The heedless enactment of section 35 of the 1982 Constitution Act and its radical interpretation by the Supreme Court of Canada has officially cemented Canada in as a quasi-apartheid nation, with one special set of race-based laws for Indigenous peoples and another general set of race-free laws for non-Aboriginal Canadians. The consequences of this for both groups, and for Canada as a whole, have been economically and socially disastrous.
Now the Yukon Court of Appeal has added another layer of legal cement to this harmful, illiberal reality, by ruling what legal commentators have always suspected was the case in any event, that is, that the Canadian Charter of Rights and Freedoms can be abrogated or derogated by Band Councils on First Nations reserves or in areas subject to First Nations’ self-government agreements with Canada, (both areas herein called “reserves”). Shamefully, reserves are now officially potential Charter-free zones of Canada, within which the individual Aboriginal Canadians who reside on them can be stripped of their Charter rights and freedoms by their Band Councils, with practical impunity.
In the case of Dickson vs. Vuntut Gwitchen First Nation (“Dickson”) the Yukon Court of Appeal ruled in November of 2021 that, while the laws of self-governing reserves are technically subject to the Canadian Charter of Rights and Freedoms, they are “shielded” by section 25 of the Charter from being ruled unconstitutional, and thus void, by a court.
Section 15(1) of the Charter, the universal “equality under the law” section, states:
Equality before and under law and equal protection and benefit of law
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.
But when it comes to “aboriginal peoples” not so universal, because section 25 states:
Aboriginal rights and freedoms not affected by Charter
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.
Some of the traditional rights and freedoms that the Charter affords all Canadians, which we rightly take for granted, are freedom of religion, freedom of expression, freedom of the press, freedom of association and assembly, the right to life, liberty and the security of the person, and the right not to be deprived of same without due process.
Most Aboriginal Canadians also normally take those rights and freedoms for granted, and they continue to enjoy them off their reserves.
But once they set foot back on their particular reserve, or on any reserve, despite what they may have previously thought, they no longer assuredly have them. There, they revert back to the civic infantilism, which now includes no guaranteed civil rights, that the reserve fundamentally represents.
The numerous First Nations bands, which, with their expensive lawyers, fought for this ruling, should be happy with the outcome of this case. But they want more from the court in this regard, and since it’s the Canadian taxpayers who, in the end, pay the fees of those lawyers, they are appealing to the Supreme Court of Canada to get that “more” that they want.
As stated, the Yukon Court of Appeal ruled that the Charter technically applies on reserves, but that otherwise unconstitutional laws of Band Councils are shielded from court intervention by section 25. They want the Supreme Court of Canada to rule that the Charter does not apply, technically or otherwise- period! – on reserves.
They want the Supreme Court to rule that no “Charter analysis” of Band Council laws by any court is appropriate in any circumstances, and that in all cases section 25 should be applied at the very outset of any inquiry in this regard as the first and final, door-slamming response to any complaint or challenge by aggrieved Aboriginal reserve members about their Charter rights being violated by their Band Council.
They want the Supreme Court of Canada to rule in effect that it would be lawful and true for a reserve Band Council to erect a sign at the entrance of its reserve saying: “Charter-free zone ahead. Reside here at your own risk. By entering and residing on this reserve you acknowledge and agree that your civil liberties as otherwise set out in the Canadian Charter of Rights and Freedom are subject and subservient to the whims and wishes of reserve Band Council. – By Order of the Supreme Court of Canada.”
Given the Supreme Court’s past enthusiastic applying of layer upon layer of Aboriginal, quasi-apartheid judicial cement to Canada’s pre-existing, quasi-apartheid constitutional foundations, and given the recent affirmative action appointment of the thinly-qualified Madame Justice Michelle Obonsawin to the Court, the latter, according to government press releases, steeped in the traditions of Aboriginal “legal orders” and possessing the “Aboriginal perspective”, it would be surprising if the appeal was unsuccessful.
Vuntut Gwitchen First Nation (VGFN) is centred in the tiny village of Old Crow Flats, located about 800 kilometres north of Whitehorse. Its total population is only about 560 “citizens”, of whom a mere 260 reside in Old Crow Flats. The rest live elsewhere. Many, including the applicant in the case, Cindy Dickson, live in Whitehorse. There’s no road to Old Crow Flats. It is regularly accessible from the outside only by plane.
