The Yukon Court of Appeal has ruled that Vuntut Gwitchin First Nation council candidates must reside in Old Crow.
The case was launched when Cindy Dickson, a Vuntut Gwitchin citizen who resides in Whitehorse, was barred from councillor candidacy because she did not live on the settlement lands.
Dickson felt she couldn’t move to Old Crow due to her son’s health needs, according to case background presented in court.
“Since Ms. Dickson was unwilling to commit to moving to Old Crow, the VGFN council, after extensive discussion, declined to remove the requirement from the constitution and rejected her candidacy,” the backgound reads.
Dickson then petitioned the Supreme Court of Yukon for a declaration that the residency requirement was inconsistent with the Canadian Charter of Rights and Freedoms, which protects individuals from discrimination.
In 2020, the Supreme Court found the VGFN residency requirement was not discriminatory, but also ruled that the requirement of a move to the settlement lands within 14 days was invalid.
Case moves to Court of Appeal
The case moved on to the Yukon Court of Appeal where it was heard via a three-day Zoom call in May.
At the core of VGFN’s lawyers’ arguments was Section 25 of the Canadian Charter of Rights and Freedoms. Section 25 states that guarantees in the Charter should not be interpreted to annul or diminish rights or freedoms pertaining to the Aboriginal peoples of Canada.
The lawyers argued that the residency requirement does not imply that Vuntut Gwitchin people living outside the settlement lands are lesser citizens but only that the First Nation needs its leaders in the homeland to respond to the community’s needs.
It was noted in the Yukon Court of Appeal hearings that the proportion of Vuntut Gwitchin citizens living in Old Crow compared to those living elsewhere is constantly in flux, but at some times more than half live outside the settlement lands.
Dickson’s lawyers told the court she is a strong supporter of VGFN’s self-governance, but said that the Charter must apply in this case.
Other Yukon First Nations, the Government of Yukon, the Government of Canada, the Council of Yukon First Nations and the Métis Nation of Ontario were granted intervener status in the case. Interveners are parties not involved with the initial lawsuit, but who join later in support of one side or the other because the case will affect their interests.
Case raises novel problems: Newbury
The Yukon Court of Appeal hearings were presided over by Chief Justice Robert Bauman, Justice Mary Newbury and Justice David Frankel.
All three justices agreed that Dickson’s petition was not successful and section 25 of the charter shields VGFN’s residency requirement.
Newbury issued written reasons for judgement, which Bauman expressed agreement with. Frankel also wrote out his reasons, which largely agreed with Newbury’s but differed on how the resulting court order should be worded.
Newbury noted in her analysis that the case raises some issues that have never been dealt with before in a Canadian court — particularly the issues regarding section 25 and its relation to the Charter rights of citizens of self-governing First Nations.
She states that those questions are especially difficult because the case raises a conflict between an individual’s personal right to equality and a collective right being exercised by the self-governing First Nation.
“Where the ‘collective’ is a First Nation that has survived years of paternalism and the suppression of its culture, the better view seems to be that under s. 25, the collective right should prevail undiminished,” Newbury writes.
Newbury notes the submission from VGFN lawyers that “reconciliation is unlikely to be achieved if historic Aboriginal rights are subjected to another framework for balancing, reading down or modification.”
Newbury also acknowledged the possible interpretation that Section 25 of the Charter can only be engaged if the law is of a constitutional character. She writes that this is definitely the case for the Vuntut Gwitchin residency requirement because the requirement is found in the VGFN constitution and it is clearly intended to promote VGFN’s tradition and customs.
“The evidence is persuasive that among the discerning features of the Vuntut Gwitchin society is the emphasis it places, and has always placed, on its leaders’ connection to the land, their expectation of ongoing personal interaction between leaders and others, and their wish to resist the ‘pull’ of outside influences,” Newbury’s judgement reads.
Newbury found that section 25 of the charter shields VGFN’s right to adopt the residency requirement including the 14-day deadline for relocation to the settlement lands. Although the requirement is protected Newbury found that it does infringe on Dickson’s equality rights even though it was not intended to perpetuate disadvantage or stereotyping.
The judge suggested orders stating that the Charter of Rights and Freedoms applies to the VGFN residency requirement. The order acknowledges that while the requirement breaches Dickson’s rights under section 15 of the charter were breached, section 25 of the charter ensures that the requirement remains valid.
Justices disagree on legal fees
Newbury goes on to state that both parties in the case sought costs but as the results of the appeals were mixed they should pay their own legal fees. She called this a tentative view and gave counsel for both sides 30 days to suggest otherwise.
Justice Frankel disagrees with the court order that Newbury proposed.
“What Ms. Dickson and the VGFN sought from this Court was a determination with respect to the validity of the Residency Requirement as a whole. In the end, the VGFN prevailed. Put simply, Ms. Dickson lost and the VGFN won. Accordingly, I consider Ms. Dickson’s appeal to have failed and the VGFN’s cross appeal to have succeeded,” He writes in the reasons for his judgement.
Frankel says the court should not pronounce the order that Newbury suggested because the court’s order should be restricted to the case’s outcome, which is that Dickson’s application to declare the residency requirement failed. He writes that to issue an order reciting the reasoning process behind the decision would continue the error made by the judge of the lower court in the drafting of the previous order.
“I would dispose of this case with an order that dismisses Ms. Dickson’s new evidence application and her appeal, allows the VGFN’s cross appeal, sets aside the chambers judge’s order, and dismisses Ms. Dickson’s petition,” He writes.
Frankel stated that he would prefer to express no opinion on costs at this time.
Because Chief Justice Bauman concurred with Newbury’s judgement, the order she presented is in effect.
The Vuntut Gwitchin council thanked everyone involved with reaching the decision upholding the validity of the residency requirement in a July 21 press release.
“Mahsi’ Choo to our legal team that represented us so well with the integrity that truly honours our elders and Nation. We feel we were heard by the court, which recognized the strength of our peoples’ constitution by protecting and upholding it. We will continue to review the decision carefully and move forward together as a people and as a nation,” said VGFN Chief Dana Tizya-Tramm.
The press release states that the VGFN chief and council will contemplate the decision over the next week before providing a more detailed comment. They will also be hosting community information sessions to allow VGFN citizens to learn more about the decision.
Contact Jim Elliot at firstname.lastname@example.org