Two Competing Versions of “Indigenous Difference” Square Off at the Supreme Court of Canada

Cindy Dickson is a member of the Yukon Vuntut Gwitchen First Nation, (VGFN). It has about 560 members, of which about 260 reside in the village of Old Crow, with the remaining members living away. Ms. Dickson lives in Whitehorse, hundreds of kilometers south of Old Crow. The VGFN Council sits in Old Crow.

VGFN enacted a law stating that in order for members to be eligible to sit on Council they must reside in Old Crow. This disentitled Ms. Dickson from running for Council.

Ms. Dickson started a court action seeking a declaration that VGFN’s Old Crow residency requirement violated her right under the Canadian Charter of Rights and Freedoms, (the “Charter”), to be treated equally under the law.

Both the Yukon Supreme Court and the Yukon Court of Appeal dismissed her action in rulings that in effect make First Nations reserves Charter-free zones.

Ms. Dickson appealed to the Supreme Court of Canada. Her appeal will be heard on February 7, 2023.

VGFN, not satisfied with the extent of its victory at the Yukon Court of Appeal, also appealed to the Supreme Court, arguing that the Yukon Court of Appeal was wrong in ruling in effect that the Charter prima facie  applies on First Nations reserves, that a Charter analysis by the court is appropriate in each case where a Charter breach is alleged, but that regardless of the outcome of such analysis, a Charter breach, if found to occur, is “shielded” from Court intervention by section 25 of the Constitution Act, 1982 (“the constitution”).

VGFN urges the Supreme Court to rule that reserves are Charter-free zones of Canada, period, and that accordingly no Charter analysis or Court intervention generally is ever appropriate.

This legal case, being of profound and pressing national interest, has attracted thirteen Intervenors, some for and some against Cindy Dickson’s position.

The identity of the Intervenors and the arguments they make reveal a great deal about the political and economic interests entrenched in and dependent upon the continued existence of the “separate but equal” constitutional status quo in this area of Canadian life, and a great deal about the profound and seemingly unsolvable divisions and problems existing due to this constitution-based separation of Aboriginal Canadians from the rest of Canadians.

Intervenors on behalf of Cindy Dickson are the Attorney General of Canada, the governments of Quebec, Yukon and Alberta, the Canadian Constitutional Foundation, the Band Members Alliance and Advocacy Association of Canada, (“BMAAAC”), and the Congress of Aboriginal Peoples.

Intervenors on behalf of VGFN are the Carcross/Tagish First Nation, the Council of Yukon First Nations, the Teslin Tlingit Council, the Metis Nations of Ontario and Alberta, the Federation of Sovereign Indigenous Nations, the B.C. Treaty Commission and the Pan-Canadian Forum on Indigenous Rights and the Constitution.

All parties appearing before the Court filed a written outline of the facts and law they rely on, and a brief summary of their arguments, which filings are called Factums. Some of the following quotes and statements of the parties’ arguments are based on the contents of some of these linked-to Factums. (Hopefully, whenever the reader reads this article, the links will still be online.)

Ms. Dickson and her Intervenors generally argue that Indigenous governing bodies are “governments” within the meaning of section 32 of the constitution, and thus are subject to the Charter. They argue, as articulated by BMAAAC, that “Indigenous governments are part of Canada’s modern constitutional structure”.

They argue, as articulated by the Canadian Constitutional Foundation, that the Indigenous right to self-government, such as it may be, “is not a right to absolute sovereignty.”

They argue that section 25 should only apply to shield from Charter intervention Indigenous laws that in substance are enacted to protect Indigenous “collective rights” and uphold “Indigenous difference.” As Alberta argues, section 25 should only apply to shield against a Charter-violating Indigenous law where the law is enacted to prevent a genuine threat to the “distinctive, collective, cultural identity of an Aboriginal group,” which, it argues, is not the case with the VGFN residency requirement.

Ms. Dickson and her Intervenors argue, as Yukon articulates, that section 25 is only an “interpretive lens”, rather than a shield.

They argue, as the Attorney General of Canada articulates, that in every case where there is a conflict between an Indigenous law and the Charter, the Court, adopting a “purposive and inclusive” approach, should undertake a “contextual interpretative exercise to determine if there is true conflict that cannot be reconciled,” and to determine if the Charter-breaching Indigenous law must of necessity be upheld for the “maintenance of the Indigenous group’s distinctive culture”. If that necessity is not shown, the Charter-breaching law should not be upheld.

They argue that Charter-breaching laws that create “intra group” distinctions amongst Indigenous reserve residents, and which don’t touch on “Indigenous difference”, such as the VGFN residency requirement, should not be shielded by section 25.

In the midst of a blizzard of abstractions put before the Supreme Court BMAAAC advances a refreshingly concrete argument which focuses on actual governance life on First Nations reserves.

BMAAAC describes itself as” a voice for those band members that have lost their voice, as a result of lateral violence, fear of retribution by band councils, and discriminatory practices, often under the veneer of aboriginal custom and governance.”

BMAAAC puts flesh on the reality of band councils which too-frequently arbitrarily and unjustly create discriminatory, Charter-violating “Intra group” distinctions between reserve residents, such as the VGFN residency requirement.  It argues that Indigenous governments are perfectly capable of “being aboriginal” while at the same time respecting basic human rights guaranteed by the Charter.

In its written submission to the Court BMAAAC pointedly asked (and then answered):

“Should an aboriginal government be permitted, for example, to strip certain members of their status, and with it a host of important financial benefits and cultural opportunities, on the basis of gender or sexual orientation? Or should the government be allowed to abduct, and assault, humiliate members against their consent? BMAAAC submits that permitting these sorts of results and leaving the most disadvantaged Canadians to fend for themselves does nothing to promote reconciliation.”