VGFN has a law that says that only residents of Old Crow Flats can be elected to Band Council. Ms. Dickson, who wanted to run for Band Council, but was disqualified from doing so because she resided in Whitehorse, challenged this residency requirement in court, alleging that the law violated section 15 of the Charter by treating her, a “citizen” of VGFN, in an unequal fashion compared to those “citizens” of VGFN who resided in Old Crow Flats.
As stated, the Yukon Court of Appeal, essentially upholding the ruling of a lower court Judge, frankly and without embarrassment acknowledging and accepting “the inherent differences between the liberal enlightenment concept of individual rights and the collective nature of Indigenous rights”, ruled that section 25 “places rights that pertain to the aboriginal peoples of Canada in a different category” from rights under section 15 of the Charter held by non-aboriginal Canadians. Those aboriginal rights “are protected from being abrogated, abridged or infringed by personal rights under the Charter.”
As the Court further wrote:
“Self-governing nations are now in a position to use (section 25) …as a shield…Questions relating to s. 25 are particularly difficult because of the fact that the real conflict found by the court below is between an individual’s personal right of equality under s. 15.1 of the Charter and a collective right-perhaps a “constitutional “one- being exercised by a self-governing first nation. The kinds of considerations relevant to the determination of which rights “pertain to” Aboriginal persons are obviously not the same as those normally examined under s.1 (of the Charter) in determining whether an infringement of a claimant’s equality right is “justified in a free and democratic society.” Where the “collective” is a first nation that has survived years of paternalism and the suppression of its culture, the better view seems to be that under s. 25 the collective right should prevail undiminished.” (Italics added)
In coming to its conclusion, the Court relied on the writings of numerous Canadian legal academics, all of whom were unanimous in their view that it was acceptable for First Nations Band Councils to sacrifice the civil liberties of their “citizens” on the alter of Aboriginal “collective rights.”
Once academia championed underdogs like Cindy Dickson in their fights against the establishment. Once they championed rights and freedoms activists like Nelson Mandela and Martin Luther King, and their campaigns for one set of laws for all races in the country, with everyone being treated equally by those laws. No more. Now they are mere careerist shills for the identity politics-obsessed establishment. How low academia has fallen.
As stated, the winning First Nations in this case are not satisfied with the substantial victory they won. They want total victory.
They don’t want any future court engaging in any “considerations” at all relating to whether the right in issue is a “Charter right” vs. an “Aboriginal right”, or whether the right in issue is a “constitutional right” as opposed to some other kind of lesser right to which section 25 might arguably not apply. No, they want a ruling from the Supreme Court of Canada to the effect that, based on s. 25, if it’s a law passed by a self-governing First Nation, regardless of what it says, then it’s the same as any law of any foreign country, that is, it’s beyond the jurisdiction of any Canadian court at all, and it would be constitutionally wrong for any Canadian court to even inquire whether or not it breached the Canadian Charter of Rights and Freedoms.
Whether these First Nations win their appeal or not, which likely won’t be heard until 2023, the practical effect of Dickson will remain the same: Aboriginal “citizens” of reserves will be able to be effectively deprived by their Band Councils of their individual Charter-guaranteed rights and freedoms on their reserves- rights and freedoms- civil liberties– that non-Aboriginal Canadians rightfully take for granted.
Reserves will, for all practical purposes, be and remain, as they officially are now, Charter-free zones.
The Dickson decision is a moral disgrace – a complete rejection of the Enlightenment principles upon which Canada was founded and developed into the vibrant liberal democracy that it is today.
But, given the wording of section 25, which section clearly “says what it says”, the Yukon Court of Appeal can’t be blamed for deciding the case as it did. The blame for it must be assigned to the Charter framers who allowed it to be inserted into the Charter in the first place: “progressives” like Bob Rae, Roy Romanow, Jean Chretien and the by then resigned-on-the-subject Pierre Trudeau[i]. Their ostensible reason for doing so, as articulated by the court in Dickson, was “…for legitimate cultural reasons…(to) allow Aboriginal governments to protect, preserve and promote the identity of their citizens through unique institutions, norms and government practices”.
