Executive Summary: Key Legal and Evidentiary Issues

• Constitutionality of a customary residency requirement under section 15 of the Charter was challenged.

• The Election Regulation excluded off-reserve band members from running for elected positions.

• The court found that the regulation was discriminatory and not justified under section 1 of the Charter.

• Section 25 of the Charter was later invoked to shield the regulation from invalidity.

• Legal analysis was influenced by a new Supreme Court decision setting out a section 25 framework.

• The court ultimately ruled that each party should bear its own costs due to the case’s complexity and novelty.

Facts and outcome of the case

Background and legal context

The case arose from a challenge to section 6.4 of the Customary Election Regulations of the Sucker Creek First Nation 150A. This regulation required candidates for Chief or Councillor to have continuously resided on the reserve for at least six months before nomination. The Applicant, Wayne Garry Cunningham, was a band member living off-reserve and sought to challenge this requirement under the Canadian Charter of Rights and Freedoms, arguing it unjustly excluded off-reserve members from participating in governance.

Charter challenge under section 15

In the first stage of the case, the court found that the residency requirement infringed section 15 of the Charter, which protects equality rights. The regulation was found to discriminate against off-reserve members by preventing them from participating in band governance. The infringement was not justified under section 1 of the Charter, which allows reasonable limits on rights.

Section 25 argument in the second stage

After this initial decision, the Sucker Creek First Nation elected to proceed with a second stage of litigation, raising section 25 of the Charter. This provision serves as a shield to protect the distinct rights of Indigenous peoples, including customary governance practices. The court considered whether section 25 applied in this case to protect the residency requirement from being invalidated under section 15.

Interpretation based on evolving case law

Between the two parts of the case, the Supreme Court of Canada issued a decision in Dickson v Vuntut Gwitchin First Nation, clarifying the legal test under section 25. Using that new framework, the court concluded that the residency requirement was protected by section 25 and therefore immune from invalidation under section 15.

Outcome and costs decision

The result was a split success: the Applicant succeeded in the first part, while the Respondent prevailed in the second. The court emphasized the novelty and complexity of the legal issues, particularly in light of evolving jurisprudence. Given these factors, the court ruled that each party would bear their own legal costs. No damages were awarded, as the case was pursued through judicial review and focused on constitutional interpretation rather than compensatory claims.