 versus the bank, with it drawn here, and get ready for the next one, and each of us are draw-taped teams. Ha ha ha ha. Ha ha ha. I welcome you in by acknowledging that the 1000 University of North Korea is a multi-use ancestral and non-seated county, we are all free to do it. I'd like to begin by welcoming the leading judges to teach us his known social, the honorable Michael Wood of the Knows, Social Court of the field, the honorable Justice, Jane Campbell, Supreme Court of Nova Scotia, and Dumi Yama QC, who's the president of the Nova Scotia Characters. Tonight's participants are J. DeCise, Nicola Hibbert, Elizabeth Branson, and Paul Steele. You're here because you're great leaders, and regardless of the outcome tonight, you're all winners. I just want to make that clear. The Smith Shield, which began in 1927, is the most prestigious routine event of the year at the Schumann School of Law. Many thanks to Stork and Helby for their continued funding of this event. This year, we've got Scott Campbell there. Yes, Scott Helby from Stork and Helby responses there. Thanks very much, Scott, to you and the firm. Thanks also to Professor Constance Manfintosh for preparing this year's problem and to associate the agency with all of her assistant, Ashley Hucci, for organizing the event. And thanks as well to Elizabeth DeSantre. Very little happens in this law school that does not have a corporation, and this is certainly one of those events. It would be hard to do this without her. But thanks as well to the various students forwards. I just wanted to let you know that this event is being audio and videotaped, and I would ask you please to turn off your microphone. Following the event, there will be a photo shoot, if I can call it that, participants and judges. Unfortunately, depending on circumstances, we're not able to have receptions. So thanks very much. Thank you, Dean. Well, counsel, we're anxious and ready to hear from you. We've read the written materials and they're excellent. And so without any further ado, we will call on which of the counsel for the appellants will go first. Mr. Ezer. Well, good evening, Chief Justice and Justices. My name is Jacob Ezard, and I'm joined by my co-counsel, Elizabeth Matheson. And together, we represent the appellant, Ms. Cindy Dixon. I will be addressing the first issue this evening, which is whether the Canadian Charter of Rights and Freedoms applies to the residency requirement enacted under Article 11, Section 2 of the Vuntut Gwichen First Nation Constitution. As a preliminary matter, I'd just like to point out that the facts of this case are outlined on page three and four of the appellant's factum. Unless this honorable court would like me to recite the facts, I suggest that we proceed directly to argument. That's fine, go ahead. I don't think there's any significant factual dispute. Thank you, Chief Justice. If there's only one thing that I want this honorable court to remember from my submissions this evening, it's that we can't lose sight of who the appellant is. Ms. Cindy Dixon. A Vuntut Gwichen First Nation citizen with an eager desire to contribute to her community in a positive manner by serving as a council member. When her nomination was rejected and when the respondent failed to engage in dispute resolution, Ms. Dixon felt as though she did not matter as a Vuntut Gwichen citizen. I therefore urge this honorable court to ensure that Ms. Dixon and all other vulnerable members of the indigenous communities around Canada have the same access to the same rights, the same freedoms and the same protections enshrined in the charter as all other Canadians. I offer the following as a brief roadmap for my argument this evening. I've broken the issue down into two separate branches. First, whether the charter should, sorry, whether the charter can apply as a matter of law to the Vuntut Gwichen First Nation Constitution. Under this branch, we'll look at section 32 and the case law surrounding its interpretation. And the second branch, whether the charter should apply to the Vuntut Gwichen First Nation Constitution. Under this branch, we'll look at the language of the self-government agreement, the language of the final agreement, and I'll address the policy concerns raised by the respondent. So let us begin then with section 32. Satutory interpretation principles in Canada are well established. Without going into detail on the mechanics of statutory interpretation, it's suffice to say that the Supreme Court of Canada urges in RISO that we take a broad, propulsive, contextual approach which takes into consideration the purpose of the act that we're looking at and the scheme of the act. What's the act you're referring to? The charter, sorry, Chief Justice. Are there not different rules that apply to charter interpretation than regular statutes? So I would suggest that, although the smaller details may change slightly, the generic approach for interpreting the charter is still requires a broad, propulsive, contextual analysis of the constitution of Canada as a whole. But would you say that the reconciliation with First Nations and the indigenous population is one of the factors that has to go into the interpretation of the charter? Yes, certainly, and that's a point that I will be addressing later in the policy arguments, especially, I think that point comes to light very clearly in both the appellants' arguments and the respondents' arguments. So with that in mind, the purpose of the Canadian Charter of Rights and Freedoms is to protect citizens from government infringements on the rights and freedoms contained therein. Now, the charter can only accomplish this purpose if it constrains all forms of government action. Consequently, section 32 of the charter appears to be more of an expression of the general principle of good governance in Canada rather than a mere list that limits the charter's scope. The Royal Commission of Aboriginal Peoples in Canada have repeatedly supported this notion. Also the case law, we see in dolphin delivery, we see in Eldridge, we see in McKinney. The Supreme Court of Canada consistently reiterates that the purpose of the charter is to draw a distinction between private actors and government or state action. The courts of this nation have consistently found that the charter