Part 1: Unpacking Dickson v Vuntut Gwitchin First Nation
- ccsedu
- Apr 11
- 10 min read
by Saloni Sharma, J.D. Candidate 2026.
April 9, 2025
Dickson v Vuntut Gwitchin First Nation[1] was the second Supreme Court of Canada judgment released in 2024 concerning the self-governing powers of Indigenous governments. Two critical holdings emerge from this landmark case: 1) the Canadian Charter of Rights and Freedoms[2] applies to self-governing First Nations, and 2) section 25 of the Charter can “shield” Indigenous governments from Charter claims when there is a real and irreconcilable conflict between a protected Aboriginal or treaty (or “other”) right and the individual Charter right in question. This post — which is the first of two Seven/Fifty posts on the Dickson case — explains how the majority arrived at these holdings.
Factual Background
Dickson involved an Indigenous claimant, Cindy Dickson, bringing an action against her government, the government of Vuntut Gwitchin First Nation (VGFN), for infringing her equality rights under section 15(1) of the Charter. Ms. Dickson brought this claim after learning that in order to qualify as a VGFN Councillor, she would need to relocate to the VGFN settlement, Old Crow, within 14 days of her election. Ms. Dickson could not move to Old Crow — specifically because the settlement did not have the medical supports required for her son — and she alleged that the residency requirement’s de facto bar on her election violated her rights without justification.[3]
This residency requirement is in the VGFN’s Constitution, which was the result of a modern land claims treaty process and self-government agreement between the VGFN, the federal government, and the Yukon government. In contrast to band councils, the VGFN government’s power does not flow from the Indian Act, but is rather recognized as being traceable to its own Constitution and its inherent right to self-government.[4] Moreover, unlike Nations like the Nisga’a and Tsawwassen, who have also made self-government agreements with Canadian and provincial/territorial governments, the VGFN’s Constitution does not expressly state that the Charter is applicable to their government, and the VGFN maintains that they did not agree to their Constitution being subject to the Charter during intergovernmental negotiations.[5] The question at the heart of Dickson is accordingly whether a government in this unique position — an inherently self-governing entity that hasn’t clearly assented to the application of the Charter — is nonetheless bound by the Charter, and to what degree.
Legal Background
In this case, the relevant Charter provisions are sections 25 and 32. Section 25 states that:
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 claim agreements or may be so acquired.[6]
In Dickson, the Supreme Court stated that section 25 “reflects a constitutional choice to protect the collective rights and freedoms associated with Indigenous peoples in Canada as a distinct minority.”[7] Interestingly, prior to Dickson, section 25 had never been given a comprehensive interpretation by the Supreme Court. The two cases that had offered insights into its interpretation before were R v Kapp[8] and Corbiere v Canada (Minister of Indian and Northern Affairs).[9] In Corbiere, L’Hereux-Dubé J spoke about how section 25 protected “broader” rights and freedoms than section 35 (the Aboriginal and treaty rights provision of the Constitution Act, 1982), and that section 25 could be extended to protect statutory rights in some cases.[10] The Court in Dickson did not explore this view further, but focused instead on the two interpretations of section 25 that were outlined in R v Kapp.
