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The Emerging Shape of Indigenous Self-Government

Published:

May 14, 2024

Author(s):

• Nakita Samson, Lawyer
• James R. Gogan, Partner
• Jacqueline Hartigan, McInnes Cooper Alum

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On March 28, 2024, the Supreme Court of Canada marked another pivotal moment in Indigenous self-governance, offered insight into the scope of section 35 of the Canadian Constitution’s Aboriginal and Treaty rights, their intersection with the individual rights enshrined in the Canadian Charter and the role of section 25 of the Charter in safeguarding collective Indigenous rights against erosion by individual rights. The Court’s decision in Dickson v. Vuntut Gwitchin First Nation confirms the Charter applies to an Indigenous government’s exercise of its authority to the extent, but only to the extent, that authority flows from federal legislation. Frequently noting the need for “prudence”, the Court emphatically declined to opine on whether the Charter applies to the exercise of an inherent right of self-government or whether section 35 of the Canadian Constitution enshrines an inherent right to Indigenous self-government. However, the Court did conclude that section 25 of the Charter safeguards Indigenous Laws derived from Aboriginal Rights while not exempting self-governing nations – but only those that derive at least some of their authority from legislation – from Charter oversight.

In navigating the complex terrain of Indigenous rights, Dickson epitomizes the delicate balance required to protect both individual and collective rights. Despite the fact the Vuntut Gwitchin First Nation did not succeed in its bid to avoid application of the Charter to its Constitution’s residency requirement, it did succeed in its argument that section 25 of the Charter protected it’s right to require elected councilors be resident on its traditional lands, symbolizing a crucial milestone in the ongoing evolution of Indigenous self-government, legal orders, and sovereignty in Canada. By honoring Indigenous customs and governance structures, the Dickson decision lays a foundation for a more inclusive and equitable future, where Indigenous voices and aspirations are respected and celebrated within the Canadian legal landscape.

Here’s a look back at the recent contextual background for the decision and a deeper look into the Court’s reasoning in the decision.

Creating Context: The Path So Far

An appreciation of the recent legal context is helpful to an understanding of the Dickson decision and its place in the evolution of Indigenous self-governance.

Inherent Right to Self-Government. Section 35(1) of the Canadian Constitution expressly recognizes and affirms “the existing aboriginal and treaty rights of the aboriginal peoples of Canada”. Section 25 of the Charter provides the Charter rights and freedoms will not be construed to abrogate or derogate from any aboriginal, treaty or other rights or freedoms including any that now exist or might be acquired by way of land claims agreements or may be so acquired. The Supreme Court of Canada hasn’t yet ruled on whether section 35(1) enshrines an inherent right to Indigenous self-government – but it’s getting close.

UNDRIP. Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) resoundingly affirms the Indigenous right to autonomy, providing a global framework for Indigenous sovereignty. In 2015, Canada’s Truth and Reconciliation Commission released its Final Report calling for the adoption and implementation of the UNDRIP as a “framework for reconciliation.” The Canadian government’s unqualified pledge of support for the UNDRIP in 2016, coupled with its commitment to integrate it within the Canadian constitutional fabric, signified a monumental step towards recognizing and honoring Indigenous rights within the nation’s legal framework. In 2021, the federal government enacted the UNDRIP Act, incorporating the UNDRIP into Canadian law.

Parliamentary Privilege. In its landmark September 22, 2022, decision in Saunders v. Nunatsiavut Assembly, the N.L. Supreme Court confirmed the Nunatsiavut Assembly as a legislative body that holds all privileges, immunities, and powers necessary for it to function as an effective parliamentary institution, including parliamentary privilege. The Assembly was established under the terms of a land claims agreement, ratified by legislation, setting out principles for the establishment of an Inuit self-government, including the establishment of a Constitution which in turn establishes the Nunatsiavut Assembly as the Nunatsiavut parliament. The Nunatsiavut Assembly Act conveys parliamentary privileges to the Assembly and its members. The decision appears to be the first time a Canadian court has considered whether the legislature of an Indigenous self-government benefits from the protection of parliamentary privilege.

Right to Self-Governance Respecting Child & Family Services. In the first 2024 landmark Supreme Court of Canada decision, Reference re An Act respecting First Nations, Inuit, Métis children, youth and families (Attorney General (Quebec) v. Attorney General (Canada), the Court upheld a federal law affirming the Indigenous right to self-government with respect to child and family services is within the federal government’s constitutional jurisdiction over “Indians, and Lands reserved for the Indians”. Because the law concerns relationships with Indigenous families and the control by Indigenous communities over their children, it relates to “Indianness” and falls withing federal legislative jurisdiction. Significantly, the UNDRIP and the UNDRIP Act, which the Court described as “[t]he framework serving as the foundation” for Parliament’s reconciliation initiative, played crucial roles in the Court’s contextual analysis and ultimate decision to uphold the federal law. Equally significant is the Court’s interpretation of the legal impact of the challenged federal law’s express affirmation of the Indigenous right to self-government with respect to child and family services:

• It binds the Crown, both the federal and provincial, to the obligation to act in accordance with this affirmation.
• It prevents the Crown from asserting there is no Indigenous right of self-government in relation to child and family services.

