Written by Clémence Thabet
Indigenous peoples are members of sovereign Indigenous nations with their own governance and law-making systems. Despite Canada’s assertion of sovereignty and ongoing acts of colonization, Indigenous laws pre-existed European contact, governed early relationships with settlers and continue to operate today. Indeed, recent years have seen a resurgence in Indigenous law making.
Two cases which have been granted leave to the Supreme Court of Canada address the relationship between Canada’s settler law and Indigenous laws and inherent law-making power: Dickson v Vuntut Gwitchin First Nation [Dickson], and the Reference to the Court of Appeal of Quebec in relation with the Act respecting First Nations, Inuit and Métis children, youth and families [Reference re Bill C-92].
Canadian courts are a part of the colonial legal system that has dispossessed Indigenous peoples of their lands, separated Indigenous peoples from their families and communities, and denied their rights including fundamental rights to self-determination. Cases like Dickson and Reference re Bill C-92 highlight the need for courts to address the tensions between Indigenous law and Canadian law that arise, for example, when the laws include conflicting provisions.
Dickson v Vuntut Gwitchin First Nation
Dickson highlights the tension between the dual application of Indigenous self-determination and the Charter. In this case, Ms. Dickson, a member of the Vuntut Gwitchin First Nation (VGFN) and resident of Whitehorse, intended to run in the 2018 VGFN Council election. She was prevented from doing so because the VGFN’s own Indigenous Constitution has a residency requirement that all Council members reside in Old Crow. Ms. Dickson brought a legal challenge against the VGFN Residency Requirement, arguing that it violated section 15(1) of the Canadian Charter of Rights and Freedoms.
In the Yukon Court of Appeal’s decision, Justice Newbury addressed the tension, ruling that the Charter applies to the VGFN (including its constitutional Residency Requirement) and that “VGFN Citizens remain entitled to their rights under the Charter in the same way as other citizens of Canada” (para 97). However, the Court also held that where the Charter and a collective right pursuant to Indigenous law are in contradiction, s. 25 of the Constitution Act, 1982 acts as a shield to the collective right and replaces a s.1 analysis (para 144). Section 25 provides that Charter rights and freedoms “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that person to the aboriginal peoples of Canada.” In coming to this conclusion, the Yukon Court of Appeal recognized that “reconciliation is unlikely to be achieved if historic Aboriginal rights are subjected to ‘another framework’ for balancing, ‘reading down’, or modification” (para 146).
Ms. Dickson is appealing to the Supreme Court to contest the use of section 25 as a shield, while the VGFN cross-appeals on the issues of whether Charter application to a self-governing First Nation’s constitution is prevented by s. 32 and whether residency is an analogous s. 15(1) ground. The Supreme Court speaks often of the role of the law in reconciliation. In the Dickson appeal the Court will need to address how reconciliation can be achieved in Canadian courts where Indigenous nations assert their inherent law making and self-governance powers.
Reference re Bill C-92
In this reference, the Government of Québec asked the Québec Court of Appeal if the federal Act respecting First Nations, Inuit and Métis children, youth and families [the Act] is unconstitutional.
The discriminatory nature of the child protection system is well-established and brutal. According to the federal government, the Act’s primary purpose is to address the overrepresentation of Indigenous children in child welfare systems by establishing national minimum standards for child and family services and facilitating the development of Indigenous solutions to child welfare matters (para 330).
The Government of Québec argued that the Act is unconstitutional because the federal government does not have the jurisdiction to give Indigenous child protection laws the force of federal law and in effect, exercise power to legislate on child protection matters within the provinces when such matters are a subject of provincial jurisdiction pursuant to the division of powers prescribed at ss. 91 and 92 of the Constitution Act, 1867. Québec also argued that the Act is unconstitutional because it expanded the recognition and affirmation of “existing aboriginal and treaty rights” enshrined in s. 35 of the Constitution Act, 1982 by empowering independent Indigenous law-making as a third order of government the Constitution Act, 1867, has only conferred such governing power to the federal and provincial governments. According to Québec, Canada can delegate authority within its jurisdiction (para 287), but the Act instead amounts to an impermissible unilateral constitutional amendment (para 289).
The Court of Appeal made a series of findings as it, too, attempted to wrestle with the tension between federal, provincial, and Indigenous laws and law-making power in the area of child and family welfare. The Court found, contrary to Québec’s position, that Canada has jurisdiction to legislate national minimum standards on Indigenous child protection and welfare matters. However, the Court found in Quebec’s favour on the key issue of whether the federal government can deem Indigenous laws to have the effect of federal law in Canada’s legal system.
On the issue of Indigenous law-making, the Court found that the right to Indigenous self-government is an inherent one, flowing from historical relationships and affirmed by s. 35 (para 456): “Indigenous governing bodies acting pursuant to the right of Aboriginal self-government are not, by their very nature, emanations of the federal government nor are they a federal board, commission or other tribunal – they are Indigenous entities acting pursuant to an Aboriginal right of governance” (para 539). Their authority to legislate does not stem from the Crown, but from their inherent Indigenous right to govern and legislate, which pre-exists the assertion of Crown sovereignty and jurisdiction in Canada. Recognition of inherent Indigenous jurisdiction, rather than the delegation of law-making powers through the Canadian system, affirms Indigenous sovereignty, limits the distortion of Indigenous legal tradition.
Nonetheless, the Court struck down parts of the legislation, finding that the federal government cannot deem Indigenous laws to have the effect of federal law, and had in effect unilaterally modified the structure of the Constitution “by elevating the right of Aboriginal peoples to regulate child and family services to the status of absolute right and setting aside the reconciliation test specific to s. 35” (para 570).
When the Supreme Court hears this case, it will decide on the constitutionality of sections 21 and 22(3) of the Act which grant Indigenous welfare laws the force of federal law. In doing so, the Supreme Court will need to clarify how Indigenous laws are to be understood within the Canadian legal system and reconciled with conflicting provincial laws in the area of child and family welfare issues. For now, while there is uncertainty and unsettled law, one thing remains clear: governments ignore Indigenous peoples’ inherent right to self-govern and legislate at their peril.
Decolonization is not a metaphor, and it’s time for the Canadian legal system to deal with the practical implications of Indigenous law-making. Hopefully, the Supreme Court will make strides in doing just that when it decides Dickson and the Bill C-92 Reference.
 2021 YKCA 5, leave to appeal granted, 2022 SCC 39856.
 2022 QCCA 185, leave to appeal granted automatically in the context of a reference question initiated by Governor and Council.