Category: Aboriginal Page 2 of 32

Charter Sections 15 and 25: The Majority Judgment in Dickson v Vuntut Gwitchin First Nation and its Application in the Federal Court

On August 29, 2025

In Aboriginal, Constitutional, Equality, Indigenous

By: Jonnette Watson Hamilton, Robert Hamilton, and Jennifer Koshan

Cases Commented On: Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII); Houle v Swan River First Nation, 2025 FC 267 (CanLII); Donald-Potskin v Sawridge First Nation, 2025 FC 648 (CanLII); Cunningham v Sucker Creek First Nation 150A, 2025 FC 1174 (CanLII)

PDF Version: Charter Sections 15 and 25: The Majority Judgment in Dickson v Vuntut Gwitchin First Nation and its Application in the Federal Court

This is the third in a series of four ABlawg posts on the Supreme Court of Canada’s complex decision in Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII). The first post examined the extent to which various factions of the Court referenced the UN Declaration on the Rights of Indigenous Peoples, and the second post analyzed their handling of whether the Canadian Charter of Rights and Freedoms applied in this context. In this post, we explore another issue on which there was serious disagreement amongst members of the Court. Having found that the Charter applied to the Vuntut Gwitchin First Nation’s (VGFN) residency requirement for Council elections, the majority (Justices Nicolas Kasirer and Mahmud Jamal, with Chief Justice Richard Wagner and Justice Suzanne Côté concurring) and dissenting justices (Justices Sheilah Martin and Michelle O’Bonsawin) ruled on how to approach the interplay between sections 15(1) and 25 of the Charter. We look at the majority judgment and three recent decisions applying the majority’s approach to section 25, also in cases involving First Nations elections: Houle v Swan River First Nation, 2025 FC 267 (CanLII) (Houle), Donald-Potskin v Sawridge First Nation, 2025 FC 648 (CanLII)) (Donald-Potskin), and Cunningham v Sucker Creek First Nation 150A, 2025 FC 1174 (CanLII). The fourth post in this series will focus on the dissenting judgment of Martin and O’Bonsawin JJ on the interplay between sections 15(1) and 25.

Who’s Afraid of the Proposed First Nations Clean Water Act?

By Nigel Bankes

On July 17, 2025

In Aboriginal, Environmental, Indigenous, Natural Resources, Water Law

By: Nigel Bankes and Martin Olszynski

Matter Commented On: Bill C-61, An Act respecting water, source water, drinking water, wastewater and related infrastructure on First Nation lands, First Session, Forty-fourth Parliament, 70-71 Elizabeth II – 1-2-3 Charles III, 2021-2022-2023-2024

PDF Version: Who’s Afraid of the Proposed First Nations Clean Water Act?

On June 30, Alberta’s Minister of Environment and Protected Areas and Ontario’s Minister of Environment Conservation and Parks penned a remarkable letter to their federal counterpart, Ms. Julie Dabrusin, Minister of Environment and Climate Change (for Alberta’s Press Release see here). The joint letter asserted that “Canada is poised to be an economic superpower, but achieving that potential depends on strong, constitutionally grounded provincial authority over resource development and environmental management.” With that as the premise, the two Ministers went on to indicate that they had a number of “urgent requests” that they would like to discuss “immediately” with their federal counterpart, namely:

Repealing the Impact Assessment Act and the Physical Activities Regulations.
Repealing the Clean Electricity Regulations.
Repealing the Greenhouse Gas Pollution Pricing Act and associated regulations.
Amending the Species at Risk Act to respect the constitutional jurisdiction of the
Suspending the proposed Oil and Gas Sector Greenhouse Gas Emissions Cap Regulation.
Undertaking to refrain from reintroducing Bill C-61: An Act respecting water, source water, drinking water, wastewater, and related infrastructure on First Nation lands.

