2020 YKSC 22, 2020 YKSC 22

SUPREME COURT OF YUKON Citation: Dickson v. Vuntut Gwitchin First Nation , 2020 YKSC 22 Date: 20200608 S.C. No. 18-AP012 Registry: Whitehorse BETWEEN CINDY DICKSON PETITIONER AND VUNTUT GWITCHIN FIRST NATION RESPONDENT AND GOVERNMENT OF YUKON and ATTORNEY GENERAL OF CANADA INTERVENORS Before Chief Justice R.S.

Veale Appearances: Bridget Gilbride and Harshdeep (Harshi) Mann Counsel for the petitioner Krista Robertson and Kristopher Statnyk Counsel for the respondent Mark Radke and Katie Mercier Marlaine Anderson-Lindsay and Sylvie McCallum Rougerie Counsel for the Government of Yukon Counsel for the Attorney General of Canada REASONS FOR JUDGMENT INTRODUCTION [ 1 ] Ms. Dickson is a member of the Vuntut Gwitchin First Nation (“ VGFN ”) and resides in Whitehorse, Yukon.

She applies for a declaration, pursuant to s. 52 of the Constitution Act, 1982 , that the residency requirement in the VGFN Constitution is inconsistent with s. 15(1) of the Charter of Rights and Freedoms (the “ Charter ”), not justified under s. 1 of the Charter , and therefore of no force and effect. The residency requirement permits her to run as a candidate for Chief or Councillor and if elected she must relocate to Settlement Land within 14 days after election day (the “residency requirement”). This effectively requires Ms.

Dickson, if elected, to move to the community of Old Crow, some 800 kilometers north of Whitehorse, the VGFN seat of government on its Settlement Land. Ms. Dickson does not seek a remedy for any issues in the past election process or the procedure at the Vuntut Gwitchin General Assembly held August 6 – 10, 2019. [ 2 ] There are approximately 260 Vuntut Gwitchin citizens living in Old Crow and approximately 301 living elsewhere, primarily in Whitehorse and other parts of Canada. Vuntut Gwitchin define themselves by their homeland and move back and forth to Old Crow as evidenced by Ms.

Dickson herself and the present Chief, who was born in Whitehorse, but moved to Old Crow before being elected. Old Crow is the most northerly Yukon community without road access but has a regular flight

schedule to Whitehorse. [ 3 ] This is a complex case with many cultural, political and legal ramifications. The following issues will be addressed: 1. Should the Court decline to hear the application on the ground that it is fundamentally a political question best left to negotiation among VGFN , Yukon and Canada? 2. Does the Charter of Rights and Freedoms apply to Ms. Dickson’s challenge to the residency requirement in the VGFN Constitution? 3. If the Charter of Rights and Freedom applies, does the residency requirement infringe Ms. Dickson’s s. 15(1) equality right? 4. Does Ms.

Dickson’s equality right under s. 15(1) of the Charter abrogate or derogate from the VGFN right to have a residency requirement for its Chief and Council under s. 25 of the Charter ? [ 4 ] I will set out facts, agreements and statutes applicable to all the issues as comprehensively as possible. [ 5 ] It is important to consider the factual basis from both Ms. Dickson and the VGFN perspective. Ms. Dickson is a Vuntut Gwitchin citizen who wants to participate. She presently lives in Whitehorse, but she has a home in Old Crow that she shares with her uncle.

She has extensive experience in the cultural and political life of the Vuntut Gwitchin and has made sincere efforts to become a member of Council. She has medical reasons, on behalf of her son, for staying near the hospital in Whitehorse. There are several other factors that ground her decision to live in Whitehorse. The Vuntut Gwitchin Historical, Cultural and Self-Government Leadership [ 6 ] In this section, I present the perspective of the Vuntut Gwitchin government as set out by the First Nation’s counsel, one of whom is a Vuntut Gwitchin citizen.

There is little dispute about the historical and cultural context of residency. What follows is unchallenged evidence from Chief Dana Tizya-Tramm, Elders Robert Bruce Jr. and William Josie, the latter being the Executive Director of the VGFN as well as the thesis of Shelagh Beairsto on Gwitchin Nation Leadership. [ 7 ] In her 1999 thesis entitled Dinjii Kat Chih Ahaa: Gwitchin Nation Leadership , Shelagh Beairsto sets out the leadership history in the pre-contact era, the fur trade and missionary eras, culminating in an examination of Vuntut leadership in the modern era.

Despite the massive changes that have impacted them, the Vuntut Gwitchin show a preference for leaders who demonstrate a knowledge of the land and traditions, commitment to community service, effective communication skills and wealth. In the pre-contact era, wealth was food, clothing and shelter to survive the harsh climate. In the fur trade and missionary eras, wealth became the acquisition of furs and guns and European goods. In the modern era, leadership remains tied to the collective ownership of land and resources but the concept of wealth incorporates consumer goods and traditional knowledge.

However, the consistent leadership theme narrated by the Elders is being accountable to the Vuntut citizens on a daily basis in Old Crow and at the annual General Assembly. [ 8 ] The Vuntut Gwitchin are a distinct sub-group of the Gwich’in Nation, which is an Indigenous nation whose territories extend across portions of what are now Alaska, Yukon and the Northwest Territories.

The Vuntut Gwitchin Traditional Territory encompasses a vast area of North Yukon approximately 55,000 square miles in size, including a wetlands complex of thousands of lakes known as the “Old Crow Flats”, situated in and around the present day community of Old Crow, Yukon (“Vuntut Gwitchin Territory”). The deep connection between Vuntut Gwitchin culture and land is reflected in their name, which in English translates to “People of the Lakes”.

The Vuntut Gwitchin Territory was unglaciated during the last ice age and archeological evidence suggests its human use and occupation dates back as far as 40,000 years. [ 9 ] The present day community of Old Crow was established as a permanent Vuntut Gwitchin village in the early 1900s at the base of the Crow Mountain and the confluence of the Crow River and Porcupine River.

The place name “Old Crow” is in honour of a historical Vuntut Gwitchin Chief who went by the name “Deetru’ K’avidhdik”, which in the English language translates to “Crow May I Walk”. [ 10 ] Old Crow is the most northern community in the Yukon, situated above the Arctic Circle and approximately 800 kilometres north of the City of Whitehorse. There are no roads providing regular access to Old Crow from outside of the Vuntut Gwitchin Territory.

With the exception of navigating the Porcupine River system by boat in summer months, Old Crow is only regularly accessible from outside the Vuntut Gwitchin Territory by flying in and out by airplane [with the occasional temporary winter road to deliver construction materials for the school and other community buildings]. [ 11 ] The Vuntut Gwitchin were constituted as a political entity prior to the assertion of British sovereignty and have governed themselves in accordance with their own laws since time immemorial. These laws included rules and customs to determine how their leaders are to be selected.

The methods of Vuntut Gwitchin leadership selection have varied and evolved over time. Prior to the Indian Act , R.S.C. 1985, c I-5 (the “ Indian Act ”), being imposed, the Vuntut Gwitchin selected their leaders by consensus. Under their laws, Vuntut Gwitchin leaders were selected based on their knowledge and skills in relation to Vuntut Gwitchin Territory so they could fulfill the critical role of looking after the general welfare of the collective Vuntut Gwitchin community.

Vuntut Gwitchin custom and practice since time immemorial has been that Vuntut Gwitchin leaders reside on Vuntut Gwitchin Territory. [ 12 ] Despite the imposition of the Indian Act , the Vuntut Gwitchin have continued their governance practice of making significant decisions collectively through processes of community deliberation and discussion. This method of decision-making was and remains the foundation of Vuntut Gwitchin community self-sufficiency, culture and survival on the land.

The governance bodies and processes established by the Vuntut Gwitchin in their contemporary self-government are the modern expression of this tradition. [ 13 ] The displacement and alienation of Vuntut Gwitchin people from Vuntut Gwitchin Territory through imposed colonial laws and policies including residential schools, Indian Act administration and resource development without Vuntut Gwitchin consent or involvement has caused significant harm to the integrity and health of the Vuntut Gwitchin as a collective.