applies to First Nation governments, though the appellant concedes that most of the case law on the matter involves First Nations exercising their authority under delegation from the Indian Act. And the appellant clearly concedes that this is not the case here. The Vantug which in First Nation is not acting under delegated authority or under the Indian Act. Nevertheless, the case law surrounding Section 32 remains sufficient to bring the Vantug which in First Nation and its constitution under charter scrutiny. And it's not necessary to pinpoint the exact source of the respondent's power in order to conclude that the charter applies. Neither the trial judge nor the majority at the Yukon Court of Appeals sought to pinpoint the exact power, the exact source of the power of the respondent. And that's because whether their source is an inherent Aboriginal right of self-government or whether the source of their power is the self-government agreement, which is brought into effect by enacting legislation. The Vantug which in First Nation falls under the charter scope pursuant to the principal's set out in Eldridge, specifically under the first branch in the test that the Supreme Court of Canada established in Eldridge. Doesn't that sort of ignore the sui generis nature of indigenous First Government, indigenous self-government, because it's saying it looks like a government, it acts like a government, so therefore it must be covered by section 32, whereas it's something that's entirely different to anything we've seen before in a Canadian legal tradition. I take your point, Justice. I would push back respectfully just on the fact that the issue here today is focused on the purpose of the charter being to restrain government action in a matter when it affects the rights and citizens of individuals. So what we have here is an individual, a member of the Vantug which in First Nation who has been discriminated against by her government. And regardless of the sui generis nature of the Vantug which in First Nation, I think it's important that Canada's supreme law remains in force and in effect in order to provide Ms. Dixon and other vulnerable members of the indigenous community with the protection that they deserve as Canadian citizens. Which is sort of like saying you can have self-government but you have to do it within the limitations that we impose on you. So I take your point. I would suggest that there's a difference between the right of self-government and the exercise of self-government. So the right of self-government is established, it's affirmed, it's recognized in section 35 of Canada's constitution and it's recognized in this Honorable Court this evening. But recognizing the right of self-government does not necessarily preclude limitations on the exercise of self-government. And that's what we're doing here this evening. The residency requirement enacted in the constitution of the Vantug which in First Nation is an exercise of its self-government. By putting limits on the acts that they're performing, we're solely limiting the way that that right is carried out, we're not actually limiting the actual right of self-government. If I could draw an analogy, for instance, consider let's say something like the right to vote. The right to vote is recognized in section three of the Charter. However, the exercise of the right to vote has natural limitations placed on it, say under the Canadian Election Act or the Nova Scotia Elections Act. But I don't think that the elections act and the limitations that they put on the right to vote belittle this nation's recognition or affirmation that Canadian citizens have a right to vote. Would you say then the recognition of the right to self-government is also contingent upon the exercise and without linking the two together, no, it would make the exercise of the right meaningless without the full application of the right. I would push back a little bit on that, Justice. Based on the fact that, could I actually get you to repeat the question one more time? If the, wouldn't you say that the recognition of the right to self-government also includes the exercise of it. And without, if you were to limit it, then you possibly may be infringing upon the right itself. So I would disagree respectfully, Justice. Based on the fact, and this is pointed out in the respondent's factum, they place a great deal of emphasis on the notion that reconciliation requires full acknowledgement and requires full appreciation of the right of indigenous peoples to manage their own affairs. And while I do completely agree with that premise, I think the court can still fully recognize and fully acknowledge the right to self-government while still drawing a distinction by placing reasonable limits on that exercise. And I would suggest that the argument made by the respondents essentially fails to consider the importance of the rule of law in Canada in that reconciliation should not entail unrestrained authority, but rather there should be room for reasonable limits to be placed on the exercise of that authority. Is there anything I can clarify further for you, Justice? So I'd like to turn our attention specifically to the language of the self-government agreement and the final agreement reached between Canada, the Yukon, and the Vantuk-Witch in First Nation. If you'd please turn with me to paragraph 43 of the appellant's factum, you'll find my submissions on this point. So it's important to note that the final agreement and the self-government agreement are the result of approximately 20 years' worth of meticulous negotiation between Canada, between the Yukon and between the Vantuk-Witch in First Nation. So the language within those agreements is extremely important to analyze. We know that the words of those agreements were precise and they have a purpose within the particular agreement. So I wanna turn your attention to section 24.1.2 of the final agreement, which states that the self-government agreement must be in conformity with the Constitution of Canada. Now my friends submit at paragraph 35 of the respondent's factum that the purpose of that provision was solely to draw a defining line between the division of powers. It was to make sure that the final agreement, the self-government agreement didn't affect what was listed in