Aboriginal Law Decisions From The Supreme Court Of Canada: A Look Back On 2024

A LOOK BACK ON 2024

In 2024, the Supreme Court of Canada (“SCC” or the “Court”) released five significant decisions in the area of Aboriginal and Constitutional law:

• Reference re An Act respecting First Nations, Inuit and Métis children, youth and families – 2024 SCC 5;
• Dickson v. Vuntut Gwitchin First Nation – 2024 SCC 10;
• Shot Both Sides v. Canada – 2024 SCC 12;
• Ontario (Attorney General) v. Restoule – 2024 SCC 27; and
• Quebec (Attorney General) v. Pekuakamiulnuatsh Takuhikan, 2024 SCC 39

In reviewing the five cases together, one can see some themes emerging. First, the Court has added new caselaw to the growing body of jurisprudence and commentary on the application and scope of the principle of the Honour of the Crown. This principle plays an important role in the concept of “legislative reconciliation” discussed in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, the issuance of declaratory relief despite a claim being statute barred in Shot Both Sides, the scope of the duty of diligent implementation and the contents of the declaration in Restoule, and the interpretation of a contract between the Crown and a First Nation in Pekuakamiulnuatsh Takuhikan.

Second, the Court seems to be grappling with the idea of an Indigenous right to self-government arising from section 35 of the Constitution Act, 1982. While the Court has not yet made any pronouncements regarding the existence of such a right, the question of whether it exists was clearly on the Court’s mind in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, Dickson, and Pekuakamiulnuatsh Takuhikan.

Lastly, these five cases emphasize the SCC’s continuing commitment to holding the Crown accountable to its obligations to Indigenous groups, communities and peoples found in treaties, the Constitution, and contracts.

“LEGISLATIVE RECONCILIATION”

Case Comment on Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5
Author: Nikita B. Rathwell

On February 9, 2024, the SCC released its decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families. The Reference was in relation to federal legislation, commonly referred to as Bill C-92 (the “Act”), which provides Indigenous peoples with control over their child and family services, and sets out national standards and principles for the provision of culturally appropriate child and family services by Indigenous groups, communities, or peoples.

The Attorney General of Quebec referred the question of the Act’s constitutional validity to the Quebec Court of Appeal. Quebec argued the Act exceeded the federal government’s jurisdiction. The Quebec Court of Appeal found that the Act was constitutional, with the exception of two sections which gave the laws of Indigenous groups, communities or peoples in relation to child welfare priority over provincial laws. Both Quebec and the federal government appealed the decision to the SCC.

The SCC ultimately found the Act as a whole to be constitutionally valid, as it falls within the federal government’s legislative jurisdiction over “Indians, and Lands reserved for the Indians” under section 91(24) of the Constitution Act, 1867 (the “Constitution”).

The SCC’s decision provides important commentary on multiple concepts and also considers the important question of whether s. 35 includes the right to self-government.

Application of UNDRIP to Canadian Law:

The status of the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”) in Canadian law has long been a source of academic and judicial speculation. In this case, the SCC provides some interesting commentary as to how the inclusion of UNDRIP into Canadian positive law through the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (“UNDRIP Act”) effects the interpretation of other federal legislation, including the Act.

The SCC noted the Act is part of “a broader legislative program introduced by Parliament to achieve reconciliation with First Nations, the Inuit and the Métis “through renewed nation-to-nation, government-to-government and Inuit-Crown relationships based on recognition of rights, respect, cooperation and partnership”, with its framework being UNDRIP.

The Court recognized the Act as being part of a “braiding” together of UNDRIP with Canadian law and Indigenous legal orders to achieve reconciliation. By enacting a statute that deals with Indigenous legislative authority and national standards for child and family services, the Court noted that Canada’s commitment to implementing UNDRIP and responding to the Truth and Reconciliation Commission’s calls to action regarding child and family services in legislation are “met immediately”, without the uncertainty of negotiations, the “slowness of treaty settlements” and the “inevitable conflicts associated with court settlements”.

