Supreme Court of Canada Hearings

Good morning, please be seated. In the case of Cindy Dixon against Wuntut Gwich in First Nation, for the appellant respondent on cross-appeal Cindy Dixon, Bridget Gilbride and Archie Mann, for the intervener, Attorney General of Canada, Anne M. Turley and Marlene Anderson-Lindsay, for the intervener, Procureure General du Québec, Maître Catherine Bélanger and Maître Sylvie Boulet, for the intervener, Attorney General of Alberta, Leah M. McDaniel and Michelle Annick Casey, for the intervener, Government of Yukon, I.H. Fraser and Cathy Mercier, for the intervener, Congress of Aboriginal Peoples, Andrew Loken and Emma Wall, for the intervener, Canadian Constitution Foundation, Bryn Gray, for the intervener, Band Members Alliance and Advocacy Association of Canada, Ian Knapp and Catherine Belette, for the respondent appellant on cross-appeal Wontut Gwich'in First Nation, Chris Statnick, Krista Robertson and Ellen Sigurdson, for the intervener, British Columbia Treaty Commission, Roy W. Millen, Joshua Hutchinson and Alison Burns, for the interveners, Mitzi Nation of Ontario and Mitzi Nation of Alberta, Jason T. Madden, Alexandria Winterburn, Alexander Depardee, for the intervener, Car Cross Taggish First Nation, Gavin Gardiner and Carolyn Grady, for the intervener, Teslin Tlingit Council, Jeffrey Nichols and Kate Bloomfield, for the intervener, Council of Yukon First Nations, Tammy Scheranek and James M. Cody Casey, for the intervener, Pan-Canadian Forum on Indigenous Rights and the Constitution, Bruno Jelena Fauche, for the intervener, Federation of Sovereign Indigenous Nations, Bruce G. Scouser, Bridgette Gilbright.

Chief Justices, I'm going to begin with an overview. Ms. Dixon brings this appeal because she has been barred from the opportunity to serve on her own Indigenous nations elected government solely because of where she lives. This exclusion is discriminatory, antithetical to democracy, and unconstitutional. Wuntut Gwich'in's agreements with Canada and the Yukon have embraced rather than rejected the charter. Those agreements provide that VGFN's powers are to conform with the Constitution of Canada and shall not affect Ms. Dixon's rights as a Canadian. These would be.

I don't think there's any question that it has to conform to the Constitution of Canada as pursuant to Section 52 Sub 1. The Constitution is the supreme law of Canada. Maybe the question is whether 32.1 causes the Charter to apply.

Yes, and in my submission, in my submission the parties have agreed. There's no question in their agreement that the charter applied and through the federal legislation, they've been given effect and I will come to that. But in my submission, the promises in the final agreement and the self-government agreement would be hollow promises if Ms. Dixon was denied access to her charter rights by virtue of Section 25 of the charter or otherwise. The current VGFN administration seeks to walk away from the express terms of the agreements ratified by their citizens in 1993. There is no dispute in this appeal that Ms. Dixon is eminently qualified to serve on Wontut Gwich'in's government and is barred from that opportunity solely because of where she lives. She grew up in Old Crow, having been raised on the land by her grandfather, Lazarus Charlie. She moved away as a teenager to get an education, as many do, and has since dedicated her career to advancing Indigenous knowledge in the North. Today Ms. Dixon lives in Whitehorse along with a large contingent of other VGFN citizens. She is a single mother to her son who suffers from life-threatening seizures. He must live near a hospital and so must she. She nonetheless travels regularly to Old Crow and would continue to do so if given the opportunity to run and serve in her government. There is also no dispute that VGFN has legislative authority over Ms. Dixon and all their citizens in Whitehorse, over important aspects of their lives. This includes their health care, their education, their access to social assistance, among other matters. Their exclusion from government, therefore, has direct and serious consequences on their lives. I intend to organize my submissions around the following three points, and the first is the one your question goes to, Justice Rowe. The first is the parties did not leave the application of the Charter up for debate. VGFN agreed their powers would conform with the Constitution and Canada enacted legislation ensuring VGFN laws have the force of law within Canada. Giving effect to the agreements means ensuring VGFN citizens enjoy the full benefit of their Charter rights.blesque?

Do you see a difference between the requirement of residency for voting compared to leadership?

No, in my submission, in my submission, the pillars of a democratic government are the ability to vote and the ability, the opportunity to run and serve for government.

Because in this case, the requirement is for leadership and not for voting.

Absolutely, absolutely. And in my submission, that's the twin pillar of democracy together with the right to vote. And that's made clear from the International Covenant on the Civil of Political Rights who pair them together in Article 25. It was made clear by this court in the secession reference. And it's made clear in section three of the charter.

Thank you, Mr. de Jonchette. Ms. Gilbride, you say that your client does not have the opportunity to run, but the residential requirement has been amended. So the problem here is she can run, but if she's elected, if she wins her seat, then she has to move.

Well, with great respect, with great respect, I say the problem is both to stand for office, to run and to serve. And that's because substantively she's barred. She doesn't she cannot move. And so there is no value in running. The right to run here is hollow for her when she cannot take up an elected seat if she's elected and move and serve. So I pair them together. And in my submission, the opportunity to run is at stake here for non resident citizens who are unable or unwilling to relocate.

Does your argument apply your charter to the other considerations relevant to persons desiring to run for chief and councillor, for example that no indictable offence convictions be on their record for five years preceding the election? Is that subject to charter review do you think?

subject to charter review, do you think? It's subject to charter review, yes, in my submission, but we are not challenging it.

I'm just wondering about the connection of your argument to the relocation of settlement land. How tied is your objection to that? Or is it the sweep of your charter claim would potentially extend beyond that?

Well, I suppose there's two parts to it. There's two parts to it, and one is the applicability of the charter, and in my submission, they've agreed that the charter will apply to their powers generally, so the charter applies in my submission to that provision, but then, then at the next stage, the analysis will be different. The analysis will be different with respect to the, with respect to the analogous ground, right, with respect to the distinction at issue, with respect to what's impinged, and here, here what we have is a distinction based on residency, and based on an analogous ground that this court has already established in Corbierre, aboriginality residency, and I'm not sure that would exist with the other provisions, and they need to be analyzed on their own. So what.

What do you make of the position of your colleagues on the other side who, pointing to the same provisions that you do, I'm looking at paragraphs 71 and 72 of their factum, where they say that the benefits and protections that are extended to all citizens guarantee citizens who are also Canadian citizens have charter guarantees against the federal and provincial or territorial governments, but not necessarily against the VGFN.

In my submission that would result in lesser charter protections for indigenous peoples such as Ms. Dixon, such as her fellow VGFN citizens where VGFN exercises considerable authority over very important matters for them no longer exercised by the federal and territorial governments. Authorities were transferred here, formerly exercised by Yukon or by Canada. Authorities such as healthcare, education, and if it were only to apply to the federal and territorial government that would result then in citizens who are governed by a robust self-nation, self-governing First Nation, which we have here, which Ms. Dixon supports and wishes to participate in. But those citizens whose First Nations have more authority would have lesser rights.

So you're not worried about the language of Section 32.1, which seems to focus our attention on Parliament and the legislatures of the provinces and territories? Where are you rooting this connection here? You mentioned delegation. I mean, we're not dealing with the municipality. Where is this connection?

So the connection in my submission is in how the parties designed self-government in the first place. The self-government here was achieved after decades, decades of negotiation, and the parties turned their mind to this difficult question. They turned their mind to how are we going to make VGFN self-government a government within Canada? And they provided terms in the agreement that it would conform with the Constitution of Canada. The self-government fits squarely within the Constitution of Canada in my submission. And then, and then all the parties, all the parties agreed that it would be given effect by legislation and that there'd be a legislation enacted by the Yukon and there'd be a legislation enacted by the Parliament. And VGFN, through the Council of Yukon First Nations, was involved in the drafting of that legislation. And in my submission, that legislation takes care of this issue that you raised.

Ms. Gilbride, you sort of rely in your condensed book on the agreement, and you're doing that again in the submissions, and it states that the First Nation's powers are to be in conformity with the Constitution of Canada, which is then given effect through federal legislation, right? Yes. Would it have been competent for the Parliament of Canada to have approved through federal legislation an agreement that said to flip your proposition on its head need not be exercised in accordance with the Constitution of Canada, or that expressly stated that the charter didn't apply? And the second part of my question, which follows up on Justice Kizira's question, is what branch of Eldridge are you locating your argument on Section 32 under? Is it the first branch relating to the nature of the entity, or is it the second branch relating to the nature of the functions? Because I think that is quite important.

Yes, thank you. Thank you, Justice Jamal. So on the first question, on the first question, I am not sure, and I have serious doubts, that Canada would be able to, say, transfer their own powers and their own authorities without charter protection. That follows from the reasoning of Justice Lafferay and Godbout later embraced in Eldridge and cases that follow. So I have my doubts, but we don't need to worry about that situation, because it's not the situation here, and the parties were on all fours about the charter. Well, I think we do have to.

to worry about it because it goes to the issue of what effect the provision of the final agreement that you're referring to has, because this is legislation. It's a self-government power, but it is exercised through federal legislation passed under 9124. That's the federal basis of jurisdiction for the Yukon First Nation Land Claim Settle Act, an act, the First Nation Self-Government Act. It's an exercise of 9124 jurisdiction.

The federal government's enactment is an exercise of 9124. 840.

I think whether the agreement could have provided expressly that the charter doesn't apply would raise serious questions about whether this was even competent to Parliament to approve in federal legislation. And that also goes to the point about where the locus of authority, because if it's the locus of authority under Section 32 is simply the fact that they've agreed, that seems to me to have significant implications of the scope of Section 32 as well. So I think whether it's through the agreement itself that it ends the analysis or not seems to me quite significant for the scope of Section 32.

So, so my, I agree, I agree with the, with your first statement about the competence. I agree with that. With respect to, it's not only the agreement that situates this within Section 32-1, and that's not my position. But my position with respect to the agreements is that you need not be troubled in finding this within Section 32-1 because it's, it is the wishes of the party. It is expressed.

Do we have evidence? I'm sorry to interrupt and I know you have a second part to the question asked by Justice Jamal, but we have some evidence in the file that the parties, when they negotiated the agreement, they discussed this issue of applicability of the charter or not and apparently, and maybe I'm mistaken when I read the evidence, they decided to leave this unanswered.

So in my submission, there is an affidavit, and in my submission, that affidavit with respect is contrary to what the agreement plainly says. And what this court ought to give effect to is the words of the agreement. And when there's no ambiguity and what they plainly say is that there'll be conformity with the charter. We need not worry about that affidavit, and it ought to be given no weight. And that's what both courts did below. It was raised to the attention of both courts, and both courts considered it, gave it appropriate weight, and nonetheless found that the charter applies. I was going to go back to Justice Jamal's questions. And firstly, it's not solely that they agree that situations within Section 30 to 1. It is then through an act of Parliament, the laws of VGFN, the agreements are given effect, and the laws of VGFN are given force. But my point about the agreements in part is that this was by design of the party. So it did require the act of Parliament in this case to give effect to it, but this is by design. This is a practical way that self-government has been given force, given effect within Canada. And it ought to be, in my submission, a model, and it is a model. And it doesn't need to live in this inchoate jurisdictional space. It's grounded firmly within the Constitution of Canada and 32.1 and 52 as laws of Canada.

my question, if I might, which is I completely do not understand what you have just said, because I understand two pathways, one which is by operation of law, by the proper interpretation of 32.1, having regard to Eldridge, now you can read it a couple of ways, but in the view of some at least, 32.1 would encompass this government among others, and therefore by operation of law the Charter applies. I understand a separate pathway to be that even, let us assume for the purposes of argument, that the Charter does not apply by virtue of 32.1, nonetheless a First Nation, in this instance, could voluntarily agree that the Charter applied to their self-government institutions. And that's open to an indigenous group to say we embrace this, we want to make this part of our own constitutional arrangements. And that it seems to me is a separate pathway from 32.1, but you seem to have suggested that they are combined in some way, and that's where I'm unclear as to your submission, perhaps.

Well, at least if not combined and I do think they operate together here, but if not combined, both pathways exist here. So both pathways exist here. If they're independent, they both exist. If they're combined, as I have submitted, it exists as well.

How can they possibly be combined? I mean, 32.1 is not contingent on arrangements which may or may not be put in place from time to time. 32.1 operates as a general rule, whereas the particular content of an agreement may vary. I mean, First Nation X may say, we embrace the Charter, we want it to be part of our arrangements. First Nation B may say, no, no, we're going to set out our own set of principles, thanks but no thanks to the Charter for the operation of our institutions.

And perhaps I'm making this sound more complicated than I intend. What we have here are agreements and federal legislation giving effect to those agreements and making their laws force of law within Canada. So it's only in that manner that I'm saying they're acting in concert.

Well, I think it goes back, Justice Roe asks a fair question, though, and it goes back to my question, my second question, which is what branch of Eldridge are you under? Is it the nature of the entity or the nature of the activities? Because an agreement doesn't seem to fit within either category, whereas the terms of the Constitution, the First Nation Constitution defining the objects of the First Nation as being governmental and the various powers that are set out in the agreement, devolution powers and powers of government such as the powers over education, health, social services, justice, employment, those seem to fit more squarely under the second branch of Eldridge. So that's why I'm wondering about the legal significance of the agreement and I think, to follow on Justice Roe's question, it's interesting to see, but I'm not sure how legally significant it is.

Well, what the federal government legislation has done through Section 10 is given VGFN's laws force, and therefore the laws which are, in my submission, activities are subject to Section 32.1a. Now what the courts below decided, in my view, was a broader that VGFN fits within 32 as a government, the first branch of Eldridge. And in my submission, they weren't wrong in that analysis, but this court doesn't need to solve the issue of self-government, indigenous self-government, in the abstract in this case. The courts have here an agreement with specific terms, a detailed agreement, carefully negotiated, and the courts have here legislation that gives the laws effect.

Do you understand, thank you, just to follow up on these two questions, I'm inclined to think it is actually rather important that we decide, we understand the basis upon which the charter would apply through Section 32. And do I understand you to say that the Court of Appeal and the trial judge got it wrong? I've got 98 of the Court of Appeal opinion before me, where the Court says the VGFN Council was by its very nature exercising governmental powers within the meaning of Section 32 of the charter.

What do you take that to mean? Is that... Is that Eldridge 1 or Eldridge 2?

So I read that as Eldridge 1 and I'm not saying the wrong I'm not saying the Court of Appeal is wrong. What I'm saying here is that what we have is it's it's not referenced by the Court of Appeal but it's made even more clear that there is section 32 government or at least their laws are activities that are subject to the Charter under 32 1a as laws that have force within Canada.

So it is the V, you're saying it's not wrong. Your reading is that the VGFN is at once with the government spoken to in the first branch of Eldridge. That is, it's the nature of the actor. It's quite important because you may wanna confine your argument to the final agreement and the self-government agreement in this case and the legislation brought to enact it. But we have to worry about what the consequences of saying that that's the right way to go about it. And I'm wondering if maybe you might be on stronger footing with Eldridge 2 than Eldridge 1.

Well, certainly in my submission that's through the federal legislation, we have strong footing on Eldridge number two and that is my submission that these laws in this case are given effect and given force through the legislation. The court of appeal and the Yukon Supreme Court did go further, did go further and I'm not saying they're wrong but I'm also saying this court doesn't need to solve that question in this appeal.

But you just, I don't think you really answered Justice Jamal's question when he asked you about, because you talk about how this is basically a good model for self-government, how the contracts were drafted and negotiated, and you were asked specifically if the language was different and there wasn't the specific notion, the constitution indirectly, the charter applies, and then the First Nation would say, well, we have an inherent right to self-government, we've negotiated with the government of Canada, we're not going under the constitution per se, we've not had that language in that. Then wouldn't you be outside of 32 and it would be the constitution and the charter of the band or the First Nation that would apply?

So I'm not sure we have any such agreement. And in fact, I don't think we have any such agreement. I know you don't have the agreement. But the question is, do you have any such agreement?

The question was, would that make a difference? Because yes, we have the case in front of us, but we have national implications, and I'm asking you, would that make a difference? Forget what we have here. You were asked specifically, would it make a difference? You didn't answer.

Well, in my submission, in my submission, I'm not... Parliament and the Yukon here cannot transfer their authorities absent their accompanying charter protection. So if that's what would be happening in that agreement, then that agreement could not have... could not have effect in Canada and could not be a valid situation. So it's not whether it would be different in my submission. We would have something that wouldn't be... wouldn't have legal... wouldn't be legally binding, wouldn't have legal effect. Now, that's not to say that the inherent right to self-government doesn't exist. That's not Ms. Dixon's position. Ms. Dixon seeks to be part of her government. But that's to say how it fits within the structure of Canada's constitution, you know, requires... requires agreement and careful negotiation like happened here. So I'll turn to my second ground, which I'll state. And my second and third points are...

Before you go on, there's one aspect of your position that I think just needs to be put on the table. You may have an answer for it. I'm thinking of a commentary on the judgments in the courts below published in a scholarly journal where a scholar said that applying the charter to the VGFN without its consent and heedless of the established legal order is a form of assimilation. And that, well, the lower courts might not have intended it as such, that to do that runs roughshod over an ideal of self-government based on values that are indigenous values as opposed to non-indigenous values. What do you say to that?