section 91 and 92 of the Constitution. However, I would suggest that argument carries very little weight because the wording of the actual text of the agreement says conformity with the Constitution. It doesn't say conformity with section 91 and section 92 of the Constitution. It says conformity with the Constitution as a whole. And we know that the Charter- Is it hard to say though that the, it says that the final agreement says that the negotiated self-government agreement must be in conformity with the Charter. The agreement itself has to be in conformity with the Charter. It doesn't say that the First Nation government exercised under its inherent right to self-government, it must operate following the Canadian Charter of Rights. So I think it's very important to note that the premise of this issue deals with whether or not the Canadian Charter of Rights and Freedoms can apply to the residency requirement, which was enacted in the Vantuk, which in First Nation constitution. And the authority to enact a constitution was specifically outlined in the self-government agreement. So we kind of have this hierarchy where the final agreement establishes what the self-government agreement had to entail. And then we have the self-government agreement, which says, okay, under the self-government agreement, you can enact a constitution. So I would take it that if the self-government agreement has to be in conformity with the constitution, so would the Vantuk, which in First Nation constitution, which falls under the authority or under the scope of their self-government agreement. We can also turn to section 24.1.3 of the final agreement, which states that a negotiated self-government agreement shall not affect the rights of the Yukon Indian people as citizens of Canada and their entitlement to the services, the benefits, and the protections of all other Canadian citizens. So if Vantuk, which in First Nation citizens cannot invoke the Charter against their own government, I don't see how it could be said that they have the same access to all of the benefits, the rights, the freedoms, the protections as all other Canadian citizens. Canadian citizenship is inevitably compromised, sorry, when a distinct and sizable portion of the Canadian population is denied access to invoke the Charter against the government that's responsible for carrying out the community's general welfare and the government that's responsible for good government in that territory. Council, earlier you said something to the effect, I'll paraphrase, that it doesn't matter what the authority of the self-governing power is, whether it comes through the agreement, the final agreement described in here, or whether it comes from the inherent right to self-government. But if it's the inherent right to self-government, then what do these provisions have to do with that? Because these seem to be directed to authority that derives from those agreements. As opposed to something that's inherent. So I wonder whether we might actually have to come to a conclusion on the source of the authority to self-govern, because the analysis as to whether the Charter applies, seems to me, may be very different. So to your point, Chief Justice, I would direct you to page 11 of the appellants' factum. And the appellant actually does submit that the Van Toet, which in First Nation derives its power from the federal legislation that enacts the self-government agreement and that enacts or brings into effect, sorry, the final agreement and the self-government agreement. So if the court is willing to accept that premise from the appellant, then it would follow that the wording of the final agreement and the self-government agreement then would have to be in conformity with the Charter. The argument that the precise language, or sorry, the argument that the precise source of the Van Toet, which in First Nation power doesn't have to be defined is solely, solely relates to whether or not we can place the Van Toet, which in First Nation under the first branch of Eldridge. We can do that whether or not it's defined, whether their source is defined as an inherent right or through the self-government agreement. So is the position, is it your argument that all of the powers exercised by the Van Toet, which in First Nation are all derived from federal legislation and that none of it is derived from its inherent rights? Or is there a possibility that some of its powers can be outside of the agreement? Certainly, I would suggest that the inherent right of self-government, which is recognized in section 35 of the Constitution, that that right exists outside of the self-government agreement and that right exists outside of the final agreement. But what the self-government agreement in particular does is it demonstrates how the Van Toet, which in First Nation is authorized to carry out that right. So we're going back to that distinction between the right itself and the exercise of that right. So to a point that Justice Campbell made, you're saying the Charter applies to the manner in which it's implemented and carried out so that to that extent there is an external limit placed on what can be done, even if it is inherent self-right to self-government. Yes, I would agree with that statement, Chief Justice, primarily because Aboriginal communities in Canada, even those that are operating under inherent right of self-government, they're not externally sovereign nations. They are part of Canada sovereignty in general. It's a shared sovereignty is how the Supreme Court of Canada has come to reconcile the authority of First Nations governments and of the Canadian state as a whole. But is it fair to say we won't be able to achieve reconciliation until we start thinking about different ways to conceive sovereignty, to co-exist without the Canadian state essentially imposing Eurocentric values found in the Charter on people who don't necessarily accept those values? So to that point, I would suggest that first we, we must establish that the rights found in the Charter do not necessarily conflict with the rights of the Vuntuk, Wich and First Nation. We see in Article Four, Section Seven of their Constitution that they have a very similar provision. If I may have 30 seconds to wrap up, I see that I'm out of time. Yes, certainly. Thank