“Legislative Reconciliation”

Much of the focus of Quebec’s submissions and the SCC’s decision is on the unique aspects of the Act and whether the “legislative reconciliation” the Act strives for violates the Constitution.

One aspect of this “legislative reconciliation” is found in the Act’s recognition of the “inherent right of self-government” stemming from section 35 of the Constitution.

Section 18(1) of the Act states “[t]he inherent right of self-government recognized and affirmed by section 35 of the Constitution includes jurisdiction in relation to child and family services, including legislative authority in relation to those services and authority to administer and enforce laws made under that legislative authority”. Further, section 8(a) of the Act states that the purpose of the Act is to affirm the inherent right of self-government, which includes jurisdiction in relation to child and family services. Section 7 states the Act is binding on the Crown in right of Canada or of a province.

In its submissions, Quebec argued this affirmation of the inherent right to self-government as part of section 35 and the binding of the Crown in right of a province to this affirmation had the effect of impermissibly and unilaterally amending section 35 of the Constitution through ordinary statute.

The SCC disagreed with this submission, stating that Parliament was not amending section 35 through the Act, but was instead stating through a binding affirmation its position on the content of section 35 as a constitutional provision. The Court did note that the Act is unusual in this regard, stating that “few legislative frameworks have thus far circumscribed the Crown’s actions with respect to Indigenous peoples”. However, the SCC found that it was open to Parliament to do so:

The Court characterized the affirmation of the right to self-government found in the Act as a “step toward changing or adjusting the culture underlying the actions of the federal and provincial governments… Parliament has used the Act to communicate to the courts and society its position that the law must recognize the importance of Indigenous self-government in relation to child and family services.”

The province of Quebec and the Quebec Court of Appeal also took issue with sections 21 and 22(3) of the Act. These sections set out that a law of an Indigenous group, community or people made under the Act has force of law as federal law and, if there is a conflict or inconsistency between such a law and the law of a province, the law of the Indigenous group, community, or people prevails to the extent of the conflict or inconsistency.

Quebec argued, and the Court of Appeal agreed, that these sections had the effect of unilaterally amending the Constitution by giving the laws of Indigenous groups, communities or peoples priority over provincial laws. Again, the SCC disagreed. The Court stated that such an incorporation by reference provision is constitutional.

The SCC noted that Parliament would have the authority to enact laws in relation to child and family services in relation to Indigenous groups, communities, and peoples in any event under section 91(24) of the Constitution, the laws would derive force of law under that section, and not necessarily from the Indigenous group, communities or peoples inherent right of self-government.

Right of Self-Government:

The SCC specifically did not make any findings regarding whether Parliament’s affirmation that section 35 includes the inherent right of selfgovernment is correct, either in relation to child and family services or at all.

The Court stated that ultimately, it will for the courts to determine on the basis of evidence in front of them whether section 35 includes the right of self-government. It took care “not to exclude the possibility that the right of self-government has a distinct constitutional source”, which it stated, “remained an open question”.

Overall, the SCC’s decision in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families provides some interesting and helpful commentary on the practice of “legislative reconciliation” and how governments may incorporate Indigenous laws into Canadian law without offending the Constitution.

A NEW FRAMEWORK FOR SECTION 25 OF THE CHARTER

Case Comment on Dickson v. Vuntut Gwitchin First Nation, 2024 SCC 10
Authors: Nikita B. Rathwell & Bridget B. Morrison

On March 28, 2024, the Supreme Court of Canada (“SCC”) released Dickson v Vuntut Gwitchin (“Dickson”), an important decision for self-governing First Nations regarding the interplay between collective rights of Indigenous peoples and individual rights under the Canadian Charter of Rights and Freedoms (the “Charter”).

This case was brought forward by Cindy Dickson, a member of Vuntut Gwitchin First Nation (“VGFN”) who intended to run for election as a Councillor. VGFN is a self-governing Nation which had adopted its own Constitution. Their Constitution provided that all members of Council must reside on VGFN traditional territory or relocate there within 14 days of their election (the “Residency Requirement”). Ms. Dickson did not reside on VGFN traditional territory, nor did she plan to relocate there should she be elected. Ms. Dickson argued that the Residency Requirement infringed her right to equality under Section 15 of the Charter, discriminating against her based on her place of residence.

