The long-term impacts remain to be seen after a Supreme Court of Canada decision that used a challenge of the settlement land residency requirement for Vuntut Gwitchin leaders to rule on the lawmaking sovereignty of self-governing First Nations.
In the immediate aftermath of the ruling from the country’s highest court, both the Vuntut Gwitchin citizen who brought the challenge and the First Nation’s government have expressed a measure of satisfaction with the way the ruling protects both individual and collective rights.
The case was first launched by Cindy Dickson after her nomination papers for the Vuntut Gwitchin First Nation’s (VGFN) 2019 council election were rejected because she did not live on its settlement land. Dickson resides in Whitehorse and told the courts that she must remain there due to family health concerns.
As the matter progressed through the Yukon courts, VGFN relaxed the residency requirement written into its constitution to demand only that successful candidates relocate to the settlement land shortly after the election.
As Dickson was challenging the requirement based on its infringement of her rights guaranteed by the Canadian Charter of Rights and Freedoms, the case became about the way the Charter interacts with laws set by self-governing First Nations.
The Supreme Court ultimately upheld the residency requirement finding that while the Charter applies to First Nations laws, the collective rights for First Nations guaranteed by Section 25 shield the First Nation’s lawmaking authority in this case.
Although the residency requirement Dickson was challenging stands, she doesn’t feel like she lost, noting how the decision recognized her right to equality guaranteed by Section 15 of the charter and how it clarified that Section 25 is not an absolute shield for actions of First Nations governments that might conflict with individual rights.
“The good thing about this challenge is that everyone is discussing and learning about our constitutions and what we can do as self-governing peoples. It’s the citizens’ decision — do not let anyone, lawyers included, say what you can and cannot do as a collective,” Dickson wrote in reply to emailed questions from the News.
“I am both equally proud to be First Nation and Canadian. I have other ancestry in my blood other than Gwitchin and Tlingit and I will never ever live out on the land as my ancestors did. I live in a city. Cultures evolve and change. I have witnessed and experienced it throughout the course of my life.”
Dickson described challenging the residency requirement, which she maintains was unfairly applied in her case, as a major step out of her comfort zone but one she felt she had the right to take.
“I would have regretted not addressing something that was not administered in a fair and equitable way,” she wrote.
“So I am grateful I could do this and I would do it again.
“I was done letting people in power step all over me. I brought this challenge to stand up to unfairness, and I brought it even though I was told I may have to pay their court costs. That kept me up at night.”
One thing she feels that the majority decision approved by four of seven Supreme Court justices failed to recognize was the interest First Nations citizens have in their traditional lands regardless of where they live.
“We live in a modern world and our citizens live all over the place. Laws still apply to us. So it’s natural our leadership should evolve too.”
VGFN welcomed the decision in a published statement the day the court made its ruling.
“Today’s Supreme Court decision demonstrates respect for and deference to our First Nation’s inherent right to govern ourselves collectively in accordance with our Constitution, laws, values, and our special relationship to our Traditional Territory,” said VGFN chief Pauline Frost.
“This inherent right is affirmed in our modern treaty and self-government agreements with the Governments of Canada and Yukon, and we will continue to implement this together to meet evolving circumstances and needs of our Citizens.”
Frost added that VGFN protects the equality and non-discrimination rights for all its citizens.
She also said that the First Nation’s self-government agreements with the governments of Canada and the Yukon affirm the shared responsibility of all three governments to ensure the opportunities for well-being and access to public services are equal for VGFN citizens and other Canadians regardless of where they live.
The VGFN statement’s writers praised the direction given by past Vuntut Gwitchin leaders.
“As our late Vuntut Gwitchin First Nation leader Robert Bruce Jr. said in reference to this case, ‘The elders knew that the outside world was unpredictable and worried about hardships coming in the future. They wanted future generations to remember that we can rely on our land and traditions,’” it reads.
The statement drew attention to portions of the court’s decision that speak to the residency requirement’s role in preserving leaders’ connection to the land and its importance in maintaining traditional governance practices and “ongoing personal interactions between leaders and other community members.”
Also discussed is its role in bolstering “VGFN’s ability to resist the outside forces that pull citizens away from its settlement land and prevents erosion of its important connection with the land.”
Dickson’s lawyer Bridget Gilbride found that overall the court’s decision verifies that individual and collective rights can coexist and both be respected in the context of self-governing First Nations’ laws and constitutions.
Looking to the future, she suggested that the case’s legacy might impact both self-governing First Nations and those that are still subject to the Indian Act.
She noted the number of First Nations and other Indigenous groups that might not be self-governing in the same way the Yukon First Nations are but who are still utilizing custom governance codes and exercising lawmaking authority.
“I appreciate, ultimately, it stems from the Indian Act, but in effect, that’s a practical way in Canada, that Indigenous nations are attaining more autonomy and power and authority,” she said.
Kris Statnyk, a VGFN citizen and lawyer who argued the case, was contacted to comment on the decision but did not reply.
Contact Jim Elliot at jim.elliot@yukon-news.com