The hearing of a Vuntut Gwitchin citizen’s petition against her First Nation over a residency requirement for councillors began in Whitehorse on Feb. 5, raising complicated questions about self-government and Canadian legislation.
Cindy Dickson filed her petition to the Yukon Supreme Court in January 2019 following Vuntut Gwitchin First Nation’s (VGFN) election for chief and council the fall before.
Dickson, who lives in Whitehorse, had tried to run for a councillor position but had her nomination forms rejected as the Vuntut Gwitchin constitution at the time required candidates to reside on settlement lands.
Old Crow is the only consistently-occupied community within VGFN settlement lands.
In her petition, Dickson alleged that the residency requirement violated section 15 of the Charter of Rights and Freedoms, which guarantees equality rights for all Canadians.
The requirement was loosened by VGFN’s general assembly in August 2019 so that any citizen may run in an election, but must relocate to settlement lands within 14 days of being elected.
Dickson is now challenging the amended residency requirement, claiming that it still violates the Charter and should be struck down by the court.
VGFN, meanwhile, is contesting that the Charter can even be applied to its constitution, and is also arguing that the residency requirement is a reasonable restriction that’s in-line with Vuntut Gwitchin values and legal traditions. It’s seeking for the petition to be dismissed.
Justice Ron Veale, who’s presiding over the matter, described the dispute in his opening remarks as a “historic milestone” on VGFN’s path of self-government, adding that he didn’t think there’d ever been a case like this before the courts.
He also pointed out another milestone — one of VGFN’s lawyers, Kris Statnyk, is a VGFN citizen. Veale said he believed it to be the first time a citizen of a Yukon First Nation was representing his First Nation in court.
Dickson’s legal team, consisting of lawyers Bridget Gilbride and Harshdeep Mann, presented their arguments on the first day.
In her submissions, Gilbride said that several factors prevent Dickson from moving to Old Crow, including the fact that her son has a medical condition that requires him to be near a hospital in case of an emergency. A lack of adequate housing, employment and education opportunities, counselling services and even the ability to find a romantic partner are also among the reasons VGFN citizens leave Old Crow.
Dickson was born and raised in Old Crow, Gilbridge pointed out, and her life’s work has revolved around preserving and advancing Indigenous knowledge and traditions as well as advocating for the North and its peoples.
However, despite her qualifications, Gilbride and Mann argued that VGFN’s residency requirement effectively and arbitrarily excludes Dickson from participating in Vuntut Gwitchin government. They noted that she wasn’t alone; as of 2019, the majority of VGFN citizens, 301 out of 566, lived outside of Old Crow.
Several other VGFN citizens residing outside Old Crow swore affidavits in support of Dickson and striking down the residency requirement, saying it made them feel disconnected and less valued by their First Nation. Some suggested having a councillor in Whitehorse would make them feel better-represented.
Gilbride argued that it was clear the Charter could be applied to the Vuntut Gwitchin constitution, noting that the Umbrella Final Agreement states that the powers of a Yukon First Nation are to be “in conformity with the Constitution of Canada” — the Charter is part of the Constitution — and that self-governing agreements “shall not affect the rights of Yukon Indian People as Canadian citizens.”
She also argued that the VGFN government would fall within the definition of a government or government entity under section 32 of the Charter, which lays out what bodies the Charter applies to. Municipalities, Glibride noted, are subject to the Charter, and VGFN holds powers “undoubtedly broader” than them. As well, territorial and federal legislation, both of which are subject to the Charter, are what confers power and “gives effect” to VGFN’s final and self-government agreements.
Gilbride and Mann emphasized that Dickson was not taking issue with the Vuntut Gwitchin constitution as a whole, nor did she want the court to tell VGFN how to proceed should it strike down the residency requirement.
Vuntut Gwitchin’s lawyers, Krista Robertson and Statnyk, gave their submissions on Feb. 6, refuting much of what was said the day before.
Applying the Charter, Robertson argued, is the incorrect way to address Dickson’s issue with the residency requirement. The court should instead be examining the complaint under the Vuntut Gwitchin constitution, she said, which, like the Charter, has provisions protecting citizens’ rights and mechanisms for challenging laws but in a way that respects VGFN’s self-government.
What would be the point of those terms in the Vuntut Gwitchin constitution, she asked, if the Charter was going to be applied anyway?
Statnyk said the petition cuts “right to the heart” of Vuntut Gwitchin society and self-government, implying that VGFN’s governance is “undemocratic” and “arbitrary,” and that without the Yukon or Canada enacting legislation, there would be a “jurisdictional ghetto.”
This, however, is not the case, he continued, describing a “golden thread of continuity” in Vuntut Gwitchin governance throughout history that precedes the arrival of Europeans and Canadian law. The final and self-government agreements, Statnyk argued, did not confer rights or laws to the Vuntut Gwitchin, but reaffirmed existing ones and coordinated them with those of Canada and the Yukon.
Statnyk argued that the residency requirement was a reflection of one of the core values of the Vuntut Gwitchin — for leaders to maintain both a physical and spiritual connection to the land from which they came, the same reason the seat of VGFN government is required to be on settlement lands. It also stemmed from the history of colonial policy that saw the removal of citizens from their lands, he said, with elders hoping it would mitigate and prevent further damage to Vuntut Gwitchin society.
Both Statnyk and Robertson submitted the requirement was a reasonable restriction, noting that VGFN citizens residing off settlement lands aren’t completely barred from participating in government — the elders and youth council, for example, don’t have a residency requirement, nor does being in the general assembly.
In any case, they submitted, the issue was brought before the general assembly in August, which chose not to strike down the requirement but modify it instead. The court, they argued, should take the approach that’s the least invasive to self-government and show deference to the general assembly’s decision.
The hearing was expected to continue the morning of Feb. 7, with lawyers representing the Attorney General of Canada and the Yukon government — both interveners, or interested third parties, in the case — scheduled to give brief submissions. Dickson’s and Vuntut Gwitchin’s lawyers are then expected to give their replies.
Contact Jackie Hong at jackie.hong@yukon-news.com
Correction: Gilbride’s first name has been changed to “Bridget.” A previous version of this story stated her legal first name that she does not use day-to-day.