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Indigenous - Yukon Umbrella Agreement. Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
In these quotes the court summarizes the 'umbrella agreement' applicable to aboriginal land treaties in the Yukon, citing the Vuntut Gwitchin First Nations (VGFN) Self‑Government Agreement as an example of one constituent agreement reached under it:C. Legal Framework for VGFN Self‑Government and the Residency Requirement
[12] Ms. Dickson’s challenge to the residency requirement arises in the context of the legal framework established by the modern land claim treaty process and self‑government agreements among the VGFN and the federal and Yukon governments. That framework involves an “umbrella agreement” negotiated with all 14 of the Yukon First Nations, as well as specific modern treaties and self‑government agreements with 11 individual First Nations, including the VGFN, which have been approved and given effect by federal and territorial legislation.
[13] Ms. Dickson’s challenge also arises in the context of the legal framework of self‑government cultivated by the Vuntut Gwitchin since time immemorial. Many aspects of that framework are reflected in the VGFN Constitution. The residency requirement is said to be grounded in the culture, law, and values of the Vuntut Gwitchin, and to be an expression of their longstanding land-based governance system.
(1) The Umbrella Agreement
[14] In 1993, after 20 years of negotiation, representatives of all Yukon First Nations and the federal and Yukon governments concluded an “umbrella agreement” to establish a framework for modern comprehensive land claims agreements in the Yukon. The umbrella agreement contemplated specific agreements between the federal government, the Yukon government, and individual First Nations that would be constitutionally protected as treaties under s. 35 of the Constitution Act, 1982.
[15] The umbrella agreement has been described as a “monumental achievement” (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 2). It established a framework for Indigenous self‑government and the management of land and resources by Yukon First Nations. Under treaties concluded after “lengthy negotiations between well-resourced and sophisticated parties”, the Yukon First Nations “surrendered their Aboriginal rights in almost 484,000 square kilometres, roughly the size of Spain, in exchange for defined treaty rights in respect of land tenure and a quantum of settlement land (41,595 square kilometres), access to Crown lands, fish and wildlife harvesting, heritage resources, financial compensation, and participation in the management of public resources” (para. 9).
[16] The umbrella agreement has also been called a “model for reconciliation” (First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576, at para. 10). The 11 specific treaties negotiated under this agreement promote reconciliation “not only by addressing grievances over the land claims but by creating the legal basis to foster a positive long-term relationship” between Indigenous and non-Indigenous communities and by placing that relationship “in the mainstream legal system with its advantages of continuity, transparency, and predictability” (Beckman, at paras. 10 and 12). The Yukon treaties are modern treaties with a “sui generis nature” that “set out in precise terms a co-operative governance relationship” (First Nation of Nacho Nyak Dun, at para. 33).
(2) The VGFN Final Agreement
[17] In 1993, the VGFN and the federal and Yukon governments concluded the Vuntut Gwitchin First Nation Final Agreement, a land claim agreement under the framework of the umbrella agreement. The Final Agreement provides for the negotiation of a self‑government agreement addressing a host of the VGFN’s self‑government powers “in conformity with the Constitution of Canada” (s. 24.1.2). It also states that any self‑government agreement “shall not affect” the rights of VGFN persons “as Canadian citizens” and, unless otherwise provided under 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” (s. 24.1.3). Among other things, the Final Agreement provides that, in order to be tax exempt under s. 149(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), the VGFN would be conferred the status of a “municipality or public body performing the functions of government or a municipal corporation” (s. 24.8.1). Absent agreement to the contrary, the VGFN is restricted “to the provision of government or other public services”, and is not permitted to engage in commercial activities (s. 24.8.2).
[18] Like the other Yukon First Nations land claim agreements, the VGFN’s Final Agreement has been approved and given effect by federal and territorial legislation. It has also been given the status of a treaty under s. 35 of the Constitution Act, 1982 (see Yukon First Nations Land Claims Settlement Act, S.C. 1994, c. 34, s. 6(1); An Act Approving Yukon Land Claim Final Agreements, R.S.Y. 2002, c. 240, s. 2). The federal legislation provides that the Indian Act, R.S.C. 1985, c. I-5, no longer applies to the VGFN settlement land, but otherwise federal and territorial laws generally continue to apply to the VGFN and its settlement land (Yukon First Nations Land Claims Settlement Act, ss. 12 and 13).
(3) The VGFN Self‑Government Agreement, the Self‑Government Legislation, and the VGFN Constitution
(a) The VGFN’s Self‑Government Agreement
[19] As contemplated by the Final Agreement, the VGFN and the federal and Yukon governments concluded the Vuntut Gwitchin First Nation Self-Government Agreement (1993), which states that the VGFN “shall have” self-government powers, including, among other things, the power to adopt a VGFN Constitution (s. 10.0), legislative powers (s. 13.0), and taxation powers (s. 14.0).
