Canada乌鸦传媒檚 highest court has ruled on a case that began in the Vuntut Gwitchin traditional territory of the Northern Yukon, but that will surely impact the lawmaking authority of First Nations across the country. The split decision issued by the Supreme Court of Canada on March 28 denied at least some of what was being argued by both sides but ultimately upheld the force of the Charter of Rights of Freedoms section that protects the collective rights of Indigenous groups.

The case of Cindy Dickson v. Vuntut Gwitchin First Nation (VGFN) was launched in 2019 and has progressed through the Yukon courts on its way to the Supreme Court of Canada since then.

It was prompted by Dickson乌鸦传媒檚 challenge of VGFN乌鸦传媒檚 requirement that its elected leaders reside on the First Nation乌鸦传媒檚 settlement land in the Northern Yukon. Dickson had her nomination papers rejected when she tried to run for office because she resided in Whitehorse, a residence location she informed the court was essential due to her son乌鸦传媒檚 health concerns. VGFN has been self-governing since the early 1990s and the residency requirement is written into its constitution.

The July 2021 decision that came out of the Yukon Court of Appeal held that Dickson乌鸦传媒檚 rights had been breached but that VGFN乌鸦传媒檚 residency requirement is shielded by Section 25 of the charter and so is legal.

The Supreme Court of Canada heard the case last February. Following the result in the Yukon Court of Appeal, the highest court was considering both Dickson乌鸦传媒檚 appeal and a cross appeal from VGFN. Dickson maintains the unconstitutionality of the residency requirement based on Section 15 (1) of the charter, while VGFN is appealing for a ruling on whether the charter can apply to its constitution at all.

Seven Supreme Court Justices heard the case: Chief Justice Richard Wagner and Justices Suzanne C么t茅, Malcolm Rowe, Michelle O乌鸦传媒橞onsawin, Nicholas Kasirer, Sheilah Martin and Mahmud Jamal.

The court乌鸦传媒檚 decision ultimately denied Dickson乌鸦传媒檚 appeal on the same basis that the lower court did. It also found that the charter does apply to the VGFN constitution. These outcomes were affirmed in the majority decision written by Kasirer and Jamal and concurred with by Wagner and C么t茅.

The majority ruled that while Dickson乌鸦传媒檚 Section 15 right to protection from discrimination was breached by the residency requirement, proper application of Section 25 makes the practice allowable. The judgement describes Section 25乌鸦传媒檚 ability to act as a 乌鸦传媒渃ounterweight乌鸦传媒� when individual rights conflict with Indigenous rights that protect 乌鸦传媒淚ndigenous Difference乌鸦传媒� as 乌鸦传媒渁 social and constitutional good for all Canadians.乌鸦传媒�

This ruling also set aside VGFN乌鸦传媒檚 cross appeal, arguing that the charter does not apply to the self-governing First Nation乌鸦传媒檚 constitution.

The 4-3 majority formed the court乌鸦传媒檚 ruling, but the justices who were outvoted wrote dissents explaining their views.

Justices Martin and O乌鸦传媒橞onsawin found that the residency requirement breached Dickson乌鸦传媒檚 rights and were not satisfied that it could be protected by Section 25. They based this on the residency requirement乌鸦传媒檚 role as an 乌鸦传媒渋nternal regulation乌鸦传媒� that is 乌鸦传媒渘ot aimed at recognizing the special status of Indigenous collectives within the broader Canadian State.乌鸦传媒�

Rowe was the sole justice who found that the charter should not apply to the VGFN constitution. This interpretation was based on whether Section 32 of the charter, which mandates that the federal, provincial and territorial governments must respect the rights guaranteed to Canadians, can be applied to other forms of government. Rowe writes that Section 32 was designed by and for federal and provincial governments and that Indigenous governance was dealt with elsewhere in the Constitution Act and, notably, outside the charter. He finds the application of Section 32 to 乌鸦传媒渁ny entity or activity that can be termed a government or governmental乌鸦传媒� untenable.

乌鸦传媒淭he idea of self-government is not that it is an 乌鸦传媒榓uthority [that] flows from Parliament,乌鸦传媒� but rather Indigenous peoples exercising authority that is rightfully theirs,乌鸦传媒� Rowe writes.

Broad interest in the case is demonstrated by the fact that 14 outside groups were granted intervener status. They included the Yukon government, the attorney general offices of Canada and some provinces, the Council of Yukon First Nations, the Carcross/Tagish First Nation and the Teslin Tlingit Council.

While the decision did not completely align with their arguments, it was greeted favourably by VGFN.

乌鸦传媒淭he Court upheld and protected the responsibility for Vuntut Gwitchin leaders elected to Council to live within our Traditional Territory in the community of Old Crow, which is the seat of our government. This responsibility was established in our Constitution by the deliberation and consensus decision of our General Assembly, and was based on the guidance of our Elders and their knowledge,乌鸦传媒� a statement posted to the First Nation乌鸦传媒檚 website reads.

乌鸦传媒淭oday乌鸦传媒檚 Supreme Court decision demonstrates respect for and deference to our First Nation乌鸦传媒檚 inherent right to govern ourselves collectively in accordance with our Constitution, laws, values, and our special relationship to our Traditional Territory. This inherent right is affirmed in our modern treaty and self-government agreements with the Governments of Canada and Yukon, and we will continue to implement this together to meet evolving circumstances and needs of our Citizens,乌鸦传媒� said Pauline Frost, VGFN乌鸦传媒檚 chief.

乌鸦传媒擶ith files from Jackie Hong

Contact Jim Elliot at jim.elliot@yukon-news.com