The Vuntut Gwitchin continue to address and recover from these harms as they implement self-government. The relative remoteness and isolation of Vuntut Gwitchin Territory from larger urban service centres to the south has to some extent protected the Vuntut Gwitchin culture

and land-based way of life. Nevertheless, the pressures of cultural assimilation and displacement persist on the Vuntut Gwitchin as a minority group in Canada. There is also the reality of the pull of post-secondary education and employment, which is also important to the Vuntut Gwitchin. [ 14 ] As indicated, there are approximately 260 Vuntut Gwitchin citizens living in Old Crow, and approximately 301 living elsewhere. These numbers are in constant flux, with Vuntut Gwitchin citizens typically residing both in and outside of Old Crow over the course of their lives.

Given the fluidity of residency, Vuntut Gwitchin citizens do not typically define themselves by their residency at a place in time; rather their primary identity is that of a Vuntut Gwitchin citizen. [ 15 ] The seat of the government of the Vuntut Gwitchin is in Old Crow. It provides critical services to the community. The vast majority of programs and services administered and overseen by the government of the Vuntut Gwitchin relate to the community of Old Crow.

Today, the elected Chief and Council Members are full-time and reside in the community. [ 16 ] The residency requirement is now written into the VGFN Constitution and challenged in this case. [ 17 ] Some explanation of the categories of land is required.

Settlement Land as it is discussed in this case refers to Category A Settlement Land consisting of 2,990 square miles (or 7,744.06 square kilometres). [ 18 ] Category A Settlement Land is fee simple title and VGFN does not cede, release or surrender aboriginal claims, rights, titles and interests on that land except to the extent that they are inconsistent with the Final Agreement. [ 19 ] The reference to VGFN Traditional Territory are those lands identified by VGFN as its Traditional Territory to which its citizens may have the right to harvest for subsistence and other rights set out in the VGFN Final Agreement such as participation in land use planning. [ 20 ] When

Article II, s. 2 of the VGFN Constitution refers to the “seat of government located within Settlement Land” that effectively means to the community of Old Crow at the confluence of the Crow and Porcupine rivers where the approximately 260 VGFN citizens reside. Ms. Dickson and the Residency Requirement [ 21 ] Cindy Dickson is a VGFN citizen who was born in Whitehorse. Like many VGFN citizens, she resided in Old Crow from age 9 to 16, when she moved back to Whitehorse to finish her high school education before Old Crow had a full high school education program.

She also visited Old Crow during summers. [ 22 ] She has lived in other Yukon communities and Victoria, British Columbia, briefly and then back to Whitehorse to attend Yukon College to complete her Bachelor of Social Work degree. [ 23 ] She has worked for the Council of Yukon First Nations as Manager of the Northern Contaminants Program.

She is the founding director and current Executive Director of the Arctic Athabaskan Council, which is an intergovernmental forum promoting cooperation among eight Arctic states. [ 24 ] In 2013, she began working as Regulatory and Community Relations Coordinator for Chance Oil and Gas Limited, an oil and gas exploration company in Yukon.

In that role, she engages with Yukon communities including Old Crow. [ 25 ] She is also a Trustee with the Vuntut Gwitchin Business Trust, which is involved in the management of VGFN Settlement Lands. [ 26 ] She has maintained her connection to Old Crow: Since leaving Old Crow to pursue work and post-secondary education, I have continued to visit Old Crow as often as is affordable and practicable given my other responsibilities. I own a cabin in Old Crow and I still have many friends and family living there.

I make efforts to visit and contribute to the community, both through my work and my personal life, so I can remain connected to Old Crow and assist the community how I can. [Dickson affidavit #1, para. 19] [ 27 ] Her 15-year-old son is hypoglycemic and one reason she lives in Whitehorse to be close to a hospital, although arrangements to have hypoglycemic resources in Old Crow were made for his last visit. [ 28 ] However, she states at paras. 45, 46, 58 and 59 of her Affidavit #1: 45. I choose to live in Whitehorse, and not Old Crow, for several reasons.

There are many resources and opportunities for both my son and me in Whitehorse that are not available in Old Crow. For example, crucial services such as emergency health care and opportunities that I value very much, including my job. In addition, my son’s father, who is not Vuntut Gwitchin, lives in Whitehorse. 46. My decision to live in Whitehorse does not diminish how important being a VGFN citizen is to me and it does not affect how much I want to contribute to the development of the VGFN and support my fellow VGFN citizens.

It also does not diminish how much I value our nation’s Traditional Territory and Settlement Land. … 58. If I ever wanted to move to Old Crow permanently, I would either have to spend a significant amount of money to fix my grandfather’s old house and share it with my uncle. Or I would have to try and find another place to live in Old Crow which can be difficult. 59. My grandfather’s house is typical for Old Crow in that many homes there require major repairs. [reference omitted]. [ 29 ] Although there is a VGFN government office in Whitehorse to serve VGFN citizens, Ms.

Dickson feels excluded from participating as a Council member. She also finds Old Crow has some shortcomings in services that contribute to her desire to live in Whitehorse. They are: 1. there is a nurse staffing the Heath Centre with limited medical resources in Old Crow and the doctor flies in to take appointments. Although glycogen has, on one occasion, been shipped in when her son is there, it is not ideal as a Medevac is required to fly to Whitehorse; 2. she could stay at her grandfather’s house with her uncle, which I understand she owns.

But she would have to make major repairs which is typical for houses in Old Crow. She has bought a washer and dryer for it; 3. while a high school education is available in Old Crow, it does not provide the same number of teachers and the better facilities and curriculum found in Whitehorse; 4. she finds job opportunities more limited in Old Crow; 5. her social life would be more limited in Old Crow and it would be difficult to find a partner; and 6. although Old Crow has internet connection, it can be very slow and cuts out. [ 30 ] Ms.

Dickson also filed a copy of the Final Report of the National Inquiry into Missing and Murdered Indigenous Women and Girls , dated June 3, 2019. She states that she can relate to many of the comments in the report as they reflect her experience as an Indigenous woman who moved from Old Crow to live in an urban setting. [ 31 ] Many opinions have been expressed for and against the residency requirement in filed affidavits.

Some advocate that VGFN non-resident citizens feel that they are not being treated equally and need representation, while others express the view that it is the VGFN citizens who reside in Old Crow whose needs are the greatest to meet the challenges arising from the remoteness of the VGFN homeland. [ 32 ] William Josie, VGFN citizen and Executive Director of VGFN, presented the numerous views this way: There were a range of views put forward in discussions on the residency requirement.

Some VGFN citizens expressed support for the Petitioner’s position that VGFN citizens should be able to be nominated and hold office while residing off-settlement land. Others thought the CRC’s proposal to allow VGFN citizens residing off-settlement land to be nominated to run for Council went too far from the objects of our VGFN Constitution. Many expressed concern about the issue being brought to court and the potential for the court to make decisions about Vuntut Gwitchin self-government.

Others expressed concern about the potential for a seat of our government being situated in another self-governing Yukon First Nation’s Traditional Territory. Ultimately, the CRC proposed amendment was accepted, with the Chief and Council abstaining from the vote to ensure no members of the General Assembly felt political pressure.

The prevailing view was that Old Crow and our Traditional Territory is our country – these are the lands where our ancestors lived and survived and that this where our authority comes from and why we are able to have self-government today – so it is important for our self-government to be based on our land. [W. Josie, Affidavit #2, para. 18] The Residency Requirement [ 33 ] Chief Dana Tizya-Tramm states that Vuntut Gwitchin leaders have always resided in the VGFN Traditional Territory.

According to Elder Robert Bruce Jr. and William Josie, the Executive Director of VGFN, the residency requirement first appeared as a constitutional amendment at the General Assembly held on April 11, 2006. [ 34 ] By consensus after discussion, the amendment to

Article XI, s. 1, required VGFN citizens to be “resident on settlement land” to be eligible to be elected as Chief or Councillor. The Constitutional Reform Committee (“CRC”) was established to review the amendments after two years. Ms. Dickson was a member of the CRC reviewing the VGFN Constitution from January to October 2018. To avoid any perceived conflict in interest, she resigned from the CRC when she became a candidate in the November 19, 2018 election. [ 35 ] In October 2018, Ms. Dickson, who lived in Whitehorse and Sandra Charlie, who then resided in Grande Prairie, Alberta, filed nomination papers to run as candidates for the VGFN council election on November 19, 2018.

