conducted in the summer of 2024 by Saloni Sharma.
March 12, 2025
In this Q&A, CCS Summer Student Saloni Sharma talks to Dr. Ryan Beaton — a lawyer with Power Law in Vancouver — about the Supreme Court’s recent judgment in Dickson v VGFN, a case that dealt with the Charter’s application to self-governing First Nations, and the role of the Charter’s Indigenous rights provision (section 25) in managing the relationship between Indigenous rights and Charter rights.
Q. Could you please provide some background on the case? How did the dispute between Dickson and the VGFN arise, and what are some of the key questions that it raises?
A. This is a case in which a citizen of Vuntut Gwitchin First Nation (VGFN), Ms. Cindy Dickson, wanted to run for council and serve as a counselor for her First Nation, the VGFN. Its territories are in the far north of Yukon. Ms. Dickson lives — or at least at the time of her application, lived — in Whitehorse. This is because she had a son who needed to be near a full-service hospital, so she had reasons for wanting to stay in Whitehorse.
The VGFN has self-government agreements with the Yukon and Canada, and pursuant to those agreements, had adopted a Constitution that included a residency requirement. This requirement means that all individuals who want to run for council have to first relocate to Old Crow in the north of Yukon. Ms. Dickson challenged that, since she wanted to stay in Whitehorse and serve on council. She brought a challenge in the Yukon Supreme Court and asked the Court to find that the requirement was invalid because it conflicts with section 15 of the Canadian Charter of Rights and Freedoms (Charter).
The VGFN took the position that the Charter does not apply to them since their Constitution — including the residency requirement — was adopted pursuant to their inherent powers of self-determination and self-government as an Indigenous people. Therefore, the Charter simply did not apply to the residency requirement.
In the alternative, the VGFN argued that if the Charter and the section 15 equality rights within it did apply to their Constitution and its residency requirement, then section 25 of the Charter shields its residency requirement against judicial invalidation. This is because section 25 says nothing else in the Charter will be read to abrogate or derogate from Aboriginal, treaty, or other rights of Canada’s Aboriginal peoples.
One key question from this dispute is: does the Charter apply to First Nation governments, specifically when they’re exercising inherent powers of self-government, not powers delegated by the provinces or Canada’s federal Parliament? Sometimes, it can be surprising for people to hear that, in 2024, this is still an open question. It remains open because at least in part, for a very long time after Confederation, Canadian governments largely ignored Indigenous legal orders and assumed they either didn’t exist or they weren’t important. However, now that we’re going through a period of re-evaluating that aspect of Canadian history, Indigenous legal orders are starting to be taken more seriously. These questions have now really come to the forefront — questions like, how do Indigenous legal orders interact with Canadian state law?
Q. Unlike other modern land claims agreements, like the Nisga’a agreement, the VGFN agreement did not explicitly state that the Charter is applicable to the Nation’s Constitution and government. In Dickson, however, the Supreme Court decided that the Charter is applicable to the VGFN, despite the silence of the agreement. How did the Court explain this conclusion, and what are its merits and drawbacks?
A. So it's a very interesting feature you point to. It’s unlike what we find in the Nisga’a Final Agreement. It’s unlike what we see in legislation that the federal Parliament has adopted more recently, like Bill C-92, which recognizes Indigenous jurisdiction over child and family services, but also includes provisions that say the Charter will apply to such exercises of Indigenous jurisdiction. Here, in the case of the VGFN, we have a self-government agreement between the VGFN, the Yukon, and Canada that’s silent on whether the Charter will apply.
There was evidence before the courts in Dickson showing that the VGFN did not want it to apply, but Canada did. They left it unresolved or unexpressed in the agreement itself. Ultimately, the Supreme Court of Canada said that whether or not the Constitution is also an exercise of inherent Indigenous lawmaking power, it is given the force of law in part by implementing legislation adopted by Parliament and the Yukon legislature. Since it’s uncontroversial that legislation adopted by Parliament and the Yukon legislature attracts Charter application, the Court concluded that the Charter will apply to the VGFN Constitution, given that there’s this implementing legislation.
Interestingly, the lower courts of the Yukon Supreme Court and the Yukon Court of Appeal said that we have to decide whether the Charter will apply, even if we view this strictly as an exercise of Indigenous lawmaking power. Those two courts said that either way, whether we think of the residency requirement as having force of law because of implementing legislation, or if we ignore that and think of it just as an expression of inherent Indigenous lawmaking power, the Charter applies.
