The Canadian Charter of Rights and Freedoms can apply to decisions made by a First Nation Council or other Indigenous Government.

Self-government Treaties

Under Self-Government Treaties or Agreements some First Nations have agreed to have the Charter apply to them.

The Canadian Charter of Rights and Freedoms gives rights to everyone in Canada. Laws or actions of a government or government body that violate these rights can be struck down by a Canadian court. The Charter includes a wide range of rights. These include the right:

of citizens to vote
of citizens and permanent residents to live anywhere in Canada
to life, liberty and the security of the person
to equality and to be free from discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability or other grounds

Under Canadian law, the Charter can apply to decisions made by a Indigenous Nation. This could include a:

decision a First Nation Council makes through a bylaw or a resolution
law that a Nation passes by custom, under some other law, like the Indian Act, or under a Self-government Treaty

Some Indigenous Nations do not agree that the Charter applies to their laws and decisions. They say Indigenous Nations have an Inherent Right to self-government that was not created by Canadian law. For this reason, Canadian law, like the Charter, does not apply to them.

The Supreme Court of Canada has ruled that the Charter applies where a Self-government Treaty is implemented by legislation. Currently this is how how Self-Government Treaties become laws. The Supreme Court has not decided whether the Charter applies to an Indigenous Nation exercising an Inherent Right to self-government.

Protections for Indigenous Peoples

Although the Charter can apply to decisions made by an Indigenous Nation, the Charter also protects the collective rights and freedoms of Indigenous Peoples in what is now Canada. Section 25 of the Charter says that Charter Rights must not take away from Aboriginal, Treaty or other rights or freedoms of Indigenous Peoples.

Cases

Below are some examples of cases where the court considered whether decisions made by an Indigenous Nation violated the Charter.

Dickson v. Vuntut Gwitchin First Nation - decided by the Supreme Court of Canada on March 28, 2024

This case was about who can be part of a First Nation government.

The Supreme Court considered how the right to equality under the Charter applies to rules about who can be part of the government of a First Nation. In this case the First Nation’s constitution said that all members of its government must live in the nation’s Traditional Territory or move there within 14 days of being elected. A member who was elected argued that this went against her right to equality.

In deciding whether the Charter right to equality has been denied, courts consider two things. First the law must treat people differently. Second the person must be at a disadvantage, and the different treatment must continue the disadvantage or make it worse.

The court found that treating a member who did not live on the Traditional Territory differently was a distinction that is covered by the equality section. The court had previously found that treating a member living off-reserve differently was also covered by the equality section. The court found that living outside of the Traditional Territory, just like living off-reserve, was a disadvantage and that the residency requirement continued and reinforced this disadvantage. The court found it violated her right to equality.

The court then had to consider section 25 of the Charter. It says that Charter rights cannot take away from Aboriginal Rights, Treaty Rights, or other rights of Indigenous Peoples. The court decided that other rights of Indigenous Peoples included any right that protects or recognizes Indigenous difference. The court decided that the residency requirement was intended to protect Indigenous difference. The residency requirement was valid even though it went against equality rights because it was protected by section 25 of the Charter.

The court said that the residency requirement:

Is clearly intended to reflect and promote the First Nation’s particular traditions and customs relating to governance and leadership — a matter of fundamental importance to a small First Nation in a vast and remote location.

McCarthy v. Whitefish Lake First Nation – decided in Federal Court on February 15, 2023

This case was about voting in an election.

A committee of the Whitefish Lake First Nation refused to allow one member to vote in their election because she was reinstated when the government changed the Indian Act. The change reinstated women (and their children) who lost their status as registered Indians when they married a man who was not registered. Whitefish Lake First Nation argued the voting policy was a custom of the First Nation.

The court found that the voting policy violated the Charter because it discriminated based on sex. Section 25 did not protect the voting policy because section 28 of the Charter guarantees that Charter rights apply equally to men and women.

Kahkewistahaw First Nation v. Taypotat – decided by the Supreme Court of Canada on May 28, 2015

This case was about being able to run for Chief or councillor.

The Kahkewistahaw First Nation Election Code required candidates for Chief or councillor to have at least a grade 12 education. A member who wanted to run for Chief argued that this violated his Charter equality rights because it discriminated against him based on his age and residence on the reserve.

The court found that there was not enough evidence to show that the distinction based on education amounted to a distinction based on age and residence on the reserve. This meant that the distinction was not covered by the equality section of the Charter. The court did find that the education requirement was a way to make sure elected members could effectively represent the community. The court also found that ensuring effective representation was a legitimate goal of the community.