A Vuntut Gwitchin citizen is seeking a judicial review alleging that her First Nation’s residency requirement for citizens who want to run for council violates the Canadian Charter of Rights and Freedoms.
Cindy Dickson, a Vuntut Gwitchin First Nation (VGFN) citizen living in Whitehorse, filed a petition to the Yukon Supreme Court Jan. 18. She’s requesting a judicial review of a decision made by VGFN’s executive director to reject her candidacy for the 2018 council election on the grounds that VGFN’s constitution requires candidates to be residing on settlement lands.
Dickson is also seeking a declaration that the section of VGFN’s constitution outlining the residency requirement violates a section of the Charter guaranteeing equality rights as well as another part of the VGFN constitution, and is therefore “of no force and effect.”
The petition appears to be the first of its kind. While First Nations citizens in other parts of Canada have challenged the constitutionality of residency requirements in relation to running for council, there do not appear to have been any cases involving a self-governing Yukon First Nation.
In an interview Jan. 22, VGFN Chief Dana Tizya-Tramm said the First Nation was “aware of the petition that was put forward” and “will be exploring the appropriate remedies as well as checking base with our community on their wishes.”
“(Our response) will depend on the direction of our community as this case has the potential to attach and apply the Canadian Charter to our self-governing agreements,” he said, adding that while ”self-governing Indigenous peoples appreciate the integrity and unalienable rights recognized” in the Charter, the outcome of the lawsuit could “further define these equalities and values as preconceived Canadian concepts as opposed to allowing Indigenous peoples to interpret these on our own terms.”
“(This petition) has implications for self-governing First Nations as this has not come up with any modern treaty-holder in the country,” he said.
Dickson is not looking to immediately quash the executive director’s decision to reject her candidacy, the petition says, but is seeking to “have the law remedied before the next election cycle.”
In her petition, Dickson says that she was born in Whitehorse but spent her summers in Old Crow, eventually moving to the community full-time when she was nine years old. Except for a year in Mayo, she lived in Old Crow until about the time she was in Grade 9, when she moved back to Whitehorse to finish her high school education.
Dickson has since earned a bachelor’s degree in social work, worked for the Council of Yukon First Nations, and is currently serving as the executive director of the Arctic Athabaskan Council as well as a regulatory environmental and community relations coordinator at exploration company Chance Oil and Gas Limited.
“Ms. Dickson lives in Whitehorse but visits Old Crow as frequently as is affordable and practicable, given her other responsibilities,” the petition says, adding that her teenage son, also a VGFN citizen, has a medical condition that requires him to be “nearby a hospital at all times.”
Dickson decided to run for a position on VGFN council in 2018, the petition continues, and, along with another VGFN citizen who lived outside Old Crow, Sandra Charlie, submitted her nomination forms to the election officer on Oct. 19, 2018.
However, on Nov. 1, after the nomination period closed, VGFN’s executive director rejected Dickson and Charlie’s nomination forms because they were not residents of settlement land, a requirement under Article XI(1) of the VGFN constitution.
The then-chief and council held a community meeting Nov. 5 about the rejections, but Dickson, in the petition, says she was not given formal notice of the meeting and was not able to participate after her request to attend via telephone was “not accommodated.”
After writing to chief and council, Dickson received a written response from VGFN executive director William Josie reiterating the reason for her rejection.
VGFN held its election Nov. 19, 2018, with three candidates being acclaimed to four councillor positions. The fourth seat remains unfilled.
Dickson’s petition argues that the residency requirement in VGFN’s constitution “results in the denial of substantive equality of VGFN citizens living off Settlement Land” and therefore violates her equality rights under Section 15 of the Charter.
While whether self-governing First Nations need to adhere to the Charter — or any other Canadian legislation — has long been a point of debate, Dickson’s petition argues that the Charter clearly applies to VGFN as the First Nation “derives its powers to make laws, to administer them and to enforce them from federal and territorial legislation.”
“As a governmental entity, all of VGFN’s activities are subject to Charter scrutiny, including the implementation of the VGFN Constitution,” the petition reads, noting that the Charter applies to, among other things, “entities that are acting in a governmental capacity.”
The residency requirement, the petition continues, “draws a formal distinction between VGFN citizens living on Settlement Land and VGFN citizens living off Settlement Land … and subjects the latter to differential treatment on the basis of an accepted and analogous ground, Aboriginality-residence.”
As well, the requirement also discriminates against VGFN citizens living off settlement land, the petition says, denying them “the right to participate fully in VGFN governance on the arbitrary basis of a personal characteristic: their residency.”
“This distinction perpetuates and reinforces the stereotype that VGFN citizens living off Settlement Land are not interested in maintaining meaningful participation in the governance of the VGFN, and sends the message that they are less deserving members of the VGFN,” the petition reads.
As a result, it’s more difficult for citizens living outside of Old Crow to “maintain a connection to their community and to preserve their Aboriginal identity and cultural roots,” and they’re also denied the “basic democratic rights to actively participate in the governance of their nations.”
“For these citizens, this diminishes the value of the VGFN’s right to self-governance, which was earned through many years of negotiation with Canada and the Yukon,” the petition says.
The petition also describes the residency requirement as “arbitrary and not connected in any rational way to the aim of effective governance of the VGFN,” especially considering that the “majority” of VGFN citizens live off of settlement land and the government’s responsibilities extend beyond Old Crow.
VGFN has not yet filed a response in court.
Contact Jackie Hong at jackie.hong@yukon-news.com
Clarification: This story has been updated to clarify that Dickson is seeking a judicial review