[ 36 ] Both nominations were rejected. Ms. Dickson sent an email on November 5, 2018, inquiring why their nominations were rejected. She also indicated a willingness to go to dispute resolution and begin a legal case. [ 37 ] William Josie, the Executive Director, also a Vuntut Gwitchin citizen explained the residency requirement in a letter to Ms. Dickson and Ms. Charlie, dated November 6, 2018. [ 38 ] Ms. Charlie decided to move to Old Crow in December 2018 and she is now employed by VGFN . However, she still supports a Councillor position for a VGFN Whitehorse resident. [ 39 ] On January 18, 2019, Ms.

Dickson filed her petition in this Court seeking a declaration that the residency requirement is of no force and effect as being inconsistent with s. 15(1) of the Charter and not justified under s. 1 of the Charter . [ 40 ] The CRC held a community meeting in Whitehorse on July 10, 2019. Ms. Dickson attended and learned of a proposed amendment to the residency requirement: If an eligible candidate for Chief and/or Councillor does not reside on Settlement Land during the election and wins their desired seat, they must relocate to Settlement Land within 14 days after election day. [ 41 ] Ms.

Dickson had previously raised the issue about attending the annual General Assembly remotely by teleconference or video. William Josie had responded to that request indicating that the Constitution and custom required attendance in person. He stated that the personal attendance could only be changed by the members at the General Assembly. Ms. Dickson raised the matter again at the CRC meeting in Whitehorse. [ 42 ] The annual General Assembly took place in Old Crow from August 6 – 10, 2019. Ms.

Dickson spoke in person at the General Assembly meeting on August 6, 2019, and explained why she filed her court petition. She also filed a petition at the Assembly with 48 signatures of VGFN citizens supporting the proposal that at least one VGFN councillor be chosen from the VGFN residents of Whitehorse. [ 43 ] On August 7, 2019, the General Assembly discussed the proposed residency requirement, which Ms. Dickson challenges in this case. On August 10, 2019, the proposed residency requirement was passed in an Omnibus resolution passing 189 amendments to the Constitution.

While she voted for the Omnibus resolution as it contained resolutions she supported, she did not support the residency requirement. Findings of Fact [ 44 ] I find the following facts: 1. The Vuntut Gwitchin people have governed themselves according to their traditional practices pre-dating the creation of Canada in 1867. 2. Since time immemorial to the present day, all VGFN Chiefs and Councillors have been residents in the VGFN Traditional Territory. 3. Even in modern times, post the Final Agreement in 1993, the practice is for elected citizens to reside in Old Crow.

Chief Tizya-Tramm, former Chiefs Bruce Charlie and Robert Bruce Jr. all resided in Whitehorse at various times but all returned to reside in Old Crow during their terms as Chiefs. 4. VGFN citizens have always been mobile and approximately 301 live elsewhere, primarily in Whitehorse and other parts of Canada. Approximately 260 citizens reside in Old Crow. 5. The vast majority of programs and services administered by the VGFN government are for VGFN citizens residing on Settlement Land as a result of constraints in funding arrangements for self-government. 6.

Notwithstanding the limited fiscal capacity, the VGFN government has established a citizen advocate office in Whitehorse, staffed by a full-time employee, to provide access to programs and services for VGFN citizens in Whitehorse. This includes various cost sharing arrangements with Kwanlin Dun First Nation in Whitehorse to reimburse that government for costs of delivering services to VGFN citizens who access services in Kwanlin Dun First Nation Settlement Lands. 7. The Chief and Councillors are all full-time paid positions. 8. Although Ms.

Dickson owns a cabin in Old Crow, it would require major repairs, which is typical for housing in Old Crow. She would also have to share that house with her uncle. 9. There may not be immediately available housing for a successful non-resident candidate, but there is Vuntut Gwitchin staff housing that can be made available. The VGFN Final Agreement [ 45 ] The Final Agreement is a land claim agreement within the meaning of s. 35 of the Constitution Act, 1982 : 35.

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [ 46 ] The Final Agreement includes an extinguishment of rights to Non-Settlement Land including mines and minerals, mines and minerals in all Settlement Land and Fee Simple Land. It does not extinguish rights to Settlement Land or any other Aboriginal rights such as self-government, which are not inconsistent with the Settlement Agreement.

This is pursuant to s. 2.5.1.2 which states as follows: that Yukon First Nation and all persons eligible to be Yukon Indian People it represents, as of the Effective Date of that Yukon First Nation's Final Agreement, cede, release and surrender to Her Majesty the Queen in Right of Canada all their aboriginal claims, rights, titles and interests in and to Category A and Category B Settlement Land and waters therein, to the extent that those claims, rights, titles and interests are inconsistent or in conflict with any provision of a Settlement Agreement; [ 47 ]

Chapter 24 of the Final Agreement is entitled “Yukon Indian Self-Government” and is a comprehensive agreement that sets out the principles and a process that fundamentally alters the power relationship between Canada, Yukon and the Vuntut Gwitchin.

The following clauses give some flavour to First Nation self-government: 24.1.1 Government shall enter into negotiations with each Yukon First Nation which so requests with a view to concluding self-government agreements appropriate to the circumstances of the affected Yukon First Nation. 24.1.2 Subject to negotiation of an agreement pursuant to 24.1.1 and in conformity with the Constitution of Canada , the powers of a Yukon First Nation may include the powers to: 24.1.2.1 enact laws and regulations of a local nature for the good government of its Settlement Land and the inhabitants of such land , and for the general welfare and development of the Yukon First Nation; … 24.1.3 Self-government agreements shall not affect : 24.1.3.1 the rights of Yukon Indian People as Canadian citizens; and 24.1.3.2 unless otherwise provided pursuant to a self-government agreement or legislation enacted thereunder, their entitlement to all of the services, benefits and protections of other citizens applicable from time to time . [my emphasis] [ 48 ]

Chapter 24.2.0 sets out an extensive list of “Subjects for Negotiation” including education and training; civil and family matters; tax law, economic development; and financial transfers, which are only some of the 17 items listed. Specifically, negotiations respecting a self-government agreement may include among other subjects: 24.2.1.1 the Yukon First Nation constitution; 24.2.1.2 the Yukon First Nation's community infrastructure, public works, government services and Local Government Services; … [ 49 ]

Chapter 24.3.0 entitled “Devolution” sets up the negotiation process for the devolution of programs and services from Yukon to the Vuntut Gwitchin, which includes education, health and social services, justice and employment opportunities, each containing specific subjects to be negotiated. [ 50 ]

Chapter 24.5.0 states: 24.5.0 Yukon First Nation Constitutions 24.5.1 Negotiations regarding a Yukon First Nation constitution may include the following:

24.5.1.1 composition, structure and powers of the Yukon First Nation government institutions ; 24.5.1.2 membership; 24.5.1.3 election procedures; 24.5.1.4 meeting procedures; 24.5.1.5 financial management procedures; 24.5.1.6 composition and powers of all committees; 24.5.1.7 the rights of individual members of a Yukon First Nation with respect to the powers of the Yukon First Nation government institutions ; 24.5.1.8 amending procedures; 24.5.1.9 internal management of the Yukon First Nation, including regional or district management structures; and 24.5.1.10 use, occupation and disposition of the Yukon First Nation's Settlement Land and resources. … 24.10.3 Yukon First Nations constitutions may be amended only by internal amending formulae or by amendment to the self-government Legislation. [my emphasis] [ 51 ]

Chapter 24.9.0, entitled “Legislation”, addresses the drafting and recommendation of legislation to bring the self-government agreements into effect in the Yukon Legislative Assembly and Parliament of Canada for their respective legislative authority. [ 52 ]

Chapter 24.12.0 entitled “Protection” states the following: 24.12.1 Agreements entered into pursuant to this

chapter and any Legislation enacted to implement such agreements shall not be construed to be treaty rights within the meaning of

section 35 of the Constitution Act, 1982 . 24.12.2 Nothing in this

chapter or in the Settlement Agreements shall preclude Yukon First Nations, if agreed to by the Yukon First Nations and Canada, from acquiring constitutional protection for self-government as provided in future constitutional amendments. 24.12.3 Any amendments to this

chapter related to the constitutional protection for self-government in whole or in part shall be by agreement of Canada and the Yukon First Nations. 24.12.4 Nothing in 24.12.1, 24.12.2 or 24.12.3 shall be construed to affect the

interpretation of aboriginal rights within the meaning of sections 25 or 35 of the Constitution Act, 1982 [ 53 ]

