Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 52024 SCC 10 (39856)

“In 1993, the Vuntut Gwitchin First Nation (“VGFN”) a self‑governing Indigenous community in the Yukon, concluded with the federal and Yukon governments a land claim agreement and a self‑government agreement, both of which were approved and given effect by federal and territorial legislation. As contemplated by the self‑government agreement, the VGFN adopted its own constitution, which provides for certain rights and freedoms for its citizens, rules for the organization of its government, and electoral rules and standards. Among other things, the VGFN Constitution includes a residency requirement stating that all Chief and Councillors must reside on the VGFN’s settlement land, in the village of Old Crow in the traditional territory of the Vuntut Gwitchin, or relocate there within 14 days of their election.

D, a Canadian citizen and a citizen of the VGFN, currently lives in Whitehorse, the capital of the Yukon, about 800 kilometers south of Old Crow. D wishes to stand for election as a VGFN Councillor but says she cannot move to Old Crow if elected, largely because her son requires access to medical care unavailable there. D challenged the residency requirement, asserting that it unjustifiably infringes her right to equality under s. 15(1) of the Charter. The VGFN countered that the residency requirement reflects its longstanding practice that its Chief and Councillors live on the Vuntut Gwitchin’s traditional territory. The VGFN also said the Charter does not apply to it as a self‑governing First Nation. Alternatively, it argued that, should the Charter apply, the residency requirement does not violate D’s right to equality and, even if it did, the requirement is nevertheless valid as it is shielded by s. 25 of the Charter, which the VGFN said upholds certain collective rights and freedoms of Indigenous peoples when those collective rights conflict with an individual’s Charter rights. Both the trial judge and the Court of Appeal held that the Charter applies to the VGFN and to its Constitution, pursuant to s. 32(1) of the Charter, and held that if D’s s. 15(1) equality right is infringed, the residency requirement is shielded by s. 25 of the Charter. D appeals on the question of the constitutional validity of the residency requirement, and the VGFN cross‑appeals on the question of the application of the Charter.”

The S.C.C. (4:3, in part) dismissed both the appeal and cross-appeal.

Justices Kasirer and Jamal wrote as follows (at paras. 4-6, 69-70, 88, 111-112, 118, 138-139, 143, 161, 164, 178-183, 218, 227):

“This appeal raises two novel issues bearing on the application of the Charter to a self‑governing Indigenous community. First, it invites the Court to consider whether, pursuant to s. 32(1) of the Charter, the VGFN is a government by nature or whether it is exercising a governmental activity so that Ms. Dickson’s individual Charter right would apply to its residency requirement. Second, if the Charter does apply to the VGFN, the Court must determine whether s. 25 can be invoked by the VGFN to shield the residency requirement from Ms. Dickson’s Charter challenge. Both the Supreme Court of Yukon and the Court of Appeal held that the Charter applied and that if Ms. Dickson’s s. 15(1) equality right was infringed, the residency requirement was shielded by s. 25. Ms. Dickson appealed on the question of the constitutional validity of the residency requirement, and the VGFN cross‑appealed on the question of the application of the Charter.

We would dismiss Ms. Dickson’s appeal. The Charter applies to the VGFN and to its citizens like Ms. Dickson, principally, but not only, because the VGFN is a government by nature. The circumstances here show that for Indigenous communities, s. 32(1) and s. 25 are intimately connected. It is true that the application of individual Charter rights to a self‑governing Indigenous community may be thought to inhibit the pursuit of rules designed to protect minority Indigenous rights and interests. But s. 25, by providing protection for collective Indigenous interests as a social and constitutional good for all Canadians, acts as a counterweight. Properly understood, s. 25 allows for the assertion of individual Charter rights except where they conflict with Aboriginal rights, treaty rights, or “other rights or freedoms” that are shown to protect Indigenous difference.

While Ms. Dickson has succeeded in showing a prima facie infringement of her right to equality under s. 15(1) of the Charter, as a non‑resident seeking election to the VGFN government, the VGFN has satisfied us that s. 25 protects its residency requirement from abrogation or derogation by her Charter right. Tied to ancient practices of government that connect leadership of the VGFN community to the settlement land, the residency requirement protects Indigenous difference and, pursuant to s. 25, cannot be abrogated or derogated from by Ms. Dickson’s individual Charter right with which it is in irreconcilable conflict.


