The relationship between the individual rights to freedom and equality secured under the Charter of Rights and Freedoms and the recognition of the collective rights of Indigenous Peoples under section 35 of the Constitution Act, 1982, has long been a point of contention and uncertainty for Indigenous Peoples. The Supreme Court of Canada has the chance to resolve this conflict in a way that respects Indigenous laws, institutions, and modern Crown-Indigenous treaties in the Dickson v. Vuntut Gwitchin First Nation case.
Indigenous Self-Government & the Charter
In the Dickson case, a Vuntut Gwitchin First Nation (VGFN) member brought a Charter claim against the First Nation because of the residency restriction in its election code. Anyone elected to the First Nation’s Council must live or move to the village of Old Crow on the First Nation’s settlement lands to hold elected office. Ms. Cindy Dickson, a member of the First Nation who lives outside of the settlement lands, requested that the court rule the residency restriction invalid because it infringes on her section 15 Charter rights.
The residency requirement is a provision of the First Nation’s modern Constitution. It was established as part of its self-government agreement and treaty with Canada and is an integral expression of the Nation’s inherent right to self-governance.
The First Nation gave many reasons against the Charter’s application. Those arguments included that the Charter’s applicability is not addressed in either the First Nation’s self-government agreement or its modern treaty with Canada. It raises the question of whether the Charter applies to Indigenous governments with self-government agreements with the Crown and who wield inherent authority. The subsequent analysis is centred on this aspect of this case.
What’s at stake in Dickson v. Vuntut Gwitchin First Nation?
Despite finding that the Charter applied to VGFN legislation, the trial and appellate level courts upheld the disputed VGFN law by referring to section 25 of the Charter to protect Indigenous authority. Nevertheless, there are significant ramifications for the meaningful recognition of Indigenous Peoples’ law and jurisdiction considering the Court’s decision to apply the Charter to the Vuntut Gwitchin Constitution.
Nothing in the Charter, according to Section 25, “abrogates or derogates from any aboriginal, treaty, or other rights or freedoms that pertain to the aboriginal peoples of Canada.“ Although this drafting is clear, the extent of legal protection Canadian courts will give to it is relatively unknown. There is ongoing legal debate as to its scope, as well as whether it serves as a shield to protect Indigenous legal rights and orders or merely as an interpretive tool to direct the construction where there is a possibility of conflict with Charter rights.
It is important to protect section 25’s original purpose as a broad shield against the Charter’s weakening of collective Indigenous rights, but Dickson should not start there.
Instead, the court needs to ask if the Charter should be read to apply to the VGFN Constitution at all? The VGFN Constitution is their supreme law. It is based on the First Nation’s customary laws, norms, unique institutions and internal governance practices. Recall that, unlike many others, the VGFN self-government agreement is silent on the Charter. VGFN did not adopt their Constitution until after successfully negotiating its self-government agreement with Canada.
For modern treaty negotiations to be effective, First Nations must have confidence in their implementation. Significant compromises and difficult decisions are made during those negotiations. Many First Nations are motivated by the knowledge that their inherent right to govern themselves will be recognized and respected at the end of what seems to be an endless and exhausting process. The danger in the Supreme Court following the example of the lower courts in Dickson, is that it might show First Nations that the outcome may instead only be a partial recognition of Indigenous law and jurisdiction.
Shared Sovereignty & the Federalist Framework
Courts have ruled that Indian Act governments are subject to the Charter, however, they operate under delegated authority. The exercise of inherent power is distinct. Neither the Crown nor any of its laws—including the Constitution and Charter—are the source of inherent rights; they merely recognize them.
Indigenous Laws are external to Canadian jurisprudence and—absent the Indigenous government’s agreement—the Charter should not apply to their internal laws. Particularly not in a manner that is both automatic and which risks rendering the Indigenous nations’ own Constitution and highest law null and void.
Recognizing this, Canada’s renewed comprehensive land claims mandate requires modern treaties to confirm the Charter’s application to Indigenous Peoples. (Whether such “positional bargaining” is helpful for government-to-government negotiation or contradicts the right to self-determination under international law—such as UNDRIP—is a topic for a future article). But the point is that this negotiating requirement was not in place when VGFN concluded either their land claim or self-government agreement. Neither address how or if the Charter is to apply. Without the Indigenous government’s consent, there is no legitimate legal reasoning as to why the Charter would apply to the internal exercise of their inherent rights.
To implement the treaty in any other way would be to dishonour the negotiating process that takes place between governments. It also impermissibly violates the fundamental minimum right that Indigenous Peoples have to govern themselves in accordance with their own values and traditions. The collective rights of Indigenous Peoples have already survived hundreds of years of paternalism and suppression of their culture and laws. Modern treaty implementation is not yet another opportunity to continue the colonist’s work.