Chapter 9 – “Settlement Land Amount” has the following objective: 9.1.1 The objective of this

chapter is to recognize the fundamental importance of land in protecting and enhancing a Yukon First Nation's cultural identity, traditional values and life style, and in providing a foundation for a Yukon First Nation's self-government arrangements . [my emphasis] The VGFN Self-Government Agreement [ 54 ] As set out in its

preamble, the Self-Government Agreement was negotiated and entered into in accordance with

Chapter 24 of the Final Agreement. The

preamble describes the mutual intentions of the parties, which include maintaining traditional Vuntut Gwitchin decision-making structures within contemporary Vuntut Gwitchin society, protecting Vuntut Gwitchin’s land-based way of life and achieving certainty in the relationship between Vuntut Gwitchin, Canada and Yukon: WHEREAS: Vuntut Gwitchin have traditional decision-making structures and are desirous of maintaining these structures ; the Parties wish to support and promote the contemporary and evolving political institutions and processes of the Vuntut Gwitchin First Nation; … the Parties wish to achieve certainty with respect to the relationship between the Vuntut Gwitchin First Nation and Government, including jurisdiction over land and other resources within the Traditional Territory of the Vuntut Gwitchin First Nation; … the Parties recognize and wish to protect a way of life that is based on an economic and spiritual relationship between Vuntut Gwitchin and the land ; [my emphasis] [ 55 ]

Article 2.0 of the Self-Government Agreement sets out as key principles the Vuntut Gwitchin desire: 2.1 The Vuntut Gwitchin First Nation has traditional decision-making structures and desires to maintain these traditional structures integrated with contemporary forms of government. 2.2 The Parties are committed to promoting opportunities for the well-being of Citizens equal to those of other Canadians and to essential public services of reasonable equality to all Citizens. [my emphasis]

[ 56 ]

Article 3.0 sets out the “General Provisions” of the Self-Government Agreement.

Section 3.6 replicates provisions under

Chapter 24.1.3 of the Final Agreement regarding the retention of the rights and entitlements of Vuntut Gwitchin citizens as Canadian citizens: 3.6 This Agreement shall not : 3.6.1 affect the rights of Citizens as Canadian citizens ; and 3.6.2 unless otherwise provided pursuant to this Agreement or in law enacted by the Vuntut Gwitchin First Nation, affect the entitlement of Citizens to all of the benefits, services and protections of other Canadian citizens applicable from time to time . [my emphasis] [ 57 ]

Article 9.0 of the Self-Government Agreement provides that upon the effective date of the Self-Government Agreement, the Indian Act ceases to apply to the Vuntut Gwitchin, and that the Vuntut Gwitchin First Nation is a legal entity with the capacity, rights, powers and privileges of a natural person. [ 58 ] The requirements of the VGFN Constitution are set out in

Article 10.0 of the Self-Government Agreement.

Article 10.0 provides that the VGFN Constitution shall “establish governing bodies and provide for their powers, duties, composition, membership and procedures” (s. 10.1.2) and the recognition and protection of the rights and freedoms of Vuntut Gwitchin citizens (s. 10.1.4). It also states that the VGFN Constitution must “provide for the challenging of the validity of laws enacted by the Vuntut Gwitchin First Nation and for the quashing of invalid laws” (s. 10.1.5) and “provide for the amending of the Constitution by the Citizens” (s. 10.1.6). [ 59 ]

Section 10.2 states as follows: The Constitution may provide for any other matters relating to the Vuntut Gwitchin First Nation government or to the governing of Settlement Land, or of persons on Settlement Land. [ 60 ]

Article 13.0 of the Self-Government Agreement sets out the “Legislative Powers” of the Vuntut Gwitchin and contains several subsections listing powers including those related to programs and services for Vuntut Gwitchin citizens and laws related to local or private matters on Settlement Land.

Article 13.4.0 sets out the emergency powers and

Article 13.6.0 sets out powers related to administration of justice. Additionally,

Article 14.0 sets out the taxation powers of the Vuntut Gwitchin. Vuntut Gwitchin First Nation Constitution [ 61 ] The VGFN Constitution is a very comprehensive document, created by VGFN citizens, that consists of 22 Articles which counsel for VGFN says is a complete code addressing the issues raised by Ms. Dickson. [ 62 ] The following are some of the pertinent Articles:

Article I – Objects 1. The objects of the Vuntut Gwitchin First Nation are to: (

a) have authority in respect of communities and lands of the Vuntut Gwitchin First Nation and the occupants thereof as prescribed in the Vuntut Gwitchin First Nation Final Agreement; (

b) promote and enhance the general welfare of the Vuntut Gwitchin First Nation; (

c) promote, enhance and protect the history, culture, values, traditions and rights of the Vuntut Gwitchin First Nation; (

d) promote respect for the ancestral homeland of the Vuntut Gwitchin First Nation including the natural resources thereof; …

Article II – Vuntut Gwitchin First Nation Authority/Location 1. Subject to the terms of the Vuntut Gwitchin Final Agreement and the Vuntut Gwitchin Self-Government Agreement, the operations and authority of the Vuntut Gwitchin First Nation shall extend to and over all land and resources, all Citizens, all occupants of Settlement Land and all matters within the jurisdiction of Vuntut Gwitchin First Nation, and to the collective rights and interests of Citizens. 2. The seat of government for the Vuntut Gwitchin First Nation shall be located within Settlement Land as advised by the General Assembly . 3.

This Constitution is the supreme law of the Vuntut Gwitchin First Nation , subject only to the: (

a) Vuntut Gwitchin First Nation Self-Government Agreement; and (

b) rights and freedoms set out in this Constitution. 4. In the event of an inconsistency or conflict between this Constitution and the provisions of any Vuntut Gwitchin Law, the Vuntut Gwitchin Law is, to the extent of the inconsistency or conflict, of no force or effect. 5. The validity of a Vuntut Gwitchin Law may be challenged in the Supreme Court of Yukon Territory until the Vuntut Gwitchin Court is established . [my emphasis] [ 63 ] Under

Article IV – “Rights of Citizens”, the VGFN Constitution sets out rights similar to the Charter in the Constitution, 1982 , but not as extensively. For example,

Article IV, s. 7, the equivalent equality clause states: 7. Every individual is equal before and under the laws of the Vuntut Gwitchin First Nation and has the right to the equal protection an[d] equal benefit of Vuntut Gwitchin First Nation law without discrimination. [ 64 ]

Section 15 of the Charter states: 15.

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. [ 65 ] Relevant to this case,

Article IV, s. 5, grants the power to Chief and Council to make laws for the (

a) qualifications of voters; and (

b) qualifications of candidates to elections of office. [ 66 ] The VGFN Constitution then sets out the Organization of the VGFN government which is divided into the VGFN General Assembly, the Elders Council, Chief and Council, and Youth Council with the role and power of each delineated in detail. [ 67 ] With respect to the terms of office and qualifications for Chief and Council,

Article XI states: QUALIFICATIONS

1. Any person desiring to run for Chief and Councillor must meet the following qualifications: (

a) Be 18 years of older; (

b) Be ordinarily resident in Canada; (

c) No indictable offence convictions for 5 years preceding the election; and (

d) Be a Citizen 2. If an eligible candidate for Chief or Councillor does not reside on Settlement Land during the election and wins their desired seat they must relocate to Settlement Land within 14 days after election day . [my emphasis] [ 68 ]

Article XI, s. 2, is the residency requirement at issue in this case. There is no residency requirement for participation in the annual General Assembly, or being a member of the Elders’ Council or Youth Council. The Constitution of Canada [ 69 ] The Constitution of Canada consists of the Constitution Act, 1867 , 30 to 31 Vict. C. 3 (formerly the British North America Act, 1867 ) and the Constitution Act, 1982 . The Constitution Act, 1982 , has Parts I – VII.

Part I contains the Canadian Charter of Rights and Freedoms, ss. 1 - 34 , and

Part II contains Rights of the Aboriginal Peoples of Canada. [ 70 ]

Section 52 of the Constitution Act, 1982 , states: 52.

