Section 25 is an infrequently cited provision of the Canadian Charter of Rights and Freedoms (Charter) that protects certain Aboriginal interests from Charter scrutiny. In Dickson v. Vuntut Gwitchin First Nation (Dickson), the Yukon Territory Supreme Court recently applied section 25 as a shield to protect an Indigenous electoral requirement from being struck down for breaching the equality provisions of the Charter.
BACKGROUND
Vuntut Gwitchin First Nation (VGFN) is an Indigenous community located in the northern Yukon. Roughly half of VGFN members live within their traditional territory, while the remainder live elsewhere, primarily Whitehorse. VGFN is governed by a chief and council.
VGFN negotiated a self-government agreement between Yukon and Canada and ratified its own Constitution (VGFN Constitution). The VGFN Constitution provides that all VGFN council members must either reside within the community or relocate within 14 days of being elected. Cindy Dickson, a VGFN member, challenged this requirement and argued that it breached her equality rights under section 15(1) of the Charter. Section 15 provides that every individual “is equal before and under the law” and should be free from discrimination under the law. Ms. Dickson argued that the VGFN Constitution discriminates contrary to section 15 because it treats non-resident members different than resident members.
THE COURT'S DECISION
The Court found that VGFN's residency requirement was non-discriminatory and did not infringe Ms. Dickson's equality rights. However, the Court found that the 14-day relocation requirement was onerous and unjustifiably discriminatory.
Although the Dickson case was decided on well-established principles under the equality provision of the Charter, the decision is interesting because it also discusses section 25, a Charter provision that is rarely used or evaluated.
Section 25 guarantees that the Charter itself “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.”
The Court held that section 25 acts as a shield to protect, preserve, and promote the identity of VGFN citizens through unique institutions, norms, and government practices. Because this residency requirement was a decision of a self-governing First Nation to codify an historic practice or custom, the Court held that the residency requirement is protected by section 25 (minus the 14-day limit). The Court also suggested that section 25 protects more than just Aboriginal rights.
In summary, the Court held that the VGFN residency requirement was not discriminatory, but even if it were, it would be shielded by section 25.
IMPLICATIONS
Strictly speaking, the Court's remarks on section 25 are not binding. Nevertheless, this case demonstrates the intersection of two important—and conflicting—objectives. On one hand, negotiated self government agreements and Indigenous constitutions provide important certainty and cultural protection for Indigenous nations and third parties. Foundational documents like these should be respected and enforced to the greatest extent possible. On the other hand, Indigenous community members should receive constitutional protections like all other Canadians, and ought not suffer discrimination within their own communities. To balance these objectives, the Court suggested that section 25 is a shield with limits.
The Court's analysis focused on VGFN's cultural objectives and traditional governance practices. This suggests that section 25 shields those governance practices that are necessary to maintain a distinctive culture. The Court also suggested that section 25 protects more than just Aboriginal rights, but it remains unclear how much more.
Despite this uncertainty, the Court's decision is unlikely to affect third parties. The case is ultimately about VGFN's internal relationships and Charter rights for Indigenous community members. Industry and third-party commercial interests rarely bring these issues to the fore, but it is valuable to understand how these issues may affect community dynamics.
Originally published 26 August, 2020
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