Supreme Court of Canada Upholds the Vuntut Gwitchin First Nation’s Election Residency Requirement in Dickson v. Vuntut Gwitchin First Nation

This is Part 1 of JFK Law’s 3-part in-depth blog series on the Supreme Court of Canada’s decision in Dickson v. Vuntut Gwitchin First Nation. We look forward to releasing Part 2 and 3 in the coming weeks.


Today, the Supreme Court of Canada issued its ruling in Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10, concluding that where Indigenous collective rights conflict with an individual’s Charter rights, the collective rights prevail. The Court upheld the Vuntut Gwitchin First Nation’s on-territory residence requirement for its Chief and Council members, concluding that the right to set criteria for membership in its governing body is a right that protects Indigenous difference, meaning the residency requirement is protected by s. 25 of the Charter.

This decision marks the first time the Court has propounded on the scope and operation of s. 25 of the Charter.

Justice Rowe’s dissenting reasons gave a nod to JFK Law LLP’s Claire Truesdale, citing a 2013 article that she assisted Justice LaForme in writing for the proposition that s. 25 protects laws that uphold s. 35 rights from Charter challenges.[1]


In 2018, Ms. Cindy Dickson applied to run in an election for the governing council of her Indigenous Nation, the Vuntut Gwitchin First Nation (VGFN). She was deemed ineligible because the Nation’s Constitution (the Constitution) requires Chief and Council to reside on the Nation’s Settlement Land, and Ms. Dickson lives 800 km away, in Whitehorse, Yukon. Ms. Dickson lives in Whitehorse with her teenage son for better access to medical care given her son’s ongoing medical care needs.  Ms. Dickson challenged VGFN’s residency requirement as discriminating against her, infringing her section 15(1) right to equality under Canada’s Charter.

This case raises important issues at the intersection of Indigenous law, Canadian Aboriginal law, and Canadian Charter law, including the questions of:

  • What limits exist on an Indigenous Nation’s passage of their own laws? Does the Charter apply?
  • What happens when there is a conflict between the rights of an individual (such as the Charter rights of an Indigenous person) and the rights of an Indigenous collective?
  • Which collective Indigenous rights receive the protection of s. 25 of the Charter?

Previous cases have raised similar issues, such as the contest between the religious freedom rights of a Jehovah Witness parent to refuse blood transfusions for their child (per s. 2 of the Charter) and the child’s right to life (per s. 7 of the Charter),[2] or the contest between that same right to life and an Indigenous parent’s desire to treat their child’s leukemia with traditional medicine,[3] but none have forced the Supreme Court of Canada to grapple with a head-on collision between individual rights and an Indigenous Nation’s collective rights. The Supreme Court’s ruling today is the first time the Court has elaborated on the scope and operation of s. 25 and will have far-reaching consequences for how Indigenous Nations govern on matters that engage individual Charter rights.

The Appeal

In her appeal, Ms. Dickson argued that no fundamental rights and freedoms in the Charter are absolute, and the Yukon Court of Appeal erred by finding that s. 25 is an absolute shield that means there need not be any balancing of Ms. Dickson’s rights with those of VGFN. Ms. Dickson argued that the usual balancing that governs Charter rights should apply even when collective Indigenous rights are at stake.

VGFN argued the Charter does not apply to it as a self-governing Indigenous Nation, that s. 25 is an absolute shield. It made alternative arguments that its residency requirement does not offend s. 15(1) of the Charter, or that if it does, it does so proportionately.

Majority Decision

In its ruling today, the Supreme Court affirmed that the Charter applies to Indigenous self-government, but that s. 25 protects Indigenous laws that flow from Aboriginal rights, treaty rights, or other rights that protect or recognize Indigenous difference.

Its ruling hinges on the finding that the VGFN is an entity that is governmental in nature (meaning it comes within the first branch of the Eldridge test that the Court has used to interpret s. 32(1) of the Charter).[4] This is because the VGFN uses democratic elections and is accountable to its constituents; it has a general taxing power; it is empowered to make and enforce laws within its territory; and at least one source of the VGFN’s lawmaking authority comes from Parliament. Under the second branch of the Eldridge test, VGFN cannot be said to be operating autonomously from the Canadian government, because the residency requirement was adopted at least in part under federal statutory authority.[5]

The SCC made clear: where there is an irreconcilable conflict between an individual’s Charter right and a collectively held Indigenous right, the collective right takes precedence. This finding, the Court held, aligns with reconciliation.[6] This is true even where the collective right is not a s. 35 right, such as an Aboriginal or Treaty right, so long as the collective right protects “Indigenous difference”. However, the Court did go out of its way to affirm that even these collective rights would be subject to the equality guarantee for male and female persons under s. 28 of the Charter.[7]

In the case of Ms. Dickson, the Supreme Court found that there is an irreconcilable conflict between Ms. Dickson’s s. 15(1) individual right to equality – which is prima facie breached by VGFN’s residency requirement – and VGFN’s collective right to set criteria for membership in its governing body.[8] The Court recognized that the VGFN’s right falls within the category of an “other” right protected by s. 25, because it protects Indigenous difference. In the result, VGFN’s residency requirement must be upheld, and Ms. Dickson’s discrimination challenge fails.

Dissenting Reasons

The dissenting reasons of Justices Martin and O’Bonsawin concurred with the majority on the application of the Charter and its breach but found that s. 25 did not protect VGFN’s residency rules because the rules are not aimed at recognizing the special status of Indigenous collectives, and the rules are not justified by s. 1 of the Charter. These justices would see the s. 1 analysis incorporate Indigenous perspectives, but even so, found that the residency rules are not minimally impairing.

Justice Rowe’s dissent found that the Charter does not apply to the VGFN, because VGFN is not an arm of the federal or provincial government within the meaning of s. 32(1) of the Charter, and imposing the Charter on the VGFN is not consistent with the objective of reconciliation and the need to respect VGFN’s collective rights and ability to make its own decisions pursuant to its Indigenous laws. VGFN did not agree to have the Charter imposed onto it. Justice Rowe recognized that the Charter does not necessarily reflect the worldview of Indigenous collectives in Canada.

[1] Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10 at para 446 [Dickson].

[2] A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30.

[3] Hamilton Health Sciences Corp. v. D.H., 2014 ONCJ 603.

[4] See Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.

[5] Dickson at paras 72-101.

[6] Dickson at paras 114-115.

[7] Dickson at para 110.

[8] Dickson at paras 185, 186, 203.