(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes (

a) the Canada Act 1982 , including this Act; (

b) the Acts and orders referred to in the schedule; and (

c) any amendment to any Act or order referred to in paragraph (

a) or ( b ). [ 71 ]

Part II contains only ss. 35 and 35.1. In the interest of brevity, the principal clause is: 35.

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. [ 72 ] There are two other sections of the Constitution Act, 1982 , that must be set out. The first is s. 25 which is part of the Charter : 25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (

a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (

b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. [ 73 ] The second is the Application of the Charter : 32.

(1) This Charter applies (

a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (

b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. The Implementing Legislation [ 74 ] The Yukon First Nations Land Claims Settlement Act , S.C. 1994, c. 34 (the “ Land Claims Settlement Act ”), is the federal legislation that pursuant to s. 4(

d) approves, gives effect to and declares valid the VGFN Final Agreement. [ 75 ] Among other things, the Land Claims Settlement Act contains the following

Preamble: AND WHEREAS the Government of Canada has undertaken to recommend to Parliament the enactment of legislation for approving, giving effect to and declaring valid final agreements and transboundary agreements; [ 76 ]

Section 6 states that a final agreement is a land claims agreement within the meaning of s. 35 of the Constitution Act, 1982 . [ 77 ] The Yukon First Nations Self-Government Act , S.C. 1994, c. 35 (the “ Self-Government Ac t ”), came into force on February 14,

Section 4 states that the purpose of the Self-Government Act is to bring into effect the VGFN self-government agreement the day the Self-Government Act comes into force. [ 78 ]

Section 7 states that the First Nation is a legal entity having the capacity, rights, powers and privileges of a natural person and s. 17 states that the Indian Act ceases to apply to the self-governing VGFN Government. [ 79 ] Section 8(1) of the Self-Government Act states that a first nation’s constitution shall provide for:

… (

b) the governing bodies of the first nation and their composition, membership, powers, duties and procedures; … (

d) the recognition and protection of the rights and freedoms of citizens; … [80]

Section 15 states that the Supreme Court of Yukon has jurisdiction for any matter or proceeding arising out of the Self-Government Act or out of a self-government agreement of a first nation.[81] The Yukon legislature similarly enacted the First Nations (Yukon) Self-Government Act (“Territorial Act”) to approve self-government agreements negotiated pursuant to

Chapter 24 of the UFA. Pursuant to theTerritorial Act, Yukon passed an Order in Council approving the Self-Government Agreement on behalf of Yukon.Challenged Evidence[82] Counsel for Ms. Dickson challenges the opinions expressed in the affidavit of Dave Joe, filed by VGFN, on the grounds that the evidence is inadmissible as it purports to be expert opinion evidence ofnegotiations of the VGFN Self-Government Agreement with Canada and Yukon.

The issue is the extent to which opinion evidence about negotiations can be used in the interpretive process.[83] Dave Joe, a member of the Champagne and Aishihik First Nation, was the Chief Negotiator for the Vuntut Gwitchin First Nation for their Final Agreement and Self-Government Agreement. In particular, in paras.5, 7, 8, 9, 11 and 12 of his affidavit, filed March 27, 2019, he expressed opinions about whether the parties reached agreement on the application of the Charter.

He opined that particular sections were not intended tounconditionally apply the Charter to the VGFN exercise of self-government.[84] Counsel for Ms. Dickson submits that the Court should follow the principle of contractual

interpretation in the Supreme Court of Canada judgments in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53,at para. 57, and Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32, at para. 63, which state that surrounding circumstances will be considered in interpreting the terms of a contract but they must never be allowedto overwhelm the terms of the agreement.[85] Counsel for Ms. Dickson submits that a quotation from Groberman J.A. in British Columbia (Minister of Technology, Innovation and Citizens’ Services) v. Columbus Real Estate Inc., 2018 BCCA 340, at paras.63 – 65, should be followed.

The trial judge’s decision not to consider “the subjective intentions of the parties” or any “negotiator’s opinion about why something was included in the contract” was approved.Groberman J.A. stated that the court must consider the factual matrix surrounding a contract but does not suggest that subjective evidence is helpful.[86] In my view, the

interpretation of Yukon First Nation Final Agreements should not be bound by contract principles, although they may be helpful markers in considering the appropriate

interpretation. Rather, asstated by Binnie J. in Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, at paras. 10 and 12:[10] … Thoughtful administration of the treaty will help manage, even if it fails to eliminate, some of the misunderstandings and grievances that have characterized the past. Still, as the facts of this case show, the treatywill not accomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everyday commercial contract. The treaty is as much about building relationships as it is about thesettlement of ancient grievances.

The future is more important than the past. A canoeist who hopes to make progress faces forwards, not backwards. … [12] … The historical treaties were typically expressed in lofty terms of high generality and were often ambiguous. The courts were obliged to resort to general principles (such as the honour of the Crown) to fill the gapsand achieve a fair outcome.

Modern comprehensive land claim agreements, on the other hand, starting perhaps with the James Bay and Northern Québec Agreement (1975), while still to be interpreted and [page120]applied in a manner that upholds the honour of the Crown, were nevertheless intended to create some precision around property and governance rights and obligations.

Instead of ad hoc remedies to smooth the way toreconciliation, the modern treaties are designed to place Aboriginal and non-Aboriginal relations in the mainstream legal system with its advantages of continuity, transparency, and predictability. … [my emphasis] [87] Karakatsanis J. adopted this approach in First Nation of Nacho Nyak Dun v.

Yukon, 2017 SCC 58 (“Nacho Nyak Dun”), in para. 37, stating:[37] Paying close attention to the terms of a modern treaty means interpreting the provision at issue in light of the treaty text as a whole and the treaty's objectives (Little Salmon, at para. 10; Moses, at para. 7; ss. 2.6.1,2.6.6 and 2.6.7 of the Final Agreements; see also the

Interpretation Act, R.S.C. 1985, c. I-21, s. 12). Indeed, a modern treaty will not accomplish its purpose of fostering positive, long-term relationships betweenIndigenous peoples and the Crown if it is interpreted "in an ungenerous manner or as if it were an everyday commercial contract" (Little Salmon, at para. 10; see also D. Newman, "Contractual and Covenantal Conceptionsof Modern Treaty

Interpretation" (2011), 54 S.C.L.R. (2d) 475). Furthermore, while courts must "strive to respect [the] handiwork" of the parties to a modern treaty, this is always "subject to such constitutional limitationsas the honour of the Crown" (Little Salmon, at para. 54). [my emphasis] [88] In the context of these interpretive principles, it would not be appropriate to rule opinions expressed in the affidavit of a negotiator as inadmissible but rather give appropriate weight depending on thecircumstances.

An example of this is the inclusion of evidence from Barry Stuart, the Chief Land Claims Negotiator for Yukon in Nacho Nyak Dun, at paras. 46 – 47, expressing the opinion that the First Nations’ interestin resources was best served by constitutionally protecting the sharing of management responsibility for water, wildlife, forestry, land and culture rather than simply acquiring vast tracts of lands as settlement lands.

Thus,a negotiator’s opinion is admissible as in that case it was found to be helpful to explain what First Nations gave up in Settlement Land in exchange for the constitutional protection of land use management participation andsharing in their Traditional Territory.[89] Counsel for Ms. Dickson also submits that paragraphs 8, 9 and 11 in the affidavit of William Josie should be ruled inadmissible. Mr.

Josie chaired the Constitutional Reform Committee (“CRC”) which was struckin 2017 by a resolution of the General Assembly to review the VGFN Constitution, last amended in 2006.[90] The CRC is not formally created in the VGFN Constitution. It appears to be an ad hoc committee to review the Constitution and seek input and feedback on potential amendments to the VGFN Constitution whichwould be presented to the General Assembly.[91] In paragraphs 8, 9 and 11 of his affidavit, Mr. Josie explains the proposed amendment to the residency requirement and the reasoning of the CRC. Counsel for Ms.

Dickson submits that it is not permissible for anaffiant to speak for anyone but him or herself based on West Moberly First Nations v. British Columbia, 2018 BCSC 1835. In that case, the court gave no weight to the affidavit of the former chair of a three-person JointReview Panel, purporting to speak on behalf of the other panel members about their deliberations and rationale for conclusions. In particular, the former chair of the Joint Review Panel presented evidence that challengedthe Joint Review Panel report in an argumentative way and purported to speak on behalf of the three Joint Review Panel members.

