A challenge of the Vuntut Gwitchin First Nation’s (VGFN) requirement that its councillors reside on its traditional territory will be heard by Canada’s highest court.
An April 28 notice from the Supreme Court of Canada states that it will hear an appeal of Cindy Dickson versus Vuntut Gwitchin First Nation, Government of Yukon and Attorney General of Canada.
Dickson sought leave to appeal with the Supreme Court of Canada in September 2021 and VGFN applied to cross appeal two months later, meaning both parties’ lawyers will present to the court.
An April 28 statement from the Vuntut Gwitchin Government says that the First Nation’s cross appeal was conditional on the court agreeing to hear Dickson’s appeal. VGFN had asked the Supreme Court to dismiss Dickson’s application for appeal.
The case began when Dickson, a VGFN citizen who lives in Whitehorse, was barred from running as a councillor in the First Nation’s 2018 election. Her nomination forms were rejected on the grounds that she did not reside on VGFN’s settlement lands as specified in the First Nation’s constitution.
Dickson felt she could not move to Old Crow, a community with no road access that is the only permanent settlement on VGFN land, for economic reasons and due to her son’s health. She said she would not move within the 14 days after election day allowed for relocation.
Dickson sought a declaration from the court that the residency requirement breached her right to equality guaranteed under the Canadian Charter of Rights and Freedoms.
VGFN has said that the charter doesn’t necessarily apply to its self-governance rules.
Supreme Court will reconsider Court of Appeal’s decision
The Yukon Court of Appeal issued its ruling on the matter in July 2021 after arguments were presented in a three-day videoconference last May. The court was working from a 2020 Supreme Court of Yukon decision that found VGFN’s residency requirement was not discriminatory but that the 14-day deadline for relocation back to the settlement lands was invalid.
The Yukon Court of Appeal decision will now be scrutinized by the Supreme Court of Canada.
The Court of Appeal found that while the charter can be applied to elements of the VGFN constitution, the residency requirement is protected by section 25 of the charter.
Section 25 protects “aboriginal rights, treaty rights and other rights or freedoms that pertain to the aboriginal peoples of Canada” from charter claims.
It was found that section 25 shields VGFN’s right to adopt not only the residency requirement, but also the 14-day deadline for relocation.
The court heard many perspectives on the matter as other Yukon First Nations, the Government of Canada, the Council of Yukon First Nations and the Métis Nation of Ontario were all granted intervener status in the case. Intervener status is granted to parties not involved with the initial lawsuit but who join later in support of one side because of the case’s effects on their interests.
Both Yukon Court of Appeal Justice Mary Newbury, who penned the court’s decision, and VGFN Chief Dana Tizya-Tramm remarked on the unique nature of the problems considered by the court.
“Our constitution and general assembly continue to guide us as we navigate this ongoing legal battle to protect our inherent right to self-government, our treaty with Canada and the sanctity of our collective voice. The potential implications of this case are far-reaching – they will not only affect the Vuntut Gwitchin people, but all Indigenous nations with modern treaties in this country,” Tizya-Tramm wrote in an April 28 statement.
In her written analysis, Newbury noted that some issues presented have never been tackled by the Canadian courts before — in particular the interaction between section 25 and its relation to the other charter rights of citizens of self-governing First Nations.
No date has been set for the Supreme Court of Canada’s hearing of the appeal and cross appeal.
Contact Jim Elliot at jim.elliot@yukon-news.com