Today's discussion:

Supreme Court confirms that the Charter applies to Indigenous governments—except when it doesn’t

The Supreme Court concluded in a recent case that where one of the collective rights of self-governing Indigenous communities is in a real and irreconcilable conflict with individual Charter rights, it trumps those rights.

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Gregory Lang

Collective rights, if one wants to call them that, of all Canadians have always trumped individual Charter Rights in some cases.

The individual liberty that is promoted and protected by the Charter of Rights and Freedoms has always been subject to limitations due to the simple fact that in any community some measure of absolute autonomy has to be compromised for peaceful coexistence. The Charter begins by recognizing and establishing that reality in Section 1.

While the Court seems to have approached the question and answer in a different way, they could have decided this question based on the reasonableness of the Charter limitation, with the contextual twist that it pertains to an Indigenous community. This would have led them through the concept of “community of interest” (established in Saskatchewan – I think) adding the fundamental significance of the land – and presence thereupon – to the attributes of the community of interest concept.

This person has not lost their right to stand for office, they are merely required to meet one of the reasonable conditions to do so; live on the land. They can still recruit someone else, advise, influence and campaign, all in the exercise of their democratic rights, and more importantly they can lead a campaign to change the condition of living on the land.

Every community, indigenous, municipal, and local, should enjoy the right of self-government within reasonable limits. Being a whimsy-child of the Province like cities are is not self-government, merely self-administration (as long as they colour inside the lines).

3rd April 2024 at 10:13 am
Kim Morton

Seems like a waste of expensive court time for something this basic. I don’t see any difference between this community and any municipality. Would you want someone that doesn’t even live in your community to represent you?

3rd April 2024 at 11:16 am

No. I would not (usually) want someone who doesn’t live in my community to represent me and my community, so I wouldn’t vote for them. BUT, I do want the right to elect whomever I want to represent me, and if they happen to live somewhere else – so be it. In Canada, one has to live in the community to vote for the representative but the candidate doesn’t have to live there.

3rd April 2024 at 2:48 pm

Curious whether as part of self-government the indigenous government should also have the not withstanding clause available to them.

3rd April 2024 at 11:43 am

The Notwithstanding Clause is probably unconstitutional and was definitely ill-considered and not detailed. There are many other mechanisms to “reasonably” limit rights, so there is no need to have an unreasonable way to do that.

3rd April 2024 at 2:45 pm

The not withstanding clause for the use by our provincial governments is certainly constitutional. It was agreed as part of the same constitution which enabled the charter of rights. You may perceive it as ill-considered and unreasonable, but others do not.

My curiosity was whether it would be possible for a First Nation to negotiate this as part of their remit as well. Certainly to allow unconstrained judicial activism could be quite dangerous to our relationship with the First Nations.

3rd April 2024 at 7:44 pm
Xiaoming Guo

Everyone is equal before the law if and only if the law is not race or ethnic-specific. The law itself should not give a group of people the special privilege of depriving the basic rights of a specific ethnic group. Chinese Exclusion Act was an example of a bad law because the law itself is discrimination.

Canadians are not one national people yet. Quebecois and indigenous peoples are distinct nations.

3rd April 2024 at 10:40 am

the Niagara region is distinct too! 🙂
I agree with the equality essence of what you say but would point out that equality only extends as far as the relevant context. For example, I as a non-resident, non-indigenous, should not have some claim of equality in order to run in that election.

3rd April 2024 at 2:52 pm
Don Morris

If we are to accept to notion of a First Nation, said FN’s should not be required to adhere to our fanciful Charter or should at the very least be allowed the use of a notwithstanding clause.
Otherwise they are not First Nations but merely a municipality. This is another example of the paternalism of the Federal government, and so typical of their type of machinations, promise the world but deliver a fraction of the program’s intent.
This case sets a dangerous race based precedent by allowing a person to serve in government in a town she doesn’t live in. Are Canadians to accept the right of a city councillor to run in Regina when she lives in Saskatoon?
FN’s should establish their own Charter or stop calling themselves Nations.

3rd April 2024 at 12:35 pm

Our fanciful Charter is not some invention but rather a codification of existing, generally accepted principles, and the First People’s understood and lived by the underlying principles of similar long before we showed up and started declaring Laws.

3rd April 2024 at 2:56 pm