“Get the province of Alberta in line”: Treaty Promises, Provincial Power, and the Role of Indigenous Nations in Discussions on Alberta Secession

By Robert Hamilton

On May 30, 2025

In Aboriginal, Indigenous

By: Robert Hamilton

Matter Commented On: Alberta Separatism

PDF Version: “Get the province of Alberta in line”: Treaty Promises, Provincial Power, and the Role of Indigenous Nations in Discussions on Alberta Secession

With the Liberals forming a minority government in last month’s election, and a small but vocal contingent of Albertans seemingly enamoured with President Trump’s suggestion that Canada become a state, the possible secession of Alberta is in the news cycle again. In 2019, the possibility of western separation made headlines as Jack Mintz and others made the case for the benefits to Alberta (see here). Premier Danielle Smith has given oxygen to the renewed debate by introducing legislation that would lower the threshold for initiating provincial referenda. While she has denied supporting separation, her moves, including her participation at a pro-separation rally held at the Alberta legislature on May 3 and her statement that she will put the issue to a referendum if it gathers enough support, have energized the movement. This has drawn responses from Indigenous Nations across the province. Recently proposed amendments which would add a non-derogation clause purporting to protect treaty rights (discussed by Nigel Bankes in a forthcoming post) has done little to reduce opposition.

Teaching Dickson v Vuntut Gwitchin First Nation

By Robert Hamilton

On March 13, 2025

In Aboriginal, Constitutional, Statutory Interpretation, Supreme Court of Canada

By: Robert Hamilton, Jennifer Koshan, and Jonnette Watson Hamilton

Case Commented On: Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII)

PDF Version: Teaching Dickson v Vuntut Gwitchin First Nation

It has been a year since the Supreme Court of Canada released its landmark decision in Dickson v Vuntut Gwitchin First Nation, 2024 SCC 10 (CanLII), and many of us are still grappling with how to include Dickson in our teaching materials. For those teaching international law, or the interplay between Canadian law, Indigenous law, and international law, this previous post might be a useful summary of Dickson’s commentary (or lack thereof) on the legal significance of Canada’s adoption and implementation of the UN Declaration on the Rights of Indigenous Peoples. In this post, we deal with another important issue – whether the Canadian Charter of Rights and Freedoms applies in the context of modern treaties, or at least in the context of the treaty and surrounding documents that governed the dispute between Cindy Dickson and the Vuntut Gwitchin First Nation (VGFN). We provide a summary and critique of the judgments of the Supreme Court on this issue, which concern the interpretation and application of section 32(1) of the Charter in light of constitutional text, history, and precedents as applied to the facts at hand. The majority judgment of Justices Nicolas Kasirer and Mahmud Jamal provide an excellent summary of previous jurisprudence on section 32(1) and could replace a swath of case law on the constitutional law syllabus. But the concurring judgment of Justices Sheilah Martin and Michelle O’Bonsawin, and the dissenting judgment of Justice Malcolm Rowe, are also worthy of discussion given their insights on the complexities of debates surrounding the issue of Charter application. We hope that this summary of the various judgments and our commentary on those judgments will be helpful for those teaching constitutional law and adjacent subjects. We also plan to write a second post focusing on the section 15(1) and section 25 Charter issues in Dickson.

Modern Treaties, Shared Territories and Party Status in Aboriginal Title Litigation

By Nigel Bankes

On September 23, 2024

In Aboriginal, Indigenous, Treaty Rights

By: Nigel Bankes

Case commented on: Malii v British Columbia, 2024 BCSC 85 (CanLII), aff’d Nisg?a’a Nation v Malii, 2024 BCCA 313 (CanLII)

PDF Version: Modern Treaties, Shared Territories and Party Status in Aboriginal Title Litigation

Overlapping claims and shared territories present challenges in the negotiation of modern treaties that are best worked out by the Indigenous Nations themselves, drawing on their own laws and protocols. But this does not always prove possible and one party or another may initiate litigation in the courts of the settler state. Unfortunately, this is not uncommon and there are now dozens of cases dealing with overlapping claims or shared territories in the context of modern treaty negotiations. One group of cases deals with the scenario in which Nation A is moving to finalize a modern treaty with the Crown, while Nation B takes the view that the territory encompassed by the proposed treaty is territory that Nation B also used more or less intensively. Nation B therefore files a competing claim and also seeks injunctive relief to prevent finalization or ratification of the proposed treaty. The courts have typically rejected applications for injunctive relief and the substantive claims may drag on for years if not decades. A case in point is the Benoanie litigation in which the applicant Nations with reserves in Northern Manitoba and Saskatchewan sought to enjoin ratification of the Nunavut Agreement: Fond du Lac Band et al v Canada (Minister of Indian and Northern Affairs, 1992 CanLII 2404 (FC).