you, Justices. We see that in Section Four, Sub-Seven of the Vuntuk, Wich and First Nation Constitution, almost the exact wording that's enshrined in the Charter, Section 15.1. So I would suggest that in particular, as far as it goes, in terms of the individual's right to be free from discrimination, both the Vuntuk, Wich and First Nation and Canada share that as a whole and they're not incompatible. So to conclude, I know I'm out of time. The appellant would respectfully submit that the Charter can apply as a matter of law and should apply to the Vuntuk, Wich and First Nation and its residency requirement enacted under Article 11, Section Two of the Constitution of the Vuntuk, Wich and First Nation. Subject to any further questions, those are my submissions. Thank you very much for your time. Thank you, Justices. Whenever you're ready, Justices. Whenever you're ready, we're ready. Good evening, Chief Justice, Justices. My name is Elizabeth Matheson and I represent the appellant, Ms. Dixon, on the second issue of her appeal. Namely, whether the residency requirement in the VGFN Constitution violated Section 15.1 of the Canadian Charter of Rights and Freedoms. Justices, this matter is about the importance of political participation for Indigenous citizens and condemning restrictions on such participation based on place of residence. As it stands right now, the VGFN Constitution requires anyone elected as Chief or Counselor to relocate settlement lands within 14 days of election. The question for you this evening is whether this violates Section 15.1 of the Charter and if it does, whether it can be upheld under Section 1. Now, at paragraph 41 of their fact and the respondent has conceded that Section 15.1 of the Charter has been violated. And therefore, if it pleases this honorable court, I would like to use my time this evening to proceed straight to argument on Section 1. As I think that this is sort of the crux of the matter, however, I am also happy to canvass 15.1 if that's preferable to the court. Well, I think you've correctly noted the concession by the respondent. So move to your Section 1 argument if any of the panel have questions about, because ultimately, whether they've conceded or not, we still have to make sure we're satisfied that it is, in fact, a Section 15.1 violation. If we have any questions, we'll let you know, but proceed with your Section 1 argument. Thank you, Chief Justice. The test for justification under Section 1 is laid out by the Supreme Court of Canada in R versus Oaks. In order to justify the requirement, the respondent must prove that the objective is pressing and substantial and that the means used to achieve the objective are proportionate. It is the appellant's position that the residency requirement cannot be justified under Section 1. I turn first to the objective of the residency requirement. With respect, the respondent has stated the objective far too broadly. The Supreme Court of Canada has repeatedly emphasized the preference for narrowly tailored objectives under the Section 1 analysis. In Thompson newspapers, the court held that it's desirable to state the purpose of the limiting provision as precisely and specifically as possible. This provides a clear framework for evaluating the objective's importance, as well as the means chosen to fulfill that objective. The respondent submits that the objective of the residency requirement is to ensure the well-being of VGFN citizens and they state this at paragraph 66 of their FACTA. This is an incredibly broad objective, which if accepted, loses focus on the specific issue at hand, which is political... Where do we look to determine the objective? How do we come up with or how do you argue we should come up with the objective behind that particular regulation? Well, I would argue that the objective has to be stated specifically enough so that it is tailored to what the legislation and what is actually targeting. So here, we're looking at political representation. So we would submit that the objective is to ensure that the most immediate and direct connection, those with the most immediate and direct connection with the VGFN are actually those who have the authority to make the decisions for the nation. Could it be conceived of as something to prevent, for example, if we acknowledge that more than half of the people in the nation live outside the territory and that the bulk of the services are provided on the territory, that the purpose is to prevent a group of people who live outside the reserve from outside the territory, the treaty territory, from essentially governing those people who live on reserve. And I'm just, I'll ask as an example, you could have a number of people who live in urban Ontario essentially becoming councillors of this first nation and making the rules that apply to the resources that are provided to the people who live on reserve. Would that be a reasonable purpose for the legislation? Absolutely, Josh, and I would agree with you that those issues are pressing in this appeal. And I do address them at the rational connection and minimal impairment stage, but when it comes to the objective specifically, I think to say that the, well, the objective of this is to ensure the wellbeing of VGFN citizens. That really almost answers the question to the objective inquiry to begin with, because who could possibly argue that that is not pressing and substantial. And also I think it widens what is appropriate of the rational connection analysis for the specific issue that we're tackling. Whereas the objective that the appellant puts forward, I think is more tailored to the issue and those pressing concerns can still be addressed, but in a more specific way. Now, the appellant submits that this objective that the appellant has put forward is pressing and substantial because it honors the harmful impacts of colonialism and the goals of reconciliation. But what the appellant does not agree with is that the means used to address this objective are proportional. And I'll start with rational connection. The residency requirement is not rationally connected to this objective. Keeping outsiders out of VGFN politics is a worthy endeavor, because as I said, it is in spirit of reconciliation and in recognition of the harms of colonialism. However, non-resident