So first, I disagree with the premise that there wasn't consent to the charter. So first, I disagree with that, and you have my submissions on that. But secondly, the charter, the charter of rights which protects individual human rights, individual human rights that followed from international law are protected not only in the charter, but in the United Nations Declaration on the Rights of Indigenous Peoples, and they sit comfortably with collective rights. They advance and improve and enhance collective rights. So in my submission, there's no harm, there's no harm to Indigenous self-government by ensuring that the individuals, the individuals that are governed have basic fundamental human rights.

But I put to you that if in each and every instance, collective rights and individual rights were entirely consonant and could not diverge, Section 25 would not need to exist.

So, well, I'm going to come to Section 25, and I'll come to Section 25 and in my submission, what its primary purpose is, which is reconciliation, and its scope. And it plays a role here in protecting the special status that Indigenous peoples have in Canada. The special status also recognized by Section 35, special status that no one is contesting here. But it doesn't play the role as an automatic shield, and it doesn't play the role in regulation of an Indigenous self-government, or the manner in which they exercise their rights over their citizens. So, in my submission, the Court of Appeal aired in two ways with respect to Section 25. The first is the court aired in finding the residency requirement is protected by Section 25. And the second is that by applying Section 25 as an automatic shield and bypassing Section 1 of the Charter. So, I'll address these in turn. These are my second and third points. So, regarding the first error, the respondent asserts in this court that the residency requirement is protected by Section 25 as the exercise of a Section 35 right. This is not how it was dealt with in the courts below, which found it to be an other right or freedom. And in my submission, it is neither. In oral argument, I will focus on my friend's position in this court, and I rely on my factum with respect to other rights, which can be found at paragraph 69 to 91 of my appeal factum, except to say this. The majority of this court in Cap was correct when they observed that Section 25 is aimed at rights of a constitutional character, and which by that, they are rights found within Canada's constitution. And in my submission, that principle follows from the supremacy of the constitution set out in Section 52. It follows from the principle that one part of the constitution shall not abrogate another and is consistent with the interpretive principle of egestum generis.

So for you, you say that you refer us to your factum, paragraph 69 and following, regarding other rights, but can you just summarize in a couple of sentences your position on the meaning of other rights?

So the other rights are rights, how about this? In my submission, section 25 encompasses constitutional rights belonging to or for the benefit of indigenous peoples in Canada. So other rights must be constitutional rights and they must be found in a constitutional document of Canada and I've given you some examples in my factum. Some of my friends have said, well that renders them redundant with section 35 and it does not, it does not and I've provided examples at paragraph 78 of my factum and paragraph eight of my reply factum. So that's the place for other rights and specifically what the courts below did is they essentially took a historic practice that doesn't meet the Van Der Peet test or they didn't look at the Van Der Peet test and made that another right. And other rights at least should cover a different ambit than aboriginal rights and in my submission there are other constitutional rights that are found in our founding documents that section 25 is intended to protect.

The Gwich'in First Nation thought this residency rule was sufficiently important that it was put into the Constitution. And so I wonder why the – when Chief Justice McLaughlin and Justice Charron spoke about rights of a constitutional character, why it wouldn't include something that is put into the founding document of the added – I mean it was added to the founding document of the Gwich'in First Nation. Why is that not a constitutional character?

So two things in response to that. By constitutional character, I do mean the Constitution of Canada, and that's because of the special supremacy that that document has. The Vuntukwitzen Constitution can be amended by majority vote, by 60% majority vote by those present at a general assembly. So it doesn't give the same protection of constitutional rights. And to enshrine within section 25, or to have section 25 cover protection of rights that are not constitutional, would then be having non-constitutional rights that can be amended at the whims, in this case, of a majority vote, so that can be amended, abrogate other constitutional rights, charter rights. And that's inconsistent with section 52, and it gives those rights greater protection. And my second point, before I forget it, my second point in that is that it's not enough to look at the Constitution as a whole. It's not enough to look at the Constitution as a whole. That would be inconsistent with how we define rights, and you need to look at the specific impugned law, the specific activity and the specific character, and examine it in its context. And to otherwise just say, well, it's found in the Constitution, and it could give rise to protection of any number of provisions that are placed in there by majority vote, which is not what the intention of our constitutional, our constitutional structure is.

But you seem to say that there's a suggest, that there's something problematic about the First Nation, the indigenous group, changing the constitution under which they operate. Does that not go with being self-governing?

No, there's nothing problematic about it, and I don't intend to assert that. My assertion is that the rights don't automatically fit within section 25, and that is one of the reasons, one of the characteristics that they can be changed, why they shouldn't be given protection under section 25, which in my submission ought to be reserved for constitutional rights. So it's the system, it's the system that is embraced, but it doesn't mean they have section 25 protection.

So when you're looking at this context are you also looking at I think at one part I read with regard to UNDRIP and the individual rights are you looking at that also in your section 25?

Yes, yes, and it comes in play particularly, comes in play generally with respect to the principles that UNDRIP endorses, which are democracy and non-discrimination, but it comes into play largely in the balancing exercise that I say Section 25 requires and my submission that it's not an automatic shield. And before I get there though, I would like to just address my friend's argument in this court that they characterize the right as a Section 35 right, they characterize the right as, let me ensure I read it here, as asserting a right to select leaders as an aspect of the right to self-government. And it's striking in my view that their asserted right does not include any reference to residency.

Can I just ask, so talking about selecting a leader, is there a distinction between the chief as a leader versus the other council members?

Um, I'm not sure. I'm not sure is the answer to that, what Ms. Dixon ran for as council. There's nothing in the evidence where they're distinguished, but.

Well, there is evidence about distinguishment because when we're looking there's an affidavit that, and I think that's part of the master's thesis based on that one interview about how leadership and there's a lot about the chief and I don't read anywhere anything about the council members. Everything that I've read pretty much is about the chief. So that leads me to think is there a distinction really between both that wasn't discussed.

Well, perhaps I'll say this. Perhaps I'll say this. Ms. Dixon throughout, Ms. Dixon throughout in all the proceedings has said that there may be, that residency surely can play a role here. That residency with respect to the situation of the Woonchut Gwich'in can play a role. And it may be that their chief would have different rules than the council. What's happened here is a completely discriminatory bar excluding her from participation from council entirely. So it's not that the Woonchut Gwich'in cannot enact laws that are specific. And maybe some of the specificities may be to distinguish between chief and council. That may be one of the solutions. And Ms. Dixon is open to the Woonchut Gwich'in devising their own solutions here and devising their own residency requirement. They can draw a line, but they haven't drawn a line here. They've completely excluded here. And that's what's discriminatory.

You may be coming to this, but could you sort of at some point address the purpose of section, what your view of the purpose of section 25 is, and then secondly, whether you agree with the framework that the Attorney General of Canada has proposed in its materials and in its condensed book and the flow chart that they've provided on the method of analysis, because obviously there isn't much guidance in the case law.

Sure. Yes. So the purpose of Section 25 is common with the purpose of Section 35 in my submission. It's reconciliation, which underlies essentially Aboriginal rights within Canada. With respect to Canada's framework, I have two comments. And these fit in more in my ground that or in my point that Section 25 is not an automatic shield. And that's why the purpose of reconciliation is so important. Because what reconciliation demands is balance and compromise. And it demands a balance. It demands a balance. With respect to Canada's framework, I'll say this. I have two comments on Canada's framework. One is with respect to the mechanics and one with respect to their substance. With respect to the mechanics in my submission, you cannot bypass Section 1. The language of Section 1 makes it clear the purpose of Section 25 as a reconciliatory device, as a reconciliatory provision means you cannot bypass Section 1. So in that manner, I disagree with Canada's framework. You must get to Section 1. And that is where this analysis and Section 1 is fully designed already and flexible enough to take into account and to assess the abrogation and the derogation of the Indigenous rights at issue. So I disagree with that. Now, in substance, in substance, I'm not sure there's much daylight. I'm not sure there's much daylight between our position and Canada's position. And I'll also say this. When you apply Canada's position to the facts of this case, which they haven't done as an intervener, but I'll do it, when you apply Canada's framework to the facts of this case, in my submission, you get to the same result. You get to the same result. The discrimination of Ms. Dixon must be struck down in view of a residency requirement that does not reflect a historic practice and was enacted for the first time in 2006. And there's not much daylight in my submission because that while we require a balancing, they're looking at whether it's necessary to maintain the right. That type of analysis is exactly what can happen in a balancing. I take something a little more broad and flexible than Canada, but I think we get to the same place in this case.

May I just follow up on that in terms of section 25 is in the general section and it's a provision that hasn't received a lot of judicial attention. The only other provision in the general section that speaks of abrogation and derogation is section 29, which talks about not abrogating or derogating from any of the rights, privileges guaranteed under the Constitution of Canada and it's in respect of denominational separate or distant schools. Do you have any argument that's based on the relationship between the wording in those particular sections that might help assist in terms of our interpretation of section 25?

Yes, I think we can look to the jurisprudence on Section 29 and find assistance there. And in particular, and we've included it in our condensed book, I refer you to the decision of Adler. And what Section 29 has found is that denominational schools within Canada, denominational and separate schools are given a special status. That was part of the compromise of confederation, that they will have a special status. And their existence or their funding, you know, must be protected. And that's what Section 29 says and indeed that's what Section 93 says. But what Justice Iacobucci says in Adler is beyond the existence, right, beyond the funding of denominational schools, legislation relating to those schools is not immune from charter scrutiny. It's not immune. So I think there's a difference here. So when we get to the point where a right will be negated, Section 25 and Section 29 likely operate to save that right, save that right. So when we get to the point where it's threatened or negated, its very existence is what's at stake. And that's what Section 29 says. But it does not immunize all exercises and all the manner in, if you look at, if I switch to Indigenous language, the manner in which the right is exercised from charter review, it may protect the existence of the right. It may mean that, and it ought to protect the existence of the right. There's special status given to Indigenous rights within Canada, but the way in which they're exercised, the manner in which they're exercised is not, through Section 25, taken out of the charter scheme. Because to do so, in particular, where the right is the asserted right to self-government or the asserted right to select leaders, would end up in the situation we have here, where you can end up with discrimination against Indigenous citizens themselves who seek to participate in the very government whose rights are there invoking to exclude them. Right? There's a vicious circle here. And for that reason, that's demonstrative, in my view, as to why the manner of the exercise should not be taken out of charter review, and this is consistent with Section 29 jurisprudence.

So looking at the in the affidavits about what happened at the General Assembly and your client's petition to allow at least one VGFN's Councillor position to be chosen from citizens based in Whitehorse and that was defeated When we're looking at the balancing exercise Is this a remedy that's possible by going back to what she proposed? And maintaining the self-government structure and the residency requirement for the rest?

I'm sorry is your question is one of the remedies having a seat in Whitehorse a council seat reserved in Whitehorse

Because originally that's what she sought and that's the issue that was defeated at the general assembly. So my question is, is that a remedy, would you see that as a remedy as a middle ground to ensure self-government persists having that residency requirement and also giving her what she's seeking with regard to anyone who's off First Nation land to be able to have access to sit as a council member?

So certainly that is a manner, and we wouldn't be here if that was the case. Ms. Dixon would not be here in this court. And that is a manner to implement a re- to implement residency within their council and yet give participatory rights to the non-VGFN citizens. So certainly that is a remedy. But let me be clear that the remedy of this court is whether or not the law is of no force or effect or not. And it's up to the Wuntukwitian people to devise the remedy itself. So it may be that they choose one council and white horse. It may be that they choose something different.

No my proposal is that this court needs to declare that what we have here the complete bar is discriminatory and therefore of no force and effect pursuant to section 52 of the constitution and it can go back and Ms. Dixon has asserted this throughout it's up to the the Vuntukwitzen to devise their own residency requirements they just must do so in a manner that conforms with her charter rights.

Ms. Gale-Bride, what do you say about the fact that residency requirements are not uncommon in Canada under other legislations in order to hold an office? What do you say on that?

So firstly, two things. Firstly, there's not one in Canada. And a better analogy to the Wuntut Gwich'in, I would say, and citizenship, which you retain whenever you move all around, is Canada and not the provinces and the municipalities. But, and more to that point, or further to that point, the Wuntut Gwich'in First Nation is not fairly compared to a municipality or a territory, which whose jurisdiction and governance generally is confined by geographic borders. And so their elector requirements match their jurisdiction. Whereas here, as I stated at the opening, the jurisdiction of Wuntut Gwich'in extends to their citizens, and it's broad, and extends to their citizens everywhere in Yukon, including the very large contingent located in Whitehorse. This is not, this is not an election for the old crow town council. This is an election for the Wuntut Gwich'in Nation Council, and they govern all their citizens. So the analogy in my submission falls away. I'll also rely and add to that on Justice McLaughlin and Justice Lourde Bayes' comments about the difference between the residency decisions of indigenous peoples and the average Canadian. Okay. I'd like to just quickly, and quickly address what I was going to say earlier, that the respondent's characterization of the right to select leaders raises the inquiry to a level of generality that is contrary to Van Der Peet, and does not take into account the actual regulation, which is a requirement based on residency. In my submission, a right to select leaders is akin to the general right that this court rejected in Pamaduan to manage and use reserve lands. When the asserted right is examined at the appropriate level of specificity, that is, it's a right to require leaders to live in a particular place, the evidence on the record demonstrates that leadership was not part of the selection process, does not appear in Ms. Barstow's thesis or otherwise in the evidence, and it was not a practice of their leaders to live in one place. Traditionally, the Wuntut Gwich'in were nomadic. They traveled and lived in a vast territory. In the 20th century, their late chief, Peter Moses, was all over the land, and he lived in Alaska and traveled to the Northwest Territories. Ms. Barstow's thesis indicates that VJFN leaders were selected by the people based on their skills and qualities as human beings, not based on where they lived. And the Chamber's judge finding a fact that historically they resided in what is their vast traditional territory was not a normative value of their society, but a historical necessity because it was not possible to live anywhere else.

But may I ask you if there was in fact a historical practice and custom and tradition, would that affect your legal analysis?

If there's a historic practice that satisfies the Vanderpete test, so in my submission not only historic practice, but satisfies the Vanderpete test, then we get to the balancing exercise of section 25. So then section 25 is engaged, but nonetheless, nonetheless you must go through the balancing exercise and examine what's the impact here. Will the right be negated or will it be some other infringement? And what's on the other side of the balance?

So on that point, could I just ask you about that? Because I think assuming the residency rule falls under a right of a constitutional character that is prima facie protected under section 25, once we get to the issue of reconciliation and the balancing between the collective right and the individual right, you say that at Canada's second step that there is a true conflict of rights. You can't reconcile the residency rule and the section 15 equality right, so we necessarily get to section one. Assuming that it's a right that's protected under, for argument's sake, that's protected under section 25, we get to section one because there is a conflict that can't be reconciled. Is that how you're approaching it?

Yes, I think so. I think I think it's the only maybe maybe subtle difference between that is that once we have a section 25 right engaged the section 25 analysis the reconciliation the balancing can occur in section 1 It can be part of the analysis and there's no need here with well, I'm not sure

Why does it have to be under Section 1? I mean, Canada's proposed Dajne-Mentuk type of analysis that plays before we get into Section 21. That seems to be more consistent with the court's jurisprudence on reconciling competing rights, and that seems to fit under Section 25 before we get to Section 20. Section 1.

Well, it doesn't have to, and you may well agree with Canada and not with me, it doesn't have to. That is one possible framework, absolutely, and I'm not disagreeing with that. My suggestion is that imposing a new framework through Section 25, which in my submission is an interpretive provision aimed at reconciliation, isn't necessary here because the factors of Section 25 can be incorporated into Section 1. If you take a framework as Canada, that's another possibility. It's absolutely a possibility and Canada's framework, as I have said, ends in the same result.

Do you reject, just to follow up, so I'm reading the framework that as you sketch it in paragraph 50 of your factum, first determine that there's been a breach of the charter under 15, if there's a breach, determine if 25 is engaged, and finally determine under section 1. Is this consonant with what the Court of Appeals suggested the framework should be? Your colleagues are going to say, pointing us to paragraph 63 of the judgment, that section 25, where section 25 provides a complete answer to the appeal, it's not necessary to engage in a full analysis under section 15, and pointing further to a comment made by the Court of Appeal, paragraph 153, warning that if courts were required to, as a rule, carry out a full analysis under sections 15 and 1, before considering the applicability of section 25, self-governing Yukon First Nations would end up spending significant resources defending moot challenges ultimately prohibited by section 25. Is there any way that the framework could be adjusted to take into account how appropriate it is to litigate all these things through when section 25 will provide an answer?

So given my submission that Section 25 is a reconciliatory and interpretive provision, it's not an answer, it's not a full answer, and each charter infringement must undertake a case-by-case analysis. And that's consistent with this court's jurisprudence, where we have charter infringements, and it's consistent with our jurisprudence under Section 35 that a case-by-case analysis is required. And to not consider Ms. Dixon's Section 15 rights, to not consider the effect of the discrimination on Ms. Dixon in my submission would be an error. And is my position consonant with the Court of Appeal? It is at the beginning. We start the same way. We start with looking at the charter right. And in my view, that's the most efficient way to proceed, because if there is no charter infringement, the analysis can stop there. So this doesn't add I don't think that the fear expressed in paragraph 153 is as real as it's made out to be. We have if there's no charter infringement, it stops there. No.

