Yukon Supreme Court decision highlights intersection of self-government and Charter rights

A Yukon Supreme Court decision, now being appealed by both sides of the dispute, highlights an infrequently used provision of the Canadian Charter of Rights and Freedoms that protects certain Indigenous interests from Charter scrutiny and provides a “shield with limits” when applied to Indigenous self-government.

While the court’s ruling is not binding, lawyers in the field of Indigenous law say it demonstrates the intersection of two — and conflicting — objectives. “On one hand, negotiated self-government agreements and Indigenous constitutions provide important cultural certainty and cultural protection for Indigenous nations and third parties,” says Roy Millen, partner with Blake, Cassels & Graydon LLP. “On the other hand, Indigenous community members should receive constitutional protections like all other Canadians, and not suffer discrimination with their own communities.”

Yukon Supreme Court Justice Ron Veale found in a June 8 decision that the Charter did apply to Vuntut Gwitchin First Nation (VGFN), which has a provision that all elected council members must either reside within the community, or relocate within 14 days of being elected.

Cindy Dickson, a VGFN member who lives in Whitehorse, challenged these requirements and argued that it breached her equality rights under s. 15(1) of the Charter. Section 15 provides that every individual “is equal before and under the law” and should be free from discrimination under the law. Ms. Dickson argued that the VGFN Constitution discriminates contrary to s. 15 because it treats non-resident members different than resident members.

Dickson had tried to run in the 2018 election but had her nomination forms rejected. While the residency requirement was later changed to say that anyone elected to the council must move to VGFN land within 14 days, Dickson’s lawyers argued it was still unfair to VGFN citizens living outside of the area and prevented them from fully participating in government.

Roughly half of the members of VGFN, located in northern Yukon about 800 kilometres from Whitehorse, live within their traditional territory. The territory’s main community, Old Crow, is the most northerly Yukon community without road access but with regular flight service to Whitehorse. The remainder of VGFN members lives elsewhere, primarily Whitehorse.

VGFN had negotiated a self-government agreement between Yukon and Canada and ratified its own constitution, which states elected council members must reside in the area or relocate within two weeks of being elected.

“Ms. Dickson is a Vuntut Gwitchin citizen who wants to participate,” Veale said in his ruling. “She presently lives in Whitehorse, but she has a home in Old Crow that she shares with her uncle. She has extensive experience in the cultural and political life of the Vuntut Gwitchin and has made sincere efforts to become a member of Council. She has medical reasons, on behalf of her son, for staying near the hospital in Whitehorse. There are several other factors that ground her decision to live in Whitehorse.”

Lawyers for VGFN had argued that the Charter didn’t apply to the First Nation at all, noting it had never agreed to the Charter’s application during the negotiations for its self-government agreements.

However, while the VGFN Self-Government Agreement that was negotiated does not expressly mention the Charter, Veale noted it was to be “in conformity with the Constitution” of Canada.

“In my view, nothing in the VGFN Final Agreement or VGFN Self-Government Agreement explicitly states that the Charter does not apply to the VGFN Government,” Veale said.

As for the residency requirement, Veale said that because a self-governing First Nation decided to codify a historic practice or custom, the provision (minus the 14-day relocation requirement) is not discriminatory.

“The purpose of the residency requirement is not to limit or denigrate VGFN members who choose or are forced, for personal, economic or educational reasons, to reside away from their ancestral lands,” he said. “It is the decision of a self-governing First Nation to retain a historic practice or custom which would have been unthinkable or impossible to breach in the past.”

But even if the residency requirement were in breach of Dickson’s Charter right, Veale said it would be shielded by s. 25 of the Charter.

Section 25 of the Charter guarantees that it “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,” Veale said. “It acts as a shield to protect, preserve, and promote the identity of VGFN citizens through unique institutions, norms, and government practices.”

Veale added that the purpose of s. 25 is “to ensure that First Nation self-government rights be woven into Canada’s constitutional fabric and protected as courts seek to reconcile aboriginal rights, treaties or other rights or freedoms with the interests of all Canadians.

While Veale ruled the general residency provision was not discriminatory and would be shielded by s. 25 even if it were, the 14-day relocation requirement was a different matter. It could lead to a “potentially arbitrary disenfranchisement of a successful candidate who was unable to find housing or could not relocate in such a short time frame,” therefore breaching the Charter despite the protective shield of s. 25.

The Court’s ruling has the potential to impact the interpretation of all Yukon First Nations’ final and self-government agreements, though  Millen says this is “unexplored territory” in that s. 25 has been “barely touched” by the courts since the Charter was enacted in 1982.

While VGFN could argue in its appeal that the Charter should not apply whatsoever to a First Nation’s constitution, and that its own laws should have supremacy, Millen says it is a position that has generally not been held by the Courts. “I think the general view has been that the Canadian Charter applies to all Canadians, including Indigenous Canadians, wherever they may be in whatever government they are a part of,” he says. "It will be a hard case to persuade the Canadian courts otherwise.”

Millen also notes that addressing the self-governance concerns of Indigenous people was anticipated in the Charter by virtue of the “shield that s. 25 provides.”

Vuntut Gwitchin Chief Dana Tizya-Tramm, in an affidavit filed with the Yukon Court of Appeal, said he had spoken to other chiefs with concerns about what the decision could mean for their governments. VGFN is appealing the court decision on the question of the Charter’s application to the Self-Government Agreement, as well as the 14-day residency requirement being declared discriminatory under the Charter.

“I am advised by VGFN elders and VGFN’s former negotiator that the application of the Charter to VGFN self-government was an area of disagreement between VGFN, Canada and the Yukon in the negotiation of our Final Agreement and Self-Government Agreements,” the affidavit reads.

“… I am aware from my position as Chief, and from my participation in meetings of the VGFN General Assembly that the application of the Charter to VGFN without VGFN’s consent is generally opposed by a majority of the VGFN citizens, and the reasons are of great significance and concern to VGFN as a collective.”