However, the Court was equally clear: the federal government cannot bind the courts – and “[u]ltimately, it is the courts that will have the last word on the scope of [section] 35” of the Canadian Constitution.

The Next Step: Application of the Canadian Charter of Rights & Freedoms

The Court’s affirmation Dickson v. Vuntut Gwitchin First Nation of the Vuntut Gwitchin First Nation’s Constitution’s residency requirement resonates deeply with the imperative of preserving Indigenous cultures, traditions and ways of life. Despite the fact the VGFN was only successful in part, the decision underscores the pressing need to uphold cultural continuity while championing self-determination within Indigenous communities, echoing the broader global movement towards Indigenous empowerment and recognition – and the Court’s commitment to doing so.

Self-Government Framework. Located in the Northern Yukon, the Vuntut Gwitchin First Nation (VGFN) has made significant strides towards self-determination:

• In 1993, the VGFN signed an “umbrella agreement” establishing a framework for modern comprehensive land claims agreements in the Yukon.

• This was followed by the VGFN Final Agreement with Canada. The federal and Yukon governments implemented the Final Agreement with legislation that gives the Final Agreement the status of a treaty under section 35 of the Canadian Constitution (which includes the Charter).

• The Final Agreement provided the opportunity for negotiations with the Crown concerning self-government and led to the VGFN Self-Government Agreement, and a departure from the Indian Act governance framework. It also ushered in the adoption of the VGFN Constitution detailing how VGFN is governed, as supported by the Aboriginal rights enshrined in Section 35 of the Canadian Constitution Act, 1982. The federal and Yukon governments similarly implemented the Self-Government Agreement with legislation giving it the force of law. The federal legislation further provides: the agreements are to be in accordance with the Canadian Constitution; the VGFN Constitution is to provide for the recognition and protection of citizens’ rights and freedoms; and federal and Yukon laws except the Indian Act. Notably, neither the VGFN Final Agreement nor the Self-Government Agreement explicitly address whether the Charter applies to the VGFN Constitution.

Residency Requirement. The VGFN Constitution includes a “residency requirement”: it stipulates that anyone seeking to be elected to a leadership role must reside within the community situated in Old Crow or move there within 14 days after election.

Residency Requirement Challenge. Cindy Dickson, a member of the VGFN, lives 800 km away from Old Crow. Ms. Dickson wanted to run for VGFN Council but didn’t want to move to Old Crow because their son needs access to medical treatment not readily available in VGFN settlement lands. They challenged the VGFN residency requirement asserting it infringed their right to equality and protects against discrimination under s. 15(1) of the Charter. The VGFN argued its Constitution’s residency requirements weren’t subject to the Charter or, if it is, section 25 protects their collective Indigenous rights – and the residency requirement – from Charter scrutiny. The Yukon Supreme Court concluded the Charter applies to the VGFN Constitution, with the exception of the “within 14 days” timeframe, but the residency requirement didn’t violate the Charter. Ms. Dickson appealed. The Yukon Court of Appeal decided the residency requirement did infringe Ms. Dickson’s Charter rights but section 25 shielded the community rights embodied in the residency requirement from further Charter scrutiny.

Ms. Dickson appealed to the Supreme Court of Canada – and again failed. A plurality of (an unusually divided) Supreme Court of Canada, noting several times the importance of a “prudent” approach to the case, decided:

Charter Applies to This Residency Requirement.  The Court concluded the Charter applies to the VGFN’s residency requirement because the VGFN is “government by nature”. It:

• Is democratically elected by its members and accountable to constituents.
• Has a general taxing power.
• Has the power to make, administer and enforces coercive laws that bind the public within a defined territorial jurisdiction.
• It exercises powers and carries out functions conferred by the federal or a territorial government that they would otherwise have to perform themselves.

The Court concluded that even if the VGFN has lawmaking authority under an inherent right to self-government, the fact it derives “at least some” (original emphasis) of its lawmaking authority under federal law [in this case, the legislation implementing the Final and the Self-Government Agreements] is enough to trigger the application of the Charter “in this case”. However, the Court exercised an abundance of “prudence” and carefully and deliberately limited the scope of its conclusion: “[T]he Charter applies to the VGFN’s residency requirement only insofar as that requirement flows from an exercise of statutory power under … the [Canadian] Constitution … We make no comment on whether an exercise of an inherent right to self-government untethered from federal legislation would be subject to the Charter…” because it wasn’t necessary to do so given the particular self-government arrangements in the case.

Section 25 Shields. The Court concluded the “Indigenous difference” protected by section 25 of the Charter can refer to cultural distinctions such as prior occupancy, prior sovereignty or participation in treaties. Section 25 safeguards collective Indigenous laws derived from Aboriginal rights, treaty rights, or similar rights, while not exempting self-governing nations from Charter oversight. The Court concluded the VGFN Constitution’s residency requirement is a measure intended to preserve Indigenous difference because it “helps preserve the leaders’ connection to the land, which is deeply rooted in the VGFN’s distinctive culture and governance practices” and “bolsters the VGFN’s ability to resist the outside forces that pull citizens away from its settlement land.” In sum, while the Charter applies to the residency requirement, section 25 saves it even if it breaches individual rights.

Please contact your McInnes Cooper lawyer or any member of our Aboriginal & Indigenous Law Team @ McInnes Cooper to discuss how the Charter affects your governing authority.

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