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Lawyers for Canada, the Yukon, say Charter should apply in VGFN residency requirement case

Arguments on the petition from Vuntut Gwitchin citizen Cindy Dickson wrapped up on Feb. 7
Lawyers representing Canada and the Yukon gave arguments Feb. 7 in Whitehorse on a case looking at a residency requirement for Vuntut Gwitchin citizens to serve as councillors for the First Nation. Cindy Dickson filed a petition challenging the provision last year, claiming it violated the Charter of Rights and Freedoms . (Crystal Schick/Yukon News file)

Lawyers for the Attorney General of Canada and Yukon government gave submissions Feb. 7 in a case examining how the Charter of Rights and Freedoms overlaps with Vuntut Gwitchin First Nation’s laws, if at all.

Marlaine Anderson-Lindsay, representing Canada, and Mark Radke, representing the Yukon, both argued that Yukon Supreme Court Justice Ron Veale should apply the Charter when considering a petition brought by a Vuntut Gwitchin citizen over a residency requirement to serve on council.

Cindy Dickson, who lives in Whitehorse, is challenging a provision in VGFN’s constitution requiring councillors to move to settlement land within 14 days of an election, claiming it violates section 15 of the Charter and should therefore be struck down.

Section 15 guarantees equality rights for Canadian citizens. Dickson’s lawyers argued Feb. 5 that the residency requirement unfairly and arbitrarily excludes more than half of Vuntut Gwitchin citizens from being on council unless they relocate and is a form of intergroup discrimination.

Vuntut Gwitchin’s lawyers responded that the Charter should not be applied and the matter should instead be examined within the context of the Vuntut Gwitchin constitution. Either way, lawyers for the First Nation argued on Feb. 6, the court should find the requirement is a reasonable restriction and tied to VGFN’s history and legal traditions.

Canada and the Yukon are interveners, or interested third parties, in the matter.

The case, no matter the outcome, will set a precedent for how all self-governing Yukon First Nations’ final and self-government agreements are interpreted in the future.

In her submissions Feb. 7, Anderson-Lindsay said Canada recognized the significance of the questions raised by Dickson’s petition.

The application of the Charter in this case is a matter of law and not contract, she argued, referencing VGFN’s argument that it never agreed to the Charter being applicable to its self-government, which is why it’s not named in any agreements.

The Canadian Constitution, which describes itself as the “supreme law of the land” and of which the Charter is a part of, applies to all governments within the nation’s constitutional framework, Anderson-Lindsay continued. She argued it would be hard to see how the Vuntut Gwitchin government wouldn’t be captured by the Charter.

Anderson-Lindsay also argued that previous court cases have found Indigenous legal traditions to be part of Canadian law, and that the agreements from which VGFN’s constitution flows are themselves constitutional documents, making them subject to Charter scrutiny.

Dickson applied for relief under the Charter and not the Vuntut Gwitchin constitution, she noted; while the latter has Charter-like clauses, it does not offer Charter reliefs.

Radke, the Yukon government lawyer, also argued that the Charter applies but for a different reason.

VGFN’s self-government and final agreements, Radke submitted, were not a “codification” of the Vuntut Gwitchin’s inherent self-government rights but a delegation of power from the territorial and federal governments.

Following that view, neither the Yukon nor Canada can transfer authorities without also transferring the responsibilities that come with them, including compliance with the Charter.

The Yukon government’s position, Radke said, is that self-government agreements are part of the legal fabric of the territory. They were not intended to address First Nations’ inherent right to self-government, he argued, with that issue “left for another day.”

While Radke said the Yukon government wasn’t denying that right can exist, he argued VGFN’s constitution was not a manifestation of that right, nor was it meant to stand apart from the Canadian Constitution.

He noted the powers the VGFN holds allows it to make laws and decisions that can impact both its citizens and non-citizens — for example, land-based decisions that have the potential to impact the constitutional rights of anyone entering the land.

Radke added that the Yukon government had concerns about the “uncertainty” that could arise if the court were to find the Charter didn’t apply to self-government agreements.

In her reply submissions, VGFN lawyer Krista Robertson argued that the Vuntut Gwitchin constitution was not a program of the territorial government. The final and self-government agreements, she said, recognize VGFN’s inherent rights and establish a cooperative arrangement of how to coordinate powers — it was not a hand-over.

Dickson’s lawyer, Bridget Gilbride, was also given an opportunity to give a reply.

VGFN placed a large emphasis on leadership selection being an inherent right, she said, but an affidavit it submitted from a former chief showed that the Vuntut Gwitchin didn’t previously vote for chief, and that one chief, Peter Moses, never stayed in Old Crow during his tenure.

That history bears very little resemblence to VGFN’s current residency restriction and democratic vote, she said.

The rights at issue, she said — the right to equality and the right to hold office — are universal democratic rights recognized by the United Nations, Gilbride continued, and not specific or unique to Indigenous peoples.

Gilbride argued that the residency requirement was failing to do what it claims to in regards to protecting and preserving VGFN culture and maintaining the seat of government in Old Crow. Instead, she submitted, it puts citizens who live off settlement land at risk of losing their connection with their community and culture, and led to a councillor seat sitting empty in the 2018 election after Dickson and another person’s nominations were rejected.

VGFN’s other lawyer, Kris Statnyk, gave the final reply.

He argued that VGFN’s right to select leaders has an inherent source, and was not a power it was delegated from Canada or the Yukon, and that Gilbride was inviting the court to have a “frozen rights” approach.

Historically, Statnyk said, a physical, cultural and spiritual connection to the land was essential for Vuntut Gwitchin leaders, something that was decided by Vuntut Gwitchin society. The leadership selection process has since evolved, he said, and argued that the residency requirement was a “modern expression” of Vuntut Gwitchin’s pre-contract right to select leadership.

Yukon Supreme Court Justice Ron Veale reserved his decision.

Contact Jackie Hong at