The Supreme Court of Canada will hear appeals on Tuesday, centred on a Yukon First Nation’s requirement that elected officials live on settlement land, and whether that requirement infringes the Charter rights of citizens living elsewhere.
The case could be precedent-setting for self-governing First Nations across the country, as the nation’s highest court considers the intersection of Canadian and Indigenous law when it comes to the Charter of Rights and Freedoms and Indigenous self-government.
The court granted Vuntut Gwitchin citizen Cindy Dickson’s appeal application, as well as her First Nation’s conditional application for cross-appeal, last spring.
Dickson began her legal challenge in 2019, after she was prevented from running for Vuntut Gwitchin council because she lived in Whitehorse. The Vuntut Gwitchin Government is based in Old Crow, Yukon, a fly-in community about 800 kilometres north of Whitehorse.
At the time, the Vuntut Gwitchin government required all candidates to reside on settlement land. It later changed the requirement so that councillors have to move to settlement land within 14 days of being elected.
Dickson argued to the Yukon Supreme Court that the First Nation’s residency requirement infringed on her equality rights as guaranteed under the Charter. The First Nation argued it had never consented to the application of the Charter during its self-government negotiations with Canada, and that it had an inherent right to govern itself and preserve its culture and traditions.
A Yukon Supreme Court judge ruled in 2020 that the Charter was applicable to the Vuntut Gwitchin government and that while the 14-day timeline for councillors to move to Old Crow was unconstitutional, the residency requirement itself could stand.
Both Dickson and the Vuntut Gwitchin First Nation (VGFN) appealed.
The Yukon Court of Appeal only applied the Charter to the residency requirement, not the Vuntut Gwitchin government as a whole. It concluded that while the requirement did violate the section guaranteeing equality rights, it was shielded from further scrutiny by section 25, which protects collective Indigenous rights.
Earlier decision ‘removes Indigenous citizens from Charter protection’
Dickson’s appeal to the Supreme Court of Canada argues that the residency requirement should not be shielded by section 25.
“To apply the Court of Appeal’s interpretation of s. 25 immunizes VGFN laws from Charter scrutiny so long as they are based on a historic tradition,” reads Dickson’s written submission to the court.
“In effect, this removes Indigenous citizens from Charter protection afforded to all other Canadians and is inconsistent with, and detrimental to, s. 25’s reconciliatory purpose.”
Dickson’s submission also argues that the residency requirement should be declared “of no force and effect” no matter how section 25 is interpreted.
“It is a complete denial of Ms. Dickson’s democratic rights, based on a stereotype that non-resident citizens are less knowledgeable of, and less interested in preserving, their nation’s Indigenous culture,” her submission reads.
The Vuntut Gwitchin First Nation, meantime, argues that the residency requirement is “logically and critically tied” to meaningful self-government in Vuntut Gwitchin homelands and is not discriminatory.
“An interpretation of each of the provisions of the Charter at issue in this appeal calls for an approach that respects and defers to VGFN self-governance,” reads the First Nation’s written submission.
“To advance reconciliation, the autonomy of Indigenous peoples to define themselves must be acknowledged and respected, and their Indigenous legal orders given space to live and flourish.”
Legitimacy of ‘entire self government framework’ at stake, says CYFN
The one-day hearing before the Supreme Court will also hear from 14 different intervenors, including the attorneys general of Canada, Alberta and Quebec, the Yukon government, and the Band Members Alliance and Advocacy Association of Canada.
Two other First Nations in Yukon — the Teslin Tlingit Council and the Carcross-Tagish First Nation — along with the Council of Yukon First Nations (CYFN) — are also intervenors.
In its submission, CYFN states the case has implications for “the legitimacy of the entire self government framework agreed to between Yukon First Nations and the Government of Yukon and the Government of Canada.”
“Given the substantial similarity between all Yukon First Nations’ self-government agreements, this Court’s judgment will establish the validity, or irrelevance, of self-governing Yukon First Nations’ self-government agreements and constitutions in Canadian constitutional law and will entrench or erode the concept of a nation-to-nation relationship between First Nations and the Crown,” the submission reads.
Ryan Beaton, a Vancouver-based lawyer who specializes in cases involving Indigenous rights and title, says the case is significant as it deals with some big issues that the Supreme Court has so far said little about — issues of Indigenous governments’ law-making authority, and the interpretation of section 25.
“Do they want to provide a robust framework for interpreting section 25? This case certainly tees up the occasion if they want to take it,” Beaton said.
He’s doubtful that the court will recognize “Charter-free zones,” where citizens of self-governing First Nations could not appeal to their Charter rights, but said there is room for nuance in the court’s ultimate decision.
“My guess is the court will not want to find that the Charter simply does not apply, but could find that there remains a great deal of protection for First Nation self government, Indigenous people’s self government, from applications of the Charter.”