Is it a prima facie charter? I mean, we make a prima facie case under 15 and then we go straight to 25. Given that 25, the, the, the aspiration of reconciliation in 25 is not the same sort of, at least to my ear anyway, the same sort of, um, collective individual calculus that happens under section one. Can not we go straight to section 25 and potentially end matters there at the very least?

not if there's a charter infringement, not if there's a charter infringement. And to undergo a Section 15 analysis, to undergo a Section 15 analysis, in my view, is not an extremely onerous exercise. You know, and in this case, in this case, we're talking about, you know, that provision talks about potential moot challenges. What we have here is a citizen who's seeking to vindicate her charter rights. Age are�로 se

Doesn't your position amount to this? How can you balance something until you know that there's an infringement of an individual right? What is there to balance? What is there to balance in a void?

Well, that's right, that's right. My submission that Section 25 is an interpretive provision requiring balance means you have to look at both sides. And it's only my friend's submission, which ought to be rejected in my view, an automatic shield that would stop the analysis there. And the automatic shield would take indigenous persons, in this case, Ms. Dixon and the other Wintekwitzen citizens out of the Charter Protection Scheme with respect to the conduct of their First Nation. I see my time is almost up, so I just want to spend a minute or two on Section 15 and Section 1, which I haven't addressed. The findings in Corbiere, including the analogous ground, remain relevant today and apply with equal force to VGFN's laws as to the laws of other government. For Ms. Dixon, she feels the discrimination in the same way regardless of who imposed it. The analogous ground of Aboriginality residents is defined by two characteristics, race and residency. And this is stated by Justice Lurie-Dubay at paragraph 71. These are the characteristics that inhere in the individual. Indian Act status, on the other hand, is not a personal characteristic and should not be imported into the analogous ground. The fact the court uses language referring to the Indian Act and Indian reserves reflects only that the impugned law in that case was a provision of the Indian Act relating to reserve land. This court's decision in Corbiere recognized the harmful assimilation and displacement policies enacted by Canada against indigenous individuals for over a century. The adverse effects of these policies persist today and impact all indigenous individuals, including VGFN citizens. The respondent's argument on section 15 is essentially that by entering into the final and self government agreements and achieving self governance, the disadvantages VGFN citizens experienced by displacement and attempted assimilation disappeared. This cannot be the case. The self government agreement is a step towards reconciliation, but the work is not done yet. Even if well intended, the residency requirement is a step backward, not forward, as it exacerbates the impacts of over 100 years of colonial practices. And I'll just comment here that I'm struck by the contrast between the respondent's position in this case and the arguments made by the indigenous claimant in Desatel in that case. In that case, the claimant and indigenous interveners argued strongly that reading residency into section 35 rights would perpetuate the historic injustices experienced by indigenous peoples. And that's set out in paragraph 33 of Desatel. However, the same harm arises from the VGFN residency requirement, in effect, however well intended. And it does not matter to the people experiencing the harm that it was enacted by an indigenous government instead of Canada or an Indian Act band. The residency requirement in my submission does not achieve its purpose, but most importantly, it's not minimally impairing. And you have my submissions on that, that the Vuntugwichen may go and may devise residency requirements, but they cannot be a full bar to their citizens' charter rights. And I'll just close with a comment that the ultimate power imbalance that is found between, the ultimate power imbalance is found between an individual and her government. If there is one thing human history has taught us, it's that democracies falter and minorities are vulnerable to the political whims of the majority. Indigenous governments are no different in this regard.

Thank you very much. The court will take its morning break. 15 minutes.

Thank you. Please be seated. Thank you, Mr. Early.

Good morning Chief Justice, Justices. The focus of my submissions on behalf of the Attorney General of Canada will be on the interpretation of Section 25 of the Charter and the scope of the protection it affords. The Attorney General proposes a Section 25 framework or construct that is propulsive, flexible and contextual. It is further considered appropriate by my request on Programming.

is also, I would submit to you, incomprehensible, uncertain and unpredictable. But please continue.

Thank you. In our submission, it is consistent with this court's approach to identifying and resolving conflicts between charter rights in different contexts. You will find a diagram that illustrates the proposed analytical framework in our outline at page 2 of tab 1 of our condensed book. The court, in our view, should reject the shield approach grounded in the minority opinion in cap of this court and endorsed by the lower courts below. Its presumptive nature blocks the proper discourse and analysis of the scope of the protection and consideration of the potentially conflicting rights. The proposed analytical framework respects the underlying purpose of Section 25, which is to maintain the distinctive cultures of Indigenous people within larger Canadian society. The scope and protection afforded must be anchored in that purpose. It must not overshoot or overreach. The first stage in the Attorney General's proposed framework are two threshold issues of prima facie engagement. The first is that the claimant must establish that an individual charter right is prima facie engaged. If this is not done, then the claim is dismissed. If it is proven, then the party relying on Section 25 must establish its prima facie engagement.

This is where I think the thing turns into a

something which is about as firm as jello. I mean, what does prima facie engagement mean? I mean, it's anything you want it to mean. What does, for a charter right, I mean, is it a claim? Is it, you have to make out your case to a certain level of probability? And what is, how do you ascertain whether 25 is engaged? Don't you have to go through this thing sequentially and say, is there an infringement? And if there is an infringement, is it one that is, nonetheless, not to be given effect, because it would interfere with a collective right, which is protected under 35.1? This notion of balancing as if it's somehow in the middle of the air, where you never actually decide anything, but somehow a result is arrived at, it is so amorphous that it is no guidance at all.

In terms of prima facie engagement, whether it's be for the charter claimant or for the party invoking or relying on section 25, in our submission, there is symmetry on the onus that's respected. And for example, Justice Rowe, if it is a section 15 claim, the mere assertion would not be enough, but the charter claimant must meet the first part of section 15 one and demonstrate that there is a distinction based on enumerated or analogous ground. If we go to the prima facie engagement, Oh yes, I see Justice Martin has a question.

Thank you very much. I'm just wondering under the framework that you propose, would, for example, the First Nation be able to just say let's just go to a section 1 analysis after the prima facie breach of 15 has been established? Is that something that the respondent in that case could say I'll either choose to try to engage section 25 as a prima facie application or just say, no, I'm content to go to section 1 and my pressing and substantial purpose will be engaged by the fact of the nature of what I do and the fact that other considerations may bear on that analysis because of historical or traditional purposes. Thank you.

Certainly, I think it's up to the respondent. They are the ones that would be invoking 25. They may choose not to rely or invoke 25 at all and determine to meet the claim under the usual charter analysis of infringement and justification. But I think at any step, it would be open to the respondent to take themselves out of the framework, so to speak, or off one of these off-ramps. If I can move... Is it...

Could I just ask, just so I can, because I wanna, you and I have limited time, is it fair, and I found the chart helpful, is it fair to say that it's sort of a, the section, what section 25 calls for is to try to reconcile the two rights, a la Dajne-Mentac. That's not quite that approach, but it is, that's the family resemblance that has, that bears to this right. And if you can't, if despite your best efforts through construction you can't, then you go to section one, you go to a normal section one analysis, and that avoids rendering section one redundant. So it's really a mandate to try and reconcile, but if you can't, you know, that happens, and then we have a breach and we go to section one.

Well, in a sense, because, Justice Jamal, under the framework we're proposing, of course, you look, yes, at whether the rights can be reconciled, whether there is true conflict. If there is not true conflict, then you would be off to the usual charter analysis. But if there is true conflict, then you would look at the necessity of the exercise of the implicated collective right. If it is necessary to the maintenance of the Indigenous groups distinctive culture, then it would be necessary to modify or construe differently the individual charter right, because that is what Section 25 calls for, is that the charter right or freedom cannot be construed so to abrogate or derogate. And the necessity test informs the abrogation or derogation in our submission under Section 25. So resort, Justice Jamal, in our view, would only go to infringement and Section 1 if necessity is not established.

But you talk about modifying a right. Under Dajne-Mentak, the court talks about trying to give full effect to both rights. If you use Section 25 to modify an external, let's call it an external charter right, then you're not really giving full effect to both. You're actually using a shield and a trump. So I'm wondering about that step, how that plays out.

Well, at the end of the day, because of the language of Section 25 in the Attorney General's submission, it may be that after you go proceed through the framework, that it may be that the collective right will prevail over the individual right to the extent necessary to give effect to maintain the distinctive culture. So it may be at the end of the day, which is different than Section 1, in the balancing.

Miss Turley, here we are not letting you, giving you much time to plead. But just to follow up on exactly what you've been saying, one of the reasons that Justice Bachelrache decided, as he did, turned on on paragraphs 85, 86, 87 of CAP, the difference between the French and English versions of the text of the Constitution. And he was struck by the very word that you pronounced, construed so as to abrogate or derogate, the construed which is absent from the French. He found the English text to be ambiguous, and the French, which doesn't have a reference to an interpretive idea, but the French, which doesn't have a reference to an interpretive idea.

n'importent pas atteinte au droit ou liberté.

being plainer what would you have to say to that argument or that view sorry it's of course it's not an argument it's a justice best rash speaking

The difficulty we see with the minority judgment in CAP is it was presumptive in the shield approach and it doesn't lend itself to the consideration of the rights because it was devoid of any real analysis of conflict and it really results in an either-or proposition which we say does not find support in the text of section 25. I would say and I see I only have 20 seconds left now, 10 minutes really does fly by, I would say that as we've said in our facting applying a necessity test is consistent with this court's approach in other contexts, parliamentary privilege, subsection 15.2 and section 93 denominational schools and if I can Chief Justice, this is some one minute of less than one minute of concluding remarks.

I'll give you one minute given the number of questions put to you. Thank you much, appreciate it.

Under this proposed framework, Section 25 in the Attorney General's view can provide a complete answer to address the Charter Challenge, including a contextual analysis of the conflicting rights. There is no need to resort to Section 1. The appeal provides this court with the opportunity to shift and reframe the focus of the dialogue and move away from labels, tags and analogies and adopt a contextually informed framework that will provide much needed guidance for the lower courts. Thank you.

I thank you very much.

Mesdames et Messieurs les juges, bien que le présent jugement, bien que le présent litige oppose le gouvernement d'une première nation à l'une de ses membres, le jugement est intervenu réceptible d'avoir des impacts importants sur l'action gouvernementale en général.

Le Procureur général du Québec est intervenu dans le présent dossier pour faire valoir trois principaux éléments qui sont exposés de manière détaillée dans notre mémoire. D'abord, la charte canadienne s'applique aux entités de gouvernance autochtone. Ensuite, l'expression « droits ou libertés » autre qui est employée à l'article 25 vise des droits qui sont inscrits dans des textes constitutionnels et des droits visés par la Proclamation royale du 7 octobre 1763. Finalement, le Procureur général du Québec soutient que l'article 25 offre une protection que l'on peut qualifier de souple et contextuelle aux droits autochtones qu'il vise. Selon les circonstances, face à un conflit de droit, l'article 25 pourra prescrire un exercice de conciliation ou offrir une protection plus complète qui empêcherait de conclure que le droit autochtone en cause porte atteinte à la charte. Ma plaidoirie portera principalement sur ce troisième point. Dans un premier temps, je vais aborder la question de l'objet de l'article 25. Ensuite, je vais vous présenter le cadre d'analyse que nous proposons pour mettre en œuvre cette disposition de la charte. L'historique législative de la charte comporte des indicateurs pertinents pour définir l'objet de l'article 25. Notamment, quant aux aspirations qu'avaient les parlementaires à ce que l'article 25 permette de concilier l'existence des droits autochtones, l'existence des droits propres au peuple autochtone avec la nouvelle charte. Faute de temps, je n'irai pas les voir avec vous, mais je voudrais faire aux extraits que nous avons inclus dans notre cas condensé qui se trouve aux anglais 1 à 7. La jurisprudence de la Cour illustre aussi que les articles 25 et 35 de la loi constitutionnelle de 1982 sont des dispositions complémentaires. Dans l'arrêt Little Salmon, la juge Deschamps schématise la constitution comme comportant trois pactes fondamentaux. Un premier pacte entre l'État et les personnes au sujet de la protection des droits individuels. Un deuxième pacte entre la population alloctone et les peuples autochtones sur le respect de leurs droits ancestraux et des traités conclus avec eux. Finalement, un troisième pacte de nature, un pacte fédératif entre les provinces. L'extrait en question est reproduit à l'anglais 14 de notre cas condensé. En peu de mots, la juge Deschamps conclut que l'article 25 a pour rôle d'harmoniser et de connecter les premiers et deuxièmes pactes constitutionnels de manière à ce que chacun puisse être interprété de manière à pouvoir jouer pleinement son rôle. Chacun des éléments que je viens de vous présenter illustre que l'objet de l'article 25 est de concilier la préexistence de la société autochtone avec la souveraineté de la Couronne. Objet qu'il partage avec l'article 35 de la loi constitutionnelle de 1982. Il faut donc interpréter l'article 25 de manière à réaliser son objet de conciliation. Selon le procureur général du Québec, trois principes constitutionnels doivent également être pris en considération lors de cet exercice. Premièrement, une partie de la constitution ne peut pas en abroger une autre, ce qui implique qu'on ne peut pas interpréter une disposition de manière à vider de son sens une autre disposition constitutionnelle. Deuxièmement, il n'existe aucune hiérarchie entre les droits constitutionnels. Selon ce principe, la Cour a rappelé que les droits visés par l'article 35 de la loi constitutionnelle de 1982 comme ceux visés par la charte canadienne ont la même importance. Troisièmement, tous les droits garantis par la charte et ceux visés par l'article 35 ne sont pas absolus. Les uns comme les autres peuvent être limités pour des motifs légitimes selon les cadres d'analyse définis dans les arrêts Oaks et Sparrow. Selon le procureur général du Québec, une interprétation téléologique et cohérente avec ces trois principes mène à la conclusion que l'article 25 offre une protection souple et contextuelle.

Maitre Bellanger, vous me permettez de vous couper. Vous avez entendu tout à l'heure votre collègue du Canada qui prenait position avec tous les égards nécessaires contre le point de vue du juge Bastérache dans CAP. Qu'est-ce que vous, comment vous voyez la chose entre la démarche proposée par le juge Bastérache, le bouclier plutôt solide et la démarche proposée par le procureur général du Canada?

Pour ce qui est de la démarche qui est proposée par le juge Basse-Tarache, le procureur général du Québec soumet que cette approche devrait être rejetée parce que justement elle n'est pas conforme avec les trois principes constitutionnels que je viens de vous présenter, c'est-à-dire qu'elle aurait pour effet de créer une hiérarchie entre les droits constitutionnels, de à toute fin pratique vider de leur sens les garanties de la charte et de rendre absolu certains droits, l'espèce les droits visés par l'article 35. Quant au cadre d'analyse qui est proposé par le procureur général du Canada, le procureur général du Québec propose son propre cadre d'analyse et il soumet que c'est celui qui devrait être retenu parce que c'est le seul, il est cohérent avec les trois principes constitutionnels que je viens de vous présenter et avec la jurisprudence de la Cour, notamment l'interprétation qui a été donnée à l'article 29 dans l'arrêt Adler. Merci beaucoup.

Mais oui, une distinction entre le cadre d'analyse que vous proposez sous l'article 25 et le cadre d'analyse sous l'article 1.

En fait, il faut voir ces deux dispositions comme chacune jouant leur rôle, c'est-à-dire que l'article 25 va intervenir dans certaines circonstances qui ne seront pas nécessairement les mêmes que lorsque l'article premier va intervenir. Puis pour bien comprendre ça, il y a une distinction qui est primordiale à faire et j'y arrive justement. Mais avant, je me permets de réitérer la thèse générale du procureur général du Québec, c'est-à-dire qu'on peut qualifier l'article 25 comme étant un bouclier partiel qui empêche les mesures gouvernementales qui reconnaissent ou créent des droits propres au peuple autochtone ne soient invalidés du seul fait que leur existence porte atteinte à la charte. Donc, j'en arrive à la réponse à votre question, Madame la juge Côté. Pour bien définir la portée de cette protection, il faut distinguer le droit en cause de ses modalités. En effet, l'article 25 va seulement protéger ce qu'on peut qualifier comme étant l'essence du droit autochtone. Si on prend par exemple un droit de chasse qui est reconnu dans un traité et par des lois de mise en oeuvre. Ce droit, ce droit là va bénéficier de la protection de l'article 25. Toutefois, l'encadrement législatif et réglementaire qui va découler de ce droit, lui n'en bénéficie pas. Ainsi, si le droit de chasse est contesté sur le fondement du paragraphe 15.1 de la charte canadienne, il ne peut pas être jugé discriminatoire, notamment parce qu'il est protégé par l'article 25. Toutefois, le règlement qui mettrait en oeuvre ce droit de chasse là, lui pourrait faire l'objet d'un contrôle sous la charte sans que l'article 25 n'intervienne. Par exemple, un règlement qui prévoirait que les autorisations individuelles de chasse sont attribuées au sein de la communauté d'une manière discriminatoire, pourrait être d'une manière arbitraire en fonction de l'âge, du sexe ou d'un quelconque motif de distinction, pourrait être jugé contraire au droit à l'égalité. Cette approche qui fait en sorte que l'article 25 vise l'essence des droits autochtones et respectueuse des particularités propres au peuple autochtone et elle établit un juste équilibre entre la protection des droits collectifs et celle des droits et libertés individuelles. Lorsqu'il trouve application, l'article 25 va généralement commander de résoudre un conflit de droits via un exercice de conciliation. Toutefois, à l'égard de certains conflits de droits, l'article 25 va offrir une protection plus importante. En effet, en certaines circonstances, il va empêcher de conclure qu'un droit autochtone porte atteinte à la charte. Une fois l'article 25 engagé, il faut donc poursuivre l'analyse pour déterminer si celui-ci prescrit un exercice de conciliation ou une protection complète. En peu de mots, l'exercice de conciliation doit être fait s'il est possible de le faire tout en maintenant le droit autochtone. Si ce n'est pas possible, alors l'article 25 joue son rôle de bouclier. L'exercice de conciliation aura pour but de maintenir, dans la mesure du possible, le droit autochtone en cause sans privé indument une personne de la protection de ses droits individuels. La conciliation pourrait ainsi mener à bonduler le droit autochtone dans la mesure nécessaire pour résoudre le conflit, sans pour autant y abroger ce droit. Selon cette thèse, c'est donc lorsque le conflit de droits remet en cause l'existence même d'un droit particulier à un groupe autochtone que l'article 25 devrait jouer son rôle de bouclier. Dans de telles circonstances, un exercice de conciliation serait impossible. C'est donc principalement à l'égard de contestations fondées sur le droit à l'égalité que l'article 25 offre à office de bouclier. Notre interprétation permet une protection souple qui respecte l'importance égale des droits constitutionnels et permet de protéger l'existence et les caractéristiques essentielles des peuples autochtones du Canada, tout en assurant que chacun des membres des peuples autochtones bénéficient pleinement des droits et libertés qui lui sont garanties par la Charte canadienne. En résumé, lorsque l'article 25 est invoqué, pour défendre la légalité d'une mesure gouvernementale qui vise les autochtones et porte atteinte à une garantie de la Charte, le cadre d'analyse devrait être le suivant. D'abord, est-ce que la mesure gouvernementale porte sur un droit autochtone visé par l'article 25? Dans l'affirmative, il faut se demander est-ce que le conflit de droit oppose l'essence d'un droit autochtone avec un droit garantie à la Charte? Ici, si on ne se trouve pas dans un conflit entre l'essence et le droit, c'est l'article premier qui prévoirait. Si on se trouve dans un conflit entre l'essence et le droit, alors l'article 25 trouve application. Il faut alors adopter une interprétation conciliatrice du droit autochtone en cause, sauf si le conflit a pour effet de nier son existence. Dans le cas de figure, l'article 25 va plutôt prescrire une protection complète du droit, c'est-à-dire qu'il va jouer son rôle de bouclier. Le procureur général du Québec soumet que son cadre d'analyse doit être retenu puisqu'il permet à l'article 25 de pleinement remplir son objet conciliateur. Il a ta tare high!

