Cindy Dickson was born and raised in Yukon’s northernmost community of Old Crow, but left for an education and job opportunities. Today, she is the founding director of an international forum in which eight countries address issues in the Arctic.
And she wants to give back to Old Crow by running for office. The Constitution of the Vuntut Gwitchin First Nation requires, however, that she return to Old Crow, a fly-in community north of the Arctic Circle, if she wins a seat. And for many reasons, including her teenage son’s need to have medical care close by, she prefers to stay in Whitehorse, 800 kilometres to the south.
On Tuesday, Ms. Dickson’s legal challenge to the residency requirement will be front and centre at a hearing of the Supreme Court of Canada in Ottawa. Her case could set a precedent that will last for years, perhaps decades, legal observers say. It’s about whether self-governing First Nations have the right to make decisions according to Indigenous values and traditions – even if that means violating Charter rights and freedoms.
It is the first test of the little-known Section 25 of the Charter of Rights and Freedoms. On its face, the section appears to give primacy to the collective rights of Indigenous communities, over the rights and freedoms protected elsewhere in the Charter.
“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,” Section 25 says, in part.
It’s known as the reconciliation section, because it’s a kind of meeting ground between the Charter rights guaranteed to Canadians and the collective rights of Indigenous communities to safeguard their traditions.
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“We have rights as human beings, we have rights as citizens of Canada, we have rights as Indigenous people,” Ms. Dickson said in an interview. “It’s really important that Section 25 is not used as a shield against its own citizens by a First Nations government.” In her written filing, she argues that the residency requirement treats her as “less of a citizen.” She is flying to Ottawa to attend the hearing.
Her case could decide, in the words of a civil-liberties group, whether Indigenous communities are “Charter-free zones.”
“It has the potential to create Charter-free zones on reserve, treaty and Aboriginal title lands throughout Canada,” says the Canadian Constitution Foundation, an intervenor in the case, in its written argument filed with the Supreme Court.
That could mean, the group says, that an Indigenous police force in a self-governing First Nation would be permitted to violate Charter protections against search and seizure. Ms. Dickson raises the spectre of discrimination against women in her filing.
Ms. Dickson has accused the Vuntut Gwitchin First Nation of discriminating against her as a non-resident member, in violation of Section 15 of the Charter of Rights, the equality clause. That clause does not require that a government intends to discriminate; it is concerned with effects, such as reinforcing prejudice and historical disadvantage. (The Supreme Court has already found a residency requirement for voting in band elections discriminatory, but that was under the federal Indian Act, not a First Nation constitution.)
The Yukon Court of Appeal found that the residency requirement violated Ms. Dickson’s equality rights. But it said Section 25 served as a “shield,” protecting the Vuntut Gwitchin’s Constitution from Ms. Dickson’s rights claim.
The Vuntut Gwitchin, like Ms. Dickson, are a success story. A First Nation of just 560 people – less than half of whom live in its traditional territory of Old Crow – it negotiated a self-government agreement with Yukon and the federal government in 1993, and got out from under the strictures of the Indian Act.
In legal documents filed with the Supreme Court, the First Nation says the residency requirement is not discriminatory. But even if it is, it argues, Section 25 would protect the community’s right to preserve its land-based traditions.
“The Elders wanted the importance of the land and maintaining our traditions to be stated … so that future generations of Vuntut Gwitchin who may not have grown up like them out on the land would be reminded and guided by these things,” Vuntut Gwitchin elder Robert Bruce is quoted as saying in the First Nation’s written legal argument filed with the Supreme Court.
“The Elders knew that the outside world was unpredictable and worried about hardships coming in the future, and they wanted future generations to remember that we can rely on our land and traditions.”
The hearing will feature a large cast of more than a dozen intervenors.
Yukon’s government says the Charter applies in Indigenous communities. Alberta says, however, that Indigenous rights prevail in the case of a “true irreconcilable conflict” with a Charter right. The federal government urges a flexible approach.