VGFN citizens are not outsiders to their community. The assumption that only resident members of the VGFN have a close enough connection to their community to govern is based on the stereotype that was rejected in Courbier, that non-resident members of indigenous communities are less capable of contributing to governance. This is not true. Non-resident members of indigenous communities have key concerns and considerations that their government will figure out for them. Their co-owners... Council, isn't there evidence that there's a fairly high degree of mobility between people who live in the community and people who live elsewhere for a variety of reasons, including your client, who lives where she does for a variety of reasons, including the health care needs of her son? So in the context of a community that strikes me as having a high degree of mobility amongst its members, what does residency mean? What does it mean when they say you must reside in the community? Well, I would suggest that the residency requirement is saying you need to be within the geographical bounds of settlement land, which would, for most people, be... But for what period of time? I guess I'm thinking we have, just to take a completely out of context, we have people that are residents of Canada for tax purposes that are here whatever it would be, 180 days of the year, and the rest of the time they live in a different country, but they're residents of Canada. So is that sufficient? If your client were to have a home where she occupies half of the time, would that be sufficient under the residency requirement? I would argue that what the residency requirement is requiring as of right now is that while you sit in office, either as chief or as council, you need to permanently reside on settlement lands, and that is what the appellant is arguing is inappropriate. Given the considerations that we know about indigenous residency, and how that is a bit sweet generous, and how the residency decisions made by indigenous folks are not the same as residency decisions made by non-indigenous Canadians, it's a lot more complex, and there are a lot more considerations that go into it, which is why I think in Corbier, the Supreme Court of Canada recognized Aboriginal residents as an analogous ground in the first place, because regular residents is not. And I think that the recognition there is why strict residency requirements like this are so difficult, and why it can have the impact of excluding a lot of people. In Corbier, they used a phrase ordinarily resident. Would that be applicable here? And if so, how, if the First Nation were to use, or your client were to use, how would that be applied? So do you mean if, what would make my client ordinarily resident? Well, there's a lot of case law on the phrase ordinarily resident as defined under Union Act, and it was considered in Corbier. To follow up on the point here, what would constitute an ordinarily resident? I would argue for the purpose of the residence requirement as it currently stands, that would require mystics and to live permanently in a residence in Old Crow or within settlement territory for the remainder or for the time that she serves on the council. So as we pointed out a little bit in argument tonight is over half of VGFN citizens reside outside of Old Crow. And I think at the rational connection stage, it needs to be recognized that in reality, resident chiefs or counselors are not living day to day with the majority of the nation's population. And does that mean that resident citizens are unfit to govern because they don't live day to day with the majority of the population? Of course not. What the appellant submits is that it shouldn't be the other way around. Being able to contribute to your community isn't just about where you physically reside. It's about your knowledge of cultural traditions and your knowledge of your community. And that doesn't just disappear when you change your address. We also submit that the residency requirement is not minimally impairing. In this case, there are other less intrusive ways to further the objective of maintaining a government system with a close connection to the community. The VGFN could have instead limited the number of seats available on the council to non-resident members of the community. There could be a tiered system of governance or perhaps there could be regulation enacted which specify what certain counselors can vote on depending on where they live. Now I'm not speaking to the constitutionality of any of these requirements, but all I'm pointing out is that they are less restrictive than what we currently have. And they would achieve the same effect. Now my friend appears to suggest that because the residency requirement allows non-residents to run for council or for chief, but they don't have to move until they're elected that this makes the requirement minimally impairing. But I would argue that this ignores the values of substantive equality. The Supreme Court of Canada was quite clear in Fraser that at the heart of substantive equality is recognition that identical or neutral treatment can constitute severe inequality and what matters is if there's a disparate impact. And as was discussed in our factum, albeit at the section 15.1 stage, the fact that non-residents are permitted to run but have to move if they're successful is really not much different than a complete ban on running at all. It's a distinction without difference. And my friend argues that the fact that these positions are paid, so how mitigates this impact at the minimal impairment stage. But I think that that ignores a lot of the other considerations that we've talked about tonight that go into the decision of where to live. Other aspects of living at Old Crow have to be taken into consideration. A lack of access to medical care, employment, housing, higher education. All of these things could make living in Old Crow very unreasonable. For a lot of people, look at the appellant. She is a young son who needs ready access to a hospital and it would be an impossible choice for her to make to have to sacrifice his health and his safety in order to take on a political role. And we submit that this isn't the sort of decision somebody should have to make to be able to participate in