 

To summarize, the Charter applies broadly to the legislative, executive, and administrative branches of government. The Charter applies to Parliament, the provincial legislatures, and the federal, provincial, and territorial governments in respect of all matters within the legislative authority of Parliament and the provinces, which includes entities not specifically listed under s. 32(1). Entities subject to the Charter cannot avoid their Charter obligations by conferring certain of their legislative responsibilities or powers on other entities that are not ordinarily subject to the Charter.

An entity may be subject to the Charter in one of two ways. An entity may be government by its very nature or because the federal or a provincial government exercises substantial control over it, in which case all the entity’s activities are subject to the Charter. Alternatively, even if an entity is not part of government, it will be subject to the Charter in respect of governmental activities it performs.



We hasten to say that in concluding that the VGFN engages each of the four illustrative indicia identified by this Court in Godbout for an entity that is government by nature, we do not of course suggest that an Indigenous government such as the VGFN exercising self-government powers is similar to a municipality. Unlike municipalities, which have no independent constitutional status, are entirely creatures of statute, and exercise only those powers conferred by legislation, Indigenous peoples are expressly recognized under the Constitution Act, 1867 (s. 91(24)), the Charter (s. 25), and the Constitution Act, 1982 (ss. 35 and 35.1). Indigenous peoples pre‑existed the arrival of European settlers and the founding of Canada as a country; they do not depend on federal, provincial, or territorial legislation to exist as autonomous self‑governing peoples.


 

In the reasons that follow, we seek to develop a framework to apply s. 25 to the circumstances of this case. The parties and interveners have described s. 25 as either a “shield” or an “interpretative prism” (or “interpretive prism”), but in our respectful view, neither term offers a full account of the provision. Section 25 mandates that when a Charter right abrogates or derogates from an Aboriginal, treaty, or other right belonging to the Aboriginal peoples of Canada, it can “shield” collective Indigenous rights from certain applications of the Charter. But to determine whether the individual Charter right conflicts with the collective Indigenous right or freedom, s. 25 directs that the individual Charter right must first be “construed”. Similarly, determining whether the residency requirement in the VGFN Constitution is an “other righ[t] or freedo[m] that pertain[s] to the aboriginal peoples of Canada” under s. 25 requires an exercise of interpretation.

In what follows, we first consider s. 25 in light of its purpose, with due consideration to its text, the Charter’s character and larger object, and the provision’s history. Second, we address the “other” collective rights and freedoms under s. 25 and their relationship to Indigenous difference. Finally, we discuss the scope of the so-called “shield” and “interpretative” aspects of s. 25, before considering whether the provision protects the residency requirement in the VGFN Constitution from Ms. Dickson’s s. 15(1) challenge, and further, whether the VGFN needs to justify its residency requirement under s. 1 of the Charter.



Four interpretative indicators support our view that s. 25’s purpose is to protect Indigenous difference against inappropriate erosion by individual Charter rights: (1) the text of the provision; (2) the character and larger objects of the Charter; (3) the origin, meaning, and purpose of the Aboriginal and treaty rights referred to in s. 25; and (4) extrinsic evidence relating to the advent of s. 25.


 

Indigenous difference is an appropriate criterion for circumscribing the “other rights or freedoms” under s. 25 because it helps identify the contours of the provision’s protective purpose if there is a conflict with an individual Charter right. Indigenous difference connects the “other righ[t] or freedo[m]” to the collective minority interest that s. 25 is designed to serve. When Indigenous difference is not shown to underlie the competing collective interest, the ultimate justification for setting aside the individual Charter right falls away. The concept of Indigenous difference connects the “other rights” to the rest of s. 25 and gives content to what it means for a right or freedom to belong to or benefit — to meaningfully “pertain to” — the Aboriginal peoples of Canada.

The clear relationship between ss. 25 and 35 suggests that their purposes must be seen as related. Section 35 speaks to how the Canadian Constitution protects Indigenous difference from unjustified legislative or executive infringement. In the same spirit, s. 25 ensures that the individual rights in the Charter do not themselves undermine Indigenous difference where they abrogate or derogate from the measures that protect that difference.



We thus conclude that the purpose of s. 25 is to protect certain Indigenous collective rights from the application of conflicting individual Charter rights or freedoms, when such application would diminish the Indigenous difference protected and recognized by the collective rights. When the application of the individual right would undermine in a non-essential or non-incidental way the Indigenous difference protected by the collective right, s. 25 directs that the collective right be given primacy. This differs from the process of determining whether the impairment of an individual Charter right is justified in a free and democratic society under s. 1 of the Charter, which is not solely targeted at protecting the collective minority right as a social and constitutional good.



