—Dr. Alexandra Flynn, Allard School of Law, University of British Columbia[*]
[Editor’s Note: This is one of our ICONnect columns. For more information on our 2025 columnists, see here.]
In 2024, the Supreme Court of Canada (SCC) issued a landmark decision in Dickson v. Vuntut Gwitchin First Nation (Dickson), a case with significant import for the future course of Canadian constitutional law in an era of reconciliation and decolonialization. At its core, the case raised a vital and timely question: what is the relationship between the Canadian Charter of Rights and Freedoms (Charter) and the inherent and treaty rights to self government of Indigenous Nations. Does the Charter apply to Indigenous governments and, if so, in what way do section 25 protections for Indigenous rights structure the implications of Charter rights for Indigenous governments? For many, this is the question of how the Charter can uphold both individual rights as well as respect the self-government decisions of Indigenous Nations.
The case was brought by Cindy Dickson, a citizen of the Vuntut Gwitchin First Nation (VGFN), a self-governing Indigenous community in northern Yukon. Ms. Dickson lives in Whitehorse, the Yukon’s capital, due to, among other things, her family’s medical needs. She wanted to run for a seat on her Nation’s Council, but the VGFN Constitution required elected officials to live on the Nation’s territory. Ms. Dickson argued that this rule unfairly excluded her and, as such, violated her equality rights under section 15(1) of the Charter. The VGFN Constitution itself has an equality rights provision, similar in text to the Charter’s section 15 and Ms. Dickson initially challenged the residency requirement under this provision as well but, by the time the case reached the SCC, the Charter equality challenge alone was advanced. But, it is important to note that a challenge under the VGFN equality provision remains open.
The VGFN is adamantly opposed to Charter application, citing the absence of consent to such oversight and the consequent inappropriateness of forced subjection into this aspect of settler constitutional law. The Nation also argued that, should their self-government be subject to Charter oversight, section 25 of the Charter shields the residency rule as a key part of self-governance. For the Nation, having leaders live on the land isn’t arbitrary; it ensures that decisions are made by people who are grounded in the everyday life and challenges of the community. Challenges to their stewardship of their land have been central to struggles against colonialism and the relationship with their land is critical to self understandings of this Indigenous people. The Nation thus argued for triggering section 25 of the Charter, which shields Indigenous collective rights from being overridden by individual rights claims.
Many legal scholars agree, challenging the idea that the Charter should be imposed on Indigenous governments at all, given the risk of replicating colonial patterns under the guise of rights protection.
By a narrow majority decision, the SCC arrived at a result that protected the VGTN residency rule. However, in reaching such a decision, a clear majority of the Court held the Charter applicable, and the residency rule an infringement of the equality rights protected under section 15. A narrower majority found that the rule was immune from the import of a section 15 infringement of the basis that the rule, as an expression of Indigenous self-government, captured the “Indigenous difference” that section 25 protects. In doing so, the Court confirmed that Indigenous governments are bound by the Charter, but that section 25 offers strong protection for their collective rights and governance systems. A majority decision, penned by Justices Martin and O’Bonsawin, found a section 15 infringement that could not be shielded by section 25 and that could not be justified under section 1 of the Charter. This majority decision, interestingly written by two female judges, one of whom is Indigenous, would have upheld Ms. Dickson’s claim of unconstitutional discrimination.
This was the first time the SCC decided how the Charter applies to a self-governing First Nation. The issue, including the import of section 25 had been mentioned in prior case law as obiter only. The decision raises deeper questions about the kind of constitutional system Canada wants to build.
At first glance, Dickson looks like a balancing act between two sets of rights: the rights of individuals versus the rights of Indigenous communities. But this kind of “rights-versus-rights” thinking oversimplifies complex realities, especially given the legacy of colonialism.
To understand why this matters, we can look to the work of legal scholar Martha Fineman and her “vulnerability theory.” Fineman argues that everyone is vulnerable – not just in the sense of needing care at different points in life, but because we all rely on institutions like governments, families, and communities to survive and thrive. Law, in this view, should focus less on protecting individuals and more on supporting resilient institutions that care for people and respond to inequality.
If we apply this lens to Dickson, the VGFN’s residency rule looks different. Instead of being seen only as a restriction on someone’s rights, it can be understood as a necessary tool for protecting the integrity and accountability of the Nation’s governance and legal order, as VGFN asserts.
This idea of relational, context-based constitutionalism aligns with many Indigenous legal traditions that emphasize community, responsibility, and connection to the land. For example, the Cree concept of wahkohtowin sees law as rooted in relationships with others and the environment. Similar principles appear in the South African idea of Ubuntu, which holds that a person becomes fully human through their relationships with others, a concept that their courts have used to guide constitutional decision-making.
Dickson pushes us to rethink what equality means in a country shaped by colonialism. It asks us to move beyond a model that treats Indigenous governance as an exception to Canadian law, and instead to see it as a fundamental part of Canada’s constitutional structure.
This is true even though Dickson leaves many open questions that are deeply concerning to many Canadian legal scholars. The Court didn’t fully explain when or how section 25 should apply, or how to tell the difference between legitimate expressions of Indigenous difference and potentially exclusionary practices.
The case provides an opportunity to understand the Charter beyond a rigid set of individual protections to a living framework – one capable of affirming Indigenous laws and legal traditions as foundational to the country’s legal and political order.
Suggested citation: Alexandra Flynn, Reimagining Constitutional Equality: Indigenous Governance, Vulnerability, and the Legacy of Dickson v. Vuntut Gwitchin First Nation, Int’l J. Const. L. Blog, Jul. 16, 2025, at: http://www.iconnectblog.com/reimagining-constitutional-equality-indigenous-governance-vulnerability-and-the-legacy-of-dickson-v-vuntut-gwitchin-first-nation/
[*] This blog post is based on my presentation at the workshop, The Impact of Constitutional Frameworks on Crisis Response Capacity: A Comparative Study of the United States and South Africa, held at Emory University School of Law, Atlanta, GA, on June 26 and 27, 2025. Many thanks to the workshop participants for their helpful feedback.
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