Supreme Court of Canada to hear appeals on Vuntut Gwitchin residency requirement, Charter rights case

·4 min read
The Supreme Court of Canada in Ottawa. The court will be hearing appeals related to the Vuntut Gwitchin First Nation's residency requirement for elected officials. (Adrian Wyld/The Canadian Press - image credit)
The Supreme Court of Canada in Ottawa. The court will be hearing appeals related to the Vuntut Gwitchin First Nation's residency requirement for elected officials. (Adrian Wyld/The Canadian Press - image credit)

The Supreme Court of Canada will hear appeals centred on a Yukon First Nation's requirement for elected officials to live on settlement land, and whether that violates the Charter rights of citizens living elsewhere.

The court granted Vuntut Gwitchin citizen Cindy Dickson's appeal application, as well as her First Nation's conditional application for cross-appeal, on Thursday morning.

The case will mark the first time the country's highest court has considered the intersection of Canadian and Indigenous law when it comes to the Charter of Rights and Freedoms and Indigenous self-government, with implications for Indigenous governments across the country.

"I'm really happy that my case is going to be heard — I think it's really important for me that I have Charter rights as an Indigenous person," Dickson said in an interview Thursday afternoon.

Dickson, who lives in Whitehorse, began her legal challenge of the residency requirement in 2019. At the time, the Vuntut Gwitchin government required all candidates to reside on settlement land, with Old Crow, approximately 800 km north of Whitehorse, being the only consistently occupied community.

The First Nation later changed the requirement so that councillors have to move to settlement land within 14 days of being elected. Dickson continued her challenge, arguing in the Yukon Supreme Court that the requirement still discriminated against Vuntut Gwitchin citizens living outside of Old Crow. Her lawyers asked the court to strike down the requirement on the grounds that it violated Dickson's equality rights as guaranteed under the Charter.

The Vuntut Gwitchin government, in reply, 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.

'They just want to see equality for all of our citizens'

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 Vuntut Gwitchin First Nation 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.

Dickson then took the case to the Supreme Court of Canada, contesting the use of section 25 as a shield. The Vuntut Gwitchin government asked the court to not hear the case, arguing that the Yukon appeal court had sufficiently settled the issue. However, in the event that the court granted Dickson's appeal, the First Nation said it would launch a cross-appeal contesting that the requirement violates Dickson's Charter rights and the application of the Charter to the residency requirement altogether.

Dickson said Thursday that she'd heard from a number of Vuntut Gwitchin citizens living outside of Old Crow who were excited that the case would be moving ahead.

"They really would like to see it succeed…. They just want to see equality for all of our citizens," she said, adding that she was "very proud" of the fact that Vuntut Gwitchin was self-governing but didn't believe that meant she had to give up her Charter rights.

"Our cultures are always changing, our self-government is always growing and I really believe this is strengthening our self-governance and giving more power to the people…. It's really important that citizens, no matter where we are, we're treated equally and fairly and we have representation."

Vuntut Gwitchin Chief Dana Tizya-Tramm did not respond to an interview request from the CBC Thursday, but, in a press release, said that the "potential implications of this case are far-reaching."

"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," he said.

Ryan Beaton, a Vancouver-based lawyer who specializes in Aboriginal law, is not directly involved in the case but said he would be following the hearings and waiting for the Supreme Court of Canada's decision "with anticipation."

"This is a largely unsettled area of Canadian law," Beaton said.

"This will be the first occasion for the Supreme Court to give a detailed response on this question of how Indigenous law-making power, jurisdiction relates to federal and provincial jurisdiction and Canadian law."

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