the government of their community. Finally, the appellant submits that the deleterious effects of the residency requirement upon non-resident citizens outweigh any solitary effects put forward by the respondent. My friend with respect downplays the negative outcomes the requirement produces claiming at paragraph 81 that they are economic and social hardships not fundamental to section 15 rights. This is a significant understatement. Political participation has been found to be a fundamental exercise of citizenship. In the broad context, the Supreme Court of Canada has held that increased political participation enhances the quality of democracy. But political participation is particularly fundamental for non-resident indigenous citizens. Indigenous councils make critically important decisions which affect all citizens, residents or not, decisions regarding the use of community funds, allotment and surrender of land and the availability of services. Non-residents have a stake in this game and the residency requirement takes away the opportunity for them to put themselves into a position to help make these decisions. And what is more, the ability to meaningfully participate in community politics is key to sustaining a positive cultural identity. This has been found to be particularly important for indigenous persons living in urban areas such as the appellant because cultural identity is tied so closely to land base and ancestral territory. Ms. Matheson, and correct me if I'm wrong, you're undoubtedly more familiar with the evidentiary record, but was there not evidence that historically through the... The historic way the community governed itself, pre-contact, pre-colonialism, that residency of the leaders of the community in the community was crucial. Was there evidence to that effect? I would agree with you that there was. And so what we're talking about now is really a modern manifestation of that historic manner of governance. Does that change the analysis in terms of this weighing of the deleterious effect and those sorts of things because the community historically has run itself in a certain way by saying, if you're gonna be a leader, you need to be here. And now you're talking about changing that and saying, well, no, that's not that important anymore. It's what's more important is that people that are members of the broader community want to be able to participate in governance even if they're not members or not, sorry, not residents in little crow. With respect, I would argue that while the connection to the land was noted in the evidentiary record as very important to government, that was not the only thing that was noted. It was also knowledge of the community, knowledge of customs and traditions and connection to the people within the community. And I would suggest that in 2021, that is not something that can only be manifested through physically living on the territory. I mean, look at what we've gone through in the past year and a half. Courts of law have been making fundamental decisions about people's lives over the phone or over Zoom for over a year now. And I think that that has taught us that physical location should not be a barrier that is too high to cross, particularly when other people's rights are at stake and those are the competing interests. And I would also note that travel is an option. The appellant travels back and forth between old crow and white horse and there are flights into old crow. So I would say that when we're doing this balancing, we have to consider all of the options available to us now that can respect the connection to the land while also not diminishing people's cultural and community connections just because for some reason or another that they had to leave. Does that answer your question? Yes, I understand your submission. Thank you. Thank you Chief Justice. I would argue that the ability to participate meaningfully in indigenous government is key to sustaining a positive cultural identity. And that kind of goes to what we were just saying. People living in urban areas need that connection and being involved in politics fosters that community belonging and sense of togetherness. Whereas this requirement disallows people from that meaningful participation. Would that be the only method of community identity is through politics or is there any other ways that can be achieved without the impact upon the reasonableness of the intent of the legislation? Well I would certainly suggest that politics is not the only way that one can foster connection to their culture. But I will say when as I discussed the enormity of the decisions that are made by indigenous councils and I mean I think that those decisions hit so much closer to home for indigenous people than for people dealing for example with the federal government of Canada. These are key things surrender and allotment of land. Service is available to both on and non-residents and resident citizens. These are things that are going to touch your life. And I think being banned from participating that is a huge barrier between cultural connection. When so many huge decisions that affect your community are being made through that media. What this case really boils down to, justices is maintaining the inherent dignity of non-resident VGFN citizens. The impugned residency requirement restricts meaningful political participation and the appellant urges that this honorable court not let this stand. To do anything else would be to treat non-residents as other, as less worthy members of their community. This is not a desirable course of action particularly given the incredible Harman stigma we know that non-resident indigenous folks already face in day to day life because of the decision to venture away from their settlement lands. And for these reasons the appellant submits that this honorable court should not uphold the requirement under section one. And it said you'd use its power under section 52 of the Constitution Act 1982 to declare the requirement of no force or effect. I wanted to leave time for questions because you mentioned you might have some but bearing any further questions, those are the submissions of the appellant. All right, thank you very much Ms. Matheson. And I'll just ask my colleagues on the panel if they have any additional