Dickson v. Vuntut Gwitchin First Nation

Dickson v. Vuntut Gwitchin First Nation
Collection
Supreme Court Judgments
Date
2024-03-28
Neutral citation
2024 SCC 10
Case number
39856
Judges
Wagner, Richard; Côté, Suzanne; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas; Jamal, Mahmud; O’Bonsawin, Michelle
On appeal from
Yukon
Subjects
Constitutional law
Notes
Case in Brief SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10
Appeal Heard: February 7, 2023 Judgment Rendered: March 28, 2024 Docket: 39856
Between:
Cindy Dickson Appellant/Respondent on cross-appeal
and
Vuntut Gwitchin First Nation Respondent/Appellant on cross-appeal
- and -
Attorney General of Canada, Attorney General of Quebec, Attorney General of Alberta, Government of Yukon, British Columbia Treaty Commission, Métis Nation of Ontario, Métis Nation of Alberta, Carcross/Tagish First Nation, Teslin Tlingit Council, Congress of Aboriginal Peoples, Council of Yukon First Nations, Pan-Canadian Forum on Indigenous Rights and the Constitution, Canadian Constitution Foundation, Band Members Alliance and Advocacy Association of Canada and Federation of Sovereign Indigenous Nations Interveners
Coram: Wagner C.J. and Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
Joint Reasons for Judgment: (paras. 1 to 231)
Kasirer and Jamal JJ. (Wagner C.J. and Côté J. concurring)
Joint Reasons Dissenting in Part: (paras. 232 to 416)
Martin and O’Bonsawin JJ.
Reasons Dissenting in Part: (paras. 417 to 523)
Rowe J.
Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
Cindy Dickson Appellant/Respondent on cross‑appeal
v.
Vuntut Gwitchin First Nation Respondent/Appellant on cross‑appeal
and
Attorney General of Canada,
Attorney General of Quebec,
Attorney General of Alberta,
Government of Yukon,
British Columbia Treaty Commission,
Métis Nation of Ontario,
Métis Nation of Alberta,
Carcross/Tagish First Nation,
Teslin Tlingit Council,
Congress of Aboriginal Peoples,
Council of Yukon First Nations,
Pan-Canadian Forum on Indigenous Rights and the Constitution,
Canadian Constitution Foundation,
Band Members Alliance and Advocacy Association of Canada and
Federation of Sovereign Indigenous Nations Interveners
Indexed as: Dickson v. Vuntut Gwitchin First Nation
2024 SCC 10
File No.: 39856.
2023: February 7; 2024: March 28.
Present: Wagner C.J. and Côté, Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.
on appeal from the court of appeal for yukon
Constitutional law — Charter of Rights — Application — Right to equality — Discrimination based on non-resident status in self‑governing Indigenous community — Self‑governing Indigenous community requiring chief and councillors to reside on settlement land or relocate there within 14 days of election — Citizen of community wishing to stand for election but living away from settlement land — Citizen bringing constitutional challenge to residency requirement on basis of infringement of Charter right to equality — Whether Charter applies to residency requirement — If so, whether residency requirement infringes citizen’s right to equality — Canadian Charter of Rights and Freedoms, ss. 15, 32.
Constitutional law — Charter of Rights — Aboriginal peoples — Aboriginal rights — Self‑governing Indigenous community requiring chief and councillors to reside on settlement land or relocate there within 14 days of election — Citizen of community wishing to stand for election but living away from settlement land — Citizen bringing constitutional challenge to residency requirement on basis of infringement of Charter right to equality — Whether citizen’s right to equality, properly construed, abrogates or derogates from Aboriginal, treaty or other rights or freedoms that pertain to Aboriginal peoples of Canada — Canadian Charter of Rights and Freedoms, s. 25.
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 kilometres 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.
Held (Rowe J. dissenting on the cross‑appeal, Martin and O’Bonsawin JJ. dissenting on the appeal): The appeal and the cross‑appeal should be dismissed.