But by pursuing this lesser purpose in this radical, unchangeable manner- by putting it in the practically un-amendable Constitution- these well-meaning but, in this profound situation, foolish and short-sighted, men, turned their backs on one of the most basic Enlightenment principles of the modern age, that is, that “the individual human being is the ultimate unit of all law… (and his) …well-being is the ultimate object of all law.”[ii] And in so doing, they turned their backs on promoting and furthering the best interests, individual and collective, of Aboriginal Canadians.
Sections 25 and 35 of the Constitution Act, as interpreted by the Supreme Court of Canada, and now by Dickson, presume the civic moral equivalency of essentially illiberal, only partially literate,[iii] pre-state, Aboriginal tribal culture with that of the modern, liberal-democratic state. This is wrong. These sections, and Dickson, are based solely on pure abstractions and on romantic Rousseau-like fantasies about the supposedly virtuous and idyllic attractions and benefits of contemporary Aboriginal life. They are completely divorced from the concrete realities of human nature.
Dickson talks about “unique institutions, norms and government practises”, but fails to identify even one.
The case itself is about the legality of a Band Council election residency requirement, an issue with distinctly non-Aboriginal legal and cultural roots.
The case was litigated in the Yukon courts, the many, black-robed lawyers and judges utilizing solely British-Canadian procedural and substantive law. The court adopted the evidence of one VGFN witness who talked about “Vuntut Gwitchen legal and political traditions or governance systems” and “VGFN legal orders (being) collective in nature”, yet there was no evidence put before the court as to what those things were. It was all bare assertions, with no cogent or coherent evidence to support any of them.
The essentially empty, mythological nature of VGFN “legal” traditions, systems and orders is evidenced by the fact that their 1993 self-government Constitution calls for the establishment of a “Vuntut Gwitchin Court… (which would) have power to hear and decide all cases of alleged violation of Vuntut Gwitchen Laws…”. “Citizens, (any one of the 560 of them), would have the right to challenge a Vuntut Gwitchen Law in the Yukon Supreme Court “or in the Vuntut Gwitchen Court”. Yet as of 2021, when this case was decided, after the passage of almost 30 years, no such court had yet been established.
It’s patently absurd and illustrates perfectly how Canada’s elites inhabit a realm of pure abstractions in relation to all matters Aboriginal,[iv] to think that there would ever be an entire court system established to serve a so-called “Nation” of approximately 560 people, of whom only about 260 live in its “capital city” of Old Crow Flats. Yet all these people involved- judges, lawyers, politicians, academics and many more- play-act otherwise!
Dickson repeats the usual undefined, essentially meaningless banalities about “the land”, and how the “very identity” of the Vuntut Gwitchen has always been “deeply rooted” in it. Even their “practices, customs and traditions related to leadership and governance are also rooted in the land itself”. No doubt in the distant past this was the case, but in the modern age, dependent upon airplane access to Whitehorse, satellite service, the internet, iPhones, snow machines, quads and motorboats, high-powered rifles, gasoline, modern dwellings, electricity, water treatment facilities, health care, education, high priced Vancouver litigators paving the way for an all-expenses paid trip to the Supreme Court in Ottawa, and all the other accoutrements of modernity, such a genuinely land-based, hunting and gathering culture is impossible, and the reality for VFGN, as for all Aboriginal “Nations” in Canada, is that it is extinct.
The evocative but empty phrase, “the land”, is now just a very effective Aboriginal legal and political marketing concept too credulously bought into by non-Aboriginal elites, including the judges in Dickson.
In any event, it should go without mentioning that in 2022 the relationship of non-Aboriginal Canadians to “the land” is no less significant, spiritual, profound or reverential than that of Aboriginal Canadians. It would be plainly and groundlessly racist to suggest otherwise!
Other common, empty, childishly simplistic, Indian Industry[v] tropes were trotted out by VGFN lawyers in Dickson and, without any facts in support of them put before the court and unquestionably accepted as received judicial truths by all the judges: “the acknowledged paternalism of the Indian Act”, “the “displacement and alienation of Vuntut Gwitchen people from Vuntut Gwitchen Territory through imposed colonial laws and policies including residential schools, Indian Act administration and resource development without Vuntut Gwitchen consent or involvement…” and “the harmful effects of colonization and assimilation through displacement or alienation from our land, including Residential Schools, child welfare policies, federal funding policies, and Indian Act government.”
