Legal advocacy group for First Nations people granted intervener status in Supreme Court case
BMAAAC to intervene on Cindy Dickson case about Charter rights and First Nations government
The Band Members Alliance and Advocacy Association of Canada (BMAAAC) has been granted intervener status in a Supreme Court of Canada case that will look at the intersection of Canadian and Indigenous law when it comes to the Charter of Rights and Freedoms.
Cindy Dickson is a citizen of Vuntut Gwitchin First Nation, who resides in Whitehorse. In 2019, she was told she did not meet the residency requirement to run for band council. The requirements said if she were to win her seat, she had to already reside on settlement land in Old Crow, Yukon, a fly-in community 800 kilometres north of Whitehorse, or be required to move there within 14 days.
Dickson challenged the requirements. A Yukon Supreme Court judge ruled in 2020 that the Charter was applicable to the Vuntut Gwitchin government and that while the 14-day timeline for councillors to move to Old Crow was unconstitutional, the residency requirement itself could stand.
Both Dickson and the Vuntut Gwitchin First Nation appealed. The Yukon Court of Appeal concluded that while the residency requirement did violate the Charter section guaranteeing equality rights, it was shielded from further scrutiny by section 25, which protects collective Indigenous rights.
The decision marked the first time a Canadian court examined the intersection of section 25 and the personal rights of First Nations citizens.
The section states that rights protected under the Charter "shall not be construed so as to [take away or detract from] any Aboriginal, treaty or other rights or freedoms that pertain to the Aboriginal peoples of Canada" including rights from land claim agreements.
Risk of creating legal vacuum, says Louie
BMAAAC, one of several interveners, will advance its own view of legal issues before the court and is not considered a support to either party.
"Rarely are the internal injustices that take place on Indian reserves across Canada ever received in the public consciousness," Rob Louie, founder and president of BMAAAC, said in a statement.
Louie states he is not a practising lawyer but has reapplied for readmission. At the hearing in February, he will not be taking the stand but will be in the gallery watching BMAAAC legal counsel Ian Knapp, of Mackenzie Fujisawa LLP, act as intervener.
In an affidavit sent to the Supreme Court of Canada, Louie said BMAAAC is concerned that "completely denying" the application of the Charter to First Nation governments under treaty – self-government included – creates a risk of a legal vacuum "which will deepen the challenges band members face in holding their Indigenous governments to account."
"I have found that some parties have implicitly taken the position that the Charter and constitution can only, or primarily, be used as a sword against the Crown by Indigenous governments, rather than as a shield by Indigenous peoples," the affidavit reads.
Dickson said the more support she gets, the more she feels her case is likely to succeed.
"Section 25 should not be used as a shield against a citizen," she said.
"I am grateful for those who stand with me to advocate for equality and fairness and transparency when it comes to our citizens who do not reside on settlement land for various reasons — either by choice or not."
Potential effects on self-governance
Vuntut Gwitchin First Nation did not respond to requests for comment by time of publishing.
According to the appeal factum court documents, the First Nation says since it is self-governing that the residency requirement is simply an exercise of that.
"A finding that the Charter is not applicable to the residency requirement does not result in a legal vacuum. Instead, it lays the foundation for a genuine reconciliation of the sovereignties and legal orders in issue," the document stated.
It said that if the court were to rule in favour of Dickson, there would be significant adverse effects on self-governance.
It said the court potentially "risks reviving old ghosts in the law such as the discriminatory legal concepts grounded in the 'doctrine of discovery' which treated Indigenous peoples as lawless and incapable of managing their own affairs."
The appeal is scheduled to be heard in February 2023.
With files from Jackie Hong