The court ultimately rejected the affidavit of the former Chair of the Joint Review Panelon the ground that the Joint Review Panel was an administrative decision-maker performing an adjudicative function.[92] In my view, the CRC is not an administrative decision-making body and Mr.

Josie is entitled to give his explanation of the reasons for the amended residency requirement.ISSUESIssue 1: Should the Court decline to hear the application on the ground that it is fundamentally a political question best left to negotiation among VGFN, Yukon and Canada?[93] The submission of VGFN is that the residency requirement before the Court is a purely political question that the Court should decline to answer.[94] Counsel for VGFN submits that the test in Reference Re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, at p. 545, later adopted in Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, at paras. 26 - 27, should be considered:[26] … Thus the circumstances in which the Court may decline to answer a reference question on the basis of "non-justiciability" include: (

i) if to do so would take the Court beyond its own assessment of its proper role in the constitutional framework of our democratic form of government or (ii) if the Court could not give an answer that lies within its area of expertise: the

interpretation of law.

[27] As to the "proper role" of the Court, it is important to underline, contrary to the submission of the amicus curiae , that the questions posed in this Reference do not ask the Court to usurp any democratic decision that the people of Quebec may be called upon to make.

The questions posed by the Governor in Council, as we interpret them, are strictly limited to aspects of the legal framework in which that democratic decision is to be taken. … [ 95 ] Counsel for VGFN submits that the proper role of the Court is one of restraint as stated in Nacho Nyak Dun , at para. 4: In my view, this proceeding is best characterized as a judicial review of Yukon's decision to approve its land use plan.

In a judicial review concerning the implementation of modern treaties, a court should simply assess whether the challenged decision is legal, rather than closely supervise the conduct of the parties at each stage of the treaty relationship. Reconciliation often demands judicial forbearance. Courts should generally leave space for the parties to govern together and work out their differences . [my emphasis] [ 96 ] I acknowledge that the above principles arise in the context of a reference and a judicial review, and present useful principles to consider. However, the case at bar seeks an

interpretation of law relating to the issue of whether the Charter applies to the VGFN Constitution. This case is not the classic case of VGFN v. Canada but rather has the additional dimension of a VGFN and Canadian citizen seeking to apply the Charter , the supreme law of Canada, to her First Nation. [ 97 ] Counsel for VGFN also cite authors Peter Hogg and Mary Ellen Turpel in their

article Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues (1995), 74:2 Can. Bar. Rev. 187, at 190 (“Hogg & Turpel”): The inherent nature of the right of self-government does not answer the question of what the right means today, and how it relates to the existing constitutional and political structures. Uncertainties on these issues make high level political discussions on what Aboriginal self-government means in a contemporary political context essential, because at present the issues are wide open to judicial

interpretation if left to the courts, and they are not suitable for resolution by courts. 9 It is in the best interests of both governments and Aboriginal peoples to explore options short of constitutional amendment (although constitutional amendment would be the preferred approach) . [my emphasis] [ 98 ] At footnote 9, the authors state: The issues are not suitable for resolution by courts because only political discussions can adequately address matters of jurisdiction, financing and intergovernmental cooperation.

Legal reasoning in the constitutional context is not broad enough to embrace all of these dimensions. [ 99 ] I do not view the residency requirement as a “purely political” question to be determined in another forum, but rather a question of the

interpretation of law. [ 100 ] This dispute is brought by Ms. Dickson, a Vuntut Gwitchin citizen who seeks a declaration that the residency requirement in the VGFN Constitution is invalid primarily under the Charter , or alternatively under the VGFN Constitution. Thus, she presents a question of

interpretation at the outset as to which constitution applies. [ 101 ] I conclude that the Court should not decline to hear this question of

interpretation of law. In my view, a political discussion or negotiation has taken place in negotiating the VGFN Final Agreement, the VGFN Self-Government Agreement and the VGFN Constitution. Should there be another political discussion nationally, the Vuntut Gwitchin can take advantage of that under s. 3.5 of the VGFN Final Agreement or s. 3.3 of the VGFN Self-Government Agreement. Issue 2: Does the Charter of Rights and Freedoms apply to Ms. Dickson’s challenge to the residency requirement in the VGFN Constitution? [ 102 ] Counsel for VGFN submits that there are four compelling arguments for concluding that Ms.

Dickson’s application should be subject to the VGFN Constitution, not the Charter . [ 103 ] Firstly, VGFN submits that

Article IV, ss. 1, 4 and 7 of the VGFN Constitution recognizes and protects the equality rights of Ms. Dickson in relation to the VGFN Government: 1. The Constitution hereby guarantees the rights and freedoms hereinafter set out subject only to such reasonable limits as can be demonstrably justified in a free and democratic Vuntut Gwitchin society. … 4. Subject to residency and other requirements set out in Vuntut Gwitchin Law, every Citizen who is at least 18 years of age is eligible to vote in Vuntut Gwitchin First Nation elections and to hold office in Vuntut Gwitchin Government. … 7.

Every individual is equal before and under the laws of the Vuntut Gwitchin First Nation and has the right to the equal protection an equal benefit of Vuntut Gwitchin First Nation law without discrimination. [ 104 ] In other words, Ms. Dickson can have her application addressed under the VGFN Constitution, which incidentally she pled as an alternative remedy. Counsel for VGFN submit that the VGFN Final Agreement and VGFN Self-Government Agreement specifically provided for this: (

a) In s. 24.5.0 of the VGFN Final Agreement entitled Yukon First Nation Constitutions, the following is stated: 24.5.1 Negotiations regarding a Yukon First Nation constitution may include the following: 24.5.1.1 composition, structure and powers of the Yukon First Nation government institutions; … 24.5.1.7 the rights of individual members of a Yukon First Nation with respect to the powers of the Yukon First Nation government institutions ; [my emphasis] … (

b) In s. 10.0 of the VGFN Self-Government Agreement, entitled Vuntut Gwitchin First Nation Constitution : 10.1 The Vuntut Gwitchin First Nation Constitution shall: … 10.1.4 recognize and protect the rights and freedoms of Citizens; 10.1.5 provide for the challenging of the validity of laws enacted by the Vuntut Gwitchin First Nation and for the quashing of invalid laws ; [my emphasis] … [ 105 ] Secondly, VGFN submits, that in negotiations, it did not agree with the unconditional application of the Charter and that no agreement was reached as to the application of the Charter and the VGFN Final Agreement and VGFN Self-Government Agreement were therefore left silent on this matter.

[106] To buttress this opinion, VGFN points to the Nisga’a Final Agreement, which explicitly stated that the Charter applies to the Nisga’a Government.[107] With respect to the words of

Chapter 24.1.2 of the VGFN Final Agreement that a self-government agreement be subject to negotiation “and in conformity with the Constitution of Canada”, VGFN submits that thismeans that the self-government arrangements in the VGFN Final Agreement and VGFN Self-Government Agreement did not alter the division of powers between Canada and Yukon or provinces and did not affect theapplication of ss. 25 and 35 of the Charter to the exercise of VGFN rights to self-government.[108] Thirdly, VGFN submits that the Charter was not developed with any consideration for the VGFN legal, political traditions or governance systems.

It submits that in contrast to the Charter of Rights and Freedomsfocus on individual rights, the VGFN legal orders are collective in nature. An example of this is the VGFN imperative to protect their culture and settlement land requiring that no all-weather road can be constructed to OldCrow until the approval of a land use plan pursuant to s. 11.10.0 of the VGFN Final Agreement.[109] Fourthly, VGFN submits that the principle of judicial deference should apply as stated by Grammond J. in Pastion v.

Dene Tha’ First nation, 2018 FC 648, at para. 23:… The enactment of Indigenous election legislation, such as the Election Regulations at issue in this case, is an exercise of self-government. The application of laws is a component of self-government. It is desirable thatlaws be applied by the same people who made them. Therefore, where Indigenous laws ascribe jurisdiction to an Indigenous decision maker, deference towards that decision maker is a consequence of the principle of self-government.

