Indigenous organizations get standing in Charter case at Supreme Court

The Band Members Alliance and Advocacy Association of Canada (BMAAAC) will be arguing at the Supreme Court of Canada that the Canadian Charter of Rights and Freedoms plays an important role in Indigenous governance.

“When I incorporated BMAAAC on Feb. 22, 2019, I said to myself, I prayed on this, that one day we would be at the Supreme Court of Canada in favour of band members across Canada. And here we are today,” said Robert Louie, BMAAAC founder, president and CEO.

Getting that nod, he said, “signals for us that the Supreme Court of Canada sees BMAAAC as being credible and a voice for band members across Canada. There are band members that lost their voice because of the internal oppression that goes on and, again, our mandate is to give the voice back to community members.”

BMAAAC retains lawyers to take cases to court in which band members allege abuses by chiefs and/or councils.

BMAAAC is one of 10 Indigenous organizations to be granted intervener status in the Dickson v Vuntut Gwitchin First Nation case, which is tentatively scheduled to be heard in February 2023 by the country’s top court.

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 of council to reside on the Nation’s settlement land and 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 issues of whether the Charter applies to a self-governing First Nation’s constitution.

“It is a false dilemma to suggest that obliging indigenous governments to observe certain basic rights and freedoms guaranteed in the Charter is unwarranted interference in the right to self-determination. Indigenous governments are perfectly capable of ‘being aboriginal’ while at the same time respecting basic human rights guaranteed in the Canadian constitution. The result of this false choice would…leave a segment of already vulnerable Canadians with even fewer legal protections against an order of government with significant power over them,” writes BMAAAC in its factum filed with the Supreme Court on Oct. 31.

Those “vulnerable Canadians” are band members, says Louie, and the “order of government” is the band council, which controls legally and financially what happens on reserve.

“The promise of the Charter is that everyone in Canada should enjoy the same basic rights and freedoms against government. Reconciliation is best promoted by ensuring that is the case,” says the factum.

Louie says he is “99.9 per cent” certain that his organization stands in opposition to the other nine Indigenous organizations that are also intervening.

Indigenous appellants in the Yukon Court of Appeal hearing who have also received standing at the Supreme Court are Carcross/Tagish First Nation; Council of Yukon First Nations; Teslin Tlingit Council; and the Métis Nation of Ontario (MNO). The Métis Nation of Alberta (MNA) will be jointly presenting with MNO at the SCC.

Also granted intervener status at the Supreme Court along with BMAAAC are the British Columbia Treaty Commission; Congress of Aboriginal Peoples; Federation of Sovereign Indigenous Nations; Pan-Canadian Forum on Indigenous Rights and the Constitution; and the Canadian Constitution Foundation.

In an interview last July with Windspeaker.com when the case was sent to the Supreme Court, Jason Madden, legal counsel for MNO and MNA, said they would be arguing that it shouldn’t be assumed that the Charter automatically applies to Indigenous governments and their laws in the context of modern-day treaties.

The appropriate avenue, Madden said, is for “Indigenous people deciding for themselves. Not the court coming in and saying the Charter strikes down… (these specific) requirements.”

Presently MNA citizens are involved in a month-long ratification of their constitution.

“We have elected leaders being represented at the Supreme Court of Canada, and BMAAAC is the voice of band members. So, I think we’re going to have a well-balanced perspective that we put forward to the Supreme Court of Canada when it comes to the Charter for inherent rights of Aboriginal governments,” said Louie.

He contends that BMAAAC’s stand on the Charter will “augment. We’re going to enhance not only the individual band member’s rights, but we’re going to show we are a true government because the Charter is going to apply to all governments in Canada. I don’t see why we should be attempting to create a vacuum in the legal landscape in Canada.”

While holding degrees in law, Louie is not a practising lawyer. He has applied for readmission to the law society and hopes that one day he will be arguing a case in front of the Supreme Court. But this time around, he will be travelling to Ottawa with BMAAAC legal counsel Ian Knapp, of Mackenzie Fujisawa LLP, and watching from the gallery.

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