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Charter - s.25 Indigenous Rights and the Charter. Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
Here the court addresses the aboriginal 'rights' protected in Charter s.25:(3) Rights Within the Scope of Section 25
[144] In light of the purpose of s. 25, what collective minority rights or freedoms fall within its scope? Section 25 refers to “aboriginal, treaty or other rights or freedoms” and provides that these include any rights or freedoms (a) recognized by the Royal Proclamation, 1763 (G.B.), 3 Geo. 3 (reproduced in R.S.C. 1985, App. II, No. 1), or (b) acquired through land claims agreements. By including “other” rights and freedoms among those deserving of constitutional protection in this context, s. 25 speaks to a wider range of rights than s. 35 (see, e.g., B. Slattery, “The Constitutional Guarantee of Aboriginal and Treaty Rights” (1982), 8 Queen’s L.J. 232, at p. 237; Hogg and Wright, at § 28:41). Professor Lysyk notes that the subcategories of rights or freedoms under s. 25(a) and (b) “exemplify, but do not limit, the full range of rights and freedoms to which the protection of s. 25 extends” (p. 473).
[145] Whether an asserted right is an Aboriginal or treaty right depends of course on the applicable law concerning the recognition of such rights (see, e.g., Van der Peet; Pamajewon; R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723; Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Desautel; and see, e.g., R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025; R. v. Sundown, 1999 CanLII 673 (SCC), [1999] 1 S.C.R. 393; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623). However, no framework for the recognition of the third category of rights protected by s. 25 — “other rights” — has yet been definitively established.
[146] In Kapp, the majority in obiter considered the scope of the rights included under s. 25 and wrote that not every Indigenous interest falls within its scope. Rather, “only rights of a constitutional character are likely to benefit from s. 25” (para. 63, per McLachlin C.J. and Abella J.). Justice Bastarache proposed a broader approach, consistent with the idea that s. 25 protects all rights that are “unique to [Indigenous peoples] because of their special status”, that is, rights that protect Indigenous difference (para. 103; see also para. 106).
[147] Before this Court, Ms. Dickson asserts that only rights with “constitutional status”, in the sense that they cannot be repealed or altered by ordinary legislation, are protected under s. 25 (A.F., at para. 66(a)). The VGFN opposes such a restriction. Alternatively, it submits that even if the rights protected under s. 25 must have a “constitutional character”, this cannot mean that “a court declaration or recognition by the Crown of an ‘existing’ aboriginal right is a pre-condition for s. 25 to apply” (R.F., at para. 112).
[148] It is recognized that Charter rights are not absolute (see Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610, at para. 36). This is equally true for a provision like s. 25 that protects certain Indigenous rights and freedoms (see Kapp, at para. 97, per Bastarache J.). Potential limitations on the scope of “other” rights under s. 25 include limits on sources of the right, which we refer to as “formal” restrictions, and limits on the nature of the right, which we refer to as “substantive” restrictions.
[149] It is clear from the text and purpose of s. 25 that the provision’s protections are not restricted to rights with “constitutional status”, understood as rights that cannot be repealed or altered by ordinary legislation, as argued by Ms. Dickson. The possibility of such a formal restriction is foreclosed, in particular, by the express inclusion of rights recognized by the Royal Proclamation, 1763, which is not one of the documents that comprise the Canadian Constitution by virtue of s. 52(2) and is seen as having “force as a statute” in a manner analogous to the status of the Magna Carta (Calder v. Attorney-General of British Columbia, 1973 CanLII 4 (SCC), [1973] S.C.R. 313, at p. 395, per Hall J.). Further, as the intervener the Attorney General of Canada notes, were s. 25 intended to only protect rights and freedoms with constitutional status, “the provision would presumably have referred to a right or freedom guaranteed by the Constitution of Canada, as was done in s. 29 of the Charter” (I.F., at para. 45). As a result, the rights protected under s. 25 are not limited to those that are constitutionally entrenched and may instead include ordinary statutory rights (see also Corbiere, at para. 52, per L’Heureux-Dubé J.).
[150] While we would not give effect to the formal restriction on the source of an “other” right proposed by Ms. Dickson, the text and purpose of s. 25 do suggest a substantive restriction. Since s. 25 was intended to protect rights associated with Indigenous difference — understood as interests connected to cultural difference, prior occupancy, prior sovereignty, or participation in the treaty process — whether a right warrants s. 25 protection on the basis that it is an “other” right will hinge on whether it protects or recognizes those interests. In short, a party seeking the protection of s. 25 for a right alleged to be an “other” right must establish both the existence of the right and the fact that the right protects or recognizes Indigenous difference.
