Yukon Court Of Appeal Confronts The Interplay Between Charter And Self-governance Rights In Dickson v Vuntut Gwitchin First Nation

• Published date: 10 August 2021
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Indigenous Peoples
• Law Firm: Gowling WLG
• Author: Mr Lee Hawkings, Chris Hummel, Brian A. Crane, QC and Aaron Christoff

On July 21, 2021, the Court of Appeal of Yukon released its much-anticipated decision in Dickson v. Vuntut Gwitchin First Nation.¹ The case, in which a self-governing First Nation denied a non-resident citizen her nomination to run for Council on the grounds of residency, directly engages the tension between Indigenous self-government laws and individual rights under the Canadian Charter of Rights and Freedoms.

The key legal question raised by this case concerns the scope and application of s. 25 of the Charter, an important but until now rarely-considered provision of the Charter that guards against the abrogation or derogation of "Aboriginal, Treaty, and other rights or freedoms that pertain to the Aboriginal peoples of Canada." The interpretation and application of s. 25 and its impact on the interplay between collective Indigenous rights and individual Charter rights will have significant implications for the exercise of Indigenous self-government. A related question is whether the Charter applies to the laws and actions of a First Nation in the exercise of its self government powers.

Key takeaways

1. Residency Requirements for those seeking elected office in a First Nation government may be valid if enacted as an exercise of the First Nation's self-government rights.
2. The Charter applies to the actions and laws of self-governing First Nations. However, when a First Nation's exercise of collective Aboriginal and Treaty rights conflicts with individual Charter rights, collective rights may be 'shielded' by section 25 of the Charter.

Election Residency Requirement in Vuntut Gwitchin First Nation law

The appellant, Ms. Dickson, is a citizen of the Vuntut Gwitchin First Nation ("VGFN"), a sub-group of the Gwitchin Nation which has inhabited a vast area of northern Yukon, Alaska and Northwest Territories since time immemorial. The 'seat of government' of VGFN is Old Crow, Yukon, a fly-in community of 260 VGFN citizens. Some 301 VGFN citizens - including Ms. Dickson - live elsewhere.

VGFN is one of 11 self-governing First Nations in the Yukon that signed a framework agreement in the 1970's with the Governments of Yukon and Canada known as the Umbrella Final Agreement. This agreement sets out the general terms for community-specific "final agreements", which allow each Yukon First Nation to replace the Indian Act governance model with a form of self-government.

In May 1993, VGFN, Yukon and Canada signed the Vuntut Gwitchin First Nation Final Agreement and the Vuntut Gwitchin Self-Government Agreement (the "SGA"). The Final Agreement is a modern day "treaty" for the purposes...