Yukon court validates First Nation's right to require councillors, chiefs, to live on settlement lands

A woman argued in 2019 that not being allowed to run for council of her remote First Nation while living in Whitehorse violated her Charter rights. An appeal court sided with the First Nation, which could have implications for others.

Woman had tried to run for council while living in Whitehorse; appeal court sided with the First Nation

Sign in Old Crow, Yukon. The community of approximately 260 people is the only consistently-occupied location on Vuntut Gwitchin settlement land. (Leonard Linklater/CBC)

The Yukon Court of Appeal has upheld the Vuntut Gwitchin First Nation's right to require chief and council to live on settlement lands. 

In a split decision issued July 21, the court found the First Nation's requirement for elected officials to move to settlement lands within 14 days was in violation of section 15(1) of the Canadian Charter of Rights and Freedoms, which guarantees equality rights. 

However, it found the requirement is shielded by section 25 of the Charter, which protects the collective rights of Indigenous peoples. 

The decision marks the first time a Canadian court has examined the intersection of section 25 and the personal rights of First Nations citizens. 

It also found the original judge had overreached in declaring the Vuntut Gwitchin government, not just the residency requirement, was subject to the Charter. 

Like the decision it overturned, the appeal case has implications for Indigenous governments across the country. 

Citizen launched legal challenge in 2019

The case began in 2019, when Vuntut Gwitchin citizen Cindy Dickson filed a petition to the Yukon Supreme Court.

Dickson, who lives in Whitehorse, was barred from running for council because she didn't live on settlement land.

The only consistently-occupied location within Vuntut Gwitchin settlement land is Old Crow, a fly-in community of approximately 260 people roughly 800 kilometres north of Whitehorse. 

The First Nation later changed the requirement so that elected councillors would have to relocate to settlement land within 14 days. 

Dickson continued her challenge, arguing the requirement still discriminated against her and the roughly 300 Vuntut Gwitchin citizens who live outside of Old Crow. 

In Dickson's case, she needed to be in Whitehorse so her son with a serious medical condition could easily access a hospital. She also noted the lack of available housing in Old Crow, among other barriers, and asked the court to strike down the requirement on the grounds that it violated her section 15(1) Charter rights. 

The Vuntut Gwitchin government made several counter-arguments, including that the Charter didn't apply to it at all. It also argued the residency requirement was part of its inherent right to exercise self-government and key to preserving Vuntut Gwitchin culture and tradition. 

Both sides appealed Yukon Supreme Court decision

Ron Veale, then-chief justice of the Yukon Supreme Court, delivered a ruling in 2020 that neither side agreed with. 

In his decision, Veale wrote that the Charter applied to the residency requirement and the Vuntut Gwitchin government overall.

He also divided the requirement into two pieces, finding that mandating councillors to move to settlement land was not a violation of section 15(1) — and if it was, would be saved by section 25. However, he struck down the 14-day time limit for relocating, stating that it was unconstitutional. 

Both Dickson and the Vuntut Gwitchin government filed appeals.

The Yukon government, Attorney General of Canada, Teslin Tlingit Council, Carcross/Tagish First Nation and the Métis Nation of Ontario all joined as intervenors in the case.

As Vuntut Gwitchin's final and self-government agreements closely mirror those of other self-governing Yukon First Nations — and has similarities to the agreements other nations have or are negotiating with Canada — Veale's decision had a potential wide-reaching impact.

A first in Canadian court

The Court of Appeal hearings took place over three days in May. 

Justice Mary Newbury, who authored the majority decision backed by Chief Justice Robert Bauman, noted that the case "raised some issues that have never been dealt with by a Canadian court."

"The parties' arguments… look ahead to the future in a way that previous jurisprudence concerning Indigenous peoples did not," she wrote. 

"They require us to consider the Canadian Charter of Rights and Freedoms, with its emphasis on personal rights and freedoms, in a different way than before; and to attempt to resolve, in the spirit of reconciliation, whether and how those rights affect, and are affected by, collective rights of self-governing [First Nations]."

Newbury found Veale was correct in determining the Charter applied to the residency requirement. 

However, she struck down portions of his other findings, including that the Charter applied to the Vuntut Gwitchin government as a whole.

That, Newbury wrote, was a misstep — Veale had only needed to examine the Charter's applicability to the residency requirement. 

As well, Newbury found Veale wrongly concluded the residency requirement, without the 14-day time limit, did not violate Dickson's section 15(1) rights. He was also wrong in analyzing the 14-day limit separately from the rest of the requirement, she wrote.

Instead, Newbury wrote, the residency requirement in its entirety was in violation of section 15(1). However, it was shielded by section 25 — meaning it can be allowed to stand as-is. 

Newbury ultimately allowed both Dickson and Vuntut Gwitchin's appeals, but set aside Veale's decision and dismissed Dickson's petition. She issued a new order stating the Charter applies to the residency requirement and that the requirement violates Dickson's section 15(1) rights, but is shielded by section 25. 

'Put simply, Ms. Dickson lost and the VGFN won'

The remaining appeal judge, Justice David Frankel, issued a dissenting decision. While he largely agreed with Newbury's conclusions, he thought Dickson's appeal should have been dismissed. 

"What Ms. Dickson and the VGFN sought from this Court was a determination with respect to the validity of the Residency Requirement as a whole. In the end, the VGFN prevailed," Frankel wrote. 

"Put simply, Ms. Dickson lost and the VGFN won. Accordingly, I consider Ms. Dickson's appeal to have failed and the VGFN's cross appeal to have succeeded."

He also objected to the appeal court making declarations, writing that an order should relate only to the outcome of the case, not outline the steps the court took to get to the outcome. 

'Difficult process,' says Dickson

The Vuntut Gwitchin government declined an interview request, pointing the CBC to a press release stating chief and council were consulting with a legal team and would have more to say later. 

Dickson, reached by phone, also said she would speak to her lawyers before deciding on her next steps. However, she told the CBC that she was disappointed by the court of appeal's decision, and added that she still believed that Vuntut Gwitchin citizens living off settlement land had an important role to play in government.

"I just want to say that it's been a difficult process," she said, "and it's not easy to challenge something that's under a self-governing First Nation."