Thank you, mate. Thank you, mate. Thank you, mate. Thank you, mate. Daniel.

Thank you and good morning Chief Justice Justices. The Attorney General of Alberta intervenes in this case particularly with respect to Section 25 of the Charter and the proper interpretation and analytical approach to questions where Section 25 is raised. I intend to focus my oral submissions today on one central point and that is that where Section 25 is invoked to defend against, to block a charter challenge and to potentially prioritize collective Aboriginal rights over charter rights, that that collective right must be established using this court's law on collective Aboriginal and treaty rights generally, including being characterized with specificity to reflect its precise nature. In particular, the context of this case and the difficult questions it raises relating to self-government provide a clear example of why this is so important. This is because where it is engaged, Section 25 has a potentially significant impact. It is prioritizing one type of right over another equally constitutionally protected right. It proactively recognizes something that constitutional law otherwise attempts to avoid, which is conflicts between rights. But where there is such a conflict, even after a contextually sensitive interpretive exercise and an attempt to allow both rights to coexist, where there is such a conflict, Section 25 directs a particular result. It tells the holder of a charter right that their fundamental rights must yield in service of another broader interest. And in light of the impact of Section 25, it's entirely appropriate to require the claimant to satisfy existing legal tests to establish their collective right. So what this means is that if, for example, a treaty right is relied upon to invoke Section 25 of the charter, that treaty right should be established using this court's general principles of treaty interpretation. And importantly for this case, if an Aboriginal right is relied upon to invoke Section 25, an inherent Aboriginal right, the party seeking to invoke it should have the onus to establish the existence of the Aboriginal right through the lens of the Van der Peek test.

Now, just a quick clarification. In the context of this case, it is being advanced by certain parties that Section 25 acts as a shield against the advancement of charter rights vis-a-vis a decision of an indigenous government. In other circumstances, it might be an action of, say, the Alberta legislature or the government of Canada. The framework which you are setting out to us, is it equally applicable, depending on which direction you look towards. That is an Aboriginal self-government or the Parliament of Canada or, on the one hand, Parliament of Canada and the legislature were looking in one direction, looking in the other direction, an Aboriginal self-government.

It is this analytical framework that we propose is one that would apply to whichever party it is that invokes Section 25 to prevent against the charter challenge. Now, in this circumstance, of course, that's an Indigenous government and practical realities would suggest that's most likely to be the case in a self-government situation. But that Section 25 should be available to be invoked by any party where it applies on the facts and that this analytical framework should apply in all circumstances.

You seem to be elevating the threshold to invoking Section 25 beyond the words of rights of a constitutional character referred to by Chief Justice McLaughlin and Justice Abella, but then seem to be, once you meet that threshold, kind of discarding Section 1. So I'm wondering under your framework, so the first part of the question is, what about, why does it need to be an aboriginal treaty right? Section 25 seems to be broader. And then the second part of the question is, what's left for Section 1 under your approach? And we've just heard from the Attorney General of Quebec about there being no hierarchy of rights. This does seem to propose a hierarchy.

Thank you and I'll address the first point first and it's an important clarification because what I'm speaking about with respect to the van der peet test refers to aboriginal rights. So if a party seeks to invoke or defend on the basis of an existing aboriginal right as that term is defined in section 35. If a party is seeking to invoke an other right or freedom the framework will need to be different and Alberta has set out in its factum certain indicia that we believe that other right or freedom should have and we share in the view of that you've heard this morning in that it should be of a constitutional character and pertain to the aboriginal peoples of Canada. And in our view one of the most obvious examples of an other right or freedom is the natural resource transfer agreements in the prairie provinces. So that those are agreements that are constitutionalized in nature by virtue of being appended to the constitution act of 1930 and they're constitutional in nature notwithstanding that the agreements are not treaties and so not be considered a treaty or an aboriginal right under section 35 but are not withstanding notwithstanding that constitutional in nature. So if a right such as the natural resources transfer agreement rights are invoked the analysis would depend would would come down to the language of the agreement. If it's a different character of other right a different analysis would apply and it's difficult to determine determine precisely what that would be until the course court is faced with such a claim but for the purposes of this case we say that there's one thing that other rights or freedoms clearly should not incorporate and that is some version of treaty rights or aboriginal rights which are alleged but not quite proven or not quite do not quite meet the van der peet test or do not quite meet a treaty interpretation right. So what but what I'm speaking of now in terms of the importance of van der peet is speaking to when an aboriginal right is invoked is invoked in the matter and I'll turn now to your second question which

Sorry, I just wanted to intervene and ask you if it's a part of the First Nations Constitution, is that of sufficient constitutional character for your test?

We would say where that constitution stems from a self-government agreement, which is itself not a treaty, where the parties have turned their minds to whether that agreement is a treaty and have determined that it is not, and the constitution flows from an agreement that is of that nature, that we would say that not every element of that constitution is of a constitutional nature. Now, there may be portions of that constitution that it reflect a codification, as it were, of historical, of Aboriginal rights that would meet the Van der Pete test. And in that circumstance, viewed through the Van der Pete lens, those rights may be constitutional in nature, but it is not automatically the case that every aspect of a First Nations constitution, again, where that stems from an agreement, which is not a treaty, analysis may be different if we have a treaty in place or that is flowing from a treaty right. But where that is not a, where that is not the case, it is not automatic that every aspect of an agreement or of a constitution will be of a constitutional nature sufficient to invoke Section 25. And I'd like to return to Justice Dumas' second question, which is with respect to the role of Section 1 in this analysis. And we say that Section 1 is a different inquiry and a First Nation government, an Indigenous government, may choose to invoke Section 25 to defend against a Charter Challenge, may choose to invoke Section 1 to defend against a Charter Challenge, or both. And that where the circumstances apply and the evidence is such that either or both would be engaged, that either or both should be available to that First Nation government. Taking the example of this case and not speaking to where that test is met, but just using it as an illustrative example, that it may be that something like a residency requirement could be justified under Section 1 on the basis of general good governance concerns, rather than being strictly on the basis of a van der peet right, of an Aboriginal right or a treaty right. And so that both should be available. And Alberta would prefer not to set out strict rules as to which should be, which, whether Section 25 or Section 1 should be analyzed first. That's something that will come down to the unique circumstances of each case, but that both should be available to address Charter Challenges. I see the Chief Justice may have a question for me.

Oh, I'm sorry. You have 25 seconds. Thank you.

So I will conclude on this point, and that is simply that we say that it's the lens of van der peet and the van der peet inquiry that bring the analytical rigor and definition to aboriginal rights and that bring the context specific, the community specific, and the historically supported rights to bear, maintaining connection with the purpose of section 25 and section 35 as well.

Thank you very much. Thank you. IH Freezer.

Thank you Chief Justice, justices. If I may, I'd like to jump into this discussion as it were with Section 32 and how it should be looked at, which I concede seems a little odd since the gist of UConn's submission is that Section 32 shouldn't matter, but taking up some of the questions that were raised early on by the court with respect to the structure of Section 32 and how it refers only to Parliament and to provincial and territorial legislatures. If I can go to the end of UConn's factum in that long excerpt from Hansard, which is in the factum at the paragraph 62 and following, in the section which deals with Section 31 and how Section 31 is to be interpreted, as is always the case if you put an excerpt into your factum, you always need the bits immediately before or after it. And in this case, just before the discussion that is excerpted in the factum, Senator Tromble leads into that by asking then Minister Critcham if he'd agree that in fact there are only two bodies that have legislative power, and Mr. Critcham says yes, Parliament of Canada and the Legislative Assemblies. Then there's a discussion about, well, and if that's the case, why have the language in Section 31 that is not specific to those two entities? And Mr. Critcham then goes into a long exegesis on why that is so, essentially saying because we don't know, there may well be other legislative bodies in future that we'll want to affect, we'll want to control by this provision. And that's exactly where we find ourselves today, Yukon suggests. We find ourselves with a third lawmaking power in the constitutional order. And Yukon's suggestion then is that one must recalibrate one's understanding of Section 32 to meet that new reality. Yukon has submissions in its factum on why generally speaking one should not read Section 32 as excluding Aboriginal First Nations governments, just on general constitutional principles. But there is, I think, this underlying policy issue, which is it's very clear at the time these provisions were put in place. There wasn't intention to say we only want these two, we don't want any others. That wasn't in the contemplation. It was in the contemplation of the drafters and all parties, as reflected in the hearings, that new constitutional lawmaking bodies might emerge. And there was a clear intention to have them controlled in the same way as the Parliament of Canada and the Legislative Assembly. So I would simply say that Yukon's fundamental position is one doesn't need to reach Section 32 because we're dealing with a law, and the law is controlled by Section 51. But if one does have to use Section 32 as part of the analysis, it would be a mistake to read it as excluding its application to First Nations governments.

As to that... But your idea of recalibrating, to use your word, a provision of the Constitution, seems to be so elastic that we could simply add or subtract as we see fit.

I don't think so, Justice Roe, because I'm talking about recalibration in the sense that then Minister Kretchen was talking about, which is to say there may come a time, and in his discussion with Senator Trombley, what he's saying is there may come a time when there will be another order of government which has legislative, constitutional legislative authority. And in the discussion in the context of Section 31 and why it is drafted in the way it is, he says, and if that time comes, we will want to ensure that the provisions that now apply to the Parliament of Canada and the Legislative Assemblies also will apply to that new lawmaking power. And so I don't, with great respect, I don't suggest it's infinitely elastic. It's simply that it says the structure of the Constitution, Section 32 included, contemplated that there might well be additional lawmaking bodies that are constitutional.

It's a minding formula in part five, and it doesn't include this body making it up.

Again, Justice Rowe, I can only say that in the discussion in Hansard, there is an attempt to grapple with this very provision and whether or not one stees the addition of Aboriginal law-making governments, Indigenous law-making governments, however one characterizes their emergence into the Canadian constitutional structure. It is clear that they are here in the Canadian constitutional structure now. And the question is, how then does one interpret other provisions in the constitution to reflect that reality? If one were to take a traditional view of the common law, and it is of course the common law that brings these new law-making authorities into the constitutional structure, they've always been there. Common law didn't recognize them because it didn't come up as it were. So Yukon's suggestion is not that a constitutional amendment is required to put a new law-making authority into the constitution. It's here. This court has held that. There are clearly, there are Aboriginal first nations governments exercising legislative power within our constitutional structure and they must be captured by it. The only question then is, is it in all circumstances appropriate to read section 32 as excluding them from the reach of the charter? And Yukon says that's not consistent with the understandings at the time as to what section 32 was directed.

But you accept that the path of least resistance is Eldridge branch two rather than branch one. You're saying it's under branch one, but it could be under. We don't need to make law to fall under branch two, right? We just need to apply the existing law.

Yukon's position is not entirely that in the sense that Yukon says that once we have a law, section 32 doesn't enter into the calculus. It's a secondary route to a conclusion that section 51 brings us to the application of the charter. And I think as our factum says, one might read section 32 not quite in the way Eldridge reads it and says, well, maybe it could properly be accommodated in the structure more in terms of actions than in terms of legislative activity. But yeah, I think generally speaking, if you're going to look at the Eldridge analysis in section 32, you're coming at the question a little bit differently than Yukon would. But really Yukon has not taken a position on that because that's sort of outside the run of its argument. The only other point I'd make is that Yukon's outlined the structural reason for its approach to seeing section 25 as a preclusive provision shield, an absolute shield. But there's another way Yukon would suggest the matter could be looked at, which is all through Canadian constitutional interpretation, the methodology applied has been to take the interests or values or principles that appear to be intentioned and to attempt to resolve that through a balancing, not by the application of what are sometimes called bright lines. And a preclusive reading of section 25 is a bright line reading. It says there's no overlap here. There's no interaction between these two areas. The charter doesn't apply. We've got a set of rights that are distinct and there's no communication between them. There's no balancing between them. Yukon's view is that taking away the analysis that will take place in section one is in effect the opposite of what reconciliation should do. Reconciliation should be the knitting together of of of poles that might otherwise be intentioned. The preclusive reading of section 25 says there's no reconciliation. There is separation. And from Yukon's perspective, a preclusive reading is in fact the exact opposite of what reconciliation should be.

Diolch yn fawr. Mr Loken.

Thank you very much. Chief Justice, Justice of the Court, CAP is a national organization representing off-reserve Indigenous people, including many off-reserve members of First Nations. CAP's position as the charter does apply to Indigenous governments, and that Section 25 should be interpreted in a manner that preserves a meaningful charter review of the residency requirement. I will focus my submissions on Section 25. In the national context, the majority of registered or treaty Indians live off-reserve or away from their home communities. The reasons for this are intimately tied to the legacy of colonialism. Many Indigenous people were affected by discriminatory marrying out or enfranchisement legislation intended to further assimilation. The partial reversal of this legislation since 1985 did not result in widespread migration back to reserves or home communities. Residential schools in the 60s scoop have also taken their toll. Off-reserve members, many in urban areas, may find themselves at the periphery of First Nation governments' concerns despite the key role that these governments play in their lives. This court characterized off-reserve members as a discrete and insular minority in Corbiere. Therefore, we say a careful delineation of the rights at issue is required to reconcile the participatory rights of off-reserve and remote members of First Nations with the self-government claim put forward by the respondent. Section 25 potentially shields Aboriginal treaty or other rights from charter review, but these rights have their own internal limits. First, they must be of a constitutional, must be constitutional or of a constitutional character. Under the Van Der Peet test, Aboriginal rights must be rooted in a practice, custom, or tradition that truly made the pre-contact society what it was. Other rights pertaining to the Aboriginal peoples of Canada should be of similar character. I pause to say we would say that it's not enough to be written in a constitution of First Nation because anything can be written in a constitution on a document, on a piece of paper. There should be some level of a substantive test, and it should be of a similar character to those that are protected under Section 35. Self-government or aspects of it may qualify as a Section 35 or other right, but a specific electoral rule that partially disenfranchises a large and vulnerable segment of the community should not. Indeed, government of the many by the few is the antithesis of true self-government, especially in a context where fragmentation and displacement is tied up with a legacy of government interference. To protect the residency requirement as an Aboriginal or other right would risk perpetuating historical injustices contrary to Desautels. Second, Aboriginal rights are subject to the internal limit that they can be curtailed or justified under the Sparrow Test. Imagine that Parliament invoking its protective authority passed a statute that explicitly required all First Nations to allow councillors to be elected and to serve whether or not they resided in the home community. If that statute was challenged and the challenging party was able to establish a general Section 35 right to set electoral rules, the court would still need to balance that right against the case for full democratic participation. This demonstrates that the claimed Aboriginal right is not absolute. Third, a residency requirement that divides an Indigenous community is at a minimum somewhat distant from the core concern behind Section 25, which is to protect Indigenous difference, according to Professor Macklem cited by Justice Basterash and CAP. Section 25 protects the special status of Indigenous people from claims of discrimination by non-Indigenous people. However, using Section 25 to shield internal restrictions within an Indigenous community is less likely to engage Indigenous difference. Professor Macklem calls for a balancing of rights approach in such cases, whereby the party relying on Section 25 is required to justify the restriction in terms of Indigenous difference before Section 25 can become Mr. Luton. Card, yes.

On Canada's framework then for Section 25, do you agree with it? Because you've cited obviously Justice Bastrash in CAP as well. Do you agree with the proposed framework of Canada?

