The Supreme Court of Canada heard arguments in the case surrounding the Vuntut Gwitchin First Nation’s (VGFN) requirement that its elected chief and council reside on the First Nation’s settlement lands, centred on the remote community of Old Crow.
The case was launched by Vuntut Gwitchin citizen Cindy Dickson who was a prospective councillor in the First Nation’s 2018 election. Dickson’s nomination papers to run for council were denied based on a requirement that candidates live on VGFN settlement land. That requirement was relaxed, but even in its altered form, Dickson and her lawyers claim it violates her right to be protected from discrimination guaranteed under the Canadian Charter of Right and Freedoms.
The case was heard by the Yukon Supreme Court and Court of Appeal before proceeding to Canada’s highest court.
Lawyers for Dickson and VGFN each had about an hour to make their case to the seven Supreme Court of Canada justices who heard the matter in Ottawa on Feb. 7.
Lawyers for 14 intervener groups, parties not directly involved with the lawsuit who have an interest in it, were also permitted to make submissions. The interveners included the Attorney General offices of Canada, Quebec and Alberta as well as the Yukon government, the Métis Nations of Ontario and Alberta, and the British Columbia Treaty Commission.
Yukon First Nations were represented by lawyers from the Council of Yukon First Nations, the Carcross/Tagish First Nation and the Teslin Tlingit Council.
One of the reasons the case drew such wide interest among groups from across Canada is because it is the first time the Supreme Court of Canada has reckoned with the interaction between the constitution of a self-governing First Nation and individual rights as guaranteed under the charter.
At the Feb. 7 hearing, Bridget Gilbride, a Vancouver-based lawyer, presented on behalf of Dickson.
“Ms. Dickson brings this appeal because she has been barred from the opportunity to serve on her own Indigenous nation’s elected government solely because of where she lives. This exclusion is discriminatory, antithetical to democracy and unconstitutional,” Gilbride said at the beginning of her submissions.
The lawyer argued that VGFN’s agreement with the federal and territorial governments that secured its self-government made it clear that the First Nation’s government powers were to conform with Canada’s constitution.
“In my submission, the promises and the final agreement and the self government agreement would be hollow promises if Ms. Dickson was denied access to her Charter rights, by virtue of section 25 of the charter or otherwise, the current VGFN administration seeks to walk away from the expressed terms of the agreements ratified by their citizens in 1993,” Gilbride said.
Gilbride also told the justices about Dickson’s personal situation as it relates to the case. She noted that her client grew up in VGFN territory and left to get an education elsewhere as many of VGFN’s citizens do. Gilbride said Dickson must live in Whitehorse rather than Old Crow, which is accessible only by air, because her son has a potentially life-threatening medical condition requiring easy access to a hospital.
Kris Statnyk, a Vuntut Gwitchin citizen and lawyer, presented on the First Nation’s behalf.
Statnyk submitted that both of the lower Yukon courts that ruled that the Canadian Charter of Rights and Freedoms should apply to the Vuntut Gwitchin constitution did so in error. He argued the opposite of what Gilbride presented, stating that the shared intention of the parties that negotiated the VGFN final agreement was for the newly self-governing First Nation’s constitution to be the paramount law when it comes to its internal affairs.
He said that the Yukon Court of Appeal was correct in finding that Dickson could challenge the residency requirement in the Yukon courts using her rights as guaranteed under the VGFN constitution rather than the Canadian constitution as the basis for the challenge.
Statnyk also told the justices that non-resident citizens are not disenfranchised as they can participate in VGFN’s general assembly. The assembly has the power to make amendments to the VGFN constitution, of which the residency requirement is a part.
The two lawyers argued opposite sides of the residency requirement’s basis in Vuntut Gwitchin historical practices. Gilbride cited one past chief who had lived away from the First Nation’s traditional territory for long periods of time.
Statnyk said the evidence refers to a former chief traveling to Alaska for the purpose of diplomacy with other Gwitchin tribes or other nations.
As other factors change with the times, Statnyk said VGFN leaders’ connection to the land has remained important and maintained that the leaders have always resided on the First Nation’s traditional territory.
The court did not rule immediately and according to the court’s website, decisions take six months on average to be made public.
Contact Jim Elliot at jim.elliot@yukon-news.com