freedoms, the Supreme Court ruled on Thursday.
The court split three ways in a ruling that broke new legal ground on two issues: Whether the Charter of Rights applies to self-governing Indigenous communities, and whether collective Indigenous rights protected by the Charter’s little-known Section 25 have primacy over individual rights.
The question in the case was whether a residency requirement to be an elected council member of the Vuntut Gwitchin First Nation in Yukon discriminated against a non-resident member of the community, Cindy Dickson, who lives 800 km to the south, in Whitehorse. She brought a challenge under the Charter’s Section 15, which protects the right to equality.
A majority of the court – four of the seven members who heard the case – ruled that the Charter applies to self-governing Indigenous communities, but that where Section 25 is in a real and irreconcilable conflict with individual Charter rights, it trumps those rights.
The majority pointed out, however, that the provision must be interpreted in light of Section 28, which says all other sections guarantee rights equally to male and female persons.
The majority upheld the residency requirement. It said while the Vuntut Gwitchin’s residency requirement limited the rights of a disadvantaged group – non-residents – there was no need for judges to analyze whether the limit was justified, under the Charter’s Section 1, which allows for reasonable limits on rights. Instead, judges must look to Section 25, which it said in cases of unavoidable conflict is a “shield” against other rights in the Charter.
Section 25, the majority said, “reflects a constitutional choice to protect the collective rights and freedoms of Indigenous peoples in Canada as a distinct minority.” And the residency requirement protected the community’s traditional connection to the land, it said. The majority decision was co-authored by Justice Nicholas Kasirer and Justice Mahmud Jamal, and joined by Chief Justice Richard Wagner and Justice Suzanne Côté.
On its face, the section appears to give primacy to the collective rights of Indigenous communities, over the rights and freedoms protected elsewhere in the Charter.
“The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada,” Section 25 says, in part.
Two judges, including the court’s sole Indigenous member, Justice Michelle O’Bonsawin and Justice Sheilah Martin, said the Charter applies to self-governing First Nations, and they would have upheld Ms. Dickson’s claim of discrimination and struck down the residency requirement. They said previous cases established there is no hierarchy of rights protection in the Charter.
One judge, Justice Malcolm Rowe, said the Charter does not apply to the internal governance of Indigenous communities, unless there is a strong connection between an Indigenous government and a federal or provincial one.
The Vuntut Gwitchin nation is located in Old Crow, Yukon’s northernmost community. Ms. Dickson was born and raised there but left for schooling and opportunity and is a founder of an international forum in which eight countries address issues in the Arctic. She argued that the residency requirement violated her right to equality under Section 15 of the Canadian Charter of Rights and Freedoms.
But the Charter also has a section protecting the collective rights of Indigenous communities. And the Vuntut Gwitchin First Nation argued that this section – Section 25 – protects their collective right to make their own governance rules. They said their elders wanted them to return to their traditional ways of land-based governance, stressing that the outside world was unpredictable but that their land and traditions could be relied on.
The court also had to consider Section 25 alongside Section 35 of Canada’s 1982 Constitution. (Section 35 is not part of the Charter.) Section 35 recognizes and affirms treaty and aboriginal rights existing as of 1982.
The Yukon Court of Appeal found that while the residency requirement violated Ms. Dickson’s equality rights, Section 25 protected it from Ms. Dickson’s rights claim.
The Vuntut Gwitchin are a First Nation of just 560 people – less than half of whom live in its traditional territory of Old Crow. It negotiated a self-government agreement with Yukon and the federal government in 1993, and got out from under the strictures of the Indian Act.
In legal documents filed with the Supreme Court, the First Nation said the residency requirement is not discriminatory and that the Charter does not apply to its constitution. But even if it does, it argued, Section 25 would protect the community’s right to preserve its land-based traditions.
SEAN FINE, JUSTICE WRITER