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Joanna Baron: Supreme Court confirms that the Charter applies to Indigenous governments—except when it doesn’t

Commentary

Do Charter rights apply when an Indigenous person asserts a violation of their rights by Indigenous governments? Last week in Cindy Dickson v. Vuntut Gwitchin First Nation, the Supreme Court of Canada confirmed that, yes, Indigenous governance bodies are bound by the Charter, and that its fundamental protections remain in place for Indigenous persons to assert against the entities that govern them even when they’re exercising their inherent rights to self-government. 

The case settles, at least for now, what section 25 of the Charter means when it says the guarantees “of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada.” According to the majority judgement written by Justice Kasirer and Justice Jamal, s. 25 is not a shield self-governing Indigenous groups can assert to discriminate whenever they wish. 

But, unfortunately for the applicant, Cindy Dickson, it can sometimes operate like a shield. 

Dickson is a member of the Vuntut Gwitchin nation who wished to stand for election as a Vuntut Gwitchin councillor. Because she has a child with a medical condition necessitating access to a hospital, Dickson resides in Whitehorse rather than in Old Crow, Vuntut Gwitchin’s fly-in community on its settlement lands in the northern Yukon Territory. The nation, which concluded a self-government treaty with the Yukon government in 1993 and has its own constitution, has created a rule requiring all council members to reside in Old Crow or relocate there within 14 days of being elected. Dickson asserted that this rule was a violation of her right to equality under section 15(1) of the Charter. The Indigenous government responded that she was prevented from even asserting the Charter against its internal rules. 

A majority of the Supreme Court justices upheld residency requirements for council positions because it was “irreconcilable” with the Charter’s equality guarantees, effectively placing that particular distinction as beyond the Charter’s reach. While it’s too early to be sure how this complex decision will play out, it may be bad news for Indigenous women. The dissent—written by two female judges including the Court’s only Indigenous member—would, in my view, have better reconciled the competing collective and individual rights.

This question of how to integrate individual equality with Indigenous self-determination and collective rights is internally contested amongst Indigenous communities. At the SCC hearings, some Indigenous organizations urged the Court to find that the Charter ought to be applied to Indigenous governments generally, pointing to the need to safeguard the rights, in particular, of vulnerable Indigenous individuals such as women or off-reserve Indigenous people. But other Indigenous organizations argued to the contrary that the Charter does not apply to the exercise of Indigenous self-government unless an Indigenous people explicitly consents to this.

A majority of the court—six of the seven members who signed on to judgments—ruled that the Charter applies to self-governing Indigenous communities because such communities operate in a way that makes them “governmental in nature.” Ms. Dickson had shown a prima facie infringement of her right to equality. The case contains an explicit and important acknowledgement that the protections of the Charter extend to Indigenous peoples when their rights are infringed by their own governments as well as non-Indigenous governments.

However, the question of how to balance this infringement with s. 25 of the Charter was subject to sharp disagreement. The Court’s majority found that the purpose of s. 25 is to protect “Indigenous difference,” including cultural difference, prior occupancy, sovereignty, and treaty participation. The majority concludes that where one of these collective rights is in a real and irreconcilable conflict with individual Charter rights, it trumps those rights. Here, the Court found that VGFN’s own rules, contained in its Constitution, governing election to council, which was based on the ancestral principle of connection to the land, was in such an irreconcilable conflict.

The dissent, co-written by the Court’s sole Indigenous member, Justice O’Bonsawin, along with Justice Martin, disagreed. The dissenting judges would have applied s. 25 more narrowly and cited from the intervenor factum of the Canadian Constitution Foundation, which I direct, to emphasize the importance of ensuring that s. 25 cannot “effectively create extensive Charter-free zones in the context of Indigenous self-government, depriving Indigenous peoples of fundamental rights protections and immunizing governments ‘from the rights and freedoms floor established in the Charter.’”

Sts’ailes First Nation Chief Ralph Leon Jr., left to right, Elder Leonard Weasel Traveller, and Lake St. Martin First Nation Chief Christopher Traverse, talk to media in the lobby of the Supreme Court of Canada in Ottawa on Monday, Oct. 23, 2023. Sean Kilpatrick/The Canadian Press.

The dissent found that Dickson’s right to equality was unjustifiably violated, as a member of Vuntut Gwitchin who retained her cultural identity as a member of the nation despite being unable to maintain residence on Old Crow. Section 25, in their reading, should not act as a shield to prevent Indigenous peoples from asserting their Charter rights, including against their own governments.