The first interpretation treats section 25 as a “shield,” which would bar a Charter challenge if allowing the challenge would violate an Aboriginal, treaty, or “other” right “pertaining to the aboriginal peoples of Canada.”[11] This approach was favoured by Bastarche J in Kapp (who wrote a lone concurrence) and by lower courts, including the Yukon Court of Appeal in Dickson.[12]
The second interpretation, by contrast, views section 25 as an “interpretive prism” that works to “‘infor[m] the construction of potentially conflicting Charter rights,’ rather than acting as a barrier to the Charter’s application.”[13] This approach tries to give as much effect to the Charter right as possible without interfering with section 25 Aboriginal rights, but does not necessarily give primacy to the latter.[14]
In Dickson, the Court clarified how section 25 should be interpreted moving forward, asserting that it should be understood to encompass elements of both the shield and interpretive prism approaches.[15] In reaching this conclusion, the Court looked to the language of section 25’s text, saying that the words “abrogate and derogate” imply a two-stage approach, described below. The Court also weighed in on what section 25 means by “other rights or freedoms that pertain to the aboriginal peoples of Canada,” suggesting that a party seeking section 25 protection must establish that the claimed right “protects or recognizes Indigenous difference,” which would include rights connected to “cultural difference, prior occupancy, prior sovereignty, or participation in the treaty process.”[16]
As noted above, Dickson also concerned section 32 of the Charter, which states that:
This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.[17]
The text of section 32 establishes that the main bodies bound by the Charter are the legislative and executive branches of the federal and provincial governments.[18] At the same time, though, the text of section 32 also implies that the Charter binds additional entities, specifically when it states that it applies to “matters within the authority” of Parliament and the provincial legislatures, which would include a range of distinct entities whose power flows from these governments.[19] In the case of Eldridge v British Columbia (Attorney General)[20] the Supreme Court interpreted this phrase to include entities that are governmental by their very nature, or that are effectively controlled by the federal or provincial governments.[21] Shortly thereafter, the Court provided an example of an entity that was governmental by nature, ruling in Godbout v Longueuil (City)[22] that municipalities are bound by the Charter, even though they are not listed explicitly in section 32.[23] In reaching its decision in Dickson, the Court referred to four indicia from Godbout that are likely indicative of an entity’s governmental nature:
The entity consists of democratically and publicly elected persons who serve their constituents;
The entity has powers of taxation;
The entity possesses the ability to “make, administer and enforce laws on public within a defined territorial jurisdiction,” and;
The federal or a provincial government is the source of the government’s existence and lawmaking authority.[24]
Holding: The Majority Decision
Issue 1: Does the Charter apply to the VGFN’s residency requirement?
Yes, it does.
The majority in Dickson held that the Charter applies to the VGFN itself and the residency requirement because the VGFN exercises government-like authority and derives “at least some” of its governing powers from federal legislation.[25] Section 32(1) of the Charter governs whether the Charter will apply to an entity and is assessed using the Eldridge framework. Given that section 32(1) does not expressly mention Indigenous governments, the Court employed the first branch of the Eldridge framework, which assesses whether an entity is “government by nature” or whether a level of routine and regular control is exercised over it by a Canadian government (whether federal, provincial, or territorial).[26] Using this first branch of Eldridge and the indicia from Godbout, the majority concluded that the VGFN is government by nature.[27] The majority narrowed Charter application to the VGFN residency requirement only to the extent that it “flows from an exercise of statutory power under s. 91(24) of the Constitution Act, 1867.”[28]
Issue 2: If the Charter applies, does the residency requirement unjustifiably infringe section 15(1) of the Charter by effectively barring Ms. Dickson from serving on the VGFN Council?
The Charter challenge fails because section 25 of the Charter “shields” the VGFN.
The majority held that although the residency requirement constitutes a prima facie infringement of Ms. Dickson’s section 15(1) equality rights, section 25 of the Charter is a mechanism that allows Indigenous governments to uphold their law in order to protect certain collective Indigenous rights and freedoms.[29] Section 25 has a “shielding” effect as “it affords primacy to Aboriginal, treaty, or other rights,” but the section 25 right in question is only upheld once an interpretive exercise proves that there is an “irreconcilable conflict” between the section 25 right and the individual Charter right.[30] This irreconcilable conflict must be proved by an Indigenous government through an interpretive exercise.[31]