The Congress of Aboriginal People, representing off-reserve Aboriginals, who, as of 2021 represented 60% of the Aboriginal population of Canada, argue that “Indigenous legal orders do not stand separate and apart from Canadian law; they form an integral part of it.”

It argues that the VGFN residency requirement, a form of “internal discrimination”, violates the Charter and that section 25 of the constitution does not immunize it from Charter review and relief.

It argues that the federal United Nations Declaration of the Rights of Indigenous Peoples Act, (UNDRIP), protects the right of Indigenous Peoples “to be free from any kind of discrimination in the exercise of their rights”.

Generally, Cindy Dickson and her Intervenors argue that First Nations reserves are legally and functionally part of Canada, and that they and their citizens are an integral part of the Canadian constitutional fabric, and as such, with limited exceptions focusing on their unique collective rights and their “Indigenous difference”, should be presumptively bound by the Charter.

On the other hand, VGFN and its Intervenors argue that the Canadian Charter of Rights and Freedoms doesn’t apply at all on First Nations reserves, and that applying it presumptively or automatically, or at all, constitutes a violation of their right to “self-determination.”

VGFN argues that it is not a “government” subject to section 32 of the constitution. It argues that section 32 only applies to “Canadian state authorities”, which it maintains it and other “sovereign” First Nations are not. In this regard VGFN argues, supported by the Teslin Tinglit Council, that it derives no delegated authority from the Canadian state. VGFN argues that its residency requirement is an exercise of its inherent right of self-government which exists “independently of Crown sources”.

As Teslin Tinglit Council puts it on this point: “We have inherent rights of self-government, not delegated powers. (The Charter) should not be presumed at law to apply to Indigenous rights…Nation to Nation negotiations are the appropriate mechanism to address application of the Charter.”

Intervenor Carcross/Tagish First Nations, a group of eleven First Nations in southern Yukon, argues that the purpose of section 25- a “true and necessary shield”- is to prevent interference with “our clan-based methods of governments, as they express their Indigenous legal orders”.

The Federation of Sovereign Indigenous Nations, an umbrella organization for 74 Saskatchewan First Nations, argues that section 25 provides a complete shield against Charter interference, with the purpose of protecting “Indigenous difference.” It argues that governance is an “inherent and pre-existing right” which is preserved by section 35 of the constitution. It further argues that imposing the Charter on First Nations imposes a “Eurocentric government’s perspective or paradigm”, which is contrary to the objective of self-determination.

Reaching the heights of evidence-free abstraction, it further argues that “the concept of Indigenous connectivity is at odds with the western or Euro-American notions of liberty and individual freedoms”, and that “Indigenous peoples have a very different view of the nature of their rights and legal relationship within their community”.

The BC Treaty Commission, which declares on its website that one of its main roles “is to be an independent facilitator of negotiations amongst First Nations, the Government of Canada and the Government of British Columbia”, (italics added), argues that there should be no Charter analysis or balancing exercise at all, that section 25 is “protective”,  and that it should be given “a generous and liberal interpretation, favoring the interests of Indigenous peoples.”

(By inappropriately wading into and taking sides in this dispute- by favoring First Nations and disfavoring the Government of Canada, both of which it expressly declares itself to be independent from- the BC Treaty Commission, which appears to have no core interests of its own at stake in this case, has destroyed any previous claim it had to be regarded as independent.)

Equally strange is the intervention in support of VGFN by the Metis Nations of Ontario and Alberta. Metis are technically “Aboriginal”, but they are not “Indians”. They are totally assimilated and have no “Indigenous difference” to protect or even debate about.  They have no reserves and in fact no land base in Canada whatsoever. They are fighting amongst themselves over “Who is a Metis?” and which Metis group should have control over all the government money they get. They no doubt take their own Charter of Rights protections for granted. Why they would advocate that another Aboriginal group of Canadians should not have Charter protection is a mystery.

The illiberal version of Indigenous culture described by VGHN and some of its Intervenors in their Factums, focusing as it does on the idea that “we can say that we are not part of Canada when it suits us, but also demand Canadian rights and taxpayers’ money when it suits us”,  and on collective group rights at the expense of individual rights, evidences a rejection by them of basic Canadian sovereignty  and of fundamental Western Enlightenment values and safeguards- the values and safeguards of liberalism- that have made Canada a world beacon and refuge of internal peace, prosperity, order, progress and individual freedom.

It is noteworthy that these First Nations proponents of illiberalism are located in mainly rural and remote areas of the country, and that they represent no more than 40% of all Canadian Aboriginals.

It is also noteworthy that even within this 40%, as evidenced by the submissions of BMAAAC, there are numerous rural and remote, reserve-based Aboriginals who have been discriminated against by the illiberal conduct of their reserve governments. They say they are part of Canada for all purposes, and they want Charter protection against illiberal band leadership conduct.

The majority of Aboriginals in Canada- 60%- who live off-reserve in our towns and cities also affirm Canadian sovereignty for all purposes.  And they support Cindy Dickson’s more liberal version of Indigenous culture, where  preservation of the “Indigenous difference” does not involve depriving Aboriginal Canadians of the protection of the Canadian Charter of Rights and Freedoms in their home communities.

Canadians will have to wait several months before we learn whether the Supreme Court will choose the more liberal majority version of the “Indigenous difference”, or the minority illiberal one.

Peter Best

February 2, 2023

Sudbury

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