Overview
This blog post focuses on lessons from the Supreme Court of Canada’s Dickson decision regarding conflicts between collective Indigenous rights and individual Canadian Charter of Rights and Freedoms (“Charter”) rights. For an overview of Dickson and all of its rulings, see our previous blog post.
In its decision, the Supreme Court of Canada affirmed that the Charter[1] applies to Indigenous self-governments, but that section 25 of the Charter (“s. 25”) protects Indigenous laws that flow from Aboriginal rights, treaty rights or other rights that protect or recognize Indigenous difference. The Court held that: “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” (para 107).
The question then becomes:
How do courts and Indigenous law-makers determine when there are conflicts between individual rights and collective Indigenous rights, and when do collective rights take precedence?
The Section 25 framework set out in Dickson
The Supreme Court of Canada set out the following framework for courts when addressing conflicts between individual Charter rights and collective rights of Indigenous peoples (paras 178-183):
- The individual Charter claimant (e.g. an individual alleging breach of their Charter rights) must show a prima facie breach of their Charter right. Prima facie here means that the law or government action being challenged (a) on its face or in its impact, creates a distinction based on enumerated or analogous grounds; and (b) imposes a burden or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage (para 188).
- The party invoking its collective rights (e.g. a First Nation) must satisfy the court that the law/action is a right, or an exercise of a right, that is protected by s. 25, i.e. the law/action is itself an Aboriginal, treaty or other right, or enables the exercise of these rights.
- If the party is claiming an “other” right, then it must demonstrate that the right protects or recognizes Indigenous difference.
- The party invoking its collective rights must show that there is an irreconcilable conflict between its collective rights and the individual’s Charter right.
- If successful, s. 25 operates as a shield to protect the collective right.
- If not successful, the court will move to the analysis at s. 1 of the Charter, assessing whether the collective right and individual right have been appropriately balanced.
- The court will consider whether there are other limits on the s. 25 right, such as the requirement for gender equality at s. 28 of the Charter.
The party invoking its collective rights (e.g. a First Nation) is charged with the burden of demonstrating that there is an Aboriginal, treaty, or “other” right, and if it is an “other” right, the collective rights-holder must also demonstrate that the right protects Indigenous difference. The court did not specifically set out what level of proof is required to demonstrate the existence of this right.
The court explained that it is up to the party invoking its collective rights to prove that there is an irreconcilable conflict between the individual Charter right and the s. 25 right, and that this conflict is more than incidental. If it is possible to give effect to both rights, then there is no conflict. If giving effect to the Charter right would only have an incidental effect on the s. 25 right, then s. 25 no longer operates as a shield, and the individual Charter right will prevail.
The Court did not set parameters for what “other limits” could apply to s. 25, other than to identify the gender equality provisions at s. 28 and s. 35(4) of the Constitution Act, 1982. These provisions are very narrow – it is not clear whether those provisions include two-spirit, non-binary, or other gender non-conforming individuals, for example.
The Dickson decision – Using Section 25
The Dickson decision was the first Supreme Court of Canada case to set out a framework on section 25. The decision implemented the section 25 framework in the following manner:
- Cindy Dickson demonstrated a prima facie s. 15(1) breach on the analogous ground of non-resident status in a self-governing Indigenous community, impugning the Vuntut Gwitchin First Nation (“VGFN”)’s residency requirement.
- The court was satisfied that VGFN’s residency requirement was an “other right” protected by s. 25, as evidenced by language in the Vuntut Gwitchin First Nation Final Agreement, the Vuntut Gwitchin First Nation Self-Government Agreement, the federal Yukon First Nations Self-Government Act, the territorial First Nations (Yukon) Self-Government Act, and the Vuntut Gwitchin First Nation Constitution. These authorities operationalize the Nation’s right to implement rules for the membership, composition, structure and powers of the Nation’s government institutions.