Per Wagner C.J. and Côté, Kasirer and Jamal JJ.: The Charter applies to the VGFN and to its citizens like D, principally because the VGFN is a government by nature pursuant to s. 32(1) of the Charter. Furthermore, D has succeeded in showing that the residency requirement constitutes a prima facie infringement of her right to equality under s. 15(1) of the Charter. However, the residency requirement is an exercise of an “other right or freedom” that pertains to the Aboriginal peoples of Canada under s. 25 of the Charter. The residency requirement protects Indigenous difference — understood as interests connected to Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty, or Aboriginal participation in the treaty process. D’s s. 15(1) claim abrogates or derogates from this right, with which it is in irreconcilable conflict; as a result, pursuant to s. 25, D’s s. 15(1) claim cannot be given effect.
The application of the Charter is addressed in s. 32(1), which identifies certain entities that are bound by the Charter. They include the legislature and government of each province in respect of provincial matters, as well as the federal Parliament and government in respect of federal matters, which includes territorial governments and territorial matters. Section 32(1) also explicitly contemplates that the Charter applies to other entities, including those that are controlled by government or that perform truly governmental functions. Such entities may be subject to the Charter in one of two ways, as set out in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624. First, an entity may be found to be “government” for the purpose of s. 32(1) if it can be characterized as government by its very nature or because of the degree of governmental control exercised over it. In such a case, all the entity’s activities are subject to the Charter. Second, even if an entity is not itself “government” for s. 32(1) purposes, it will be subject to the Charter with respect to particular activities that can be ascribed to a government because they are governmental in nature. Parliament and the provinces 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.
In respect of the “by nature” test of the first branch of the Eldridge framework, entities may be considered to be government by nature when they typically have the following features, which are neither necessary nor determinative, but which serve as useful indicia of government: (1) they are democratically elected by members of the public and accountable to their constituents; (2) they have a general taxing power that is indistinguishable from the taxing powers of Parliament or the provinces; (3) they are empowered to make, administer, and enforce laws within a defined territorial jurisdiction; and (4) they derive their existence and lawmaking authority from Parliament or the provinces, and they exercise powers that Parliament or the provinces would otherwise exercise. As for the “control” test of the first branch, the Charter will apply to an entity upon which Parliament or the provinces confer governmental powers within their authority, if Parliament or the province in question has substantial control over the entity’s activities. In such circumstances, the entity cannot be said to be operating autonomously from government within the meaning of s. 32(1) of the Charter.
Under the second branch of the Eldridge framework, the Court has previously recognized an entity’s activities as being subject to the Charter where the entity: exercised discretion under government legislation about how to provide services; was created by statute and all of its actions at issue were taken pursuant to statutory authority; or implemented a specific government program and exercised powers of statutory compulsion. In such circumstances, an entity cannot escape Charter scrutiny merely because it is not part of government or controlled by government. Even if an entity is otherwise independent from government, the presence of a delegated statutory power of compulsion means that the entity has a coercive power of governance that is not possessed by private individuals, corporations, or organizations. It is this power that makes the Charter applicable to bodies exercising statutory authority.
In the instant case, the Charter applies to the VGFN Constitution’s residency requirement because the VGFN is a government by nature under the first branch of the Eldridge framework. While the VGFN does not qualify as government under the “control” test of the first branch because it is not substantially controlled by either the federal or the Yukon government, the VGFN as an Indigenous government illustrates the indicia for government by nature: the VGFN Council consists of members who are elected by eligible voters of the VGFN and are democratically accountable to their constituents, much like members of Parliament or a provincial legislature; the VGFN has general taxing powers that are materially indistinguishable from those of Parliament or the provinces; like Parliament and provincial legislatures, the VGFN is empowered to make, administer, and enforce coercive laws that are binding on VGFN citizens and on the public generally within its settlement land; and at least one source of the VGFN’s lawmaking authority flows from Parliament, in that the VGFN exercises powers that Parliament otherwise would have exercised through its legislative jurisdiction.