It is one route forward, but certainly, and following up on your comments on the Dajuné-Mentak test, the careful delineation process requires you to consider both competing rights and how to give them full effect and what their true limits are. There is not very much case law on indigenous groups using Aboriginal rights to exclude part of the community, and I would say if this is permissible at all, at the very least, in those cases where using to exclude a part of the community is an issue, the proponent should have to show that it's necessary to preserving the distinctive culture of the collective rather than a case of what psychologists might call the in-group versus the out-group, not a measure that's necessary to protect matters that are integral to a distinctive indigenous culture. Thank you. Thank you very much. Thank you very much.

Good morning. The Canadian Constitution Foundation intervenes in this appeal to make three submissions. First, Section 25 has a partial shielding function, but it does not deprive an Indigenous person from making a charter claim against an Indigenous government or shield all decision-making by Indigenous governments from charter review. Second, interpreting Section 25 as an absolute shield as the courts have done below could have significant consequences for the rights of Indigenous and non-Indigenous Canadians. Third, the collective interests of Indigenous peoples can be considered and accounted for in Section 1 when Section 25 is not engaged. Dealing with the interpretation of Section 25, we submit that the text and context indicates that this section has two purposes. The first is to recognize that Indigenous peoples have certain collective rights in addition to their individual charter rights. The second is to ensure that those collective rights are protected, particularly from external challenges seeking to undermine Indigenous difference. It is a codification in part of the principle recognized by this court in other contexts that you cannot use one part of the Constitution to invalidate another such as Section 35 or Section 9124. This is similar to the purpose of Section 29. This acts as a shield against charter claims by non-Indigenous Canadians that are challenging the fact that Indigenous groups have additional collective rights that they do not have. It is not, however, a complete shield as there is no indication in the historical context that Section 25 was intended to deny Indigenous Canadians their individual charter rights, including with respect to the conduct of Indigenous governments. This is consistent with Justice Basterash's reasons in cap in which he found after reviewing the legislative history that there is no reason to believe that Section 25 has taken Aboriginals out of the Charter Protection Scheme. In that respect, I differ from my friend for the Attorney General of Canada. I do not think Justice Basterash found it was an absolute shield and he talks about the distinctions between internal and external restrictions at paragraphs 98 and 99. Applying the charter to Indigenous governments would not abrogate or derogate from any right of self-government in a way that is contrary to Section 25. Section 25 would protect against charter challenges to the existence of any such right, but it does not mean that the exercise of government powers pursuant to such right is immune from charter review. This is similar to the court's approach to the application of the charter to federal and provincial laws, including in Quebec, which has its own language, culture and legal tradition. The charter cannot be used to take that away, but it does not prevent the charter review of laws enacted pursuant to government powers. This interpretation is also consistent with the UN Declaration on the Rights of Indigenous Peoples, which recognizes in Article 1 and 2 that Indigenous Peoples have rights as individuals to equality and the full enjoyment of all human rights and fundamental freedoms as recognized in the Universal Declaration of Human Rights and International Human Rights Law. It also recognizes that the right to self-determination may be subject to limitations in accordance with international human rights obligations as set out in Article 46. Interpreting Section 25 as an absolute shield to charter review would have significant consequences, particularly in the context of the Aboriginal right, of any Aboriginal right to self-government. The Congress of Aboriginal Peoples and the Band Members Alliance and Advocacy Association of Canada have highlighted significant potential implications for the equality rights of members that reside off reserve or treaty lands. But this goes beyond equality issues. For example, if an Indigenous group were able to establish an Aboriginal right to self-government and that it includes the establishment and creation of an Indigenous police force, both Indigenous peoples and non-Indigenous peoples present on reserve, treaty or Aboriginal title lands could in theory be deprived of various charter protections without remedy, including the right against unreasonable search and seizure. This is not to suggest that Indigenous governments would do so, but there would be no charter protection if this were to occur. In our submission, this does not accord with the purpose of Section 25. Where Section 25 is not engaged and there is a violation of a charter right, the collective and societal interests of Indigenous peoples can be taken into account in the Section 1 analysis. This court has recognized that governments must have a margin of appreciation in selecting the means to achieve its objective, including in the provincial context, and the same can be done with Aboriginal rights as the charter can take into account Aboriginal perspectives, culture and traditions in any Section 1 analysis. Thank you very much.

Thank you. Yen Kenap.

Chief Justice, Justices, my client, the Band Members Alliance and Advocacy Association of Canada is a national organization which exists to assist Aboriginal individuals in their – resolving their conflicts with their Indigenous governments. And so its intervention today is focused on highlighting the individual challenges Aboriginal band members have in their daily lives and interactions with the governments and to assist the court in resolving what I say is – or resolving a balance or balancing or delineating the limits of charter rights as they – when they come in to interact with Aboriginal rights. My submission is generally focused on the principle that – or at least the submission that the court must strike a balance in preserving space for Aboriginal rights, preserving space for Aboriginal expression of rights, while at the same time ensuring that individual band members of nations are – continue to enjoy the promise of charter rights guaranteed in our constitution. This is important because in my submission, Aboriginal people are among the most vulnerable individuals in Canada. This court has recognized in numerous cases, from Ipoli to Corbière and Gladue, that Aboriginal people suffer from pronounced social disadvantage in a variety of aspects of their life, from education, economics, social discrimination. And if history has taught us anything, vulnerable members of society are those who tend to rely more on government support and assistance to get through. And that exposes those people to corresponding potential for abuse from their governments. And in that respect, the charter presents an important backstop for Aboriginal people in their day-to-day lives, who, quite frankly, rely heavily on their Aboriginal governments.

Now, pause here to note that this case is subtly different than the case that Justice Basteras faced in Cap. In that case, Justice Basteras faced a decision or an issue where an individual external to the nation in question or the Aboriginal interest asserted their equality rights against an Aboriginal right to fish. This is a case, however, about whether the charter and to what extent the charter applies to internally limit the exercise of an Aboriginal right. And so I'd like to focus my submissions because there are two issues in this case. The first question is the Section 32 issue and then Section 25. And I'd like to focus my submissions the remaining time I have on the Section 25 point. And I say that I've set out in my factum in paragraphs 34 to 38, a framework or a test. The test largely parallels in my submission what the appellants have done. Briefly, I say Section 1 is appropriately considered for the reasons Justice Rowe identified at the front end in assessing whether there's a conflict in the first place. But I say that the balance is necessary and appropriate for three reasons. The first is that Aboriginal rights are not frozen in time. In my submission, this court is consistently held in cases such as Sparrow, Mitchell and others. Rights must be evolved within or must be understood within an evolving factual circumstances, but also in, I say, legal circumstances. And in the same way that an Aboriginal right to hunt exists in the context of modern firearms and tracking technology, Aboriginal rights exist within the modern legal landscape, which includes the charter and other constitutional rights. Secondly, I say that there is space for the charter for Aboriginal rights. And I say that it is a false choice or a false distinction to say that Aboriginal rights, including the right to self-government, are inconsistent with individual rights. That proposition is based on what I say is an improper assumption and bordering on a stereotype of Aboriginal rights in societies, which are numerous and diverse and different across Canada. Indigenous people and their cultures are not monolithic. There are hundreds of First Nations, as I've said, and each of those nations have distinct social orders and legal traditions. And when we put that together with the fact that numerous international instruments embraced across a wide variety of cultures and legal orders in international society have accepted that individual rights are an important bedrock of society through various legal instruments, including UNDRIP. In my submission, there is no necessary inconsistency. And so it is important to engage in a balancing exercise. I note the time, if Chief Justice will allow me one final submission on reconciliation. 30 seconds. I say that, thank you, Chief Justice. Reconciliation in this context demands balance. In my submission, the court can be comfortable in knowing that reconciliation is finding a way forward, merging both legal orders. This court has said in Vanderpete, in Aishonet, various cases running all the way up into Desautels that an Aboriginal right must be understood, not only sensitive to the Aboriginal perspective, but also must be aware that Aboriginal rights exist within the context of our general legal system in Canada. Those are my submissions. Thank you very much.

The court will take a ten minutes break.

Merci et vous asseoir.

Chief Justice, Justices, Funtogwich'in are the people of the lakes, taking our name from the very land and territory where the ancestors we descend from were born, lived on and survived together. We still exist today as Funtogwich'in because of those past generations, the decisions they made together on the land in accordance with our traditions, and their unwavering commitment to maintain our spiritual connection to our territory for future generations. The provision that's being challenged in this case, the Council residency responsibility or requirement, was chosen by the Funtogwich'in General Assembly in a continuation of historic Funtogwich'in laws, customs and practices regarding leadership selection. It requires successful leadership candidates elected to Council to reside on Funtogwich'in settlement land at the seat of government during the term of their office. As found as fact by the Yukon Supreme Court, the responsibility is the decision of a self-governing First Nation to retain a historic practice or custom, which would have been unthinkable or impossible to breach in the past, and that this method of decision-making was and remains the foundation of Funtogwich'in community self-sufficiency, culture and survival on the land.

Can I just ask what is your response then to Ms. Dixon's argument and some of her evidence that this is not necessarily a historic function where there is evidence that in the past one of the Chiefs did not reside on the land?

With respect, we disagree that the connection of leaders to our specific territory in maintaining that has always been fundamentally important. As found again by fact, every Banta Guchin leader has always resided on the traditional territory. The evidence relied on or referred to by the appellant, which I believe is a small reference in the thesis that was put on the record, refers to a former chief travelling to Alaska. And it must be remembered that the Banta Guchin are a sub-tribe of the larger Guchin Nation. Diplomacy, travel, leaving the territory are common things that leaders are required to do to maintain relationships with other tribes or other nations.

So I'll ask you the same question I asked your colleague earlier then. Is there a difference between the evidence as I read it always talks about the leader, not leaders as the different members, council members? So is that a distinction?

We submit that we shouldn't look at this in a frozen rights type way. We have to see how on the evidence leadership selection in particular and who were selected to be leaders has evolved throughout our history. And that's clear in the evidence from the time before the Indian Act where we used to select a chief and there wasn't always council members as part of that leadership system. But as we've evolved through time and faced different circumstances or challenges, our people have evolved the way that we select leaders and who we select. But always remaining core to that was leaders' connection to the land. And this was affirmed by the Court of Appeal who found that among the discerning features of Bantaguchchan society is the emphasis it places and has always placed on its leaders' connection to the land. And it was based on that that the Yukon Court of Appeal stated at 147 of their reasons that the residency responsibility constitutes the exercise of a right that in its modern form pertains to the Aboriginal people of Canada.

Mr. Stathnick, I have a question for you. We know that the self-government is governing not only people residing on the land, but also people residing outside of the land, because the self-government applies to all the citizens of the donation, either located on the land or elsewhere, like Mrs. Dixon. So, and your opponent, or your friend on the other side, said that we should not have this residency requirement because somebody who is governed by the self-government, not residing on the land, should be able to run and to sit on the self-government. What do you answer to that? Because I understand your point to say it is important, it is essential for the people who will be elected to reside on the land because they need to know the needs of the community. But given the fact that the self-government is governing not only the community residing there, but also people residing outside, what is the justification to have the residency requirement? Why somebody residing in Whitehorse cannot run for the election? And to sit, I should say.

Yeah, thank you for the question. We submit you have to look at the distinct political, social, legal context here of Vantaukwitzen and our system of self-government and look at the various ways in which non-resident citizens can and do participate in our overall system of governance. Unlike as is common under the Indian Act where the only means of political participation is either running or voting for a council, under the Vantaukwitzen system we do have a council, an elected council, which non-resident citizens can both vote and run for in elections for that position. But we also have two other branches of government in our constitution. The General Assembly, which is open to all citizens, has an annual meeting mandated by the constitution, open to all citizens, and this is an important avenue for Vantaukwitzen citizens wherever they may reside to hold the council accountable, to establish priorities for the governing council, and to hold them accountable through that means, and also holding the ultimate power to amend the constitution should they wish to change that structure. We also have an elders council where all citizens who are over the age of 60 are able to participate in that branch of our government in terms of providing advice and guidance to the elected council and the General Assembly. So when we look at this all we see that there is a meaningful place and with respect to yes there is legislative authority that extends to citizens in Yukon, but this is of a personal nature rather than separate and distinct from our land-based authority which is focused on settlement land and is where the largest concentration of our Vantaukwitzen citizens live at this moment. Taken into that context we see that there are all these ways of participation.

Mr. Stanton, the Constitution, as I read, it provides for one chief and four councillors. That's the mechanism. Is that fair? Yes. So why is it a complete ban on non-residents? It could be the chief has to reside in the community and perhaps three of the councillors. I guess what is the justification for the complete ban? And why is a complete ban, assuming it's an infringement of rights, why is that minimally impairing? What is the necessity of a complete prohibition of non-residents? And I guess a related question, given the length, is why is this of a constitutional character? Maybe you're going to come to that. Or is it of a constitutional character?

Thank you for your questions. So we disagree with the characterization of an exclusion of non-resident citizens from council. There is a responsibility of residents should they be elected, but they are not being excluded from the opportunity to vote. And with respect to like what is the justification, we see this going right to the heart of what does self-government or self-determination mean. The General Assembly, as the representative voice of all of our citizens in our system of government, has considered multiple proposals. They have changed the requirement over time. And there's of course a number of different ways that the community could decide to restructure their governance system to meet new circumstances, but we say that choice should be fundamentally part of self-government and the right of the people to make that decision together. And with respect to your second question about the constitutional character, we addressed this in our submissions on section 25. Before I get there, I wanted to jump to treaty interpretation in section 32, but with respect to your question, I'll answer it briefly and get into it more detailed. We say constitutional character doesn't mean that you've proven the right to a van der peet standard. We see that as being inconsistent with the text of section 25 itself, which is broader than any aboriginal treaty or other rights or freedoms. Fundamentally what we say, particularly where self-government or an indigenous law is at issue, such as in this case, that one need to look on a prima facie basis whether the law or provision being impugned is grounded in a pre-existing legal order. So in the Mitchell v. MNR decision, paragraphs 9 to 11, this court talks about a presumption of the survival of pre-existing laws as part of the doctrine of reception and forming, coming in the form of rights under the common law, absent extinguishment or surrender or incompatibility. We say none of those presumptions are rebutted here. The finding of fact is clear that this is part of a historic legal order, and that establishes its constitutional character and its protection within the scope of section 25 is because it does have that linkage to historic customs and practices.

But I wonder whether it's as simple as the fact that who can hold a leadership position by its nature constitutional?

We wouldn't disagree with that. It is, as the courts below both found, significant, and we agree that this is within the Van der Gwichen constitution itself. We disagree that just because the self-government agreement was excluded from the treaty intentionally and agreed upon by the parties, that that means that what the Van der Gwichen do as a self-governing peoples is not of a constitutional character. The final agreement is very clear that it did not extinguish or modify the Van der Gwichen's Aboriginal rights and interests that didn't relate to non-settlement land. Those continued. Again, that's clear in the self-government agreement and the preamble and general provisions that there are continuing Aboriginal rights asserted, and we don't see the effect of the self-government agreement as a form of a legal straitjacket that prevents us or impedes us from continuing to exercise that right. And so this is why we submit that this aspect of the inherent right to self-government, specifically in this case the right to select leaders, we would include the right to determine the responsibilities of those leaders to the collective, that this is fundamentally an aspect that constitutes an Aboriginal right. If we were forced to meet the burden of a Van der Gwichen test to establish that, we would say it would meet that test based on the evidence and the record, but undeniably it's an other right or freedom if it doesn't meet a strict test that might be applied to it.

May I just ask you this about the interpretation then? Clearly, Section 25 talks about Aboriginal treaty or other rights or freedoms. Do you say it's the same standard of evaluation for all of those? And let me just ask you the question. If something is established and recognized as a treaty right, if it has already been established under Van Der Peet as an Aboriginal right, does it get more protection in Section 25? And is there a possibility for a varying standard for different rights that haven't met that test under the other rights or freedoms so that in whatever balance is occurring, there is a different level of balance or justificatory standard? You know what I'm getting at there, different levels.

Yeah, we see the text of Section 25 as not treating them differently. The mandatory direction that it shall not abrogate or derogate, it doesn't differentiate. That standard of abrogation or derogation doesn't differentiate based on whether it's an aboriginal treaty or other right. However, I do agree that identifying what's at stake may require a different slight inquiry based on whether it's an asserted aboriginal right, treaty right or other right or freedom. Most obviously a treaty right, which we don't say is an issue here, is more obvious. It's a matter of treaty interpretation. But we don't see Section 25 as imposing the same burden on Indigenous peoples as Section 35. And this goes to our point that we see Section 25 as a shield and its clear purpose being one of protection in its unambiguous wording and as correctly interpreted by both courts below. It is not a provision for reconciliation. Reconciliation, as this court has defined it, is the reconciliation of sovereignty. And that is to occur under Section 35. Why we say Section 25 is protective and operates as a shield is because it's intended to complement and protect that significant promise under Section 35 for there to be space for aboriginal people to be aboriginal. And in order for that process of reconciliation to occur, most preferably through negotiation, negotiated arrangements, that while that process of reconciliation is occurring, aboriginal treaty and other rights or freedoms, the very things that will be reconciled with crown sovereignty through that framework, will not be impacted or diminished by a charter claim. So this is why we see it as having a fundamentally protective shielding function.

