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Supreme Court applies Charter to Indigenous Governments, but protects “Indigenous difference” – OKT LLP

April 23, 2024

The Supreme Court’s recent decision in Dickson v Vuntut Gwitchin interprets the relationship between individual Charter rights and freedoms, and Indigenous collective rights.1 A majority of the court found that a self-governing First Nation’s law requiring elected leaders to reside in the community was valid, in the face of a Charter challenge that the law was discriminatory.

The court applied the Charter in the absence of the First Nation explicitly consenting to it in its self-government agreement. In doing so, the court diminished the promise of self-government and the right of Indigenous governments to determine the proper balance between governmental action and protections for the individual rights of its citizens.

However, a majority of the Court found that section 25 “shields” Indigenous collective rights from the Charter. The Charter cannot invalidate the exercise of Indigenous collective rights, as defined in section 25. However, the majority’s complicated process for analyzing section 25 leaves the door open for expensive and intrusive litigation for Indigenous governments. Dickson v Vuntut Gwitchin now stands as the leading authority on section 25 of the Charter.

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