The dissent explains that collective and individual rights are neither mutually exclusive nor binary. The dissent’s vision of Indigenous collective rights that can evolve and respond to the rights assertions of their own members reflects a paradigm of Indigenous self-governance that is dynamic and recognizes the diversity of needs, exigencies, and preferences amongst Indigenous people in modern Canada. In particular, requirements for political participation in Indigenous governing bodies may have a disproportionate effect on women, like Cindy Dickson, who have caretaking or familial obligations that require them to live away from settlement lands.

It is perhaps not a coincidence that the dissent, which is co-authored by the Court’s only Indigenous member, candidly acknowledges the elephant in the room: the “discriminatory nature of some Indigenous governance structures” and the need for Indigenous persons to have robust recourse to individual rights claims. 

Litigation brought by Indigenous plaintiffs, for example, has successfully challenged membership rules excluding some women and their children and the exclusion of women from debating constitutional reforms. Indigenous governance structures are no more or less prone to discriminatory policies and abuses of power than any other governance structure, and the notion that they should have special insulation from those whom they govern is morally repugnant. The dissent soberly advises against applying “Indigenous difference” so widely that discriminatory practices are treated as being sacrosanct.

Although the dissent’s view didn’t prevail, a robust majority of six judges found that the Vuntut Gwitchin First Nation, exercising powers delegated by federal Parliament, was bound by the Charter. Were the Court to find that the right to self-governance excluded even the prima facie assertion of Charter rights, the implications would be dire as more and more First Nations groups take up self-government. It would be hubristic to assume that Indigenous governments, unlike all other forms of government, are somehow immune from infringing against their citizens’ rights, and it would be unfair to deprive Indigenous Peoples of the same baseline protections as every other resident of Canada.

Dave Snow: The federal government is spending millions on equity, diversity, and inclusion research

Commentary

There’s been a lot of discussion and debate in recent months about the extent to which the Canadian government and the country’s universities and colleges are being influenced by the steady rise of equity, diversity, and inclusion (EDI).

Some argue it’s a serious problem that is coming at the expense of the pursuit of knowledge and truth. Others argue these concerns are overstated. In a national post-secondary landscape with hundreds of public and private institutions, thousands of faculty members, and millions of students, it can be difficult to generalize. Yet there have been few efforts to systematically analyze the actual effect of EDI on Canadian public institutions.

To explore this issue, I completed a review of how the Social Sciences and Humanities Research Council (SSHRC)—a major federal granting agency at the intersection of government and academia—has implemented EDI. It may not be a perfect proxy for the post-secondary sector as a whole but SSHRC’s policies and programs provide a useful empirical window into these broader debates.

What did my analysis find? As SSHRC declares its mission to “create a culture where embedding equity, diversity, and inclusion (EDI) considerations into all aspects of research is second nature”, it’s beginning to face its own institutional challenges.

The evidence that I discovered shows an institution in a tug of war between two versions of equity, diversity, and inclusion: the “soft” EDI of what we’ve historically seen as affirmative action and the “hard” EDI of new critical social justice activism. How SSHRC and other granting agencies manage this tension will determine the future quality of Canadian research. 

What does SSHRC say about EDI?

SSHRC (pronounced “shirk”) is one part of the “tri-council” of federal granting agencies, along with its siblings the Natural Sciences and Engineering Research Council (NSERC) and the Canadian Institutes of Health Research (CIHR). 

The agency’s statutory mandate is to “promote and assist research and scholarship in the social sciences and humanities” and to advise the federal minister of Innovation, Science, and Economic Development. SSHRC is primarily responsible for funding and overseeing a variety of programs, partnerships, scholarships, grants, and fellowships for students and researchers. Full disclosure: my own research has benefited immensely from SSHRC funding, and I currently hold a SSHRC Insight Grant.

In 2023/2024, SSHRC’s budget was forecast to rise to $1.16 billion, a growth of over $100 million from the previous year. Of that budget, $694 million is dedicated to grants, fellowships, and scholarships.

SSHRC’s commitment to EDI is now ubiquitous. Its page on “Equity, diversity, and inclusion in the research enterprise” links to eleven different EDI-related initiatives, services, and websites. It encourages researchers to incorporate “EDI-focused measures” including “relevant identity factors” to “increase the excellence of research projects, by valuing and fostering the inclusion of diverse experiences, approaches, knowledge and ways of knowing.” SSHRC now has established advisory committees on anti-Black racism and systemic ableism. It has also developed an Indigenous Research Statement of Principles that “recognize[s] the scholarly contributions of Indigenous knowledge systems.” 