Keep in mind that throughout the process of negotiating section 35 and the repatriation of the Constitution, Indigenous governments purposefully campaigned for it to live outside of the Charter, and they were successful in doing so. This was done on purpose since the conceptual framework of individual human rights was fundamentally at odds with the communal character of Aboriginal rights. Both Indigenous governments and our Constitution itself envisioned the specifics and coordination between these rights—as with all of Section 35’s rights—being best handled through the government-to-government discussions and negotiation that was to occur following the now-largely forgotten constitutional conferences under Section 37. And this issue remains far more political in its nature and substance than it is strictly legal.
Nevertheless, the trial and appellate level courts found that VGFN legislation was inside the Charter’s purview. To reach this result, the law had to be bent in some odd ways. The courts didn’t agree with VGFN’s claim that the application of the Charter was a political issue that should be settled through talks between governments instead of in court. Even though Canada’s updated mandate implies that it is, and even though this issue is being actively discussed at self-government negotiating tables throughout the country.
From a legal point of view, this didn’t make sense, and from a political point of view, it wasn’t necessary because the evolving system of cooperative federalism lets different zones of sovereignty operate concurrently. If Indigenous law isn’t seen as a separate form of government when looking at specific Charter claims, it runs the risk of undermining the intent of section 35 and diminishing the value of participating in modern treaty negotiations for Indigenous Peoples as a way to work with the settler state on longstanding efforts to reclaim self-determination.
Decolonizing Canadian Law & Embracing the Third Order of Government
Decolonizing our legal system requires recognizing and reconciling ourselves with its colonial roots. It also calls for unwavering adherence to a principled process, which includes intergovernmental negotiations.
The logic applied in seeking to transmute the beginning of the formal recognition for Indigenous Peoples’ prior, unextinguished and undiminished inherent right to govern themselves into an opportunity to subsume those same jurisdictions and authorities under a settler rights paradigm they had no input into, didn’t consent to, and that paid no regard to their own institutions, traditions, and governing methods won’t get us where we want to go together. That sort of legal alchemy stems from the same paternalism and colonial mindset that attempts to justify the mere assertion of Crown sovereignty as sufficient to change Indigenous Peoples’ centuries-long relationship with their lands.
We have been down that road before. It is all too familiar. We know where it leads, and it is not to reconciliation or a productive working relationship as governing partners with the first peoples of this land.
However, a fair reading of the VGFN modern treaties and section 35 would acknowledge the existence of three sovereignties in Canada’s pluri-national and -cultural federalist framework: Provincial, Federal and Indigenous. Each equivalent in legal and constitutional terms within its respective sphere. While there is room for collaboration and concurrence, none is open to the unilateral imposition of the laws of the other onto their internal authorities absent collaborative consent.
That includes something as taken as a given and sacred to non-Indigenous Canadians as is the Charter. To hold otherwise and impose the Charter on Indigenous governments promotes a serious constitutional imbalance and lack of parallelism that diminishes and delimits Indigenous governments at the very moment of their reconciled re-birth within Canada’s constitutional order.
For these reasons, the Supreme Court’s upcoming decision in Dickson will have wide-ranging impacts on Indigenous rights, including customary election codes and other First Nations’ inherent jurisdiction exercises to make their own laws. Consequently, Dickson could not only shape the relationship between Indigenous governments and the Charter going forward, but also has significant implications on how Indigenous self-government rights are negotiated, recognized and exercised, as well as the operation and interaction of the distinct orders of government in our federalist framework.
Disclaimer: This article provides general information only and is not meant for use as legal advice for specific legal issues or problems.
 Vuntut Gwitchin First Nation Constitution, (2019) at pg.12, online (pdf) <www.vgfn.ca/pdf/constitution%202019.pdf>
 Dickson v Vuntut Gwitchin First Nation, 2020 YKSC 22 at paras 145, 206 and Dickson v Vuntut Gwitchin First Nation, 2021 YKCA 5 at paras 1-36 [collectively, Dickson].
 Vuntut Gwitchin First Nation Final Agreement (1993); Vuntut Gwitchin First Nation Self-Government Agreement (1993).
 The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. s. 25.
 On the application of the Charter to Indian Act, RSC 1985, c I-5 governments, see Taypotat v Taypotat, 2013 FCA 192 at para 39.
 United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295, UNGAOR, 61st Sess, Supp No 49, UN Doc A/RES/61/295 (2007) [UNDRIP], see for example Articles 3-4 and 31.
 Borrows, John. “Sovereignty’s Alchemy: An Analysis of Delgamuukw v BC” Osgoode Hall Law Journal. Vol. 37, Iss. 3. (1999).
Written by: Nick Leeson
Nick Leeson is a former OKT Lawyer.
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