Indigenous groups on different sides of Charter challenge to be heard by Supreme Court of Canada

Two Métis Nation organizations and a band members advocacy group are lining up on opposite sides of a question: What role should the Canadian Charter of Rights and Freedoms play in Indigenous governments?

Both the Métis Nations of Alberta (MNA) and Ontario (MNO) and the Band Members Alliance and Advocacy Association of Canada are seeking intervenor status when the Supreme Court of Canada (SCC) hears the yet-unscheduled Dickson v. Vuntut Gwitchin First Nation appeal.

Motions for intervention are to be filed by Aug. 22.

Cindy Dickson, a member of the Vuntut Gwitchin First Nation, had challenged the self-governing Yukon First Nation for not allowing her to run in the band election in 2018. The Vuntut Gwitchin constitution requires members who wish to run in a band election to reside on the Nation’s settlement land. Dickson, who lives in Whitehorse, did not want to relocate. She said the residency requirement violated her Charter equality rights.

The Yukon Court of Appeal ruled that the Charter applies to the Vuntut Gwitchin Constitution and that Vuntut Gwitchin “Citizens remain entitled to their rights under the Charter in the same way as other citizens of Canada.”

However, the court also said that if a contradiction existed between the Charter and a collective right pursuant to Indigenous law, Sect. 25 of the Constitution Act, 1982 acts as a shield to the collective right.

At the Supreme Court, Dickson is contesting the use of Sect. 25 as a shield while Vuntut Gwitchin is cross-appealing on the issue of whether the Charter applies to a self-governing First Nation’s constitution.

The MNO was granted intervenor status when the case was heard by the Yukon Court of Appeal.

At that time Justice Laurie Ann Fenlon wrote, “The Métis Nation of Ontario would bring the perspective of nations outside of the Yukon whose rights may be affected mid-negotiation (of its self-government agreement) by the analytical framework used to understand the relationship between (sections) s. 25, s. 32, and s. 35.”

Carcross/Tagish First Nation, Council of Yukon First Nations, and Teslin Tlingit Council were also granted intervenor status by Fenlon.

MNO and MNA are both in the process of putting in place self-government agreements with Canada and ratifying their own constitutions. The MNA is now joining the MNO in seeking intervenor status at the SCC because the Supreme Court’s decisions “apply to everyone,” says Jason Madden, legal counsel for both MNA and MNO.

Madden says the MNA will pursue the same position MNO argued in the lower court of appeal: that Sect. 25 has to be the starting point for the analysis and that it shouldn’t be assumed that the Canadian Charter automatically applies to Indigenous governments and their laws in the context of modern-day treaties

Section 25 states that “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…”

In other words, says Madden, Indigenous self-government and laws do not derive their authority from Parliament or provincial legislatures and modern-day treaties recognize the “rights and freedoms” of the laws and jurisdiction of Indigenous governments.

“The assumption (is) that through modern treaty-making, Indigenous laws and jurisdiction become subsumed by Canada’s Constitution—including the Charter. (This) is what Dickson is grappling with,” said Madden.

He said Cindy Dickson could have and should have used the appeal processes set out in the Vuntut Gwitchin constitution to challenge the residency criteria.

“The whole point in recognizing Indigenous rights is that the collective gets to decide on some of these issues and shouldn’t be second guessed,” said Madden. The appropriate avenue is “Indigenous people deciding for themselves, not the court coming in and saying the Charter strikes down… (these specific) requirements.”

Robert Louie, founder, president and CEO of Band Members Alliance and Advocacy Association of Canada (BMAAAC), asserts that as chief and council may carry out financial and governance abuse, there is a need for the Charter to apply to Indigenous governance.

Louie started his organization in 2020 as a means to help “band members get access to justice to hold elected chiefs and Band councils accountable,” according to his affidavit that will be filed with the SCC.

BMAAAC retains lawyers to take cases to court in which band members allege abuse by chief and/or council. Since September 2020, BMAAAC has supported 19 court actions dealing with such issues as band members being denied candidacy in elections, the ability to vote, delayed elections, or band council duty to consult with membership.

“This appeal raises important questions about Indigenous governance, the rights of band members in respect of the Charter and the ability of Aboriginal leadership to unilaterally deny its people the protection of the Charter,” Louie wrote in his affidavit.

If BMAAAC is granted intervenor status by the Supreme Court, it will be the first time. BMAAAC was granted intervenor status at the federal court level for the Betrand v. Acho Dene Koe First Nation hearing in 2020.

“Should we be granted leave (to intervene), that would acknowledge that BMAAAC has credibility and the judiciary sees the value of hearing BMAAAC’s voice,” said Louie.

Both MNA and MNO have had intervenor status before at the Supreme Court. Most recently they jointly intervened in City of Toronto v. Ontario (Attorney General) in 2021. Intervenor status is generally granted when a decision could have a direct impact on a person or when a decision raises issues that involve public interests.

Madden says MNA and MNO are also applying for intervenor status in the Quebec government’s challenge that Bill C-92, the federal Act respecting First Nations, Inuit and Métis children, youth and families, is unconstitutional.

In a blog recently posted by Clémence Thabet of the Cavalluzzo LLP, she linked the Yukon and Quebec cases as “address(ing) the relationship between Canada’s settler law and Indigenous laws and inherent law-making power…

“Canadian courts are a part of the colonial legal system that has dispossessed Indigenous peoples of their lands, separated Indigenous peoples from their families and communities, and denied their rights including fundamental rights to self-determination. Cases like Dickson and Reference re Bill C-92 highlight the need for courts to address the tensions between Indigenous law and Canadian law that arise, for example, when the laws include conflicting provisions.”

Madden says he would not be surprised if the Supreme Court decides to hear the two cases together.

Local Journalism Initiative Reporters are supported by a financial contribution made by the Government of Canada.