The Yukon Court of Appeal heard a legal challenge to rules around eligibility for elected office in the Vuntut Gwitchin First Nation (VGFN) on May 18, 19 and 20.
The case could have precedent-setting implications for the application of the Canadian Charter of Rights and Freedoms to First Nations law and governance.
Cindy Dickson, a Vuntut Gwitchin citizen living in Whitehorse, tried to run for a council seat in the First Nation in 2018. She had her nomination papers rejected because she did not live on VGFN’s settlement lands, a requirement which has since been amended to state that anyone elected to council must relocate to the settlement lands within 14 days.
The remote village of Old Crow is the only permanent community on Vuntut Gwitchin settlement lands.
Charter rights challenge
In a petition filed in early 2019, Dickson and her lawyers asserted that the residency requirement violated section 15 of the Charter of Rights and Freedoms, which guarantees equality rights to all Canadians. They also said the move to Old Crow would be impractical for her as she would have inadequate housing and access to education and medical care for her son, among other things.
It was heard by the Yukon Supreme Court last year.
At the centre of the case was how the Charter applies to Dickson and how it interacts with VGFN’s laws and constitution.
When Dickson’s petition was heard in February 2020, lawyers representing Vuntut Gwitchin argued that the issue was purely political and should not be heard by the court. They also made the case that the Charter does not apply to the Vuntut Gwitchin government, as it was never consented to during negotiations of the Vuntut Gwitchin final agreement.
Yukon Supreme Court judge C.J. Veale found that the Charter applies to VGFN governance. He noted a section of the final agreement stating that self-government agreements “shall not affect the rights of Yukon Indian People as Canadian Citizens.”
He also found that Vuntut Gwitchin’s residency requirement is not discriminatory. He explains in the reasons for his judgement, that the requirement doesn’t deny citizens the right to vote, nor the right to run for the position of chief or councillor. He did, however, find the requirement of a move to Old Crow within 14 days invalid.
The case progressed to the Court of Appeal.
The Yukon Court of Appeal usually sits for a week twice a year in Whitehorse. This case was heard over a video conference with the judges, who all sit on the B.C. Court of Appeal, conferencing in from Vancouver. Under normal circumstances a northern judge would sit on the panel with judges from B.C.
Lawyers representing other Yukon First Nations, the Government of Yukon, the Government of Canada, the Council of Yukon First Nations and the Métis Nation of Ontario were allowed to address the court as interveners. Interveners are parties not involved with the initial lawsuit, but who join later in support of one side or the other because the case will affect their interests.
The representatives of the First Nations groups presented a variety of arguments in support of the self government rights they say the VGFN is asserting in defending the residency requirement and opposing the broad application of the Charter of rights and freedoms to their governance.
Arguments from the representatives of Canada and the Yukon supported the application of the Charter of Rights and Freedoms in this case.
New context in the Yukon
A major concept articulated by VGFN lawyers and the lawyers speaking on behalf of intervener First Nations groups is the difference between past cases dealing with Charter challenges relating to the Federal Indian Act and the new context in the Yukon as a result of the final agreements like the one negotiated by the VGFN.
At the core of their argument is Section 25 of the Canadian Charter of Rights and Freedoms, which states that guarantees in the Charter should not be interpreted to annul or diminish rights or freedoms pertaining to the aboriginal peoples of Canada. The Charter specifies that these rights include rights or freedoms that now exist by way of land claim agreements or that may be acquired this way in the future.
The VGFN lawyers argued that the residency requirement does not imply Vuntut Gwitchin people living outside are lesser citizens, but only that the First Nation’s leaders are needed in the homeland to respond to the community’s needs. Toward the end of the hearing Kris Statnyk, one of the lawyers, said the broad application of the Charter could leave decisions made in the traditional Vuntut Gwitchin way subject to scrutiny and possibly open to legal challenges which could jeopardize the rebuilding of their self governance.
Submissions from the parties differed as to whether the application of the Charter of Rights and Freedoms to VGFN governance had been settled with the final agreement in 1993.
Statnyk said the evidence presented by his side shows the Vuntut Gwitchin had concerns about the application of the Charter and did not agree to it when the agreement was being negotiated.
It was noted in court that the proportion of Vuntut Gwitchin citizens living in Old Crow compared to those living outside it is constantly in flux, but at some times more than half lived outside.
Dickson’s lawyers maintained that their client is a strong supporter of VGFN’s right to self governance, but said the Charter must apply. Following that, Dickson’s lawyer Bridget Gilbride, said the residency requirement needs to go back to the drawing board. She recognized the importance of councillors who live in Old Crow, but raised the possibility of one seat located in Whitehorse or a provision allowing no more than two seats to be held by citizens living outside the settlement lands.
At the end of the hearing Chief Justice Robert Bauman commended the lawyers for their efficient submissions given the challenging environment of court held over a video conference. He also expressed regret that he and Justices Mary Newbury and David Frankel could not be in the Yukon in person. The justices reserved their judgment for a later date.
Contact Jim Elliot at jim.elliot@yukon-news.com