Such simplistic, shopping list, blaming tropes, in fact relating to highly complex, nuanced, usually blameless, inevitable and universally occurring historical processes and events, are routinely accepted as “givens” in Canadian courts now, evidencing an alarming decline in judicial standards and practices, and, in Aboriginal rights litigation, an always-tilted playing field.
The civic pre-state, tribal “collective rights” culture wrongfully given moral equivalence to Canada’s liberal-democratic civic culture by the framers of the Constitution Act, and now by Dickson, is a betrayal by our elites of Canada’s Aboriginal peoples. Pre-state, tribal Aboriginal culture is civically inferior- and, as stated, in any event now extinct- and its modern faux iteration inclines its adherents, not to virtue, but rather to corruption, social and economic stagnation, and kinship favouritism.
The reserve system is “collectivist” in name only. Political control of reserves is too-often exercised by oligarchic, hierarchical rulers, something more typical of the excesses of modern “crony capitalism”[vi] than of authentic pre-contact Aboriginal culture, where such anti-group welfare behaviour usually resulted in banishment or death.
In 2014 columnist Lorne Gunter pointed out that “at any one time, more than a third of First Nations reserves are under full or partial federal financial control because band leaders can’t manage.”[vii]
Author and former British Columbia Liberal leader, Gordon Gibson, wrote:
While some bands have done well, it is a sad truth that everywhere in the world, small governments with large powers and little accountability tend to become corrupt- not always, but often. The reserve system is the centre of this…Indians are human beings just like the rest of us. But most are burdened by the system.[viii]
Aboriginal writer William Wuttunee, in his book Ruffled Feathers[ix], described the chief and band-controlled land management system as “feudal.”
Aboriginal writer Calvin Helin, in Dances With Dependency, (see note v), sets out in clear and depressing detail all that is wrong and illiberal about the Dickson-exalted, “collective rights”-based reserve system:
“…band governments answerable to no one; powerless community members; an AFN comprised of and representing only the self-interested Chiefs- “colonizers of their own people”, and generally, “a situation not unlike many banana republics.”
And, as to the possibility of an aggrieved Band member challenging in court an unjust or illegal action by his or her Band Council, as Aboriginal legal writer Rob Louie pointed out in his article, First Nations don’t live in a harmony hut[x], a revealing article dealing with the all-too-common problem of corruption in Band elections:
“What realistic chance do band members have against chief and council who control their money and resources? For many band members in Canada, the battle is not just with the Crown, it is also with their own leadership.”
Feudalism and crony capitalism are what the framers of the Constitution Act and the courts, epitomized by Dickson, have condemned on-reserve Aboriginal Canadians to.
It is simply stunning that all these elites, raised in and sustained by the liberal-democratic tradition, have so casually and with such a self-satisfied but entirely misplaced sense of virtue and sanctimony, eschewed it for the five per cent of the Canadian population represented by Aboriginal peoples, as if they’re all saying: “State-guaranteed civil rights for me but, Aboriginal Canadians, not for thee!”
In the final analysis, as history and human nature has taught us, liberalism, liberal values and a cosmopolitan ethos, all focussing on the sanctity of the individual over any kind of group ethos or “ism”, are the best we’ve got.
“Liberalism and democracy, with all their limitations, are what remains after every utopia and extremist scheme based on blood and territory has been exposed and shattered by reality.”[xi]
In the deliberations around the signing of the old treaties, the Crown was spoken of as the “parent” and the Aboriginal treaty signers as “children”. From this paradigm there justly arose, based on fiduciary principles, the doctrine of “the honour of the Crown”, requiring the Crown to always act in the best interests of its Aboriginal “children”. The Crown honour principle now needs to be re-visited, re-thought and re-applied in such a way that Canada starts to treat Aboriginal peoples like a responsible parent would, not in accordance with what her Aboriginal “children”, (so poorly represented by their conflicted, self-seeking elites), subjectively want, but in accordance with what they objectively need in order to become self-supporting, civically engaged adult citizens of modern Canada.