The Supreme Court of Canada, by contrast, went out of its way to say that they were not dealing with the residency requirement as an expression of inherent Indigenous lawmaking power. Instead, they just considered it as having force of law because of the implementing legislation, leaving the question of whether the Charter would apply to something viewed strictly as an exercise of inherent Indigenous lawmaking power open.
In regards to some of the positives of this case, it shows how far Canadian law has come in accepting the reality of Indigenous jurisdiction, despite the Supreme Court going out of its way to say it was not deciding whether this was an exercise of inherent Indigenous jurisdiction. But 20-30 years ago, I think that the idea of Indigenous jurisdiction that is not delegated is something that wouldn’t have been taken seriously by the courts. It seems that now the Supreme Court has allowed the reality of Indigenous jurisdiction to develop in the lower courts. For example, Federal Court Justice Sébastien Grammond has now written a number of decisions explicitly recognizing inherent Indigenous jurisdiction. So, in Dickson, we see the Court just accepting the reality that a major part of Canadian constitutional law is trying to figure out how Indigenous jurisdiction relates to state law. I don’t think the majority position is that surprising since there’s going to be some balancing here.
It’s unsurprising, in this regard, that the Court did not want to say there are areas within Canada under First Nations’ jurisdiction where the Charter simply does not apply. I think that there was a worry on the Court’s part that some Canadian citizens like Ms. Dickson might be left saying, “Hey, we don't have any access to our Charter rights with respect to our Indigenous governments,” and the Court wanted to avoid that. On the other hand, the Court also did not want to go to the opposite extreme and say the Charter just applies to First Nations governments, the way it would to provinces or the federal government. In effect, the Supreme Court has opted for a middle ground of leaving courts to balance case-by-case, saying that the Charter applies but that section 25 is there to protect Indigenous difference and prioritize the collective self-government powers of a First Nation over the appeal to individual rights of an individual First Nation citizen.
Some of the limitations of this decision include the mushy test that will need to get worked out case-by-case, which means a little less clarity for parties. Another interesting point about the decision is that Justice O’Bonsawin, who is the first Indigenous justice appointed to the Supreme Court, wrote a very strong judgment with Justice Martin [dissenting in part] on the majority’s failure to address whether the Charter would apply to an inherent exercise of Indigenous lawmaking power. Apart from implementing legislation, Justice O’Bonsawin argued that the Charter should always apply to Indigenous governments, regardless of implementing legislation. Her concern clearly was ensuring that Indigenous citizens would always be able to access their Charter rights against their own governments.
Q. One aspect of the Court’s reasoning that I’d like to hone in on is the way that the Court applies the fourth indicia of the Godbout test, which requires that the body under consideration derives its existence and lawmaking power from the federal government (or a provincial government). The Court says that this is true of the VGFN — at least some of its power is derived from federal law. What do you make of this conclusion?
A. I think this is probably the weakest part of the majority's reasoning. My understanding of the Eldridge and Godbout cases is that, for example, a municipality, even though not listed in section 32 of the Charter, would be included under this section. Section 32 says the Charter applies to provincial governments, including everything within the authority of the provincial legislature, and also to the federal government, including everything within the authority of Parliament. Municipalities are entirely created by statute, and so the courts have said, yes, under section 32, the Charter will apply to municipalities [per Godbout].
It can also apply to entities like universities or hospitals, insofar as they are vehicles for implementing government programs. If there’s a health care law that’s being implemented through a hospital, then everything to do with the implementation of that law through the hospital is going to attract Charter scrutiny [per Eldridge].
Now, underlying all of the indicia laid out in cases like Eldridge and Godbout is that the governmental powers we’re talking about flow either from the provinces or Parliament. That’s not the case if we’re talking about a First Nation exercising inherent jurisdiction. So the Court, I think, stretched Eldridge and Godbout, suggesting that there doesn’t need to be a flow of governmental power from the provinces or Parliament to the entity in question, but rather that as long as there’s some element of provincial power or federal power involved, that’s enough under Eldridge and Godbout to attract the Charter scrutiny.