Additionally, the Charter applies to the residency requirement because its enactment and enforcement by the VGFN constitutes a specific governmental activity. The residency requirement under the VGFN’s Constitution was adopted at least in part under federal statutory authority (even assuming it also reflects the exercise of an inherent right to self-government). It involves the exercise of a statutory power of compulsion because it imposes legal restrictions on who may serve as a VGFN Chief or Councillor. The requirement has the force of law because it forms part of the VGFN Constitution, adopted under the VGFN’s self‑government agreement, which was itself approved and given effect by the federal and territorial implementing legislation.
Since the Charter applies to the VGFN’s residency requirement, it must be determined whether the residency requirement unjustifiably infringes s. 15(1) of the Charter by barring D from serving on the VGFN Council unless she moves from Whitehorse to Old Crow within 14 days of her election. This issue requires a consideration of the framework for analyzing whether D’s s. 15(1) Charter right, properly construed, abrogates or derogates from “aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada” under s. 25 of the Charter. For Indigenous communities, s. 32(1) and s. 25 of the Charter are intimately connected. While the application of individual Charter rights to a self‑governing Indigenous community pursuant to s. 32(1) may be thought to inhibit the pursuit of rules designed to protect minority Indigenous rights and interests, s. 25 acts as a counterweight by providing protection for collective Indigenous interests as a social and constitutional good for all Canadians. 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.
Section 25 must be considered in light of its purpose, with due consideration to its text, the Charter’s character and larger object, and the provision’s history. The purpose of s. 25 is to uphold certain collective rights and freedoms of Indigenous peoples when those collective rights conflict with an individual’s Charter rights — i.e., to ensure that the designated rights and freedoms of Indigenous peoples are protected where giving effect to conflicting individual Charter rights and freedoms would diminish Indigenous difference. When an individual’s Charter right would abrogate or derogate from an Aboriginal, treaty, or other right, s. 25 requires the collective Indigenous right to take precedence, even if the Charter claimant is a member of the Indigenous group concerned. This purpose aligns with the broad goals of s. 35 of the Constitution Act, 1982 and is in step with the need to reconcile the sovereignty of the Crown with the reality that Indigenous peoples lived in North America, in distinct societies with laws, traditions, and customs, long before European contact. Section 25 echoes the aspiration to reconcile the guarantee of individual rights and freedoms in the Charter for all Canadians with the distinctive collective rights of Indigenous peoples.
The text of s. 25 refers to “aboriginal, treaty or other rights or freedoms”. Aboriginal and treaty rights are protected by s. 35 of the Constitution Act, 1982. By including “other” rights and freedoms among those deserving of constitutional protection, s. 25 speaks to a wider range of rights than s. 35. It is clear from the text and purpose of s. 25 that the provision’s protections are not restricted to rights with constitutional status. However, the text and purpose of s. 25 do suggest another substantive restriction: consonant with the principle of the protection of Indigenous peoples as a distinct minority, and because s. 25 was intended to protect rights associated with Indigenous difference, the “other rights or freedoms” in s. 25 are limited to those that protect Indigenous difference.
The protection of Aboriginal, treaty, and other rights in s. 25 is not, however, absolute. When a right has been shown to come within the scope of s. 25, its protections do not apply automatically. Those protections apply only if it is determined that there is irreconcilable conflict between the claimed Charter right and the s. 25 right, such that giving effect to the Charter right would undermine the Indigenous difference protected or recognized by the collective right. In any given case, the individual and collective rights referred to in s. 25 may not actually be in conflict. Some individual rights are part of Indigenous law and coexist with collective interests. In addition, s. 25 would not apply if the individual Charter right invoked conflicted with an Indigenous right that does not rest on Indigenous difference. And like s. 35 rights, the primacy afforded to the collective rights under s. 25 is subject to the equality guarantee for “male and female persons” under s. 28 of the Charter and s. 35(4) of the Constitution Act, 1982.
