Correction notice: ReconciliAction YEG would like to clarify that s.35 of the Charter recognizes and affirms existing treaty rights. Also, the second takeaway should be clarified to say that Ryan suggested the Vuntut Gwitchin case shows that the s.25 analysis itself (rather than the need for the analysis itself) is very contextual. Please visit the Center for Constitutional Studies website to watch this great webinar at: https://ualawccsprod.srv.ualberta.ca/past-events/speakers-and-panels/.
Tansi Nîtôtemtik,
Yesterday, Team ReconciliAction YEG attended the Center for Constitutional Studies’ (CCS) Online Charter Series webinar titled “Section 25 of the Charter: Indigenous Laws in Canadian Courts”, hosted by Ryan Beaton from the University of Victoria. Ryan Beaton is a PhD candidate in the Faculty of Law at the University of Victoria and a 2017 scholar of the Pierre Elliott Trudeau Foundation. In the webinar, Ryan reviewed the recent Vuntut Gwitchin decision from the Yukon Supreme Court,[1] specifically regarding the unique challenges of considering Indigenous law in Canadian courts.
The Decision
Ms. Cindy Dickson, a member of the Vuntut Gwitchin First Nation (VGFN), wanted to run as a candidate for VGFN Councillor. However, under the VGFN Constitution, an elected Councillor or Chief is required to relocate to the VGFN seat of government in Old Crow, approximately 800 km north from Whitehorse, where Ms. Dickson lived. Ms. Dickson was unable to relocate to Old Crow for many reasons, including her need to be close to medical care for her teenage son. As a result, Ms. Dickson challenged the residency requirement for election under s. 15(1) of the Charter of Rights and Freedoms.[2]
Old Crow is the most northerly community in the Yukon Territory. (Photo credit: Yukon News, July 3rd 2020, https://www.yukon-news.com/news/vuntut-gwitchin-councillor-submits-resignation/)
The Court first determined that Ms. Dickson’s application was not a fundamentally political question, and thus could be heard by the Court, rather than being negotiated between the VGFN, Yukon and Canada. Secondly, the Court found that the Charter applied to the VGFN government and its residency requirement for election. Thirdly, the Court found that the residency requirement did not infringe Ms. Dickson’s equality rights. Finally, the Court found that even if Ms. Dickson’s s. 15(1) rights were breached by the residency requirement, s.25 of the Charter would shield the residency requirement provision from constitutional scrutiny.
Section 25 of the Charter
Although the Charter was enacted 38 years ago, s.25 has had very limited interpretation by Canadian courts. Some might say that it has been overshadowed by s.35, which recognizes and affirms existing Aboriginal and treaty rights.
S.25 provides that:
- The guarantee in this Charter of 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 including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. (94)[3]
Only one case at the Supreme Court of Canada, R v Kapp, has spoken to what s.25 entails.[4] Even then, the discussion was in Justice Bastarche’s dissenting opinion, where he suggested a potential framework for its application. The lack of case law dealing with s.25 has been recognized as problematic because it is a Charter provision that could serve a valuable function in protecting a broader range of Indigenous rights.[5]
Takeaways
Ryan Beaton noted that at the heart of this decision is the question of how Indigenous sovereignty will take shape in the Canadian constitutional landscape. Ryan did an excellent job of explaining this decision. We have briefly summarized some of the implications Ryan noted below:
- This decision suggests that a Charter analysis should take place before deciding whether the provision in issue is shielded by s.25, contrary to Justice Bastarche’s approach in Kapp.
- The s.25 analysis is very contextual.
- This decision shows a shift in the attitude towards Indigenous sovereignty. There is no argument of whether VGFN has sovereignty, instead the question is the relationship between Indigenous and Canadian sovereignty.
Stay tuned, because the decision has been appealed by both Ms. Dickson and the VGFN.[6] We certainly look forward to seeing how the Court of Appeal of Yukon deals with this interesting and important case!
Until next time,
Team ReconciliAction YEG
1Dickson v Vuntut Gwitchin First Nation, 2020 YKSC 22. [Vuntut Gwitchin]
2Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. [Charter]
3Charter, supra note 2, s.35.
4R v Kapp, 2008 SCC 41. [Kapp]
5Jennifer Koshan & Jonnette Watson Hamilton, “Kahkewistahaw First Nation v Taypotat – Whither Section 25 of the Charter?” (2016) 52:2 Constitutional Forum 39.
6Jackie Hong, “ Vuntut Gwitchin formally appeals decision in residency requirement case” Yukon News, (August 15, 2020) online: <www.yukon-news.com/news/vuntut-gwitchin-formally-appeals-decision-in-residency-requirement-case>.