The key question, then, is what kind of conflict must be shown between the collective and individual rights concerned for the s. 25 shield to operate. Standards ranging from “potential” to “true” conflict have been suggested. In our view, the conflict between the rights must be real and irreconcilable, such that there is no way to give effect to the individual Charter right without abrogating or derogating from the right within the scope of s. 25. To adopt a lesser standard, such as the mere possibility of a conflict, would detract from the seriousness of compromising an individual Charter right. Section 25 protects the collective Indigenous interest when the conflict is not hypothetical and cannot be avoided.



In sum, s. 25 does not serve as a “shield” whenever a right falling within its scope is at issue. Rather, when a Charter right is engaged by the exercise of an Aboriginal, treaty, or other right, courts must consider whether the two rights can be reconciled. If giving effect to a Charter right would only affect incidentally or in a non‑essential manner the s. 25 identified right — in the sense that it would not undermine Indigenous difference — or if the Charter right can be interpreted in a manner consistent with the Aboriginal, treaty, or other right, then it would be inappropriate to give priority to the right within the scope of s. 25. It is only when the s. 25 right is affected in a non-incidental manner, thereby creating an irreconcilable conflict between the two rights, that s. 25 will protect the Indigenous right by rendering the individual right ineffective to the extent of the conflict. In this sense, s. 25 will sometimes function as what author Arbour describes as a “pop up shield” (p. 13). At other times, it will have only an interpretive role.


 

The analysis above suggests a four-step framework under s. 25.

First, the Charter claimant must show that the impugned conduct prima facie breaches an individual Charter right. If no prima facie case is made out, then the Charter claim fails and there is no need to proceed to s. 25.

Second, the party invoking s. 25 — typically the party relying on a collective minority interest — must satisfy the court that the impugned conduct is a right, or an exercise of a right, protected under s. 25. That party bears the burden of demonstrating that the right for which it claims s. 25 protection is an Aboriginal, treaty, or other right. If the right at issue is an “other” right, then the party defending against the Charter claim must demonstrate the existence of the asserted right and the fact that the right protects or recognizes Indigenous difference.

Third, the party invoking s. 25 must show irreconcilable conflict between the Charter right and the Aboriginal, treaty, or other right or its exercise. If the rights are irreconcilably in conflict, s. 25 will act as a shield to protect Indigenous difference.

Fourth, courts must consider whether there are any applicable limits to the collective interest relied on. When s. 25’s protections apply, for instance, the collective right may yield to limits imposed by s. 28 of the Charter or s. 35(4) of the Constitution Act, 1982. Finally, where s. 25 is found not to apply, the party defending against the Charter claim may show that the impugned action is justified under s. 1 of the Charter.



Finally, we agree with both courts below that the residency requirement is of a “constitutional character” in a substantive, rather than formal, sense (trial reasons, at para. 207; C.A. reasons, at para. 147). The question of whether a “constitutional character” will always be required for s. 25 protection need not be decided: here it is clear that the residency requirement has a significant constitutional dimension. Beyond the mere fact that the residency requirement is part of the VGFN Constitution, it is an aspect of the First Nation’s law that preserves and enshrines an important dimension of VGFN leadership traditions and practices, and VGFN leaders’ connection to the land. We particularly note the Court of Appeal’s conclusion that the residency requirement “is clearly intended to reflect and promote the VGFN’s particular traditions and customs relating to governance and leadership — a matter of fundamental importance to a small first nation in a vast and remote location” (para. 147). On any reasonable understanding of what it means for a right or its exercise to have a “constitutional character”, the residency requirement meets this standard.



While s. 25 protections may be subject to other limits, including those imposed in relation to s. 28 of the Charter and s. 35(4) of the Constitution Act, 1982, no such restrictions are relevant here. The Court of Appeal found that s. 25’s protections extended to the entire residency requirement, including the 14-day relocation rule. Before this Court, Ms. Dickson has not sought Charter relief regarding the 14-day relocation rule (A.R., vol. I, at pp. 209-10) or made arguments on severance. Given the burdens resting on Charter claimants under s. 25, we would not limit s. 25’s protection in relation to that rule. Finally, because s. 25 applies to the residency requirement, the VGFN need not justify the residency requirement under s. 1 of the Charter.”