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Statutory Interpretation - "Government"

. Dickson v. Vuntut Gwitchin First Nation

In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].

Here the court considers whether the VN First Nation constitutes a 'government', to determine whether the Charter applies to it under Charter s.32 ['Application']:
[77] On the other hand, in our view the Charter applies to the VGFN’s residency requirement under its Constitution because the VGFN is “government” by nature. Recall that in Godbout, La Forest J. stated that although there can be no a priori list of factors that determines whether an entity performs “governmental” functions (para. 49), an entity may be considered to be government by nature when it has four features (para. 51). The four features are neither necessary nor determinative for an entity to be found to be government by nature but serve as useful indicia of government (para. 51):
1. The entity has a council that is “democratically elected by members of the general public and [is] accountable to [its] constituents in a manner analogous to that in which Parliament and the provincial legislatures are accountable to the electorates they represent”.

2. It has “a general taxing power that, for the purposes of determining whether [it] can rightfully be described as ‘government’, is indistinguishable from the taxing powers of Parliament or the provinces”.

3. Importantly, it is empowered to make, administer, and enforce coercive laws binding on the public within a defined territorial jurisdiction, which is a quintessentially governmental function.

4. Most significantly, it derives its existence and lawmaking authority from the federal or provincial government; that is, it exercises powers conferred by Parliament or by a provincial legislature, powers and functions that the federal or provincial government would otherwise have to perform itself.



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Last modified: 09-04-24
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