- With respect to protecting Indigenous difference, the Court looked to the evidence from the community that the residency requirement was “deeply rooted in the VGFN’s distinctive culture and governance practices,” and supported both ongoing personal relationships between leaders and community, as well as VGFN’s resilience in resisting outside forces that may erode VGFN’s connection with the land (para 217). The Court concluded that because the residency requirement is constitutional in nature, it was unnecessary to decide in this case whether s. 25 only protects rights of a constitutional status. This issue may arise in other cases.
- VGFN demonstrated that there was an irreconcilable conflict between its s. 25-protected right to establish the residency requirement and Cindy Dickson’s individual right to equality on the ground of non-resident status in a self-governing Indigenous community. The Supreme Court of Canada concluded that giving effect to Ms. Dickson’s Charter right would impact the s. 25-protected residency requirement in a way that was not merely incidental. To reach this conclusion the court relied on evidence from the community that the residency requirement was inextricably tied to leaders’ connection to the settlement land, and that there was a widely held view that “that Vuntut Gwitchin self-government and the protection of our culture is critically linked to the seat of our government being in Old Crow” (para 225).
Examples: Individual rights in conflict with collective rights
Dickson is the first case where the Supreme Court of Canada dealt with a conflict between individual Charter rights and collective Indigenous rights. Although the case does not speculate on the types of conflicts that Indigenous governments may face in the future, we can look to other cases for insights into how such conflicts could potentially arise. Although the cases described below did not engage s. 25, the facts of each case help to illustrate how s. 25 could be triggered in future.
There are many circumstances in which an Indigenous government might make a law, regulation, bylaw, policy, or program) that comes into conflict with individual Charter rights. The individual rights protected by the Charter include:
- Religious freedom (s. 2)
- The right to travel within Canada and to leave and re-enter Canada (s. 6)
- Life, liberty and security of the person (s. 7)
- Freedom from unreasonable search or seizure (s. 8)
- Equality (s. 15)
Aboriginal rights vs. right to life
At issue in Hamilton Health Sciences Corp. v. D.H. was a conflict between a mother’s right to decide on treatment for her child, including by practicing her s. 35 Aboriginal right to practice traditional medicine, and the child’s s.7 Charter right to life, liberty and security of the person.[2] An 11-year old girl from Six Nations, “J.J.”, suffered from leukemia and was treated at McMaster Children’s Hospital. J.J.’s mother, as her substitute decision-maker, sought to remove J.J. from the hospital to allow her to receive treatment informed by traditional Indigenous medicine. The Hospital challenged the mother’s decision, arguing that it threatened J.J.’s s. 7 Charter right to life, liberty and security of the person. The Hospital argued that chemotherapy was 90% likely to be successful in curing J.J.’s leukemia, and without it, J.J. would likely die. The court concluded that the mother’s Aboriginal rights to practice traditional medicine were not limited by the Charter. However, following a joint submission of the parties, the Court amended its reasons to include a finding that the s. 35 “right to use traditional medicine must be respected, and must be considered, among other factors, in any analysis of the best interests of the child, and whether the child is in need of protection.”[3] There are several similar cases involving blood transfusions for the children of Jehovah’s Witness. Where the child was too young to decide for herself, courts concluded that the child’s s. 7 right to life prevailed over the parents’ s. 2 right to freedom of religion.[4]
Aboriginal, treaty and other rights vs. Equality (race) – Custody cases
This issue arose in L.L. v. A.I., 2023 BCSC 1503, a custody dispute between one Indigenous parent and one non-Indigenous parent. The non-Indigenous parent argued on appeal that the judge had unfairly prioritized Indigenous heritage over the best interests and safety of the child, an argument the court did not accede to. Here, the court was interpreting BC family law legislation. If the same set of facts arose in the context of legislation passed under an Act respecting First Nations, Inuit and Métis children, youth and families (i.e. Bill C-92), it might be possible for a litigant to argue that the legislation breached the child’s s. 7 Charter right to life, liberty and security of the person, or that the legislation breached the non-Indigenous parent’s equality rights per s. 15 of the Charter. The Indigenous government would potentially respond that the legislation was protected by s. 25 of the Charter.