questions particularly if there's anything in the first part of your argument, the violation of section 15.1 that they want to ask Justice Young. Do you have any other questions? Not at this time. Thanks. Justice Campbell. Very quickly and it may not permit a quick answer but issues of minimal impairment in that analysis. Can minimal impairment mean different things with different legislation? So that legislation that's drafted in this case by a government that's operating under its inherent right to self-government that issues of minimal impairment should be looked at through that lens and given maybe more of a pass than a piece of legislation that comes from a municipal government. I would certainly agree with you that deference is key when there are indigenous parties involved in law but I would say that this constitutes a complete ban. And I would say that when we get into complete the territory of complete ban there is jurisprudence to suggest that that's a dangerous area to venture. And so while I do think that deference is important I also think that in this situation and it would not be enough to save this under section one. Thank you, Justice. All right, thank you for your submissions. All right, I guess we're ready to hear from the respondents. I'll turn my chair. Good evening, Justices. My name is Kelsey Moore and along with my co-counsel, Nicola Hibbard, we are here representing the respondent, the Ventured Gushwin First Nation. This appeal is predominantly about the issues of reconciliation and the need to respect the right of self-determination of indigenous communities. This has been a topic of serious discussion in the past several years in both the legal and government fields and it's our position that this case now offers the court the opportunity to put those ideals into practice. The respondent submits that the Supreme Court of the Yukon aired in finding that the Charter is applicable to their inherent self-governance. They submit that not only is this contrary to both the intention and language of the Charter but it also infringes upon their right to self-determination and to manage their own affairs. To lay out a brief roadmap, this is based on three key arguments. The first of those is that the VGFN cannot be construed as government under section 32 sub one of the Charter. The second is that further language in sections 25 and 33 sub one preclude its application. And finally, true reconciliation requires the acknowledgement of recognition of the importance of self-determination for indigenous communities. Moving first to the issue of section 32 sub one, it is the respondent must acknowledge before moving forward that as the appellant mentioned the case law in this matter is not in their favor. All previous decisions have found that the Charter is applicable to indigenous self-governments. However, it is the respondent submission that these can be distinguished in two key ways. The first of these was already touched on by the appellant in that these cases involved the Indian Act, which is clearly not the case here. However, we would like to specifically restate that we are not relying on any form of legislation to recognize the VGFN's right to self-government. It is an inherent right flowing from their position as the original residents of the land and thus is even more distinguished. Secondly, So what is the effect of the agreement then? What's the legal effect of that? Because without that, what would the situation be? It is our position that the legal effect is to simply entrench that right into law and allow the Canadian government to recognize its existence. It is not conferring the power up on the VGFN. So recognition as opposed to conferring, that's the distinction you're making? Yes. Okay. So from a practical point of view, VGFN residents are Canadian citizens with all the rights of Canadian citizens, I presume, that's a given. Yes. So they have the right to vote, the right to freedom of religion, the right to assembly, all of those kinds of things. There's no issue there. No, no issue there. Okay. Do they get those from the Charter or from somewhere else? We would submit that they get those from the Charter in dealing with the Canadian and provincial government. And when they are dealing with their own government, it comes from the VGFN's constitution itself. Okay. So the VGFN could then have a constitution that says, for example, we've had a lot of trouble with Catholic Church on our land. They've not been friendly toward us, so we're gonna ban any religious observance that involves Catholic Church. And you would say, well, yeah, that's their right, they can do that. In their constitution, they have stated that they see all people as equal in the eyes of the VGFN law. So I don't see an instance where that would fit within the laws that they have created for themselves. But that doesn't apply to residency, obviously. The residency is a different issue depending on political participation. And as my co-counsel will outline, traditional connections to land and practical implications regarding distance. Okay. So if I understand your argument, and I wanna say it to make sure I do understand it, so I'm not trying to put words into your mouth or I'm not stating it correctly, then please, by all means, correct me. Your factum talks about dual jurisdiction and words to that effect. And I just wanted, I think, in response to a question by Justice Campbell, you indicated that the Charter would be available to members of the First Nation in relation to their dealings with, for example, the government of Canada. Yes. But not in relation to the dealings with their own government. No, we would submit that it is applicable to their interactions with other forms of government as outlined, they still have all the rights available to other Canadian citizens. However, in dealing with the VGFN, as it is a unique situation involving an inherent right, we do not believe the Charter applies, and thus it would not be available to them in those very particular cases. So in the provisions of your client's constitution that are similar to some of the provisions of the Charter in terms of the equality provisions, not identical, but similar, you're saying that that's the First Nation adopting an equality right, which is analogous to