In turn, VGFN relied upon Section 25 of the Charter, which states:

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

Section 25 operates to safeguard the collective rights and freedoms of Indigenous peoples.

VGFN argued that the Residency Right was protected under Section 25 because it preserved Indigenous difference by upholding VGFN’s traditional governance structure.

Before addressing the relationship between Section 15 and Section 25 of the Charter, the SCC first determined whether the Charter would apply to VGFN as a self-governing First Nation. The SCC considered Section 32(1) of the Charter, which specifies the entities to which the Charter applies. Section 32(1) provides that the Charter will apply to an entity, beside federal and provincial governments, that are found to be “government” or that are governmental in nature.

The SCC found that the Charter applied to VGFN, stating it was governmental in nature for several reasons. Specifically, VGFN Council consisted of members who were elected by voters and who were accountable to their constituents, and has general taxing powers. Further, VGFN is empowered to make, administer, and enforce laws that are binding on its citizens and on the public within its settlement land, which has previously been categorized by the SCC as a “quintessential government function.” The SCC also found that the Charter would apply to VGFN because the enactment and enforcement of the Residency Requirement is a specific “government activity.”

In considering how an individual right under Section 15 of the Charter and collective Indigenous rights under Section 25 interact, the SCC provided a fourstep framework. This framework requires the Court to consider whether (1) a Section 15 right has been breached, (2) whether the relevant conduct falls under Section 25, (3) whether the Section 15 right and Section 25 conflict, in that both cannot exist at the same time, and (4) whether there are any relevant limits to the collective Indigenous right.

In the first step of the four-part framework, the SCC determined that Ms. Dickson’s Section 15 Charter right was infringed by the Residency Requirement. Ms. Dickson successfully demonstrated that Indigenous peoples who live off-reserve often face disadvantages that those living on-reserve do not experience. It was demonstrated that individuals who live off-reserve are often distanced from their community, while still being subject to its governance. As such, it was found that the Residency Requirement denied, or significantly deterred, Ms. Dickson from participating in the electoral politics of VGFN, which further distanced her from her community.

Although it was determined that Ms. Dickson’s individual Charter right had been breached, the SCC held that the Residency Requirement falls under Section 25, and that it conflicted with Ms. Dickson’s individual right in a way that both could not simultaneously exist.

In reaching this conclusion, the SCC stated that Section 25 protection will only be awarded for existing Treaty and Aboriginal rights, or “other rights” where it has been established that a right exists and that the right, or its exercise, protects interests with “Indigenous difference”.

The SCC defined Indigenous difference as a concept which reflects four social facts between Aboriginal people and the Canadian state, including the Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty and Aboriginal participation in treaty processes. The SCC determined that the Residency Requirement protected Indigenous difference by upholding the traditional governance structure of VGFN.

Specifically, requiring VGFN leaders to reside on traditional territory helped preserve the leaders’ connections to the land which is rooted in VGFN’s culture and governance practices. Additionally, the Residency Requirement promoted VGFN’s expectation that leaders maintain ongoing personal interactions with community members and aided VGFN’s ability to resist outside forces that pull citizens away from its settlement lands.

As a self-governing Nation, the SCC recognized that VGFN has a right to provide for membership and the composition of its governing bodies, which includes the right to set parameters on that membership. In discussing the conflict between the rights, the SCC stated that giving effect to Ms. Dickson’s Charter right would pose a risk to the continued vitality of the “Indigenous difference” of VGFN and would diminish the connection between leaders of VGFN and its settlement land.

Dickson is an important decision as it affirms the application of the Charter to self-governing First Nations and sets precedent for reconciling individual and collective rights under the Charter. It does, however, put the burden on the self-governing Nation to establish that its practices stem from some type of “Indigenous difference”, rather than basing the Nation’s ability to enact its own laws and requirements on its inherent right to selfgovernment.

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