The Charter of Rights and Freedoms applies to Vuntut Gwitchin First Nation’s government, a Yukon judge has ruled, but its requirement for chief and council to reside on settlement lands doesn’t discriminate against citizens living outside Old Crow.
Yukon Supreme Court Justice Ron Veale issued a 72-page decision on what he described as “a complex case with many cultural, political and legal ramifications” on June 8.
The decision is the first of its kind in the legal history of Yukon First Nations’ final and self-government agreements, setting a precedent that’s likely to impact all self-governing Yukon First Nations.
It was sparked by the filing of a petition in early 2019 by Vuntut Gwitchin citizen and Whitehorse resident Cindy Dickson.
Dickson had tried to run for a councillor position in Vuntut Gwitchin’s 2018 election but had her nomination forms rejected due to the fact that she didn’t live on settlement land, then a requirement for all candidates under the Vuntut Gwitchin constitution.
That residency requirement has since been amended to state that anyone elected to council must relocate to settlement lands within 14 days.
Old Crow is the only permanent community on Vuntut Gwitchin settlement lands.
The petition was heard in court in February.
Dickson’s lawyers argued that the residency requirement violated section 15 of the Charter, which guarantees equality rights to all Canadians. Dickson, they said, was more than qualified to run for council, noting her deep connections with her heritage as well as her work and education. Moving to Old Crow would be impractical for her, they said, and she would have inadequate housing and access to education and medical care for her son, among other things.
About 260 Vuntut Gwitchin citizens live in Old Crow, Dickson’s lawyers noted, while 301 lived elsewhere — it was only fair, they argued, for those citizens to have representation on council too.
Lawyers representing Vuntut Gwitchin claimed that the issue was “purely political,” and one that shouldn’t be heard by the court. The Charter, they argued, doesn’t apply to the Vuntut Gwitchin government as it was never consented to during negotiations, and the Vuntut Gwitchin have, and have always had, the right to determine how to govern themselves according to traditional practices.
Both sides filed affidavits from Vuntut Gwitchin citizens supporting either the preservation or removal of the residency requirement.
In his decision, Veale found that the Charter does apply to Vuntut Gwitchin governance. He noted that the Vuntut Gwitchin final agreement states the agreement “shall not affect the rights of Yukon Indian People as Canadian Citizens,” and that nothing in either the final or self-government agreements “explicitly states that the Charter does not apply to the VGFN Government.”
The Vuntut Gwitchin government, Veale wrote, is also captured by a section in the Charter which declares that all bodies acting as a government or “exercising inherently ‘government’ activities” fall within the Charter’s scope.
He found, however, that Vuntut Gwitchin’s “residency requirement as a general principle, is not discriminatory for a number of reasons.” The requirement, he explained, doesn’t deny citizens the right to vote, nor the right to run for the position of chief or councillor.
He noted elsewhere in the decision that since “time immemorial to the present day, all VGFN Chiefs and Councillors have been residents in the VGFN Traditional Territory.”
“The evidence is that all VGFN citizens have suffered displacement and alienation from imposed colonial laws, residential school and resource development without the consent or involvement of VGFN citizens,” Veale wrote. “The purpose and effect of the residency requirement is to enhance the homeland and preserve it for all VGFN citizens…
“… (The) residency requirement is not an infringement of Ms. Dickson’s equality right but recognition of the role of non-residents VGFN citizens in their homeland. The residency requirement does not discriminate but ensures a role that respects rather than denigrates the rights of non-resident VGFN citizens.”
Even if the residency requirement violated Dickson’s equality rights, Veale wrote, it would be “shielded” by another part of the Charter protecting Aboriginal and treaty rights.
Veale did, though, strike down the portion of the requirement that calls for elected councillors to move to settlement land within 14 days, declaring that it “arguably creates a disadvantage in that it imposes an arbitrary disenfranchisement… of a successful candidate who was unable to find housing or could not relocate in such a short time frame.”
He suspended the invalidity of the “within 14 days” part for 18 months “to permit the VGFN General Assembly to review the residency requirement to determine if they wish to amend it.”
In an emailed statement June 9, Vuntut Gwitchin Chief Dana Tizya-Tramm highlighted Veale’s finding the residency requirement does not discriminate against non-resident citizens but “ensures a role that respects rather than denigrates the rights of non-resident VGFN citizens.”
“This is a significant finding that protects the residency requirement as a contemporary exercise of our inherent right to self-government and upholds the sacred relationship between our homelands and community governance that has been maintained under Vuntut Gwitchin law with the guidance of our Elders for millennia,” Tizya-Tramm wrote.
The decision, however, also raises “broader issues” about the Charter and its application to “the exercise of the inherent right to self-government.”
“These issues extend far beyond the scope of our residency requirement and are of regional and national significance … We are carefully reviewing the decision in its entirety and will be thoroughly considering all of our options before determining any next steps,” he said.
Dickson, in an email June 10, said she was “disappointed with some parts of the decision” but declined to comment further, explaining that she was still reviewing the document.
Contact Jackie Hong at firstname.lastname@example.org