There is broad consensus that s. 25 does not create new substantive rights. However, the details of s. 25’s operation remain largely unsettled. The jurisprudence considers two competing views on the effect of s. 25 — first, as a “shield”, under which a successful invocation of s. 25 would bar a Charter claim in circumstances where applying the Charter right would abrogate or derogate from a right within the scope of s. 25; or second, as an “interpretative prism” (or “interpretive prism”), or rule of interpretation, under which courts would attempt to construe the relevant Charter right to give effect to it without abrogating or derogating from the identified s. 25 right. Under the latter view, if a conflict occurs, the Aboriginal, treaty, or other right would be afforded no special priority, and the question as to whether the collective Indigenous right should be upheld would be left to judicial discretion, to be determined on a case‑by‑case basis.
The proper approach to s. 25 includes elements drawn from both approaches. Section 25 can be said to have a shielding effect because it affords primacy to Aboriginal, treaty, or other rights. However, a right within the scope of s. 25 is only prioritized after an interpretative exercise demonstrates that there is an irreconcilable conflict between the collective right and the individual Charter right in question. While the provision will sometimes serve as a shield for Aboriginal, treaty, and other rights, to protect the collective minority interest of Indigenous peoples, an absolutist approach to s. 25 is inconsistent with a purposive approach to interpretation. It also stands in opposition to the idea that in Indigenous legal cultures, as in Canadian constitutional law, individual and collective rights are conceived as operating harmoniously.
With respect to the kind of conflict between the collective and individual rights concerned that must be shown for the s. 25 shield to operate, 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. The conflict cannot be hypothetical. The requirement of an irreconcilable conflict between the two rights best aligns with the purpose and text of s. 25 because if there is a way, through fair and careful interpretation, for courts to give effect to the Charter right and to the s. 25 identified right, then both rights are respected, and the conflict is averted. Determining whether there is an irreconcilable conflict between the rights at issue is an interpretive exercise. It requires courts to interpret the substance of both the Charter right and the Aboriginal, treaty, or other right at issue. This interpretive exercise must be informed by, and respectful of, Indigenous perspectives. At the same time, courts must be careful not to depart from the generous interpretation of individual Charter rights and freedoms mandated by the applicable jurisprudence.
As such, 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 the Charter right would only affect the s. 25 identified right incidentally or in a non‑essential manner — 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 a shield, and at other times, it will have only an interpretive role.
Because s. 25 is directed at safeguarding Aboriginal, treaty or other rights that aim to protect Indigenous difference, the focus of s. 25 is on collective rights, irrespective of the identity of the individual or entity bringing the Charter challenge. The result is that the same analytical framework applies whether or not the Charter claimant is Indigenous, whether s. 25 is being asserted by an Indigenous group, or whether both parties are Indigenous. The s. 25 shield finds immediate application if a claimed Charter right abrogates or derogates from a collective s. 25 right, regardless of the parties involved. There is no basis in the text of s. 25 for finding that the protective shield should apply differently based on the parties’ identities. There is, however, a need for great caution when the claim is brought by an Indigenous person against their own community; courts should proceed carefully to avoid unnecessarily or unwittingly imposing incompatible ideas or legal principles upon the community’s distinctive Indigenous legal system.
Finally, if s. 25 is invoked in the face of a Charter claim, courts should consider applying it at the earliest possible stage without unduly prejudicing the individual Charter challenge. Given the competing interests that must be reflected in the s. 25 framework, the earliest that s. 25 could be properly considered is once the Charter claimant has shown a prima facie breach of their Charter right. When Aboriginal, treaty, or other rights or freedoms specified in s. 25 are engaged, the limits on a competing individual Charter right need not be justified under s. 1 of the Charter. Unlike s. 1, s. 25 reflects a constitutional choice to protect the collective rights and freedoms of Indigenous peoples in Canada as a distinct minority. In keeping with a long tradition of respect for minorities, s. 35 of the Constitution Act, 1982 provides protection for existing Aboriginal and treaty rights, while s. 25 of the Charter similarly sets forth a non‑derogation clause in favour of the rights of Indigenous peoples. The protection of s. 25 is allied with the strength of the promise to the Indigenous peoples of Canada in s. 35, which recognized not only the ancient occupation of land by Indigenous peoples, but also their contribution to the building of Canada, and the special commitments made to them by successive governments. Any justification under s. 1 should be required only if the court finds s. 25 inapplicable. This is so when there is no Aboriginal, treaty, or “other right” in play, when the “other right” does not engage Indigenous difference, or when there is no irreconcilable conflict between the rights. In those circumstances, the party defending the impugned action can still seek to justify the limitation under s. 1 of the Charter.
