This case deals with the interpretation of Yukon First Nation self-government agreements and the scope and application of the Canadian Charter of Rights and Freedom (the “Charter”) to self-governing First Nations. At its heart, this case is about how Indigenous legal orders can have a meaningful place in the Canadian legal system, and how the right of self-determination can be respected and recognized.
Vuntut Gwitchin First Nation (“VGFN”) is a self-governing First Nation in Yukon with its own constitution, which it passed as part of the process of entering into a Final Agreement and a Self-government Agreement with the Crown (the “Agreements”). The VGFN Final Agreement and Self-government Agreement are both silent on whether the Charter applies to VGFN’s constitution and laws.
In resuming their inherent self-governing authority, and coming out from under the Indian Act, VGFN enacted a constitution, which includes a requirement that any VGFN member who is elected as a council member must move to VGFN settlement lands within 14 days of being elected. In addition to providing for electoral rules for the selection of leaders, the VGFN constitution contains protections for individual rights, including equality rights.
Cindy Dickson is a VGFN member who sought to run for council but was not prepared to move to VGFN settlement lands. Ms. Dickson filed a petition in the Yukon courts claiming that the residency requirement discriminated against her and infringed her equality rights under section 15 of the Charter.
The Yukon Judgments
The Yukon Supreme Court held that the Charter applies to the VGFN Constitution and laws but found that the residency requirement in the VGFN constitution does not discriminate against Ms. Dickson.
On appeal, the Court of Appeal agreed that the Charter applies to the VGFN Constitution in a limited way, applying it solely to the residency requirement. The Court of Appeal concluded that the residency requirement discriminates against Ms. Dickson. However, it held that the residency requirement is shielded from the application of the equality provisions of the Charter by section 25, which provides that the Charter must not be interpreted in a way that would take away or diminish any aboriginal, treaty or “other rights or freedoms” of Indigenous peoples in Canada. The Court of Appeal held that, as a self-governing First Nation, VGFN may use section 25 of the Charter to protect against the application of the Charter in a case such as this where the application of the Charter would diminish VGFN’s right to govern itself in accordance with its values and traditions.
Appeal to the Supreme Court of Canada
On April 28, the Supreme Court of Canada granted leave to Ms. Dickson to appeal and to VGFN to cross-appeal the Yukon Court of Appeal’s decision. (Mandell Pinder is counsel to VGFN together with Kristopher Statnyk who is also a VGFN citizen.)
Before the Supreme Court of Canada, VGFN argues that the Charter does not apply to VGFN because VGFN is not exercising federal or provincial/territorial legislative authority and because VGFN did not consent to the application of the Charter. VGFN argues that the residency requirement does not infringe section 15 of the Charter because the ground of “aboriginality-residence,” does not apply here because the circumstances in this case are different from those in the cases in which that ground was recognized, which dealt with discriminatory restrictions that the Indian Act imposed on non-resident band members. VGFN also argues that section 15 is not infringed because the residency requirement does not perpetuate prejudice or disadvantage. VGFN says that, in any event, section 25 of the Charter fully shields the residency requirement because it is an exercise of VGFN’s inherent right of self-government, grounded in the pre-existing indigenous legal order of the Vuntut Gwitchin. Finally, VGFN argues that any limitations on Charter rights caused by the residency requirement are justified under section 1 of the Charter as consistent with the goal of maintaining connection between VGFN and the territory and reinvigorating and continuing Vuntut Gwitchin governance and law.
Ms. Dickson is expected to argue that the Charter applies because the Agreements were confirmed by legislation, and they contain language about how they do not limit individuals’ rights and are consistent with the Constitution of Canada. Ms. Dickson argues that the residency requirement infringes section 15 of the Charter, and that section 25 of the Charter does not provide a shield for VGFN’s residency requirement because it is not an aspect of an aboriginal, treaty or other right or freedom.
This case is important because it is an opportunity for the Supreme Court of Canada to deal with the meaning and application of section 25 of the Charter, an issue that a majority of the Court has never addressed. The case may also result in new guidance regarding the application of the Charter to First Nations who are engaged in self-government, and the legality of residency requirements.