Vuntut Gwitchin First Nation asks Supreme Court of Canada to reject residency requirement challenge

The First Nation is opposing an appeal application from one of its citizens who has unsuccessfully challenged the residency requirement in Yukon courts, saying that the latest legal decision narrowed the issue enough so that it's no longer one of broad, national public interest.

The Yukon First Nation is seeking a cross-appeal, but only if court chooses to hear citizen's case

The Supreme Court of Canada is seen in Ottawa, on Thursday, June 17, 2021. (Justin Tang/The Canadian Press)

Vuntut Gwitchin First Nation is asking the Supreme Court of Canada to reject an appeal application from a citizen seeking to overturn a legal ruling about the First Nation's residency requirement for councillors. 

The self-governing First Nation, which requires elected councillors to move to settlement land within 14 days, filed its response last month to an application brought forward by citizen Cindy Dickson in the fall. 

Dickson, who lives in Whitehorse, unsuccessfully challenged the residency requirement in the Yukon Supreme Court and the Yukon Court of Appeal, arguing it violated her equality rights under the Canadian Charter of Rights and Freedoms by discriminating against Vuntut Gwitchin citizens living off settlement land.

Old Crow, a mostly fly-in community of about 260 people approximately 800 kilometres north of Whitehorse, is the only consistently-habited location on Vuntut Gwitchin settlement land and is also the seat of its government.

Vuntut Gwitchin First Nation (VGFN) has defended the residency requirement, saying it's key to preserving Vuntut Gwitchin culture and tradition, as well as an exercise of its right to self-government.

The case highlighted the interaction — and tension — between Canadian and Indigenous law, with the Court of Appeal ultimately finding that while the requirement violated Dickson's rights, it was shielded by section 25 of the Charter, which protects collective Indigenous rights. 

Dickson, in a previous interview with the CBC, said that she was taking the case to the Supreme Court of Canada because she didn't agree with section 25 being used to shield the residency requirement. 

Yukon appeal court narrowed issue enough, VGFN argues

Vuntut Gwitchin First Nation, however, said in its memorandum of argument that it was opposing Dickson's application on several grounds. 

"While the arguments raised in the proposed appeal are of great [importance] to VGFN and the preservation of its self-government practices and laws, it is not of such public importance that this court should grant leave to appeal in this case," the document reads. 

"The order of the [Yukon Court of Appeal] was narrowly cast such that the decision is applicable to the specific factual situation before the court. The issues on which the applicant seeks leave to appeal do not in this case reveal a conflict or tension in the law, but an application of the law to the specific facts of the dispute in issue."

Should the Supreme Court of Canada choose to hear Dickson's appeal, though, the First Nation asked that it be granted a cross-appeal "as a matter of justice and fairness." 

In that case, the First Nation wrote that its cross-appeal would focus on two key points of Yukon Court of Appeal's decision — whether the Charter applies to the residency requirement, and if so, whether the requirement actually violates Dickson's equality rights. 

The First Nation, throughout all of the proceedings related to the case, has maintained that it never consented to the application of the Charter during the negotiations of its final and self-government agreements, and that it's an issue that should be settled at negotiation tables, not by the court. 

"There is a risk that the Charter's application would subvert the entire purpose of VGFN's self-government by becoming another tool of assimilation requiring abandonment of their own fundamental values and distinct conceptions of freedom to conform to liberal enlightenment values," the First Nation's memorandum of argument reads. 

"Instead of allowing space for VGFN's distinct sovereignty and legal order within Canada's constitutional fabric, this approach would create a monolith." 

The Supreme Court of Canada has yet to decide whether it will hear Dickson's appeal.