The Court in Dickson established the following framework for invoking section 25:
The Charter claimant shows that there has been a prima facie breach of their individual Charter right;
The party relying on section 25 to block the Charter claim must show that the right they are claiming falls within the scope of section 25;
The party relying on section 25 must prove an irreconcilable conflict between the section 25 right and the individual Charter right. If there is a proven irreconcilable conflict, section 25 will act as a shield protecting Indigenous difference, and;
The courts must then determine the limits on the section 25 interest in question when considering other provision of the Charter or Constitution Act, 1982.[32]
The majority further clarified that this framework applies irrespective of whether the claimant is Indigenous or non-Indigenous.[33] However, courts are advised to exercise caution when applying the framework to an Indigenous claimant bringing an action against their own community, so that they do not impose “incompatible ideas or legal principles upon the distinctive Indigenous legal system.”[34]
In the Court’s view, the section 25 framework needs to be applied at the earliest possible stage, specifically once the claimant has proven a prima facie breach of their Charter right.[35] The section 1 framework, known as the Oakes test, is also available to an Indigenous government as a way of legally justifying a Charter infringement, but it should only be used once a court finds section 25 inapplicable.[36]
In Dickson, Ms. Dickson was held to have proven a prima facie section 15(1) breach, as her being a non-resident of the VGFN community barred her from participating in her community’s elections, which “reinforce[d], perpetuate[d], and exacerbate[d] her disadvantage as a non-resident.”[37] The residency requirement was found to protect Indigenous difference, however, as it maintained VGFN leaders’ connection to land, which is important to the protection of their distinctive culture and practices.[38] The Court further found that there was an irreconcilable conflict between Ms. Dickson’s section 15(1) Charter right and the rights exercised through the VGFN residency requirement, as allowing one of VGFN’s councillors to live away from the settlement would undermine a key part of the community’s governing structure, which relies on residing in Old Crow.[39] Having found an irreconcilable conflict between these two rights, the Court ruled that section 25 applied to shield the VGFN’s residency requirement from Ms. Dickson’s section 15(1) claim. The residency requirement therefore remained valid, and Ms. Dickson’s challenge failed.
Looking Forward
Dickson finds itself in an evolving era of Indigenous self-governance in Canada, and its holding seems to reveal a tentative move from the SCC towards holding Indigenous governments to a similar constitutional standard as federal, provincial, and municipal governments. While there may be hope in the SCC recognizing the legitimacy and powers of Indigenous governments, the decision simultaneously raises potential concerns for both Indigenous governments and Indigenous individuals bringing claims against their own communities. For governments, it appears to mean that Canada’s colonial law — in this case, the Charter — is automatically supreme vis-à-vis their own constitutional laws, regardless of whether the community has consented to this. And for community members, on the other hand, section 25’s potential shielding function means that their individual Charter rights are arguably more precarious than those of other Canadian citizens (at least in relation to their own Indigenous governments). These concerns will be further explored in part two of this two-part analysis of the Dickson judgment.
[1] Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 [Dickson].
[2] Canadian Charter of Rights and Freedoms, s 15(1), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[3] Dickson, supra note 1 at para 10.
[4] Ibid at paras 18, 57.
[5] Ibid at paras 22, 50.
[6] Charter, supra note 2 at s 25.
[7] Dickson, supra note 1 at para 108.
[8] R v Kapp, 2008 SCC 41 [Kapp].
[9] Corbiere v Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203 [Corbiere].
[10] Ibid at para 52.
[11] Dickson, supra note 1 at para 153.
[12] Ibid at paras 155, 157.
[13] Ibid at para 154, citing Kapp, supra note 8 at para 64.
[14] Dickson, supra note 1 at para 154.
[15] Ibid at para 158.
[16] Ibid at para 150.
[17] Charter, supra note 2 at s 32(1).
[18] Dickson, supra note 1 at para 41.
[19] Ibid at para 42.
[20] Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 [Eldridge].
[21] Dickson, supra note 1 at para 61.
[22] Godbout v Longueuil (City), [1997] 3 SCR 844 [Godbout].
[23] Dickson, supra note 1 at para 63.
[24] Ibid at para 77, citing Godbout, supra note 22 at para 51.
[25] Dickson, supra note 1 at para 82 [emphasis in original].
[26] Ibid at para 61.
[27] Ibid at paras 61, 77-78.
[28] Ibid at para 91.
[29] Ibid at para 107.
[30] Ibid at para 158.
[31] Ibid at para 167.
[32] Ibid at paras 179-183.
[33] Ibid at para 166.
[34] Ibid at para 172.
[35] Ibid at para 177.
[36] Ibid.
[37] Ibid at para 203.
[38] Ibid at para 217.
[39] Ibid at para 225.
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