The proposal that you're putting forward that Section 25 operates as a shield, maybe absolute, maybe not absolute, but as a shield, is a device in constitutional law that probably doesn't exist anywhere else in the constitution, and you're trying to ground it in a provision that's in the general section that has not really been interpreted a lot, and all of those general provisions in that part of the constitution have, if I can say it this way, played a relatively minor role, whether interpretive or additional. This sounds to me like a very important provision that you're trying to place on something in a general section. Can you address my concerns about that?

We submit that those concerns are largely addressed through focusing on a case-by-case basis what's at stake as the provision is applied. This doesn't modify its shielding function, but makes sure that what is being protected by Section 25 meets that constitutional bargain or promise that was made by including it as a form of protection. We do look at other general provisions like Section 29, which my friends have talked about. We see the same language, shall not abrogate or derogate, and that has been given a meaning as operating as a shield. So in terms of interpreting the general provisions in harmony, we would say that the words should be given the same meaning, shall not abrogate, and operate the same way under Section 25 as they do in Section 29. I agree with your point that this question of is it absolute shield, it goes to Section 28 of the Charter. Another general provision which Section 25 should be harmonized with, which would be compatible with the similar guarantee in 35-4 of equal protection of Aboriginal rights, regardless of one's gender. So there is a way to look at these other provisions to help give meaning to the purpose and effect of Section 25.

Section 25 is going to be, if the Charter applies, about as easy as three dimensional chess. And it sounds like I'm going to go off topic, but bear with me for just a second. I will be brief. One of the realities is that while certain Aboriginal rights have been adjudicated or have been vindicated and recognized by treaties, there are a great many claims or assertions of rights which have not been dealt with by either of those mechanisms. And so they remain, in that sense, unrecognized. It doesn't mean they don't exist. They're not recognized as yet. And what this court, in I think a remarkably wise decision, did in Haida was to say that where there's a dispute as to a claim and the infringement that would arise if the claim is vindicated, if the claim is well founded, the way to deal with that is through the duty to consult and accommodate, which provides a kind of a bridge so that the right is not impaired while an opportunity is provided for its vindication by some appropriate means. And what it did was it avoided a litigation internal to the dispute, a final determination within the hearing, within the proceeding of, say, Aboriginal title or an Aboriginal right, and said, well, that's for another day. We're just going to preserve the interests of the indigenous group pending its resolution elsewhere. I'm wondering how one is going to deal. And I don't know if there's an answer to this. And it was probably better put to the AG Canada because they've got this super duper system, I'm told. How you deal with claims that have not been vindicated and how you engage in a balancing exercise where you don't know whether the right's infringed on the one hand, under the Charter, and on the other hand, you don't even know whether the indigenous right or the Aboriginal right exists because at this stage, it's a claim rather than a right which is recognized. And so this is going to be difficult to operate. If the Charter applies to indigenous governments, this is just going to be an extremely difficult exercise to carry out. I don't know if there's anything you want to say to that.

Yeah, thank you for the question. It will lead me to the issue of does the charter apply, but I wanted to just briefly address your question about, you know, is there a way that a prima facie assessment of a right that hasn't been confirmed by court declaration or defined in a treaty, is there a way that the HIDA framework or the approach helps us in 25? We say it's helpful in that it clearly demonstrates that the courts are competent to take into account the nature and existence of an Aboriginal right prior to proof, you know, a high, you know, a strong prima facie claim. But unlike Section 35, under Section 25, there's no independently sort of enforceable obligations that flow from Section 25. It doesn't sort of create rights. It doesn't provide a new basis for the Vantagwichen or anyone else to bring an action against government for other rights or freedoms. It preserves in our submission things that might be, where there's a question of is it an Aboriginal treaty right? Is it an Aboriginal right? Is it a treaty right or is it an other right or freedom? If it pertains to the people as Aboriginal people, primarily because it's grounded in their preexisting legal order, then that's where the presumptive shield should come up. It is not though totally the same as you say in the duty to consult framework where there's a role for the Crown. This is, we see why 25 plays this protective function so that those, that dialogue where reconciliation is supposed to occur through negotiation with the Crown who does represent the public interest, including Aboriginal Canadians, that the path forward can be addressed in that process.

Just a very quick comment and I'll let you go on. I made the point earlier that you can see 25 as facing in one of two directions. One direction being federal government or provincial government on one side, the other direction being indigenous self-government. It's easier for me to contemplate the operation of 25 looking towards parliament or the legislatures. It's less clear to me how it will function looking the other way.

Yeah, so I'll turn to our submissions on charter application because 25 is really in the alternative to this issue of does the charter apply? There's been various submissions about how the charter doesn't apply to quote intragroup or 25 doesn't apply to intragroup distinctions. There's a comment from Justice Basterasch. But when we look at the Vantogouichin agreements and what was negotiated for and the provision that the Vantogouichin would or shall have their own constitution and it shall guarantee the rights and freedoms of their citizens, shall provide those citizens with the power to amend that constitution and it shall provide citizens with the ability to challenge laws that might be inconsistent with the constitution. So the parties clearly mutually intended for the Vantogouichin constitution to play a significant role in these types of situations where it is an internal dispute and one that would be decided wholly not on the basis of the charter but on the Vantogouichin law and principles. And despite both of the courts below finding that the charter applied, which we submit was an error, in outcome that was the result of the shield is as the Yukon Court of Appeal rightly noted, Ms. Dixon has and continues to have the ability to bring a challenge in Yukon Supreme Court on the basis that it violates her right to a substantive equality as guaranteed in the Vantogouichin constitution. And so that mechanism which was negotiated for through these arrangements we see as the proper and best way of addressing these types of disputes and that means recognizing that the parties never intended for the charter to apply here. And we say that the courts below erred in two respects in finding that the charter applied. First by failing to properly interpret this common intention of the parties that the constitution, the Vantogouichin constitution would be the supreme law of the First Nation while also at the same time ensuring that the rights of Vantogouichin citizens as Canadian citizens such as those guaranteed in the charter would continue to apply as it does to the entities and activities that it does apply to. So when we look at the text of the agreements and interpret them generously in light of the text and objectives as a whole and not just a few provisions in isolation, we see this handiwork of the parties that they intended for the Vantogouichin constitution to be paramount with respect to internal affairs. And its wording that the self-government powers to be negotiated would be in conformity with the constitution of Canada, we submit doesn't demonstrate a common intention that the charter would apply. It simply states the obvious in our submission that the Crown and the Vantogouichin could not amend or alter Canada's constitution through a land claim or self-government agreement. That what they were doing would be consistent with Canada's constitution which includes sections 32, 25, 35, 91, 92. We are not trying to disrupt that but trying to find space within the constitutional fabric of Canada in which we could be self-determining again under our own legal order.

So I'll ask the same question I asked of the appellant, which is where does that fit in Eldridge? Is it branch one and branch two? And then related question, because it doesn't seem to me to fit in either branch. And secondly, here you say there was no intention to apply the charter, or maybe the intention was to not apply for the charter not to apply. This is ultimately an agreement that's given effect through federal legislation, right? So it's on your theory, it would have been open for the parliament to approve an agreement that says the charter, the most fundamental law of Canada, simply does not apply. Now I set aside the question of whether or not a self-governing indigenous nation under section 35, when there isn't a legislative framework and a web of agreements given effect through legislation, may be able to have the charter not apply. And here we have it done through a particular mechanism of federal legislation, and it strikes me as passing strange that the Parliament of Canada could agree to something that says the charter is not going to apply. So first question, which branch of Eldridge? Second question, why, you know, what if the...

You've got my question. Thank you for the question. We submit that fundamentally 32 is the front door to charter application. There is no other basis for the charter to apply. Section 32 is clear in its text that it applies to the Parliament's legislatures, their governments, and matters within their authority. We see neither branch of Eldridge being met here. When we look at the nature of the entity at issue here, which specifically is the Vantagwichen General Assembly as the body who made this law, and if we look at the activity, the constitution making of the General Assembly, we see neither of these meeting this fundamental requirement in every Section 32 case of this court that there has to be a power that's been conferred through a particular statutory scheme or a program. We disagree that the effect of the legislation here, when it's interpreted in light of its purpose, is to give the Vantagwichen its powers. And we will, for during the meeting, say that this application is as simple as that. We still agree with the way the marriage is Scientific Ontario has put it into practice versus frequently raised stupidity types of pliers.

Well, it refers to devolution in respect of education, health, social services, justice and employment. Yes, so... So I would have thought that is the mechanism that's used and that isn't... Maybe, as I said, there may well be a Section 35 inherent self-government right, but the particular mechanism used here is devolution. And when I look at those activities, education, health, social services, justice, and in addition, the taxation power deems the First Nation to be a public body performing the functions of government in order to be tax exempt under the Income Tax Act.

And there are many other provisions in the various agreements. So when one looks at the objects in the Constitution, all the objects are functions of government. So I think one has to deal with the activities and look at the nature of the activities under Eldridge and say, are these functions of government? And the mechanism in which they were acquired in this particular mechanism. They may have existed independently, but under this mechanism, they were devolved, to use the language of the agreement.

Yes, we have to read the agreement and the text closely in what devolution is referring to. It's referring to matters that might be properly seen as subjects coming in, the normal legislative authority of the Vantaukwitxin through the agreements. We don't accept that the effect of the legislation was to transfer even those powers to the Vantaukwitxin. We've always had the interest in educating and caring for our families and children and community. But

But it's not either or. That's my point. It's not either or. It can be both. But this mechanism to which there is a constitutional challenge is a style, the devolution mechanism that has the imprimatur of federal legislation. So I don't think it's either or.

So, we see the Constitution as being very unique in that these are, if we look at the federal legislation in particular, in what its purpose is was to approve and give effect to the agreements on behalf of Canada. Yukon had to pass legislation to make it binding on itself, and importantly the Vantagwichen as the third party to the agreement had to ratify it through a decision of the people to make it binding on them. There were three parties agreeing to this. And when we look more specifically at the legislation, we see it's actually a vacating of space by the federal government where they had once used 9124 power to intrude on internal affairs through the Indian Act. They were now vacating that space so that our Constitution enacted in accordance with their inherent right would have space to exist within the Constitutional fabric.

The implication, I suppose, is that unless the Parliament of Canada and the territorial government use some instrument to, shall we say, open up the space without addressing in any way the inherent right of self-government, whether it exists or whether it doesn't, unless the Parliament of Canada and the legislature of the territory use a legislative instrument to open up the space, the only other way you can get there is a unilateral declaration by the Gwich'in themselves, which is rather a radical move and perhaps not to be encouraged.

That's correct. We see this as the preferred pathway where this is a negotiated outcome for this space to be vacated for the continuing Aboriginal rights of the Vantagwichen. Now, of course, in 1993, the Crown wasn't prepared to recognize that this was an existing Aboriginal right, but as is clear by the legislation, they were agreeable that certain aspects of it, which are, if we look at these powers, basic, fundamental to self-government, not the outer limits of self-government, but at its very core, that even in 1993, after the heels of the failure of Charlottetown, that the parties were able to make this remarkable achievement. So following Eldridge, we don't see a specific and precisely defined connection between the approving legislation of the Crowns and the General Assembly's authority to make the residency responsibility or the GA itself as an entity.

I want to go and talk a little bit about just that. I mean, Eldridge is a very, very different case. All right, it's about services and those sorts of things. If we're talking about Section 32, there's no doubt that the wording of Section 32 is directed towards certain forms of government that were recognized at the time that the charter came into existence. Eldridge talks about whether it's government activities or government functions. But the Yukon, or Yukon, has put forward a different proposition. And that is perhaps the step that can be taken is that Section 32 can recognize bodies that have and assert inherent rights to self-government. That you use 32 to apply to, in circumstances, whether you say you agree to it in the final agreements or the umbrella or in the settlement agreements, but that the real purpose of Section 32 was to make the charter applicable to actions that governmental bodies take vis-a-vis people subject to their jurisdictions, which would fit a self-government model. So...

Yeah, thank you for the question. We don't read section 32, its text or its interpretation to date by the courts as standing for a principle that if you look or act like a government at times, that the charter will apply to you. There are many entities... Instead, we look at it from a point of view of

That's what I'm asking you. What's wrong? What's inconsistent with your coming forward and saying we have an inherent right to self-government pre-existing the Constitution with a recognition that if you do have that right and you're exercising it in jurisdiction over your citizens, why can't Section 32 be extended in the manner that the Yukon has suggested?

We don't see any constitutional principle operating to amount to a transformation of Section 32 to apply to Indigenous governments exercising their inherent rights where Section 32 would otherwise not apply. We, you know, we see that in Charlottetown this exact proposal to expressly add Indigenous governments into Section 32 was proposed and rejected through that political process. We don't see any gaps in the text of Section 32, for example, in which unwritten constitutional principles might try to apply the Charter on that basis. In fact, we submit that the unwritten constitutional principles here actually support non-application of the Charter to the Van der Gwichen General Assembly.

What do you say about Section 16 of the Yukon First Nation Self-Government Act, which talks about the subject to Sections 17 to 19 and Subsection 22, federal and territorial laws apply to a First Nation? What do you say about that? And I guess also, it seems it's perhaps a simplification to say that the federal government has ceded authority, because even Section 22, Sub 4 says, for greater certainty, lands in which an interest is transferred or recognized remain lands reserved for Indians within the meaning of Section 24, Class 24 of Section 91. So this is an exercise of 9124 jurisdiction, and it remains subject to federal jurisdiction according to that. Great, so it's a two-part question.

So the answer lies in the text of the agreements. It is clear that laws of general application continue to apply to the Vantoguich'en, to Vantoguich'en settlement land, to Vantoguich'en citizens, but there are limits to that in the agreements themselves. For example, a Yukon law of general application ceases to apply to settlement land where Vantoguich'en legislates in that and occupies that field. So again, where Vantoguich'en is taking up space, you see a vacating of space in Yukon laws with respect to the continued application of federal laws such as the Criminal Code or so forth. Those continue to apply. There are unfinished negotiations under the self-government agreement with respect to what happens when a Vantoguich'en law conflicts with a federal law. So we're clearly seeing here three orders of law contemplated in the text that this is not a federal power that the Vantoguich'en are exercising, but their inherent power in these areas.

I'd like to just ask a more general question at this point, and that is I understand your submissions about the charter not applying in terms of leadership. I have a few questions, but this is on the basis of residency. What if we change the grounds, the enumerated grounds? What if the rule is that no women can become leader? No two-spirited person can become leader. Five-seven generation, I know I'm giving examples, but that people only of a certain age, not just over 18, but of a small slice that might have some kind of resonance with the community. What do we deal with? How does that work? Is it an absolute right then in terms of unless it's in your own constitution?

You know, here we say it's really not necessary to sort of answer these.

It's necessary for us to answer.

And in the Van Toguichin case, the Constitution, it can only be amended by the citizens, the collective, and at Article 18, there is a backstop to it. Amendments to the Constitution by the GA have to be consistent with the self-government agreement, have to be consistent with the rights and freedoms guaranteed in the articles in the Constitution. So the guarantee of equality, which unlike the Charter, doesn't specify individual grounds or purport to be comprehensive in that way, but fundamentally guarantees equal application of the law, could not be removed. It is required to be in there or else the Van Toguichin would be both in breach of their agreements for failing to protect the rights of the freedoms as they negotiated for and wanted, but they would be in breach of their own Constitution and it would be remediable. We also know that to the extent that this isn't an aboriginal right, and it's agreed that it's an aboriginal right or in other cases potentially a treaty right, that those rights are not absolute, but the limits imposed on those rights come through Section 35 by the Crown, which must do so in a way that can be justified. So the Crown continues to have a power, if it disagrees with a particular exercise of an aboriginal right, to legislate that. Obviously, I don't think any party wants that and why negotiated frameworks such as this one provide a model for how to avoid that situation.

The Court of Appeal alluded to, I guess an argument you made it in first instance, Article 4 sub 7, I guess you've just alluded to it yourself, the rights of every individual under the Constitution to be treated equally before and under the laws of the Wuntutkwitian First Nation. Could Ms. Dixon have been able to invoke that as against another provision of the Constitution that says she doesn't have the right to be an eligible candidate? You see the problem there. So she sees that and says, well it wasn't really an option for me to argue that my right of equality under the Wuntutkwitian First Nation Constitution was compromised. I'm going elsewhere under the Constitution of Canada which is also recognized. How do you answer that? And then the treatment by the Court of Appeal of this argument, I'm at paragraphs 156, 157 where they say that this wasn't a bar to her going forward as she did.

So, our submission first begins with, on this point, that as a constitution, our constitution should be treated as a constitution and understood through the Van Toguich'in perspective as our supreme law. One of the unique features of the Van Toguich'in constitution is we define Van Toguich'in law as including our constitution. So there isn't an issue of the guarantee of rights, of equality under Van Toguich'in law, that it's stated in the constitution itself, I think, would be part of any section one argument that this is sort of demonstratively justified in a free and democratic Van Toguich'in society that they made a consensus decision to put this residency responsibility in the constitution while also recognizing that someone may wish to challenge that for being inconsistent with another part of the constitution. And the appellant in this case did plead reliance on this right initially before the Yukon Supreme Court but didn't advance any arguments at the hearing on this ground and focused solely on the charter. And so that remedy which we say was or that mechanism through the Van Toguich'in constitution should have been the basis in which the claim was heard and decided, first because the charter doesn't apply and second because this mechanism to address this type of challenge was precisely what was negotiated for.

By the way, that was a question that I had intended to put to counsel for Ms. Dixon. That claim that it was internally inconsistent with the residency requirement, was internally inconsistent with the self-government constitution, that just seems to have disappeared. Is it your position that it is not before this Court and is not a matter which we should address at all?