[20] As required by the Final Agreement, the Self-Government Agreement “shall not affect the rights of [VGFN] Citizens as Canadian citizens”, and, unless otherwise provided pursuant to the Self‑Government Agreement or a law enacted by the VGFN, “the entitlement of [VGFN] Citizens to all of the benefits, services, and protections of other Canadian citizens applicable from time to time” (s. 3.6).
[21] The Self‑Government Agreement, unlike the Final Agreement, does not have the status of a treaty under s. 35 of the Constitution Act, 1982 (Final Agreement, at s. 24.12.1). Even so, this does not preclude the VGFN from later acquiring constitutional protection for self-government under future constitutional amendments, if agreed to by the VGFN and the federal government (Final Agreement, at s. 24.12.2).
[22] The VGFN says that the Final Agreement and the Self‑Government Agreement are silent regarding the application of the Charter, and that during the negotiations it opposed provisions that would have applied the Charter to VGFN self-government. The VGFN’s position is that the “VGFN did not agree the Charter would apply. Instead, [it] enacted [its] own Constitution, which provides protection for individual rights of VGFN Citizens within contemporary VGFN self-governance” (R.F., at para. 3).
(b) The Self‑Government Legislation
[23] The VGFN’s Self‑Government Agreement has been approved and given effect by federal and territorial legislation (Yukon First Nations Self-Government Act, S.C. 1994, c. 35; First Nations (Yukon) Self-government Act, R.S.Y. 2002, c. 90). The Yukon legislation approves the various self-government agreements and gives them “the force of law” (s. 2). The federal legislation regulates the exercise of self‑government powers by Yukon First Nations in greater detail:. Yukon First Nation self-government agreements are to be “in accordance with the Constitution of Canada” (preamble).
. Each of the Yukon First Nations is “a legal entity having the capacity, rights, powers and privileges of a natural person” (s. 7). Further, each Yukon First Nation “succeeds to the rights, titles, interests, obligations, assets and liabilities of its predecessor band [which was constituted as a band under the Indian Act] and that band ceases to exist” (ss. 2, 6(1) and Sch. I).
. The constitution of a Yukon First Nation “shall”, among other matters, “in a manner consistent with its self-government agreement, provide for . . . the governing bodies of the first nation and their composition, membership, powers, duties and procedures” and “the recognition and protection of the rights and freedoms of citizens” (s. 8(1)(b) and (d)).
. Federal and territorial laws apply to Yukon First Nations (s. 16), except for the Indian Act, which no longer applies to Yukon First Nations, other than to register First Nation citizens as “Indians” (s. 17(1)).
. The federal legislation prescribes rules and procedures for a Yukon First Nation’s exercise of lawmaking authority. Yukon First Nations must maintain a register of laws and adopt procedures for the registration of laws, and the federal legislation stipulates rules for the commencement and proof of laws (s. 10). The federal legislation also lists the specific legislative powers that Yukon First Nations may exercise (s. 11 and Sch. III).
. Each Yukon First Nation is deemed to be “a public body performing a function of government in Canada” in order to be tax exempt under s. 149(1)(c) of the Income Tax Act (s. 18(1)).
. For greater certainty, the Yukon First Nation settlement lands are stated to “remain lands reserved for the Indians within the meaning of class 24 of section 91 of the Constitution Act, 1867” (s. 22(4)). (c) The VGFN Constitution
[24] In accordance with the federal legislation, the VGFN Constitution details how the VGFN is governed, and it is stated to be the supreme law of the VGFN, subject only to the VGFN’s Self-Government Agreement (Article II(3)). The VGFN Constitution states that “[t]he seat of government for the Vuntut Gwitchin First Nation shall be located within Settlement Land” (Article II(2)). As noted above, the Self‑Government Agreement decrees that it “shall not affect the rights of [VGFN] Citizens as Canadian citizens” (s. 3.6.1).
[25] The rights and freedoms set out in the VGFN Constitution are themselves “subject only to such reasonable limits as can be demonstrably justified in a free and democratic Vuntut Gwitchin society” (Article IV(1)). The VGFN Constitution guarantees certain rights of VGFN citizens (Article IV), including the right of individuals to be equal before and under the laws of the VGFN and the right to the equal protection and benefit of VGFN law without discrimination (Article IV(7)). The Constitution states that every VGFN citizen “has the right to make political choices, to participate in political activities, and to express a view on any public issue” (Article IV(3)). The Constitution also outlines the organization of the VGFN government (Article V), and establishes an elected Council to govern the VGFN consisting of one Chief and four Councillors (Article VIII).
[26] Under the VGFN Constitution, a VGFN citizen who seeks to run for the position of Chief or Councillor must be 18 years or older and have no indictable offence convictions for five years before the election (Article XI(1)). Candidates for office must also meet the residency requirement — they must reside on the VGFN’s settlement land or relocate there “within 14 days after election day” (Article XI(2)). This is the provision challenged by Ms. Dickson.
[27] The validity of a VGFN law (including the VGFN Constitution) may be challenged in the Yukon Supreme Court until the VGFN establishes its own court (Article II(5)). To date, no VGFN court has been established.
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