The framework under s. 25 therefore has four steps. 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 that same party 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. If s. 25 is found not to apply, the party invoking s. 25 may show that the impugned action is justified under s. 1 of the Charter.
Applying this analysis to the present case, first, D’s s. 15(1) Charter right was prima facie breached by the residency requirement, which created a distinction based on the analogous ground of non‑resident status in a self-governing Indigenous community, and this distinction reinforced and exacerbated D’s existing disadvantage as a non‑resident member of the VGFN. With respect to the first step of the s. 15(1) test, D’s non‑resident status in a self‑governing Indigenous community qualifies as an analogous ground. The historical and continuing disadvantage faced by Indigenous people living away from their traditional lands means that distinctions based on such a status will serve as constant markers of suspect decision making or potential discrimination. As for the second stage of the s. 15(1) analysis, the residency requirement, which draws a distinction on the basis of non‑resident status in a self‑governing Indigenous community, reinforces, perpetuates, or exacerbates D’s disadvantage as a non-resident VGFN citizen.
Second, the VGFN has established that the residency requirement in its Constitution is an exercise of an Aboriginal, treaty, or other right under s. 25. It is an exercise of an “other right”, namely, the right to set criteria for membership in the VGFN’s governing body. In light of the evidence and the factual findings at trial, the residency requirement is clearly an exercise of a right that protects interests associated with Indigenous difference. The right to impose residency‑based restrictions on the membership of its governing bodies enables Vuntut Gwitchin society to preserve the distinctive emphasis it places on its leaders’ connection to the land. This is plainly a foundation for the connection between Indigenous difference and the residency requirement. Requiring VGFN leaders to reside on settlement land helps preserve the leaders’ connection to the land, which is deeply rooted in the VGFN’s distinctive culture and governance practices. It also bolsters the VGFN’s ability to resist the outside forces that pull citizens away from its settlement land and prevents erosion of its important connection with the land. Such interests are associated with various aspects of Indigenous difference.
Third, the VGFN has established that, properly interpreted, D’s s. 15(1) right and its right within the scope of s. 25 are irreconcilably in conflict. To apply s. 15(1) would abrogate or derogate from the Vuntut Gwitchin’s right to govern themselves in accordance with their own particular values and traditions and in accordance with the self‑government arrangements entered into with Canada and the Yukon. The Indigenous difference protected by the residency requirement is inextricably tied to the VGFN’s connection to the settlement land. Permitting a Councillor to reside in Whitehorse would unacceptably diminish this connection and would undermine, in a non-incidental way, the VGFN’s right to decide on the membership of its governing bodies. Giving effect to D’s Charter right in such a manner would pose a real risk to the continued vitality of Indigenous difference and would abrogate or derogate from the VGFN’s right, contrary to s. 25. This engages s. 25 as a protective shield, insulating the collective right from the individual Charter claim.
Fourth, while s. 25 protections may be subject to other limits, no such restrictions are relevant to this dispute. The Court of Appeal found that s. 25’s protections extended to the entire residency requirement, including the 14‑day relocation rule, and D did not seek any relief regarding that rule, nor did she make arguments on severance. Finally, because s. 25 applies, the VGFN need not justify the residency requirement under s. 1 of the Charter.
Per Martin and O’Bonsawin JJ. (dissenting on the appeal): The appeal should be allowed, the cross‑appeal should be dismissed, and the residency requirement should be declared to be of no force or effect. There is agreement with the majority that the Charter applies to the impugned residency requirement, that the VGFN is a government by its very nature, and that the residency requirement infringes D’s right to equality guaranteed by s. 15(1) of the Charter. There is disagreement with the majority, however, that the residency requirement falls within the ambit of s. 25 of the Charter. Rather, as it is not aimed at recognizing the special status of Indigenous collectives within the broader Canadian state, the residency requirement falls outside the ambit of s. 25 protection. Further, the residency requirement is not demonstrably justified pursuant to s. 1 of the Charter.