SSHRC’s most comprehensive commitment to EDI comes in the form of the tri-council’s 2018-2025 EDI Action Plan, which explicitly seeks to “create a culture where embedding equity, diversity and inclusion (EDI) considerations into all aspects of research is second nature.” This plan includes what the tri-council calls an “EDI Charter,” setting out targets for year-over-year increases in the number of students and faculty from “underrepresented groups”—women, Indigenous Peoples, persons with disabilities, visible minorities, and “members of LGBTQ2+ communities”—attending, teaching, and receiving awards at Canadian postsecondary institutions.

Using affirmative action to meet EDI quotas 

Interestingly, although SSHRC is infused with EDI, it rarely engages in the most hardline and embarrassing language that informs much of Canada’s higher education EDI bureaucracy. For example, SSHRC’s materials contain no mention of dismantling “whiteness,” and only a few vague references to decolonization (which the tri-council calls “a highly complex topic with no single definition or interpretation”). Even SSHRC’s Indigenous Research Statement of Principles, with its nod to “Indigenous knowledge systems,” views Indigenous research as complementary to “SSHRC’s commitment to scholarly excellence.” The main goal of most of the EDI initiatives is a desire to “boost participation and inclusion of underrepresented and disadvantaged groups, so research teams are more representative of the diverse pool of Canadian talent.” While SSHRC may have shifted its language to the more fashionable “EDI,” what it’s promoting is affirmative action.

Affirmative action is not neutral, particularly when it involves the firm targets or quotas present in many of SSHRC’s programs. For example, the EDI Action Plan for Canada Research Chairs (CRCs), some of the most prestigious academic positions in the country, includes “equity targets” until 2029, to ensure that CRCs are awarded to underrepresented groups, according to their proportion of the Canadian population. Universities are now advertising CRC positions that explicitly exclude candidates who are white and male. 

Likewise, SSHRC is now testing EDI requirements for partnership grants, Ph.D. scholarships, and postdoctoral fellowships. It is now mandatory for Ph.D. and postdoctoral applicants to complete a “Diversity Considerations in Research Design module,” though that part of the application is not “subject to merit review this year” and is merely to “build awareness.” So far, concrete EDI requirements are not yet a part of applications for major permanent research awards.

Protesters pulled down the statue of Egerton Ryerson at Ryerson University, in Toronto on Sunday, June 6, 2021. Chris Young/The Canadian Press.
Taking a more hardline approach to EDI

However, SSHRC’s EDI commitment has gone well beyond affirmative action with the recent establishment of two new non-permanent grants that invoke the “hard” EDI of critical social justice activism. In 2023, SSHRC awarded 30 grants of up to $30,000 each for “Shifting Dynamics of Privilege and Marginalization,” with the application description noting that “Our colonial past, racism and slavery continue to shape processes of marginalization and privilege today.” 

A year before, SSHRC awarded $19.2 million in funding for 46 grants of up to $450,000 for its Race, Diversity, and Gender Initiative to create partnerships to study disadvantaged groups. The program description encouraged projects that seek to “achieve greater justice and equity,” and its list of “possible research topics” included questions such as “How can cisgender and straight masculinity be reinvented for a gender-equitable world?” and “Which mechanisms perpetuate White privilege and how can such privilege best be challenged?” The language used in these new grants denotes the clearest shift yet towards more activist priorities in federal research grant funding.

SSHRC data on EDI

To determine whether the “hard” EDI of social justice activism has had a real effect on the types of projects that received funding for SSHRC grants, I conducted a content analysis of the titles of 680 grants awarded under four programs between 2022-23, the latter two of which are explicitly EDI-focused: 

  1. Insight Grants announced in 2023, which “support research excellence in the social sciences and humanities,” valued between $7,000 and $400,000 over five years. (504 total)
  2. Partnership Engage Grants announced in 2023, which provide short-term support for a partnership with a “single partner organization from the public, private or not-for-profit sector,” valued between $7,000 and $25,000 for one year. (100 total)
  3. Knowledge Synthesis Grants to study “Shifting Dynamics of Privilege and Marginalization” announced in 2023, valued at $30,000 for one year. (30 total)
  1. Race, Gender, and Diversity Initiative grants announced in 2022, which support partnerships “on issues relating to systemic racism and discrimination of underrepresented and disadvantaged groups,” valued at “up to $450,000” over three years. (46 total)

First, I categorized each grant recipient according to whether their project title was clearly adopting a critical activist perspective (if there was any uncertainty, it was categorized as “no”). 

I then categorized each grant according to which EDI identity markers the projects covered—Indigenous Peoples, women/gender, LGBTQ+, race, and disability (including mental health). 

As Table 1 shows, the contrast between the two “traditional” grants and the two new EDI-focused grants was striking. Fully one-third of grants in the Race, Gender, and Diversity initiative focused on Indigenous Peoples, and 30 percent mentioned race or racism (compared with 3 percent and 1 percent of the Insight Grants). 