[151] The Attorney General of Canada intervenes to say that a restriction on the scope of “other” rights is that they must have a “constitutional character” in a substantive, rather than a formal, sense (see, e.g., I.F., at para. 44). While Bastarache J. suggested that a “constitutional character” requirement stands in opposition to a broader, minority rights approach focused on protecting rights associated with Indigenous difference (Kapp, at paras. 102-3), it may be that the two are compatible if protecting Indigenous difference has inherent constitutional significance. However, since the asserted right at issue here has a constitutional character, we would leave for another day whether “constitutional character” represents a distinct substantive restriction on “other” rights. . Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
Here the Supreme Court of Canada addresses historical case law on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter']:[102] Section 25 of the Charter is central to evaluating Ms. Dickson’s claim that the residency requirement in the VGFN Constitution infringes her right to equality under s. 15(1) of the Charter. The VGFN agrees with the courts below that s. 25 operates as a shield to protect the residency requirement from challenge under the s. 15(1) Charter right. Ms. Dickson answers that s. 25 is not a bar to her claim. Properly balanced against the protection provided to Indigenous rights in s. 25 and considering s. 1 of the Charter, she says the residency requirement violates her right to be free from discrimination and cannot be justified in the circumstances.
[103] Sections 15, 25, and 1 of the Charter provide:15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
25 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.
1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. [104] Over the life of the Charter, this Court has had relatively few occasions to consider the meaning of s. 25. When the Court has done so — as in R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R. 483, and Corbiere — it has addressed the equality right in circumstances different from this case. This case involves a dispute between a First Nation and one of its own members, and invites the Court to interpret s. 25 in connection with a residency requirement that is itself part of the constitutional law of a self-governing First Nation.
[105] Corbiere did consider the constitutionality of a voting requirement that might be compared to the rule contested by Ms. Dickson, but the requirement in that case was under the Indian Act rather than an Indigenous constitution. Kapp involved a discrimination complaint based on s. 15(1) of the Charter and the possible relevance of s. 25 as an answer to that challenge, but that case was brought by a non-Indigenous person and did not concern an Indigenous law. And while Taypotat (SCC) involved a challenge under s. 15(1) of the Charter to a First Nation’s rule on electoral qualifications brought by an Indigenous community member, the appeal was decided without addressing s. 25. Further complicating the relationship between the VGFN’s collective right in s. 25 and the individual right invoked by Ms. Dickson is the reality that, ultimately, they are both rooted in Indigeneity (see generally Swiffen, at p. 34).
[106] Elsewhere, the Court has made reference to s. 25, but did not have the opportunity, as it does here, to consider the full application and effect of the provision. The Court’s existing jurisprudence thus provides only a modest guide for deciding this appeal. This invites caution. The majority’s comment in Kapp on the complexities of s. 25 bears repeating: “ . . . prudence suggests that these issues are best left for resolution on a case-by-case basis as they arise before the Court” (para. 65). As a result, our reasons focus on the task at hand: determining how s. 25 applies to the residency requirement in the constitution of a self-governing First Nation challenged by one of its members under s. 15(1) of the Charter.
[107] 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. 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 First Nation concerned.
[108] 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 as would ordinarily be the case under s. 1 of the Charter. Unlike s. 1, s. 25 reflects a constitutional choice to protect the collective rights and freedoms associated with Indigenous peoples in Canada as a distinct minority. “[R]espect for minority rights” was identified by the Court in the Secession Reference, at para. 49, as an underlying constitutional principle that infuses the Constitution as a whole. The protection of linguistic and religious minorities are examples of this underlying principle, as is the protection of the rights of Indigenous peoples as a distinctive minority. This Court stated that, 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 similarly set forth a “non-derogation clause in favour of the rights of [A]boriginal peoples” (Secession Reference, at para. 82). The Court allied the protection of s. 25 with the “strength [of the] promise” to the Indigenous peoples of Canada in s. 35 that it had explained in Sparrow, at p. 1083. That promise “recognized not only the ancient occupation of land by [A]boriginal peoples, but their contribution to the building of Canada, and the special commitments made to them by successive governments” (Secession Reference, at para. 82).
[109] Consonant with the principle of the protection of Indigenous peoples as a distinct minority, the “other rights or freedoms” in s. 25 are limited to those that protect Indigenous difference. All the collective Indigenous rights and freedoms referred to in s. 25 must be upheld, even when they conflict with individual Charter rights, in order to ensure respect for minority rights as a constitutional value.
[110] The protection of Aboriginal, treaty, and other rights in s. 25 is not, however, absolute. Priority is given to collective Indigenous rights only when they conflict with an individual’s Charter 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, as both the UNDRIP Act and the VGFN Constitution itself make plain (see Metallic, at p. 15; G. Otis, “Élection, gouvernance traditionnelle et droits fondamentaux chez les peuples autochtones du Canada” (2004), 49 McGill L.J. 393, at pp. 409‑11). 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. In such circumstances, any limit on the individual right must be justified under s. 1 of the Charter. 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. . Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
At paras 111-183 the court addresses it's conclusions respecting Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'], which are summarized here:(5) Summary of the Section 25 Framework
[178] The analysis above suggests a four-step framework under s. 25.
[179] 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.
[180] 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 the party defending against the Charter claim must demonstrate the existence of the asserted right and the fact that the right protects or recognizes Indigenous difference.
[181] 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.
[182] Fourth, courts must consider whether there are any applicable limits to the collective interest relied on. When s. 25’s protections apply, for instance, the collective right may yield to limits imposed by s. 28 of the Charter or s. 35(4) of the Constitution Act, 1982.
[183] Finally, where s. 25 is found not to apply, the party defending against the Charter claim may show that the impugned action is justified under s. 1 of the Charter.
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