On July 21, 2021, the Court of Appeal of Yukon released its much-anticipated decision in Dickson v. Vuntut Gwitchin First Nation. The case, in which a self-governing First Nation denied a non-resident citizen her nomination to run for Council on the grounds of residency, directly engages the tension between Indigenous self-government laws and individual rights under the Canadian Charter of Rights and Freedoms.
The key legal question raised by this case concerns the scope and application of s. 25 of the Charter, an important but until now rarely-considered provision of the Charter that guards against the abrogation or derogation of "Aboriginal, Treaty, and other rights or freedoms that pertain to the Aboriginal peoples of Canada." The interpretation and application of s. 25 and its impact on the interplay between collective Indigenous rights and individual Charter rights will have significant implications for the exercise of Indigenous self-government. A related question is whether the Charter applies to the laws and actions of a First Nation in the exercise of its self government powers.
- Residency Requirements for those seeking elected office in a First Nation government may be valid if enacted as an exercise of the First Nation's self-government rights.
- The Charter applies to the actions and laws of self-governing First Nations. However, when a First Nation's exercise of collective Aboriginal and Treaty rights conflicts with individual Charter rights, collective rights may be 'shielded' by section 25 of the Charter.
Election Residency Requirement in Vuntut Gwitchin First Nation law
The appellant, Ms. Dickson, is a citizen of the Vuntut Gwitchin First Nation ("VGFN"), a sub-group of the Gwitchin Nation which has inhabited a vast area of northern Yukon, Alaska and Northwest Territories since time immemorial. The 'seat of government' of VGFN is Old Crow, Yukon, a fly-in community of 260 VGFN citizens. Some 301 VGFN citizens – including Ms. Dickson – live elsewhere.
VGFN is one of 11 self-governing First Nations in the Yukon that signed a framework agreement in the 1970's with the Governments of Yukon and Canada known as the Umbrella Final Agreement. This agreement sets out the general terms for community-specific "final agreements", which allow each Yukon First Nation to replace the Indian Act governance model with a form of self-government.
In May 1993, VGFN, Yukon and Canada signed the Vuntut Gwitchin First Nation Final Agreement and the Vuntut Gwitchin Self-Government Agreement (the "SGA"). The Final Agreement is a modern day "treaty" for the purposes of s. 35 of the Constitution Act, 1982. However, the SGA is not a treaty, but has been brought into effect through federal and territorial legislation.
Under the SGA, VGFN enacted its own Constitution (the "VGFN Constitution") which guarantees the rights of VGFN citizens and establishes various VGFN government institutions. In addition to a "General Assembly", an "Elders' Council" and a future "Vuntut Gwitchin Court", the VGFN Constitution provides for a Council, comprised of one Chief and four Councillors.
VGFN citizens over the age of 18 and resident in Canada are eligible to vote and stand for election for the positions of Chief and Councillor. However, the VGFN Constitution provides:
If an eligible candidate for Chief or Councillor does not reside on Settlement Land during the election and wins their desired seat they must relocate to Settlement Land within 14 days after election day.
This provision (described by the Court of Appeal as the "Residency Requirement") requires the winners of an election to immediately relocate to Old Crow to take office, even if they are ordinarily resident elsewhere.
The appellant Ms. Dickson, a VGFN citizen who lives in Whitehorse, sought to run in the 2018 election for Council. Ms. Dickson would not commit to leaving Whitehorse due to her career and the health care needs of her son, and VGFN rejected her nomination citing the Residency Requirement.
In early 2019, Ms. Dickson filed a petition in the Supreme Court of Yukon seeking a declaration that the Residency Requirement is inconsistent with section 15(1) of the Charter. Chief Justice Veale upheld the Residency Requirement, save for the requirement to relocate "within 14 Days" which he declared to be of no force and effect. Ms. Dickson appealed the order, and VGFN cross-appealed, to the Court of Appeal of the Yukon.
The Charter applies to the Residency Requirement
The Court of Appeal upheld the chambers judge's finding that the Charter applies to the VGFN's Residency Requirement.
Section 32 of the Charter provides that the Charter applies:
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
VGFN argued on their cross-appeal that the Charter did not apply to VGFN and its institutions. While the Charter applies to bands and "custom election codes" under the Indian Act, self-government powers were distinguishable on the basis that they were not granted by Canada, but rather derive from VGFN's inherent and historic rights and practices recognized under the Final Agreement and SGA.
