A court case with major implications on the legal status of First Nations constitutions in relation to the Canadian Charter of Rights and freedoms began in the Yukon but will need to be resolved by Canada’s highest court.
At the centre of the legal dispute between Cindy Dickson and the Vuntut Gwitchin First Nation (VGFN) is the First Nation’s requirement that its chief and council reside on VGFN territory.
The dispute stems from the 2018 VGFN leadership election. Dickson, a VGFN citizen who was living in Whitehorse, was rejected from running in the election due to the residency requirement in the VGFN constitution.
The Supreme Court of Canada will hear arguments in the case on Feb. 7.
In January 2019, Dickson petitioned the Yukon Supreme Court, claiming that the residency requirement breached her rights under the Charter of Rights and Freedoms.
The requirement was eventually relaxed by the VGFN general assembly in 2019, now allowing those who lived off the VGFN lands to run in elections but still requiring them to relocate within 14 days of being elected.
Dickson pressed on with the legal challenge and the Yukon Supreme Court heard her lawyers argue that the residency requirement arbitrarily excludes the sizable portion of VGFN’s citizens who live off the First Nation’s settlement lands, amounting to discrimination that Section 15 of the Charter should protect them from. VGFN’s lawyers argued that the Charter should not be applied. Justice Ron Veale ruled that the residency requirement in its amended form was not discriminatory but that the Charter does apply to the First Nation’s government and constitution.
Both parties appealed and a three-judge Yukon Court of Appeal panel heard the matter in a three-day videoconference in May 2021.
The governments of Canada and the Yukon have been interveners, interested parties that are permitted to present legal arguments, since the case was in Yukon Supreme Court. Before the Yukon Court of Appeal heard the case more intervener groups including other Yukon First Nations and the Métis Nation of Ontario were added.
The Court of Appeal ruled that the Charter does apply to the VGFN government but that the residency requirement is acceptable. This is because Section 25 of the Charter, which guarantees that no other section of the Charter will be used to repeal or detract from rights guaranteed to First Nations people.
The decision was promptly appealed again and the case was bound for the Supreme Court of Canada.
This is the first time that the interaction between the Charter and the constitution of a self-governing First Nation has been weighed by the courts. The Supreme Court of Canada’s final decision will set an important precedent for the future balancing of rights guaranteed in the Charter and rules or processes developed by self-governing First Nations.
The Supreme Court hearing will commence at 7:30 a.m. Yukon time on Tuesday Feb. 7. It is scheduled for four hours. The Supreme Court justices hearing the case will be held in Ottawa but anyone can listen in to the proceedings in a webcast on The Supreme Court of Canada’s website. Most Supreme Court proceedings are later televised on the Cable Public Affairs Channel (CPAC).
Contact Jim Elliot at jim.elliot@yukon-news.com