The Charter applies to governmental action taken by self-governing Indigenous nations both because they are governmental in nature and because the purpose of s. 32(1) was to extend the Charter’s protections to address the power imbalance between the governed and those who govern. The purpose underlying the scope of the Charter’s applicability is to address that power imbalance by subjecting governmental action to constitutional review in order to protect individual rights and freedoms. Section 32(1) captures governmental action in respect of “matters within the authority” of Parliament and the provincial legislatures: any such governmental action is subject to Charter scrutiny. All orders of government are captured regardless of their connection to formal federal or provincial government structures. This broad ambit of s. 32(1) is supported by the Court’s s. 32(1) jurisprudence, which has consistently affirmed the broad range of entities captured by the provision and recognized the importance of the power imbalance between the governed and those who govern to determining whether an entity is captured by s. 32(1). The broad ambit of s. 32(1) is also supported by other sections of the Constitution Act, 1982, for instance, s. 52(1) and s. 25, which provide guidance on how any particular interpretation of s. 32(1) would accord with the internal architecture of the Constitution of Canada.
The Charter therefore applies to Indigenous governments because they have lawmaking authority over legislative matters caught by s. 32(1). This recognition of self‑governing Indigenous nations as governments in their own right, and not by virtue of delegated power, falls clearly within the purpose and ambit of s. 32(1). The existing s. 32(1) jurisprudence is not directly applicable to Indigenous governments. Legal tests devised outside the distinct context of Indigenous governments should not be read as a complete answer on the scope of the Charter’s applicability to self-governing Indigenous nations. The delegated authority or substantial control approaches used in the s. 32(1) jurisprudence should not be read as imposing a condition that authority be delegated by Parliament or the provincial legislatures for the Charter to apply. Consequently, delegation under s. 91(24) of the Constitution Act, 1867 is not required under the first branch of Eldridge when it is being applied to the unique situation of self‑governing Indigenous nations. It is not necessary for the impugned action to stem from authority granted by federal, provincial, or territorial legislation for it to be subject to Charter scrutiny. To interpret s. 32(1) and the Eldridge framework as being limited to situations of delegated authority would prioritize an overly textual approach to s. 32(1) and deprive Indigenous people of the Charter’s protections when their rights have been infringed by their own governing bodies. This recognition of self‑governing Indigenous nations in their own right also upholds longstanding Indigenous practices of self‑governance and advances reconciliation in Canada.
There is agreement with the majority that the VGFN falls within the first branch of Eldridge as it is a government by nature and that, accordingly, it is subject to the Charter. There is also agreement that the VGFN’s enactment of the residency requirement must attract Charter scrutiny. Indeed, the VGFN is a government by its very nature because it exercises legislative and executive powers pertaining to matters “within the authority” of Parliament and the provincial legislatures. Its structure and functions reflect its inherently governmental nature: it creates laws and makes decisions that benefit, order, and restrict the lives of its citizens. There is disagreement with the majority’s notion that an essential factor for the Charter’s applicability under s. 32(1) is that the source of the VGFN’s lawmaking authority flows from Parliament. The VGFN is not a creature of statute, does not derive its lawmaking authority through delegation, and does not need to ground its governmental status by reference to what has been transferred from another level of government.
Section 25 of the Charter operates as an interpretive aid to help protect the distinct collective rights Indigenous peoples possess as Aboriginal peoples of Canada by prescribing an interpretive exercise to resolve challenges posed by competing collective Indigenous rights and individual Charter rights. It plays a distinct role from other Charter provisions, operating to preserve a form of collective rights unique to Indigenous peoples while at the same time recognizing that when Indigenous governments do make distinctions between their citizens, individuals and minorities within the collective should nevertheless benefit from all the constitutionally entrenched protections of the Charter. Like other Charter provisions, s. 25 must be interpreted purposively. While on a fair textual reading, it is capable of supporting either of the competing approaches on its effect, that is, either a shield or an interpretive prism approach, based on its nature, purpose, and history, it was intended to operate as an interpretive prism.