Important context for this argument is Canada's long-standing policy that the Charter applies to self-governing First Nation institutions and their citizens. Canada clearly articulated its position on this issue in an August 1995 policy guide entitled "Aboriginal Self-Government", published two years after the SGA and Final Agreement were signed.
In holding that the Charter applies to the Residency Requirement, the Court of Appeal held that the VGFN Council was "by its very nature" exercising "governmental" powers within the meaning of s. 32 of the Charter. As noted by the Court of Appeal, "…all VGFN Citizens remain entitled to their rights under the Charter in the same way as other citizens of Canada" (at para 97).
The Residency Requirement infringed Ms. Dickson's section 15(1) Charter rights
Ms. Dickson argued that the chambers judge erred by failing to find that the Residency Requirement in its entirety infringed her section 15(1) Charter rights. The Court of Appeal would have allowed her appeal on this point, subject to considering whether the infringement was justified under s. 1 or saved by s. 25 of the Charter.
The Court of Appeal cited Corbiere v Canada (Minister of Indian and Northern Affairs), where the Supreme Court of Canada held that Aboriginal residence was an analogous ground of discrimination for the purposes of a s. 15(1) analysis. In that case, an Indian Act provision violated s. 15(1) of the Charter by drawing a distinction based on residency, and disenfranchising band members who lived off-reserve. Since Corbiere, many cases have found similar Residency Requirements, including those enacted by First Nations, to be discriminatory.
Chief Justice Veale held that while the Residency Requirement drew a distinction based on the appellant's residency, the effect of this distinction was not discriminatory. Rather, the appellant, by choosing to live in Whitehorse, was advantaged compared to VGFN citizens living remotely in Old Crow, and her equality rights had not been infringed.
The Court of Appeal was critical of this analytical approach and held that it would have been more appropriate to consider the contextual factors about residency and comparative advantage during the justification stage of a Charter analysis under s. 1 or s. 25. After reviewing the jurisprudence, the Court of Appeal held that the Residency Requirement was an infringement of Ms. Dickson's equality rights because it made Ms. Dickson unable to serve on Council without relocating to Old Crow, which would have been the case regardless of any comparative advantage.
Section 25 of the Charter 'shielded' the Residency Requirements from a Charter remedy in this case
The Court of Appeal then considered how section 25 of the Charter applies, and how its consideration fits in to a s. 15(1) Charter analysis framework. Rather than analyze whether the Residency Requirement was "justified" under section 1 of the Charter, as would normally be the case in an equality rights claim, the Court of Appeal held that it was sufficient in this case to apply justification criteria pursuant to s. 25 of the Charter.
Section 25 is a key, but seldom cited, Charter provision that serves as a companion provision to the much better known s. 35 of the Constitution Act, 1982:
25 The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
The chambers judge had found that even if there was an infringement of s. 15(1), s. 25 nevertheless acted as a shield to protect the Residency Requirement (absent the words "within 14 days").
The Court of Appeal went further and held that the effect of s. 25 was to protect the entire Residency Requirement, including the 14-day relocation provision, from s. 15(1) of the Charter. The Court of Appeal noted that s. 25 is premised on a recognition that there will sometimes be tension between collective Aboriginal and treaty rights protected by s. 35 of the Constitution Act, and individual rights guaranteed by the Charter. The primary purpose of s. 25 is to protect collective Aboriginal and treaty rights from being diminished by the judicial interpretation of individual rights and freedoms guaranteed by the Charter. Where a conflict is encountered, s. 25 is clear that derogation from the collective right is not permitted. Thus, s. 25 acts as a "shield", and not merely an "interpretive lens", to resolve the conflict.
The Court of Appeal held that in this case applying s. 15(1) to invalidate the Residency Requirement would derogate from the Vuntut Gwitchin's rights to govern themselves in accordance with their own particular values and traditions and in accordance with the self-government arrangements entered into with Canada and the Yukon. In the Court's view, the Residency Requirement was a "constitutional" law which was:
… clearly intended to reflect and promote the VGFN's particular traditions and customs relating to governance and leadership — a matter of fundamental importance to a small first nation in a vast and remote location. 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. (at para 147)
The Court of Appeal declined to engage in a s. 1 analysis, ruling that the weighing and balancing of interests normally undertaken pursuant to s. 1 was accomplished in this case by resort to s. 25.
As the Court of Appeal acknowledged, the interplay between s. 25 and other Charter rights has "never been dealt with by a Canadian court." These issues will continue to be debated, given the variety of self-governing Indigenous groups with unique self-government agreements, and no doubt will be considered by the Supreme Court of Canada, given their importance and ongoing relevance.