The disparity is especially pronounced when you compare the Race, Gender, and Diversity grants to the Insight Grants, where there was an 11-1 ratio in the proportion of grants awarded on the topic of Indigenous peoples (33 percent versus 3 percent). There was also a 30-1 ratio in the proportion of grants awarded on the topic of race (30 percent versus 1 percent).

Graphic credit: Janice Nelson

It might seem obvious that the two EDI-focused grants produced so many recipients with explicitly activist titles (63 percent compared with 9 percent of traditional grants). Yet it didn’t need to be this way. Examples of non-activist titles of Race, Gender, and Diversity Initiative recipients included “Understanding Race and Racism in Immigration Detention” and “Open-Access Education Resources in Deaf Education Electronic Books as Pedagogy and Curriculum.” One can study marginalized communities without engaging in social justice activism. 

However, most of the EDI-focused grants awarded left no doubt as to the type of research that would be undertaken. Choice titles included:

  • “‘So what do we do now?: Moving intersectionality from academic theory to recreation-based praxis” ($450,000 grant awarded)
  • “Queering Leadership, Indigenizing Governance: Building Intersectional Pathways for Two Spirit, Trans, and Queer Communities to Lead Social and Institutional Change” ($446,000 grant awarded)
  • “Carceral Intersections of Gender Identity, Sexual Orientation and Trans Experience in Confronting Anti-Black Racism and Structural Violence in the Prisoner Reentry Industrial Complex” ($400,075 grant awarded)

In addition to grant titles, I also examined SSHRC’s diversity data on grant recipients from “underrepresented groups” for all major grants in SSHRC’s own EDI dashboard. This included Insight Grants, Insight Development Grants, Partnership Grants, and Connection Grants (diversity data for the two new EDI-focused grants described above were not available). 

Table 2 provides these numbers alongside SSHRC’s equity targets for 2024/2025 and the groups’ proportion of Canadian university faculty as of 2019. Numbers in red show “under-performance” in the applicant-recipient ratio and SSHRC’s own targets.

Graphic credit: Janice Nelson

Four things are notable. First, only one of SSHRC’s four target groups (visible minority applicants) has been underrepresented in terms of the applicant-recipient ratio. Second, while women are the only group who have exceeded SSHRC’s equity target, the percentage of recipients has been growing rapidly for visible minority applicants and persons with a disability. Third, no target group is underrepresented relative to its proportion of university faculty members, with women (56 percent of recipients) especially outperforming their faculty proportion (49 percent). Finally, Indigenous grant recipients (2 percent) are underrepresented relative to their proportion of the overall population (5 percent), but not relative to their proportion of university faculty members.

Damaging the pursuit of truth

The above analysis leads me to three broad conclusions. First, while the language of EDI has permeated SSHRC, the federal agency oscillates between the “soft” EDI of affirmative action and the “hard” EDI of critical social justice activism. Most of the time, SSHRC focuses on achieving “equity targets” and frames EDI as complementary to research excellence. However, SSHRC’s new EDI-themed grants explicitly adopt activist language, and it is little wonder that those awards have been dominated by activist projects.  

Second, when it comes to the “soft” EDI of affirmative action, SSHRC’s policies are clearly having their intended effect for all groups except Indigenous Peoples. The number of grants awarded to women, visible minority applicants, and persons with a disability is rising. Grants are being awarded to members of these three groups at a proportion equal to or greater than their share of university faculty, and in the case of women, well above their share of the overall population. At this rate, it will soon be inaccurate for SSHRC to refer to “underrepresented groups” when it comes to prestigious national grants.

Finally, the “hard” EDI of critical social justice activism poses the biggest threat to SSHRC’s commitment to research excellence. While there are important critiques of the effects of “soft” EDI of affirmative action, it does not necessarily pose the same existential threat to research excellence. But the “hard” EDI of critical social justice activism is utterly incompatible with the objective pursuit of truth. One need only skim the titles of grants awarded under SSHRC’s two new EDI-focused initiatives to see how far they have strayed from the objective, empirical knowledge creation that we expect our national granting agencies to fund. Ironically, the more an award is pitched in terms of “diversity,” the less intellectually diverse the recipients seem to be. Thankfully, such activist research remains primarily confined to the new (and for now temporary) EDI-focused grants. 

If the federal government wants universities to keep the public’s trust, it should avoid any future activist-themed grants and ensure that granting agencies eschew social justice priorities. Federal granting agencies using taxpayer dollars should be explicit that their primary commitment is to promote excellence via the creation and dissemination of objective, falsifiable research knowledge. The university is supposed to function as a system of knowledge production. Policies that openly tie research to activist political ends threaten to undermine that very system.