Section 25 furthers a particular purpose: to ensure that the introduction of a constitutionally entrenched bill of rights in Canada did not have the effect of abrogating or derogating from the unique rights held by Indigenous peoples that stem from their identity as Indigenous peoples. Legislative debates on constitutional reform shed light on its purpose. A review of the Charter drafting and negotiation process reveals a preservation of rights approach with respect to s. 25 — aimed at ensuring that the Charter would not lessen other existing rights, including unique rights held by Indigenous peoples. Earlier draft provisions of what became s. 25 suggest the government intended for the provision to protect collective Indigenous rights from being erased or excluded by the assertion of individual rights under relevant Charter sections. Three important conclusions about the purpose of s. 25 can be discerned from the provision’s legislative origins. First, the inclusion of s. 25 was motivated by concerns about how the collective rights and interests of Indigenous peoples might interact with the constitutional entrenchment of individual rights — especially the right to equality under s. 15(1). Second, s. 25 was not intended to create or confer rights but rather was envisaged as an interpretive tool. Third, the provision’s aim is to protect the special status of certain collective rights held by Indigenous peoples — rights that pertain uniquely to Indigenous peoples because they are Indigenous.
Many other important principles arising from constitutional jurisprudence, from post‑1982 constitutional engagement and from international sources support the conclusion that s. 25 operates as an interpretive prism that ensures both collective and individual rights are respected. These sources support the view that s. 25 should not be interpreted in a way that prohibits Indigenous claimants from accessing other sections of the Charter, including s. 15(1), even if the challenge is to their own communities’ laws. The Court’s jurisprudence has consistently affirmed that all parts of the Constitution must be read together and that there is no hierarchy among its various provisions. The 1996 Final Report of the Royal Commission on Aboriginal Peoples called for s. 25 to be given a flexible interpretation that takes account of the distinctive philosophies, traditions and cultural practices of Aboriginal peoples. The United Nations Declaration on the Rights of Indigenous Peoples, which is binding on Canada, recognizes the need to protect both the collective and individual rights of Indigenous peoples and is illustrative of how one type of right cannot absolutely trump another. Further, Indigenous nations, as governments in their own right, can entrench the rights of their citizens in constitutional documents. These Indigenous legal orders form an integral part of Canadian law and Indigenous governments are not immunized from the responsibility of respecting the individual rights and freedoms articulated in the Charter, subject to the interpretive function performed by s. 25 when collective Indigenous rights are implicated.
There is disagreement with the majority as to the scope of protection afforded by s. 25. Rights within the scope of s. 25 are limited to those that are truly unique to Indigenous peoples because they are Indigenous. They do not extend to all matters on which Indigenous governments may act. The majority’s formulation that an “other” right will fall within the ambit of s. 25 when the party seeking to rely on it establishes that the “right protects or recognizes Indigenous difference” is too broad and does not serve a meaningful filtering function at the rights recognition stage. It is not enough for a right to relate to Indigenous peoples to bring it within the scope of s. 25 or, in the context of self‑government, for an Indigenous nation to possess broad rights to govern its community. The focus must be on the collective right itself and whether it is unique to an Indigenous community on the basis of Indigeneity. In this context, intra‑group distinctions based on a personal characteristic other than Indigeneity will generally fall outside the ambit of s. 25, but s. 25 could capture laws that distinguish between Indigenous people and non‑Indigenous people for the purpose of protecting interests associated with Indigenous difference. This conception ensures that s. 25 does not serve to effectively create extensive Charter‑free zones in the context of Indigenous self‑government. Members of Indigenous communities must be able to challenge the actions of their own governments — they must not be denied important Charter protections which are intended to apply to every person.
When s. 25 is invoked, the court must consider severa