So, we agree with what the Court of Appeal below stated in that Ms. Dixon continues to have the ability to bring a claim. We submit that that's, you know, if she wishes to advance a claim properly at a hearing below, that would be the best course of doing that at the Yukon Supreme Court as described in the Van Togwichen Constitution. We see this, though, as fundamentally important in the process of reconciliation and self-determination, where we see the TRC, we see the Missing and Murdered Indigenous Women and Girls Inquiry pointing to Indigenous legal traditions, their revitalization, their strengthening and continued development to be at the forefront of the process of reconciliation. We don't get there by modifying or reading down or applying the Charter over these legal traditions, which have their own valid and unique ways of managing relationships, you know, within the collective and between individuals and the collective.

I understand what you're saying there, but do we run into a problem about the level of abstraction that we use when we're talking about prior existing legal orders? Except that as a premise, all right? So let's say we do. And is it the right to choose a leader? Absolutely included, right? Right to choose Councillors. Right to place residency requirements. Right to tie things to land. And when you talk about an evolving nation, what do we do with the fact that the evolution is that not all peoples are still on the land in the same way? That the evidence in front of us is that there's a very large part of your people that are in Whitehorse and have to be in Whitehorse to get the kind of services that they need in their lives. And so what do we do with that when the nature of the relationship with the land, for reasons you explain well, has changed and there's an evolution? How does that come into bearing?

We have to, in this case, look at the Vantogwichen perspective to understand its evolution from its previous forms in the way it was practiced to its modern form. The Vantogwichen perspective with respect to the current form of the residency requirement established in the Vantogwichen constitution, our first written law, we didn't always write our laws either, in English no matter. But we see here in the evidence, in particular of Robert Bruce Jr., a Vantogwichen elder who speaks to the initial conception of the constitution and why the seat of government provision that our governance be located on our land was placed in there. It was partly a continuation of wanting to go back to this way of making major decisions that affect our future together on our land rather than in distant places like Ottawa by the minister on our own behalf. And so bringing and affirming the location of our authority was seen as an important part of reestablishing and revitalizing our self-government. In particular, yes, there have been many citizens as a result of the history of colonization in this country which has displaced many Vantogwichen citizens. The evidence is quite clear that many choose to live away because there are simply better socioeconomic opportunities elsewhere. But what we see is the residency responsibility actually wanting to bring people back to the land where we do have a very small community and where self-government is really hard work and you need people to not just make decisions but implement them. And so we see an important purpose here and it bears out on the evidence that many, many non-resident citizens who live away for periods of their life to gain education, to gain experience do come back and serve as leaders and do live in the community and bring that experience back as part of our work of self-government. So we don't see this as exclusionary.

But can I just press you a little bit on the fact that this is a citizenship-based sort of organization or government, and the citizens are in different places. And when these modern treaties were to be ratified, there was a very inclusive system set up where there was voting that took place in Whitehorse. And so what's wrong with that model in terms of your election when you chose it at a very important time in your history?

Yeah, I want to be clear that this isn't about voting. This is about serving on council who's elected. There is no bar like Corbierre against voting for members. I understand that. So this is different here. And maybe with my remaining time, I'll turn briefly to our points on Section 15, which we say both courts addressed in error with respect to the first stage of analysis in finding that the analogous ground of aboriginality residents actually applies in this context. We submit that this first stage of analysis, as we know, it's intended to screen out claims that would trivialize the guarantee of substantive equality or undermine efficient use of judicial resources. And when considering this ground, when it's been alleged to apply, given the diversity of circumstances of Indigenous peoples today and their systems of government and where they may be in their process of reconciliation, that when this distinction is alleged, that one needs to pay particular attention to the political, social, legal context of the group, in this case, the group of non-resident citizens. And in this case, we say that this context of Unto Gwich'in self-government and law shouldn't be ignored or glossed over. And unlike any other Section 15, one case decided by this court before, the law being challenged in this case is an Indigenous law being made in the exercise of a right pertaining to the Aboriginal peoples of Canada. And so, you know, even given the text of Section 25, it's clear that applying this analogous ground or if it's alleged that that should be done in a sensitive way and that we need to look at what Corbiere was actually speaking to as the group that made up the content of that writer, the distinction at issue, which was on and off reserve band member status created and perpetuated by the federal government under the Indian Act, which did bring it into this category similar to other listed grounds as something inherently suspect or potentially discriminatory, a constant marker, because of the particular context in which that analogous ground was defined and found. We say that this is not a race-based law like the Indian Act, the Council Residency Responsibility Act, and there's no evidence here that non-resident citizens as a group experience pre-existing disadvantage or stereotyping. So it's our submission that under 15.1, there is no listed or analogous ground at issue and the claim could end there or the analysis under 15 should end there.

I think the claim on the other side, though, I mean, you used language earlier. You said you didn't see it as exclusionary, and we believe that people's citizenship, it's appropriate for citizens to live in the community. The position on the other side is that they do see it as, Ms. Dixon does see it as exclusionary. And when you say you live in the community, she says, I am part of the community, and your law tells me that I'm not part of the community. Unless I live on the First Nation, I'm not part of the community. And that's the – Corbie isn't an exact analog, obviously, but it does – the discrimination is alleged, anyway, to arise from the fact that it sends the message that I don't belong because I don't live there. I don't live on the First Nation. But she says I'm just as much part of the community as an off First Nation person. That's the discrimination alleged. So I think drawing fine distinctions with what was going on in Corbie won't actually address the root of her complaint.

Yeah, Vantogucin does not wish to deny Ms. Dixon's feelings in responding to this claim. We ask that the context of Vantogucin's self-government law, the distinct political, social, and legal context be taken into account and given respect here because we see that within the context of the Constitution as itself, which defines the relationship of citizens to the First Nation, we have this broad and inclusive participation of non-resident citizens within the group. You know, if you get past this first stage, you know, this is what the second stage calls for is, you know, the full context of the claimant's group situation, the actual impact of the law on the situation and any persistent systemic disadvantages. The court in Corbiere specifically emphasized, this is Leroute Bay at paragraph 95, the need for a system that recognizes the place of non-residents and contemplated that there could be other ways of doing that.

But she also said, at paragraph 18, speaking about the disenfranchisement of band members who live off the reserve, that it presumes that Aboriginals living off reserve are not interested in maintaining meaningful participation in the band or in preserving their cultural identity, and are therefore less deserving members of the band. She describes this as stereotypical reasoning. Is that not at all applicable here?

It is not applicable here in our submission as this court found in tapo tat more than a web of instinct is required here. There needs to be specific evidence and there is no evidence that citizens the same as off reserve band members are subject to marginalization or stigma or stereotyping. Chief justice fail himself found that the residency responsibility recognizes the role of nonresident citizens and ensures a role that respects rather than denigrates the rights of nonresident citizens. Wonder if I may take 30 seconds. In closing we submit that in order to advance and not frustrate reconciliation we urge this court to reaffirm as a fundamental proposition in Canadian law its statement in the recent decision of des hotel that it is for aboriginal peoples to define themselves and to choose by what means to make their decisions according to their own laws, customs and practices. In the words of Van Togwichen elder Robert Bruce Jr. it's important that the Van Togwichen have a chance to resolve these questions in our own ways. Merci.

Thank you very much. The court will break for lunch. We'll be back at 2 o'clock. Thank you.

Thank you. Please be seated.

Thank you, Chief Justice – justices. On behalf of the BC Treaty Commission, I have three points. Number one, Crown-Indigenous agreements are important and must be respected by the courts. Number two, those agreements must be promoted by giving Section 25 meaningful effect. And third, I'd like to address the test, which we say should be somewhat different than that proposed by the Attorney General of Canada. First, the importance of treaties and other government-to-government arrangements involving Indigenous communities can hardly be overstated. Over the past few decades, successive Canadian governments have recognized the need to negotiate with Indigenous peoples. Indeed, this court has reinforced a strong preference for negotiated outcomes – in this arena perhaps more than any other. Paraphrasing Justice Binney in the Little Salmon case, where parties have sought to order their own affairs in a treaty, the court should strive to respect their handiwork.

The court's role is to reinforce and promote what Chief Justice LeMaire famously urged at the closing of his reasons in Delgamuc, negotiated settlements with good faith and give and take on all sides.

What if the treaty does not contemplate or refer to the application of the Charter? Is it then to be imposed?

We don't address section 32 and the imposition of the Charter. It is our position that that's addressed by other parties, and we address section 25. But my starting point would be the agreements negotiated. In this case, you've got a final agreement and then a self-government agreement, all of which lead down to or lead into a Constitution. That's the core area where the matter should be adjudicated. Not necessarily just exterior or first principles, but rather the text of the agreement that the parties negotiated at the time and which the federal, territorial, and Indigenous governments then brought into force with legislation. So these issues are all the more acute when the case involves the internal Constitution of an Indigenous community. Constitutions embody the fundamental values and principles of law which govern society. They are the result of careful internal reflection and deliberation. Constitutions command tremendous respect. Article 34 of the UN Declaration recognizes that Indigenous peoples have the right to promote, develop, and maintain their institutional structures and their distinctive customs. Treaties and constitutions are the best way we have in Canada to make space for Indigenous legal orders, because then the interwoven jurisdictions of the three levels of government are recorded and mutually agreed. And this addresses your question from a few submissions prior, Justice Rowe, as well as that of Justice Martin, on the Haida case. And what do we do when we don't know what the rights are? Well, when we do know what the rights are, when the treaties and the agreements between the parties set out the rights, that's when we have to pay close deference to their terms. In terms of the purpose of Section 25, we say there's nothing unusual about charter rights being limited. We've all agreed that no rights within Canada are absolute. Section 1, Section 33, Section 25 all have an independent role in limiting the rights otherwise set out in the charter. For those who suggest that Section 25 should simply be used as an interpretive tool in the Section 1 test, we reject that view. Section 25 is a standalone provision and deserves standalone application and meaningful content, as the court said of Section 35 in Sparrow. There's nothing new about protecting collective minority rights. That was recognized in the Quebec secession reference, and it's expressly provided for in Section 15 too. Affirmative action programs that treat individual Canadians differently based on the groups to which they belong. We should not be seeking a lowest common denominator that applies to everyone. That ignores indigeneity and other constitutional rights protected in our existing constitution, as well as other constitutions. So last, the test. Our submission is that individual rights must be defined as not going so far as to abrogate or derogate from Indigenous collective rights. This is what former Justice Frank Iacobucci in his 2003 Supreme Court law review referred to as definitional reconciliation. And so the test proposed by the Attorney General of Canada asks whether the exercise of a collective right is truly necessary to the maintenance of the Indigenous culture. While this is somewhat similar to the test we proposed at paragraphs 9 and 19 of our factum, it can be taken too far where the collective right at issue is enshrined in a treaty, self-government agreement, or constitution. A key purpose of Section 25 is to protect Indigenous government's ability to preserve their unique institutions. And there may be various means of maintaining Indigenous culture. Where a constitution signals what is important to the nation, whether that nation is Indigenous or otherwise, a court ought to be very wary of suggesting that the constitutional provision might not be very important to maintaining the Indigenous people who created it. Thank you very much.

Chief Justice, may I ask you, thank you so much. Just to follow up on your last point on the necessity aspect of the test, if the right in question is a Section 35 right as opposed to another right pertaining to indigenous people, is it possible to say it's already necessary because it's a Section 35 right? Like do you need an extra necessity test if you've already recognized it under Section 35?

No, and our submission would be that once you have acknowledged, and I can see that there has to be some level of proof to reach the protection warranted by Section 25. But once you accept that there is a Section 25 protection, for example, because it's a Section 35 right, then there's not another determination of whether that right is necessary. Because Section 35, the Van der Peet test already imports that level of test. You don't get Section 35 protection unless you've proven that it's part of the unique culture of that indigenous culture. And likewise, if it's a treaty right, you don't go and say, well, is it really important that we have this treaty right? The government of Canada, when it negotiates treaty rights, it doesn't negotiate unimportant rights. The government of Canada and territorial governments, British Columbia, Yukon, elsewhere, those treaties need firm and significant protection. And Canada's test would dilute that and would allow what Section 25 says you can't, which is derogation. So a minimal impairment test, which is what Canada effectively proposes, that's not for 25. That's for Section 1. You don't get to Section 1 unless you've gone through Section 25. Thank you very much.

Good afternoon. I'm starting my submissions with a request. How Indigenous self-government as an inherent right to Indigenous people that finds its original source outside of Canada's constitution is ultimately recognized and brought into Canada's constitutional framework desperately needs an overarching and organizing framework from this court. The case law is increasingly strained. We saw this in the C-92 hearing. We see this in the case before. It's those strains flow from trying to fit concepts from Eldridge using language of delegation that do not fit with our constitutional architecture that has Section 35 within it. Section 35 is the means and mechanisms by how those ancient roots that actually anchor Canada's constitutional legitimacy, Indigenous laws and legal orders, are brought into our constitutional framework. It's not a me-fool-you or a constitutional sleight of hand of those orders come in and then delegation is given back through 91 or 92. This court in Shilkotan says those rights exist outside of 91, 92. They're held against other governments for the peoples. What is needed is similar to what this court did in Manitoba-Matee of setting out an organizing theory around the honor of the Crown. This issue of how those are brought in and then also not looking at this continually through a Section 35, Section 25 provision by provision view or case law, but looking at it holistically about how does this actually make sense in order to ensure that we encourage further modern day treaty-making. The idea that Justice Jamal introduces of, well, simply because there's federal legislation, all of a sudden that brings Indigenous peoples underneath Canada's control yet again, fundamentally undermines the concept of modern day treaty-making and what this court said in Quebec's secession of Canada's this experiment of trying to reconcile diversity within unity. When Indigenous governments come into the constitutional fabric and are then recognized in Canadian law, that doesn't mean that they're remade in the image of what Canadian law looks like. Treaties carve out a constitutional space in order to allow for those jurisdictions and those decisions that are fundamental and immutable. Just in December, we talked about how making decisions about children and families are fundamental to that core of self-government. We've also know that deciding who the people or your citizens are themselves is fundamental to that. And in self-government, at its core has to be what's the governance structure itself and who gets to vote, how decisions are made. And if that can't be protected in the process of treaty-making when Indigenous governments are brought in, it undermines and actually would have a chill on that self-government process. We also want to answer Justice Rose's question directly on it. Section 32 does not automatically apply. This court has repeated in several cases recently about look at the text of the constitution and what it says first instead. And from that perspective, Section 32 is clear that it doesn't include these governments. And also, through the process of treaty-making, Indigenous governments don't become, using the words from the wall decision, emanations of the state or state actors under the control of the federal government or the provincial government in relation to decision-making. They have a unique space and that unique space is set out in the treaties. So we would emphasize that Section 32 on its face doesn't mean it automatically applies. And also, we would urge that Eldridge not be misappropriated in order to say clearly clause one, these things are not under governmental control. That's not the deal. And secondly, they're not just delivering a program or service or a policy or a policy of government in particular in relation to their core and inherent self- government functions. So if there is going to be a way to articulate this, it has to be in a different mode. We say Section 35 is the mechanism in order to do that. There is a clear, look at the architecture. It's in part two. It's a very, it's the unique way in which we bring Indigenous peoples into our constitution and recognize them within Canadian law. And then the interface is through the front door is through Section 25 in order to interrelate that or interface that with part one of the constitution. We would also just emphasize that and looking at the text of Section 35-4 using the language of land claims agreements. And then you see that linkage to the language in 25 that if there is a land claim agreement, that's the end of the question. If they have carved out the jurisdiction or that is respected, that is recognized in the land claim agreement. The fact that those two provisions use the exact same language has to mean something. Thank you. Those are submissions barring any questions. Thank you very much. Mr. Gardner.

Chief Justice, Justices, alongside my co-counsel Caroline Grady, we're representing the intervener Carcross Taggish First Nation or CTFN. In our time, we will be focusing on the practical context underlying Section 25 and the need in our view to apply that saving provision broadly and early rather than narrowly and late. Our client took immense care and caution to enter the Yukon Umbrella final agreement and self-government framework based on the solemn assurance that their customary practices for governance, leadership and internal laws would continue. Since its effective date in January 2006, CTFN has carefully and painstakingly worked on developing laws and governance processes which could walk in both worlds, the Western world and the world of CTFN's ancestors. These revitalization efforts do and should look different than the Western liberal individual rights-based approach enshrined in the Charter. CTFN's governance centers around a clan system that is inherently communal in nature and maybe at odds at times with purely individual interests. This incredible space, revitalizing and reinvigorating systems of law which have been actively oppressed for generations, must be protected and encouraged to the fullest extent of the law, including in our constitution. And indeed, this is what the intention is behind Section 25. It's for this reason that we say the application of Section 25 must be sufficiently broad and shield unique institutions, norms and government practices rooted in Indigenous legal orders, as suggested in the Canadian Bar Review article at Tab 5 of our Book of Authorities. It's also why we say the protective effect of Section 25 should be engaged at the outset of a potential conflict, as done or as suggested by the court below at Paragraph 151 of their reasons, rather than after a Charter infringement analysis, as suggested by the appellate and several Crown intervenors. Without this early and broad application of Section 25, Indigenous governments based on Indigenous legal orders will face costly barriers and challenges. The cost challenge or the cost complexity and impact of defending Charter challenges to Indigenous laws and governance practices, even if such challenges are upheld in a nation's favour, will compromise their capacity to do the work connected to reassertion of their legal orders at the long-awaited moment in time when safe legal space is being created for this work. Defending these unnecessary Charter challenges is expensive, time-consuming and will chip away at the capacity of Indigenous governments to carry out their primary duties and responsibilities. Second, by being narrowly applied and being applied narrowly and late, Section 25 will diminish the prospect of reconciliation because it will impact the way in which a nation such as VGFN or CTFN chooses to structure their governance system and it will force nations to fit their legal orders within a framework of individual rights. CTFN's approach to revitalizing Indigenous legal orders is concerned with balancing the way that individual human rights and collective Indigenous rights are harmonized, and this will not change. However, the effort necessary to achieve this balance is not equally split. It takes significant resources, which are limited to rebuild laws and processes that have been systematically dismantled. Necessary resources will be diverted from revitalization efforts if the nation is required to focus on mitigating litigate.

