The Yukon Court of Appeal heard three days' worth of arguments this week over a 2020 decision centering around the constitutionality of Vuntut Gwitchin First Nation's residency requirement for chief and councillors.
A panel of three judges heard from lawyers representing eight parties, including two at the centre of the legal dispute — the Vuntut Gwitchin government, and citizen Cindy Dickson — from May 18 to 20.
The case — both the original decision, and the outcome of the appeals — will have wide-reaching implications for Indigenous self-government in Canada, and particularly for all self-governing Yukon First Nations, when it comes to if and how the Canadian Charter of Rights and Freedoms applies to them.
Charter applies to Vuntut Gwitchin, judge ruled
Dickson, who lives in Whitehorse, filed a petition to the Yukon Supreme Court in 2019 challenging her First Nation's requirement that the chief and councillors must move to settlement land within 14 days of being elected.
She alleged the requirement was discriminatory to Vuntut Gwitchin citizens living outside of Old Crow — the only permanent community on Vuntut Gwitchin settlement land — and violated her section 15 rights under the Charter.
Section 15 protects Canadians' equality rights.
Vuntut Gwitchin argued the Charter didn't apply to its government or constitution as its application was never agreed upon during the negotiations for its self-government and final agreements.
Then-Chief Justice Ron Veale ruled last year the Charter was applicable to the Vuntut Gwitchin government, but found the residency requirement didn't violate Dickson's rights. He also ruled that if the requirement did violate rights, it would be shielded from further scrutiny by section 25, which protects Indigenous and treaty rights within the Canadian legal framework.
Veale did strike down the portion of the requirement giving elected officials 14 days to relocate to Old Crow, finding it unconstitutional.
Both Dickson and Vuntut Gwitchin filed separate appeals.
The Government of Yukon, the Attorney General of Canada, Teslin Tlingit Council (TTC), Carcross/Tagish First Nation (C/TFN), Council of Yukon First Nations (CYFN) and Métis Nation of Ontario all joined as intervenors in the case. Intervenors are parties who have a stake in the outcome of the proceedings, even though they may not be directly involved.
Requirement a violation of rights, Dickson maintains
Over Zoom, lawyers representing Dickson argued that Veale erred in finding the residency requirement didn't violate her section 15 rights and in ruling that section 25 would otherwise shield the requirement, minus the 14-day-relocation portion.
The right to serve in government, they continued, is a fundamental democratic right that's distinct from the right to vote — something the decision failed to recognize when it noted that citizens living away from settlement lands could still participate in government.
They also disputed Vuntut Gwitchin's assertion the Charter was not applicable, arguing the First Nation's self-government agreement was given effect under territorial and federal legislation. That means, by extension, that Vuntut Gwitchin's self-government powers were delegated by the Canadian Parliament and Yukon legislature, bringing it under the purview of the Charter.
Lawyers for Vuntut Gwitchin, meanwhile, argued the case was about whether the court would recognize Indigenous self-government as real and derived from longstanding and pre-existing legal and political traditions, or as a new, imposed colonial framework.
Veale over-reached, they said, when he found the Charter broadly applies to Vuntut Gwitchin instead of just examining the residency requirement, and also erred by striking down the 14-day portion of the requirement. Veale also erred, they argued, when he ruled that the shielding power of section 25 only came into play if a breach of another part of the Charter was found first.
As well, they reiterated that the First Nation never agreed to the application of the Charter during its final and self-government negotiations.
Yukon First Nations concerned for own government practices
TTC and C/TFN, as intervenors, both expressed concerns about Veale's decision finding that the Charter applies to Vuntut Gwitchin's government, noting their own self-government and final agreements mirror Vuntut Gwitchin's. A broad application, they argued, could threaten traditional practices and traditions that are in conflict with the values in the Charter, particularly if section 25 can't be relied on as a first line of protection.
TTC suggested the application of the Charter should be left to negotiations between governments, while C/TFN proposed a three-stage framework for a section 25 analysis that would show deference to Indigenous self-determination.
CYFN argued that challenges of First Nation's constitutional laws should be dealt with within the context of a First Nation's constitution instead of via the Canadian court system, saying that doing otherwise undermines key principles of reconciliation. The Métis Nation of Ontario, which has signed its own self-government agreement with Canada, argued the original decision would have a "chilling effect" on ongoing Crown-Indigenous negotiations.
The Yukon government, meanwhile, said it took no position on the outcome of the appeal but argued there was nothing in the Canadian constitution that would exclude Vuntut Gwitchin from Charter scrutiny. Canada argued the Charter applied to all governments operating within the country's constitutional framework, including Indigenous governments.
The Yukon Court of Appeal reserved its decision.