Analysis[110] The VGFN Final Agreement and the VGFN Self-Government Agreement do not expressly refer to the application of the Charter. However, as stated above, in s. 24.1.2, the Self-Government Agreement to benegotiated was to be “in conformity with the Constitution of Canada”. The Constitution Act, 1982, includes the Charter. Peter Hogg stated in his definitive work The Constitutional Law of Canada, Vol. 1, 5th ed (Toronto:Carswell, 2007) (“Constitutional Law of Canada”):The Charter of Rights is part of the Constitution of Canada because it is

Part I of the Constitution Act, 1982, which is Scheduled B of the Canada Act, 1982, which is expressly named in s. 52(2). [111] In my view, the specific reference to the Constitution of Canada, cannot be narrowly interpreted to simply refer to the division of powers between Canada and the provinces without some words of limitation.[112] The wording of s. 24.1.3.1 of the VGFN Final Agreement is more prescriptive in that it clearly states that self-government agreements “shall not affect the rights of Yukon Indian People as Canadian Citizens”.Thus, a Vuntut Gwitchin citizen like Ms.

Dickson should have the right to make a Charter application on equality rights to challenge the VGFN Constitution. This does not in any way suggest that

Article IV s. 7 – Rightsof Citizens in the VGFN Constitution is not a valid expression of Vuntut Gwitchin law but simply that Ms. Dickson may apply for a remedy under s. 15 of the Charter and the jurisprudence interpreting it.[113]

Section 24.1.3.2 of the VGFN Final Agreement states that self-government agreements shall not affect “their entitlement to all of the services, benefits and protections of other citizens” unless otherwise providedpursuant to a self-government agreement or legislation enacted thereunder. In my view, that would require an affirmative statement that the self-government agreement or legislation, specifically

Article IV – Rights ofCitizens was provided in place of the Charter.[114] The criticism that the Charter does not reflect the legal, political traditions or governance systems of the VGFN is met, to some extent, by the provision of s. 25 of the Charter which states that the Charter shallnot be construed so as to abrogate or derogate from any aboriginal, treaty or other rights. In other words, the guarantee of certain rights and freedoms in the Charter of Rights and Freedoms may be construed to ensure thatthe culture and governance system of the particular aboriginal group may be protected or maintained.

I will address s. 25 in greater detail below.[115] The reference to judicial deference in Pastion v. Dene Tha’ First Nation must be considered in its proper context of that case, which was a challenge to the results of an election pursuant to election laws passed bythe First Nation “chosen according to the custom of the band under the Indian Act”. It was not a question of the application of the Charter as in the case at bar.[116] Section 52(1) is the basis of Ms. Dickson’s claim that the residency requirement should be declared of no force and effect.

Section 52(1) begins with the words:52(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.[117] As stated previously, the Charter is part of the Constitution Act, 1982, and is supreme. See also Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), (SCC), [1991] 2 S.C.R. 5, at para. 14.

Theeffect of s. 52(1) is to put the Constitution Act, 1982, and thus the Charter of Rights and Freedoms in a position of legal paramountcy.[118] In my view, nothing in the VGFN Final Agreement or VGFN Self-Government Agreement explicitly states that the Charter does not apply to the VGFN Government.[119] I do agree that the VGFN Final Agreement explicitly provided that negotiations of a Yukon First Nation Constitution may include the rights of members of the First Nation with respect to powers of the FirstNation (s. 24.5.1.7).

I also agree that the VGFN Self-Government Agreement stated that the VGFN Constitution shall provide for challenging the validity of VGFN laws. However, neither

section suggests that this in anyway ousts the application of the Charter.[120] Similarly, various provinces have their own statutory charters of rights. Due to the implementation of the Charter, the statutory bills of right have lost much of their impact. Nevertheless, Prof. Hogg (p. 34-8) andcase law indicate that the statutory bills of rights remain in force and effect to the extent they are broader in scope than the Charter. Indeed, in Godbout v. Longueuil (City), (SCC), [1997] 3 S.C.R. 844(“Godbout”), the Supreme Court of Canada applied the Quebec Charter.[121] The question remains as to whether s. 32 of the Charter applies to the VGFN Constitution and government.[122]

Section 32 addresses the application of the Charter:32(1) This Charter applies (

a) to the Parliament and government of Canada in respect to all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (

b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. [123] The precise wording of s. 32 that the Charter applies “to all matters within the authority of Parliament including all matters relating to the Yukon Territory” goes some distance to apply the Charter to the VGFNgovernment in a general way. However, the Charter pre-dates the VGFN Final Agreement and the VGFN Self-Government Agreement as well as the Land Claims Settlement Act and the Self-Government Act, the lattertwo being federal statutes.

In my view, s. 32 does not provide an exhaustive list of governments subject to the Charter.[124] The Supreme Court of Canada interprets the purpose of s. 32 of the Charter to capture all governmental authority in Canada, including municipalities. In Godbout, the court struck down a residency requirementfor employees of the City of Longueuil. While five judges relied upon s. 5 of the Quebec Charter, La Forest, L’Heureux-Dubé and McLachlin JJ. struck the residency requirement down under s. 7 of the Charter.

La ForestJ., speaking for the majority stated the following:[48] The possibility that the Canadian Charter might apply to entities other than Parliament, the provincial legislatures and the federal or provincial governments is, of course, explicitly contemplated by the language of s.32(1) inasmuch as entities that are controlled by government or that perform truly governmental functions are themselves "matters within the authority" of the particular legislative body that created them.

Moreover,interpreting s. 32 as including governmental entities other than those explicitly listed therein is entirely sensible from a practical perspective. … [125] In applying the Charter to the municipality of the City of Longueuil, La Forest J. reasoned that municipalities performed “quintessentially governmental functions” in that they were democratically elected,imposed taxes and made laws.[126] In Eldridge v.

British Columbia (Attorney General), (SCC), [1997] 3 S.C.R. 624 (“Eldridge”), the issue was whether the failure of a hospital to provide sign language interpreters as an insuredbenefit under the Medical Services Plan violated s. 15 of the Charter. La Forest J., speaking for the court, stated that it is well established that the Charter applies to activities of government. He added, at paras. 41 – 44,that even an entity that is not part of government may be found to attract Charter scrutiny because the act performed is truly governmental in nature.

Thus, an entity like a hospital may be implementing a statutory schemeor government program and it will be subject to the Charter for that act but not its other private activities.[127] Counsel for Ms. Dickson submitted that the judgment in Band (Eeyouch) v. Napash, 2014 QCCQ 10367 (“Band v. Napash”), should be followed. In that case, the trial judge decided that the Chisasibi Alcohol By-law was subject to Charter scrutiny. The trial judge reviewed Godbout and a number of cases determining that the Indian Act was subject to Charter scrutiny. In Band v.

Napash, however, the regulatory power exercisedby the Band flowed from the federal Cree-Naskapi of Quebec Act assented to in June 1984. The trial judge concluded that despite the special treatment for the Crees in the signing of the James Bay Agreement, theirsituation was akin to the Indian Act.[128] However, counsel for VGFN distinguish Band v. Napash as the James Bay Agreement extinguished “native claims, rights, title and interests” and the by-laws of the band council were subject to the approval of theMinister of Indian Affairs and Northern Development.

Counsel for VGFN concedes that s. 15 of the Charter applies to bands under the Indian Act or custom election codes under the Indian Act. See Corbiere v. Canada(Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203, (“Corbiere”).[129] Counsel for VGFN submit that VGFN’s authority to govern themselves does not arise by federal or territorial statute but through their inherent right to choose how their political leaders will be selected.

By thesame token, Canada and Yukon submit that it is through their enacting legislation (the Land Claims Settlement Act, the Self-Government Act, for example) that the First Nation self-governments derive their power. Both ofthese submissions have merit. However, it is worth noting the view of Hogg & Turpel, cited above, at p. 214:Despite the silence of

section 32 on Aboriginal governments, it is probable that a court would hold that Aboriginal governments are bound by the Charter. This would be so where self-government institutions have beencreated by statute, because the Charter applies to all bodies exercising statutory powers. Where self-government institutions have been created by an Aboriginal people and empowered by a self-government agreement, thesource of the self-government powers is probably a treaty right (if the self-government agreement has treaty status) or an aboriginal right (the inherent right of self-government) or both.