Is your concern tempered to some degree by the proposal made by some today that the one doesn't need a full Section 15 analysis or a full individual charter right analysis, it's sufficient that that right be engaged or some others are saying prima facie violated and then you move directly to the Section 25 analysis. Doesn't that stem some of your concern regarding the time wasted before the court, time and resources wasted before the courts.

It does. Certainly the approach proposed by the respondent, I think, does fit that mark. We are concerned by the final step of the Attorney General Canada's framework in that we think it doesn't alleviate these concerns, that these challenges are just going to run up costs for nations unnecessarily. And so just said another way, the important space that we say is intended to be created by Section 25 will be substantially diminished if this protective section is applied narrowly and at the latter stages of a conflict. So, g'nashish, those are our submissions.

Thank you very much. Jeffrey Nichols.

Yake yeyayayet, Hualgeny, Chief Justice, Justices, Tezen Tlingit Council is a self-governing Yukon First Nation with final and self-government agreements that parallel those of VGFN. The key submission TTC wishes to bring to the court's consideration in this appeal is that nation-to-nation negotiations are an appropriate mechanism to address the application of the Canadian Charter to self-governing Indigenous governments. There are three points I wish to emphasize. First, negotiation of the Charter respects the nation-to-nation relationship between the Crown and Indigenous peoples. TTC submits the Canadian Charter does not apply to self-governing Indigenous nations under Section 32 of the Constitution. Instead, the Charter applies if there is express agreement by a self-governing Indigenous nation or accepted transfer of authority from a government that is subject to the Canadian Charter. Nation-to-nation negotiations and a consent-based approach move beyond the acknowledged paternalism of the past. Some contemporary treaties expressly agree to the application of the Canadian Charter. The Yukon final and self-government agreements in the perspective of TTC do not. Second, negotiation recognizes Indigenous peoples have distinct fundamental values, freedoms, and responsibilities that warrant recognition. These unique values and frameworks of rights and responsibility are foundational in the relationship between Indigenous governments and their own people. Imposing the Canadian Charter without agreement undermines this relationship. For example, TTC's government and society are clan-based. The five Tezen Tlingit clans are the foundation of TTC culture, identity, and institutions of the government. The whole of TTC government and society are bound to each other, their ancestors, and future generations by haqusti, the Tezen Tlingit way. Haqusti embodies fundamental values and principles that differ from those expressed in the Canadian Charter. Third, negotiation of the Charter promotes greater clarity and certainty. This is particularly so because Indigenous nations exercise inherent powers alongside authorities that may be accepted as transferred from the Crown. As set out in TTC's factum, the development and implementation of the Tezen Tlingit justice system provides an example where Tezen Tlingit principles and processes and the Canadian justice system interact. It is an example that highlights the merits of a negotiated approach to the application of the Canadian Charter. Of course, Indigenous justice systems are a core aspect of self-government and self-determination. Recognition in modern treaties of administration of justice powers promote justice systems grounded within the values, principles, and processes of self-governing Indigenous communities. In the example of TTC, the administration of justice agreements between Canada, Yukon, and TTC do not expressly provide for the application of the Canadian Charter. These agreements contemplate the development of a Tezen Tlingit Charter and expressly provide for reliance on Tezen Tlingit values, principles, and processes in the administration of TTC justice. For TTC, like other Indigenous nations, it is imperative that Tezen Tlingit values, principles, and frameworks of rights and responsibility are at the centre of interpreting and resolving disputes related to Tezen Tlingit law. As noted, an Indigenous justice system like TTC's may interact with the Canadian justice system. Negotiations on the application of the Canadian Charter can provide greater clarity regarding this interaction. The Crown and Indigenous nations can delineate when the Canadian Charter might apply versus when Indigenous laws such as a TTC Charter would prevail. This Court has consistently emphasised that negotiation is, as was described in Haida Nation, a preferable way of reconciling state and Aboriginal interests and also the preferred process for achieving ultimate reconciliation. Recently in Desothel, this Court confirmed negotiation can foster reconciliation and has significant advantages for both the Crown and Aboriginal peoples, as such, obtaining clarity about Aboriginal rights and having the potential to produce outcomes that are better suited to the parties' interests. TTC submits that negotiations addressing the application of the Canadian Charter are appropriate within the framework of the Yukon Final and self-government agreements and would provide greater certainty and clarity to Indigenous legal systems, lawmakers and courts. Subject to any questions, that concludes my submissions. Ghanoth Achish. Thank you very much.

Thank you.

Chief Justice and Justices, it's our submission, first, that UConn First Nations self-government agreements and constitutions that flow from the UConn final agreement modern treaty framework are integral to the fulfillment of the commitments made in those treaties and are sui generis in nature. And second, to the extent this court finds that the charter applies, which we say it does not, but do not speak to the issue, we submit that Section 25 shields all sui generis rights, including rights of self-government affirmed by and agreed to in UConn First Nations and self-government agreements and expressed in First Nation constitutions. The Council of UConn First Nations represents as members and associate members, 10 of the 11 UConn First Nations that have entered into final agreements, including the Vuntut Gwich'in. All of those final agreements are substantially similar in content and all 11 of those nations have also entered into self-government agreements further to Chapter 24 of the final agreements, which are also substantially similar in content. Given these similarities, this appeal impacts not just the Vuntut Gwich'in's residency requirement, but the constitutional protections of all self-government rights in those agreements. This court's previously found in First Nation of Nacho Naik Dunn that UConn final agreements are of a sui generis nature and that reconciliation is found in the respectful fulfillment of a modern treaty's terms. That's at paragraphs 33 and 38. And the UConn Court of Appeal below rightly recognized the sui generis nature of UConn self-government agreements in addition to the final agreements. Stating at paragraph 93, quote, rather than engage in the perhaps futile debate regarding inherent Aboriginal rights and the source of the authority to self-govern, courts should recognize the sui generis nature of modern treaties and I would suggest self-government agreements and interpret them in a manner consistent with the national commitment to reconciliation. In our submission, this respectful fulfillment of the final agreements requires recognition by courts that self-government rights, affirmed by self-government agreements and exercised in constitutions of self-governing First Nations are integral to the implementation of these final agreements and are therefore also sui generis in nature. Final agreements are modern treaties that create a legal basis for the nation to nation relationship and the self-government agreements and First Nation constitutions that flow from them fulfill commitments made in them. Self-government agreements affirm and codify the nature of agreed UConn First Nation self-government rights, but I note, they do not negate from any inherent rights of self-government and that is protected in the final agreements. And the UConn First Nations exercise those self-government rights in part through their unique constitutions. Now it's my understanding that the residence requirement doesn't violate the terms or it's not alleged that it violates the terms of the Montekwitch and self-government agreement. Instead, it's an example of the valid exercise of the nation's exclusive power to enact laws related to its internal governments which has been affirmed in its self-government agreement. It also fulfills the nation's commitment in its self-government agreement at chapter 10 to enact a constitution with provisions that establish its governing bodies. It raises the question of what value do the Montekwitch or any other nation's self-government agreement and constitutions have both at law and in furtherance of reconciliation if courts decline to affirm and protect the nation's governance structures and traditions protected and established in its constitution. It's the most fundamental expression of its inherent and affirmed self-government rights. And we submit that UConn self-government agreements and constitutions are necessary components of the modern treaty framework. They realize the commitment to self-government and reconciliation made by the Crown and the final agreements and that commitment must be honored. We submit that they should be recognized as such by this court by finding that they, like modern treaties, are sui generis in nature. And for purposes of section 25, they are other rights and they are shielded from the application of charter rights. We submit the shield of section 25 should extend to protect all self-government rights affirmed by UConn self-government agreements and expressed in UConn First Nation constitutions, including the Vuntukwit'en residency requirement. And any challenges to those First Nation constitutional laws can and should be made under the nation's own constitution, including under the equality provisions of those constitutions, which chapter 10 of the self-government agreements mandates must be in those constitutions. And that mandate has been met by the Vuntukwit'en. Should this court choose to interpret section 25 in this way, it would ensure there's no abrogation or derogation of self-government rights affirmed by self-government agreements that flow from the modern treaty framework. Instead of requiring First Nations to meet onerous and amorphous tests for each exercise of already affirmed and agreed to self-government rights, and we submit to require as much would be a step back from reconciliation. Subject to your questions, those are my submissions.

Thank you very much.

Chief Justice, justices, my submissions today will focus on a single point which we believe is of crucial importance when interpreting section 25, namely, the role of the UN Declaration on the Rights of Indigenous Peoples, UNDRIP, and specifically Parliament's adoption of the UNDRIP Act on June 21, 2021. Now, both parties in this case and multiple little interveners have relied on UNDRIP in their respective submissions, and similarly UNDRIP played a significant role in the C-92 case heard just last December by this Court. So considering UNDRIP's importance in both cases, we submit that this Court should adopt a principled approach that would clarify the Declaration's key role in constitutional interpretation and provide guidance to lower courts and litigants. That principled approach, we say, is to apply a robust presumption of conformity to UNDRIP, meaning that Section 25 should be presumed to provide protection at least as great as that afforded by UNDRIP. Making that submission, we build first and foremost on the recent guidance of this Court in 9147 Quebec, Inc. In that case, the Court clearly established the importance of methodological rigor when using international norms, and we believe the same rigor should be applied when dealing with the UNDRIP Act, when looking at the UNDRIP Act. The framework established in that case by Justices Brown and Rowe focuses on the nature and the source of the relationship to our Constitution. The nature of the sources analyzed through the binding-nonbinding distinction with binding instruments, those that Canada has ratified, carrying more weight and thus giving rise to the presumption. Well, on the other side, nonbinding norms can still be relevant and persuasive, but carry less weight. Now, this framework brought much-needed clarity, but it was developed before the adoption of the UNDRIP Act. We submit that the framework can and should be extended to include a presumption of conformity for what is in essence a sui generis implementation of UNDRIP through the UNDRIP Act. In this case in particular, Parliament's clear intention provides the rationale to extend the presumption of conformity within the framework developed by this Court. The very purpose of the UNDRIP Act is to affirm UNDRIP as a source for the interpretation of Canadian law. This is stated clearly both in the preamble as well as Section 4, Paragraph 8 of the Act. This means that UNDRIP can be used to interpret and apply all Canadian laws, including the Constitution. Now, if the weight of international norms depends on their respective nature and source, well, it would appear that UNDRIP provides an even stronger basis to apply the presumption when compared to ratification. Now, ratification or accession sometimes is what underpins the presumption, but it is fundamentally a crown prerogative exercised solely by the Executive, and it is not a prerogative. It is an exercise solely by the Executive, expressing its willingness for Canada to be bound by certain international norms. As stated by Chief Justice Dixon, this ratification is an indicia of the protections afforded by the Charter. But the same logic should apply à forcierie when Parliament, the legislative branch, also expresses in clear terms its attention to grant interpretative force to certain international norms. And in that case, the presumption does not have to rely on an implicit indicia or even a legal fiction. Instead, it is grounded squarely in a clear and expressed direction by Parliament. As such, we submit that the UNDRIP Act provides a much stronger basis to apply the presumption, and this is also why we say that it should be a robust presumption. Now, this presumption is also particularly appropriate given the language of the UNDRIP Act itself. And here I refer to the preamble, which highlights that the rights and principles affirmed in the Declaration constitute the minimum standards for the survival, dignity, and well-being of Indigenous peoples. And this is also found in UNDRIP itself Article 43. Now, taking the original formulation of the presumption by, again, Chief Justice Dixon.

It would seem logical that the Charter should be presumed to provide protection at least as great as those afforded by similar provision in international human rights document, which, yes, Canada has ratified, but also which Parliament has explicitly acknowledged constitute the minimum standards for the survival and dignity of indigenous people. In closing, I would say that applying a robust presumption of conformity requires a detailed and serious engagement with the substance of the relevant rights provided in the declaration, and this exercise requires looking at the totality of UNDRIP to uphold the purpose of the declaration and avoid contradictory readings of certain provision. And I refer to your memorabil for further submissions on this point. Thank you. So, Director, any question? These are my submissions. Thank you very much, Mr. Chairman.

Thank you, Chief Justice and justices. The Federation of Sovereign Indigenous Nations of Saskatchewan, otherwise FSIN, represents 74 autonomous Indigenous Nation governments, which are of Assiniboine, Cree, Dakota, Dene, Dene-Soklene, Anishinaabe, Soto ancestry. With the exception of four non-treaty First Nations, the other 70 Indigenous Nations are parties to numbered treaties with the Crown, each with unique histories, cultures, traditions, values and customs, and which choose and select their leaders on their own accord through their own sovereign processes. The FSIN is mandated to protect the Indigenous and treaty rights of its member nations and to advocate for their sovereign, inherent and Aboriginal right to determine, select and impose standards of conduct for leadership by their own terms, natural laws, customs, traditions, norms or Indigenous institutions. The inherent right to choose leadership is consistently recognized by Canada as an existing right of self-government recognized by Section 35 sub 1 of the Constitution Act. The FSIN supports the respondent, Wuntu Gwich'in First Nation, for reasons which include the following. First, today, given the importance of the reconciliation of Indigenous interests with those of the Crown, we consider comments made by Chief Justice, or Justice Binney in Mitchell and others, where concepts of Indigenous sovereignty, whether merged or shared, are stated to be essential to the achievement of reconciliation as well as to the maintenance of diversity. To impose parameters, restrictions and prescriptions on Indigenous governments of today would be the antithesis of reconciling the Indigenous interests' objectives of self-preservation and self-determination in coexistence with the Crown. The importance of Section 25 of the Charter in protecting and preserving the Aboriginal right of self-government is therefore a means to further strengthen the concept of reconciliation and is also consistent with Canada's recent UNDRIP legislation, which adopts the concept of non-interference with Indigenous peoples' governance and institutions. Protecting the autonomy and sovereignty of Indigenous governments is of paramount importance to the FSIN, and they perceive Section 25 of the Charter as acting as a shield with the ultimate objective of protecting their rights to further their indigeneity. As acknowledged by the Yukon Court of Appeal, the Canadian Charter was not drafted for First Nation governments. The imposition of the Charter, and in particular the challenge based on Section 15-sub-1 in this case, properly triggers from the outset consideration of a Section 25 consideration to shield the Indigenous government from any further process. To allow a Section 15-sub-1 Charter right to prevail over the right of the Section 25 Charter collective right could ultimately result in a deterioration or diminishment of the cultural and institutional fabric of an Indigenous society, which is integral to its existence, such that the Indigenous society may eventually cease to function. As alluded to in paragraph 153 of the Yukon Court of Appeal decision, the consequence of persistent, continuous attacks pursuant to Section 15-sub-1 of the Charter, requiring a reasonable justification analysis with Section 1 of the Charter on each occasion, would also create an unnecessary burden to the detriment of any First Nation in Canada. In conclusion, the FSIN submits that its member Indigenous nations are self-governing by exercising their inherent existing Aboriginal right to select and elect their leaders by their own laws. In our view, possessing a self-government agreement with Canada serves to strengthen the respondent's position on its sovereignty by upholding the laws of the Wuntug, Wichita, and First Nation. In conclusion, we submit that the foundation and endurance of an Indigenous society is not its individuals, it is the strength of the institutions of the collective. Thank you.

Any reply? Is it good, Brad?

I will be short. First, just some evidentiary references. The reference that former Chief Peter Moses lived in Alaska is found in the affidavit of Robert Bruce Jr. and the site for that evidence is found at footnote 6 of our appeal factum. And second, there is evidence of harm caused by the residency requirement to Ms. Dixon and other non-resident Buntut Gwich'in citizens. The harm is serious and real. And it can be found at paragraph outlined at paragraph 83 of our factum. And the evidentiary source for that outline is footnote 111. And I refer you to the numerous affidavits and reports referenced therein. And third, just a point that my friend justified the residency requirement at least in part because it was a right made by the people at the General Assembly. And the General Assembly has serious access impediments to exactly the group who is excluded by the residency requirement. And I refer you to paragraph 34 and 35 of my factum which outlines some of those problems. What the residency requirement ultimately does is it has the effect of denying choice to the Buntut Gwich'in people at the ballot box by limiting, and we say arbitrarily limiting, the candidacy pool.

Do you say that there's any, there's five, four Councillors, one Chief of Council, right? Is that right? Yes. So do you say that there's any restriction that can be implied, applied at all, or do you say it's all five have to, all five could be off the First Nation, or do you say it's not minimally impairing in this case, because you're not even allowing one? So what's your...

I say it's not minimally impairing in this case. A restriction can be devised by the nation that suits, that suits their needs and their circumstances, yet gives participatory rights to Ms. Dixon and non-Funtigwitian citizens.

Vanta Gwich'in, subject to any pressing questions the justices may have, has no further submissions on reply.