The appellant, Cindy Dickson, is a member of the respondent Vuntut Gwitchin First Nation (“VGFN”) in the Yukon Territory; she resides in Whitehorse, instead of the VGFN’s Settlement Lands, approximately 800km away, for family medical reasons and other socio-economic reasons. Ms. Dickson sought to stand for election to the Council of the VGFN. However, the VGFN constitution specifies that any Councillor must reside on the Settlement Land (the “residency requirement”); it also states that if an eligible candidate for Chief or Councillor does not reside on Settlement Lands during the election, and wins their desired seat, they must relocate to the Settlement Lands within 14 days of election day. Given that Ms. Dickson was unwilling to move to the Settlement Lands, the VGFN Council declined to remove the residency requirement from the constitution, and rejected Ms. Dickson’s candidacy for the position of Councillor. Ms. Dickson then sought a declaration in the Yukon Supreme Court that the residency requirement was inconsistent with her right to equality protected and guaranteed by s. 15(1) of the Charter, could not be justified under s. 1 of the Charter, and was therefore of no force or effect.
The chambers judge issued a number of declarations, concluding that while the Charter applies to the VGFN Council and to the residency requirement in the VGFN constitution, the residency requirement at its core does not infringe s. 15(1) of the Charter. However, the time limit for relocation specified in the residency requirement — “within 14 days” — does infringe s. 15(1), and should be severed from the requirement and declared to be of no force and effect pursuant to s. 52 of the Constitution Act, 1982 (the declaration of invalidity was suspended for 18 months).
Alternatively, if this was incorrect and the residency requirement does infringe the s. 15(1) equality right, even without the time limit, the chambers judge concluded that s. 25 of the Charter would apply so as to “shield” the residency requirement (albeit with severance of the words “within 14 days”) from a finding of infringement.
Argued Date
2023-02-07
Keywords
Constitutional law - Canadian charter (Non-criminal), Application (s. 32), Right to equality (s. 15), Aboriginal peoples (s. 35), Treaty rights, Self-government - Constitutional law — Charter of rights — Application — Right to equality — Discrimination based on aboriginality-residence — Aboriginal peoples — Treaty rights — Self-government — First Nation constitution requiring elected Band councillors to relocate to settlement lands within 14 days of election — Appellant’s candidacy for councillor rejected for refusing to relocate if elected — Appellant challenging constitutional validity of residency requirement — Various declarations issued, including that Charter applies to First Nation’s residency requirement, that time limit in requirement infringes right to equality, but that s. 25 of Charter operates so as to shield requirement from review — Whether scope of “other rights and freedoms” that “pertain to aboriginal peoples of Canada” set out in s. 25 of Charter includes residency requirement — Whether court required to conduct full analysis of Charter right engaged, including s. 1, or whether application of s. 25 means collective rights need not be balanced with other interests — Whether Charter applies to residency requirement in constitution of self-governing First Nation — Whether residency requirement inconsistent with Charter, including whether analogous ground of “aboriginality-residence” rigidly applies in all circumstances of Indigenous governance — Canadian Charter of Rights and Freedoms, ss. 1, 15, 25, 32.
Notes
(Yukon Territory) (Civil) (By Leave)
Disclaimers
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