Aboriginal, treaty and other rights vs. Equality (race) – Benefits cases
A Nation making programs may seek to provide benefits like housing or employment to Nation members who are resident on the Nation’s lands, but not to non-members who live on those lands, thus drawing a distinction based on belonging to an ethnic group. This issue arose in R v Kapp,[5] in which a communal fishing license was granted exclusively to several Indigenous groups, over the objections of non-Indigenous fishers. The Court held that this did not constitute a violation of s. 15 of the Charter, because s. 15(2) explicitly allows governments to take measures to ameliorate the circumstances of disadvantaged groups, such as by granting them preferential treatment over others.[6]
Two recent cases dealt with a similar issue: an Indigenous person was excluded because the person did not belong to the Indigenous group at issue. In KP, a young Mi’kmaq and Inuk girl was prevented from joining Ontario’s Little Native Hockey League because she was not a member of an Ontario First Nation. [7] The Tribunal concluded the eligibility criteria were permitted by s. 18 of the Ontario Human Rights Code, and allowed the League to exclude Indigenous individuals from communities outside Ontario. Representatives of the League testified that the unique history of the league, which sought to compensate for the systemic racism that First Nations children and youth faced when trying to get involved in the 1960s and 1970s in hockey in Ontario, justified the exclusion.
In Valle Torres,[8] the Vancouver Native Health Society terminated Mr. Valle Torres’ employment on the basis that Mr. Valle Torres was an Indigenous person from El Salvador, not an Indigenous person of Canada. He had worked with the Society for years prior to his termination, and argued that the need to replace him with an Indigenous person from Canada was not the true reason for his termination. The Tribunal concluded that although the Code allows the Society to prefer Indigenous people from Canada for employment, it was not clear that this termination was saved by this provision. The Tribunal ordered the matter proceed to a full hearing to determine these issues.
If a litigant advances a successful s. 15 Charter challenge on the basis that a Nation’s law discriminates on the basis of race in circumstances like the above, the Nation will be obliged to show that the law emanates from an Aboriginal, treaty or other right, and if an “other” right, that the law protects Indigenous difference.
Aboriginal, treaty and other rights vs. Religious freedom
Another example is if a Nation’s law provides benefits only to those who practice a particular spirituality, such as favouring those who subscribe to the Nation’s spiritual beliefs over Christian members. This type of law could offend an individual’s Charter rights to equality per s. 15 or to freedom of religion per s. 2, depending on the context. Similarly to the above, if a conflict does arise, the Nation would need to show that the law flows from an Aboriginal, treaty, or other right, and if an “other” right, that the law protects Indigenous difference.
Key Takeaways for Indigenous governments:
- Consider the impacts of your laws or other governmental activities on individual rights, including rights of religious freedom; mobility; life, liberty and security of the person; freedom from search and seizure; and equality.
- Where you foresee a possible conflict, consider whether the law/action relates to Aboriginal, treaty or other rights. Consider also if the law/action is one that protects Indigenous difference.
- If it is one that protects Indigenous difference, consider incorporating language within the law/action itself that expresses the Nation’s goal or the purposes behind the self-governance action.
[1] Our commentary below engages the following Charter provisions, so we have reproduced them here for convenience:
Section 1
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.
Section 15
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.
Section 25
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.
Section 28
28 Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.
[2] Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603
[3] Hamilton Health Sciences Corp. v. D.H., 2015 ONCJ 229 Para 83a
[4] B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 SCR 315
[5] R v Kapp, 2008 SCC 41.
[6] Charter at s. 15(2).
[7] KP v Little Native Hockey League, 2020 HRTO 298
[8] Valle Torres v Vancouver Native Health Society, 2021 BCHRT 55