Even here, the self-governmentagreement requires the aid of a statute to make clear that the agreement is binding on third parties. The statute implementing the self-government probably constitute a sufficient involvement by the Parliament of Canadato make the Charter applicable. [footnotes omitted] [my emphasis]

[130] The VGFN exercise of its legislative capacity and the VGFN Constitution bring it within the scope of s. 32(1) of the Charter, pursuant to the principles set out in Eldridge as being either “government” orexercising inherently “government” activities. Thus, the Charter applies to the residency requirement of the VGFN Constitution whether viewed from an exercise of inherent right or an exercise of the VGFN Self-Government Agreement implemented by federal and territorial legislation. Both are parts of Canada’s constitutional fabric.

As stated by Justice Karakatsanis in Nacho Nyak Dun, at para. 1:As expressions of partnership between nations, modern treaties play a critical role in fostering reconciliation. Through s. 35 of the Constitution Act, 1982, they have assumed a vital place in our constitutional fabric. … [131] To summarize, I conclude that the Charter as part of the Constitution Act, 1982, is the supreme law of Canada and applies to the VGFN government, Constitution and laws for these reasons:1. The Charter of Rights and Freedoms is part of the Constitution Act, 1982, and hence applies to the VGFN Constitution and laws.2.

The rights of VGFN citizens as Canadian citizens includes the exercise of their rights and freedoms guaranteed in the Charter.3. The VGFN right of self-government is both inherent and validated by Canada and Yukon legislation and thus part of the Constitution Act, 1982.4. The Charter applies to the VGFN Constitution, and laws pursuant to s. 32 of the Charter as the VGFN acts as a government and exercises government activities.5. The VGFN government, Constitution and laws are part of Canada’s constitutional fabric.6.

Article IV – Rights of Citizens remains in effect in the VGFN Constitution and the Charter of Rights and Freedoms in the Constitution Act, 1982, also applies.Issue 3: If the Charter of Rights and Freedom applies, does the residency requirement infringe Ms. Dickson’s s. 15(1) equality right?[132] The answer to this question requires an analysis of Corbiere, cited above.

In that case, the Supreme Court of Canada found that the exclusion of non-resident members of the Batchewana Indian Band (the “Batchewana Band”) from the right to vote in Batchewana Band elections pursuant to s. 77(1) of the Indian Act, was inconsistent with s. 15(1) of the Charter. Section 77(1) stated that a member of a band must be ordinarilyresident on the reserve to be qualified to vote.[133] Peter Hogg, in Constitutional Law of Canada, cited above, at pp. 55 – 85, stated that residence is not an analogous ground under s. 15 as it lacks the element of immutability. Residency is not permanent orunchangeable.

The Court appears to have coined the term Aboriginality-residence (off-reserve band member status) to distinguish it from the typical place of residence issue that arises under the right to vote in s. 3 of theCharter. In his article, entitled Equality as a Charter Value in Constitutional

Interpretation (2003), 20 S.C.L.R. (2d) 113 – 134, at para. 3, Professor Hogg stated that the exclusion of place of residence as an analogousground was based on it being a “freely chosen” status.[134] It is important to consider the factual context of Corbiere at the outset. It is set out in the judgment of L’Heureux-Dubé J. as follows:1. The Batchewana Band has three reserves near Sault Ste. Marie, Ontario: the Rankin, Goulais Bay and Obadjiwan.2. As of 1991, the Batchewana Band had 1,426 members of which 958 members, (67.2%) lived off reserve.3.

Prior to 1850, the Batchewana Band occupied large areas of land along the eastern and northern shores of Lake Huron, the northern shore of Lake Superior, and various areas inland.4. The Batchewana Band’s history involved the loss of most of its land base.5. In 1850, as part of the Robinson-Huron Treaty, their land was surrendered to the Crown and the Batchewana obtained a reserve of 246 square miles.6. In 1859, the Batchewana Band surrendered all of this reserve through the Pennefather treaty, leaving it only with Whitefish Island, a small island in the St Mary’s River.

For 20 years, the Band owned onlyapproximately 15 acres of land.7. After 1879, the Batchewana Band began to reacquire land by purchasing what is now the Goulais Bay Reserve, north of Sault Ste. Marie. Its size was increased by donation from the Roman Catholic Church in1885.8. The Goulais Bay Reserve became the Batchewana Band’s only land when Whitefish Island was expropriated by three railway companies in 1900 and 1902.9. Until the 1960s or early 1970s, most Batchewana Band members lived on the Garden River Reserve, which belonged to another band.10.

In the 1940s, the Batchewana Band Council, made up of and elected by non-resident members, assembled land which became the Rankin Reserve in 1952. The main portion of this land is surrounded by the Cityof Sault Ste. Marie.11. The third reserve, the Obadjiwan is quite small and like Goulais Bay is located in a rural area north of Sault Ste. Marie.12. Rankin Reserve has the largest percentage of those who live on one of the Batchewana Band’s reserves. Corbiere lived on Rankin Reserve.13.

Although residence on the reserve was required by law to be eligible to vote for band councils, from the first election in 1902 until 1962, the residency requirement was not enforced in Batchewana Band elections.However, since 1962 only Batchewana Band members living on one of the three reserves have been allowed to vote.14. In 1991, only 32.8 percent of the 1,426 registered members lived on the reserves and the trend to live off reserve was continuing.15.

For the Batchawana Band, approximately 85 percent of the growth in Batchewana Band membership consisted of non-status people who were reinstated to Indian status as a result of the 1985 amendments to theIndian Act.16. The only defendant represented at trial was Her Majesty the Queen. The Batchewana Band took no

part in the trial.17. Finally, s. 25 of the Charter was not the focus of the case, although there is some commentary in the judgment of L’Heureux-Dubé J.[135] The Supreme Court of Canada applied the three-part analysis for s. 15 of the Charter set out in Law v. Canada (Minister of Employment and Immigration), (SCC), [1999] 1 S.C.R. 497, at para.88, (“Law case”):… (

A) Does the impugned law (

a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (

b) fail to take into account the claimant's already disadvantagedposition within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? (

B) Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?and (

C) Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personalcharacteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equallydeserving of concern, respect, and consideration? [my emphasis] [136] In the Law case, the Court described a general purpose of s. 15(1) as the promotion or protection of human dignity.

Iacobucci J. described it as follows at para. 53:… Human dignity means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment. Human dignity is harmed by unfair treatment premisedupon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into accountthe context underlying their differences.

Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groupswithin Canadian society. Human dignity within the meaning of the equality guarantee does not relate to the status or position of an individual in society per se, but rather concerns the manner in which a person legitimatelyfeels when confronted with a particular law.

Does the law treat him or her unfairly, taking into account all of the circumstances regarding the individuals affected and excluded by the law?[137] Or as Professor Hogg stated, in Constitutional Law of Canada, cited above, at para. 4, does the impugned law impair human dignity?[138] The majority judgment was authored by McLachlin and Bastarache JJ., on behalf of five members of the court. L’Heureux-Dubé J. wrote a concurring judgment on behalf of four members of the court.

Thejudgments agree that “Aboriginality residence” as it pertains to whether an Aboriginal band member lives on or off the reserve is an analogous ground in s. 15(1) of the Charter.[139] The majority found that the first part of the Law case test was satisfied by the Indian Act’s exclusion of off-reserve band members from voting privileges in Band governance.

In other words, the off-reserve bandmember status constituted a ground of discrimination analogous to the enumerated grounds in s. 15(1).[140] McLachlin and Bastarache JJ. qualified this finding by stating, in para. 7 of Corbiere, that the enumerated grounds function as legislative markers that must be distinguished from a finding that discriminationexists in a particular case. Thus, decisions on the enumerated grounds are not always discriminatory and the circumstances of each case must amount to discrimination.

By way of example, the judges stated in para. 9, thatsex will always be a ground, but sex-based legislative distinctions may not always be discriminatory. McLachlin and Bastarache JJ. state in para. 8:… The enumerated and analogous grounds stand as constant markers of suspect decision making or potential discrimination. What varies is whether they amount to discrimination in the particular circumstances of thecase. [141] McLachlin and Bastarache JJ. then state at para. 10:

… If "Aboriginality-residence" is to be an analogous ground (and we agree with L'Heureux-Dubé J. that it should), then it must always stand as a constant marker of potential legislative discrimination , whether the challenge is to a governmental tax credit, a voting right, or a pension scheme. This established, the analysis moves to the third sta

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