So the Court said it may be that this is an exercise of inherent Indigenous jurisdiction for the VGFN to adopt their Constitution and its residency requirement, but we don’t have to decide that because there is implementing legislation from Yukon and Canada that is one source of the law’s recognition in Canadian courts, and that’s enough to attract the Charter's application. I think, again, the Court just did not want to say there’s a Charter-free zone here, and so they found a way to stretch Eldridge and Godbout to make the argument work.
Justice Rowe, in the dissent, I think has a stronger argument in terms of the text of section 32 and what it seems to cover. It doesn’t seem like it was ever intended to capture Indigenous governments exercising their own lawmaking power. What he says in part is, look, this self-government agreement is not federal law intervening and controlling the VGFN. It’s the opposite: it’s an agreement for Parliament to pull back its control over the VGFN under the Indian Act. So, if anything, what we have through the self-government agreement is a withdrawal of federal power to create space for the VGFN to exercise their own, inherent governmental powers. With this understanding, Justice Rowe suggests that section 32 requires the conclusion that the Charter does not apply in this case.
Q. In this case, having found that the Charter applies to the VGFN, the Court ultimately concluded that section 25 of the Charter shields the VGFN against the Charter claim. Where does this leave VGFN members who have been negatively impacted by their Nation’s laws? Are there alternative ways for them to challenge such laws? And is there any sense that, by having their Charter claims blocked, they’re being denied the same level of constitutional protection that other Canadians benefit from?
A. That’s the criticism of Justice O’Bonsawin and Justice Martin, in partial dissent; that the Court is denying Ms. Dickson — and then by extension, anyone in a similar situation — access to their Charter rights.
For individuals like Ms. Dickson, some of the services other Canadians would get through the province or the federal government will be given through their First Nations government. Now, Justices O’Bonswain and Martin find that this decision is effectively saying, “If you get those services through a First Nation, you will have lesser access to your Charter rights.”
I think the majority, by contrast, felt that there had to be a balance. They’re faced with a First Nation whose collective powers of self-government are at issue. They object to being under the scrutiny of the Charter, and if we apply the Charter to them, that will be in some sense a restriction of their self-government powers. On the other hand, we have a First Nations individual who is saying, “I want my Charter rights to apply.” So the majority tries to balance these two things, but I think the consequence of striking a balance is that, yes, there’s a sort of restriction on both sides. There’s some restriction placed on the collective power of self-government by having the Charter apply, and then there’s some restriction placed on Ms. Dickson’s ability to invoke her Charter rights with respect to her government, since in some cases her Charter rights will have to give way to the section 25 rights of her First Nation.
Q. Do you think that there's any possibility in future litigation that section 33 could be accessible to First Nation governments? Is it likely that courts would buy into this?
A. I think in principle, if the Charter applies to, say, the VGFN government, then I don't see any basis on which the courts could find this government not having access to section 33. Now, from the perspective of the VGFN, if their position is that the Charter does not apply to us, I could imagine them saying let’s not invoke section 33 because we would be implicitly accepting that the Charter applies to us. So there might be a political calculus for the First Nation government not wanting to use it if they’re opposed to the Charter’s application. But if they accept the Charter’s application, I don't see any reason why a First Nation in the position of the VGFN could not invoke section 33 to shield their laws from the Charter to the extent allowed under section 33.
In my view, this isn’t a hard sell. I mean, it’s a pretty open question, but I just think they’d be in a position fairly similar to Quebec after 1982, where Quebec never agreed to the patriation of the Constitution, and after 1982, they readopted all of their provincial laws using section 33. That went to the courts, and the Supreme Court found that, at least at the time, there’s very minimal requirements for what a legislature has to do when it invokes section 33. It doesn't have to give a justification or explain itself. It can just invoke section 33, and say, “We’re protecting our laws to the full extent possible.”
My gut feeling is that once the Court says (as it did in Dickson) that the Charter applies to a First Nation government, they can’t easily turn around and find that First Nations are not allowed to invoke section 33. If I’m talking to a client — a First Nation — who might be in a position of the VGFN, I would certainly bring it up, not necessarily recommending it, but just to have them keep in mind that if they’re in the position of the court telling them the Charter applies, in principle, section 33 could be an option for them. If the VGFN did it, it would be, I think, in part, a political statement. A response to an imposition of the Charter.