Thus, the Constitution Act needs to be amended to get rid of sections 25 and 35. These sections, as so illiberally manifested in Dickson, cannot be the last condemnatory message to Aboriginal Canadians about their civic status in modern Canada i.e., that they are permanent, backward-looking, second-class, civically non-adult Canadians, especially concerning their personal rights and freedoms.
Canadians can and must help Aboriginal Canadians to become liberated from the consequences of these disastrous sections of our Constitution, and from Dickson, and from their no-doubt reassuring, but false nonetheless, race-based sense of uniqueness-of apartness from the rest of Canadians- where illusory differences over the pure abstractions of “race” and “blood” wrongly imply moral and legal justifications for special rights and treatment under the law- special rights and freedoms that, so long as they continue, prevent them from fully participating as equals in the life of modern Canada.
Non-Aboriginal Canadians must help lead Aboriginal Canadians out of this socially ruinous, illiberal, civically infantile, race-obsessed situation our elites have recklessly stuck us all in.
Peter Best
Sudbury
September 6, 2022
[i] As reported by Indigenous author and Indian Industry stalwart Bob Joseph, in his book 21 Things You May Not Know About the Indian Act, (Indigenous Relations Press, 2018), “When forced to withdraw the White Paper in 1970, Prime Minister Trudeau is said to have stated, “We’ll keep them in the ghetto as long as they want.” After that, Trudeau, frustrated by the insistence of Indigenous leaders on clinging to their reserve-based dependency and learned helplessness- on clinging to their golden chains- washed his hands of the issue.Section 35, especially as interpreted by our Crown sovereignty-diminishing and legal and social divisiveness-promoting Supreme Court, has certainly ensured that Trudeau’s exasperated ghetto assertion has come true. And now Dickson makes those ghetto walls even stronger and higher, barring Canadian civil liberties laws from ever entering the ghetto confines.
[ii] Hersch Lauterpacht, professor of international law, who developed the concept of “crimes against humanity”, first applied in the 1946 Nuremberg Trials, as quoted by international lawyer and professor of law Phillippe Sands in his remarkable book, East West Street, Vintage Books, New York, 2017.
[iii] In Ginoogaming First Nation v. Her Majesty The Queen In Right of Ontario et al, (2021 ONSC 5866), Madam Justice Vella, clearly implying that the members of the First Nation in question were not fully literate, stated as follows:
“Letter writing has seemingly been an ineffective form of communication and therefore puts into question whether one letter and follow email (sic) leading up to the approval of the Ferau Permit was “meaningful” consultation…Letter writing, while a convenient way to paper communication, is not necessarily adequate in the Indigenous cultural context within which governments must deal, and ineffective within the Anishinabek cultural context as described in the evidentiary record by Ginoogaming’s witnesses.”
[iv] “Everywhere there is abstraction, abstract duty…official rhetorical morality without any relation to practical life…a doctrinaire earnestness which excludes all forms of self-questioning.”- Nineteenth Century Russian intellectual, Alexander Herzen, quoted in Aileen Kelly’s biography of him: The Discovery of Chance, Harvard University Press, 2016
[v] Phrase used by Aboriginal writer/lawyer/businessman Calvin Helin in his book, Dances With Dependency, Out of Poverty Through Self-Reliance, (Ravencrest Publishing, Woodland Hills, California, 2008). He describes the Indian Industry as follows: “…the industry of Non-Aboriginal Hucksters and “consultants”, and those Aboriginal politicians who are openly profiting from the sea of despair and poverty. In spite of what they say this “Indian Industry” has no real interest in changing a system from which they are profiting.” (They’re profiting from a system that tolerates such high degrees of despair, violence and social failure generally that they underlie the murders of ten innocent Saskatchewan reserve residents.)
[vi] “Crony capitalism flourishes in countries where politicians control resources and allocate business opportunities to their relatives, friends and supporters.”- Professor Tom Flanagan, in First Nations? Second Thoughts, (2nd edition), McGill-Queen’s University Press, 2008
[vii] From The Sudbury Star, April 9, 2014
[viii] Column, Canada Enables the Sickness of the Reserves, The Globe and Mail, September 8, 2014
[ix] Bell Books Ltd. Calgary, 1976 (out of print)
[x] The Lawyer’s Daily, July 27, 2022
[xi] Robert Kaplan, from In Europe’s Shadow citation