the Charter, but it's their own independent equality right. And so that's how you, you don't have to wrestle the differences between them because that only applies when they're dealing with their First Nation and the Charter language applies when they're dealing with other government. Yes, that is what we would submit. Okay, thank you. Okay. The second way that these cases can be distinguished, just briefly, is they don't really go into any in-depth analysis of section 32 sub one. When the Supreme Court did hear the case of Tapetot, which had questions on 32 at the appeal level, the Supreme Court stayed silent on the issue. So there's plenty of room for this honorable court to undertake a full section 32 sub one analysis and come to a different conclusion than has been offered in the previous case law. We're also not governed by any precedent. Very true. Moving to that analysis of 32 sub one. First, the definition of government within that section has been outlined by the Supreme Court in dolphin delivery to be a specific reference to the executive branch of the Canadian and provincial governments and not a form of government more generally in the abstract sense of the word. So it would move to the tests outlined in McKinney and Eldridge as outlined by the appellant to have that discussion. Looking at the case of McKinney, in that case, the Supreme Court outlined what has been termed as the control test, which outlines three, sorry, five key factors that must be looked at to determine if an entity other than government can be subject to charter scrutiny. Those five criteria include statute, function, funding, control and history. To look at those briefly, statute has already been discussed as the VGFN submit that they are not pulling their power from statute and it is an inherent right. Therefore, there is not a level of statutory control over their right to self-governance. Would you say that however, the final agreement becomes a modern self-government agreement protected under section 35 of the constitution and wouldn't that rise to a constitutional instrument or statute of higher nature? We would say it would, but it would be more so between the dealings of the VGFN themselves and with the Canadian and provincial governments versus individual citizens in their interactions with the VGFN council. Thank you. Moving to function, it is without argument in this case that the VGFN are serving a public function. They're acting as the government for their community and providing services. But as outlined, this is a non-determinative factor and may simply open certain decisions to judicial review which the VGFN have provided for within their own constitution. Further on funding, again, is non-determinative and the VGFN do receive funding from the federal and provincial governments. However, allocation is left open to them and there are also issues of them receiving taxes from their citizens to utilize an opening alternative revenue streams which could impact on those funding arrangements. Moving to the impact of control, that is the respondents position that that's the key factor here. The government control that is seen in other cases is just not as present here as the VGFN explicitly recognized in the final agreement that they wish for the government to stay out of their affairs. When you say government control, you mean the federal government in this case? And the federal and provincial government, yes. And provincial, but I think it's primarily the federal government we're dealing with here. Yes. Yes, so yeah, the language within it is simply making it very clear that the VGFN rebut any instance of government control and have made this arrangement in order to remove that level of control to the best of their ability. Moving to history, this is again a key factor in this case as it is with any instance talking of indigenous governments and their interactions with the federal government previously. Like many other indigenous communities in history, the VGFN have been subject to extreme levels of control by the federal government, including instances of forced assimilation in residential schools, the loss of their land, and other forms of what can be termed as cultural and physical genocide. So history does play a key role. There has been a significant amount of control throughout history of the VGFN. But to rely on that, to constitute them as a government today, ignores the domineering non-consensual nature of those colonial systems, and the VGFN would submit that it has no real place in this discussion regarding the specificity of indigenous governments. Moving to the cases of Eldridge and Gadbo, which were outlined by the appellant as being key cases that play a role in situating the VGFN as government, we would respectfully submit that the application of these cases ignores the underlying factor of the two decisions, which were that the charter is applicable as these are outlining duties that the government would normally undertake, and they are under direct government control by providing them. Can I bring you back for a moment on the issue of government? VGFN looks a lot like a government. It does a lot of the stuff that governments do. It elects people to it, whether they're resident or not, I suppose, is the issue. But if they're not a government, what would you call them? What word would you use to describe the entity that controls this territory if it's not a government? We would submit that government would be the correct word in the more general sense of the term, just not as it's considered within the charter. So looking at Eldridge and Gadbo, as I said, we were looking at cases of implementing specific statutory schemes for outlining delegated powers, which is not the case here, as the VGFN are operating under an inherent right as the original residents of the land to control their own affairs and manage their own day-to-day interactions with their people, and the way that they wish to run their community and stay true to their cultural and legal traditions that they practice pre-colonization and to the rest of their ability throughout colonization. With the permission of the court in the interest of time, I would like to skip over the arguments on section 25 and 33 sub one, unless you have any questions. No, that's fine, we've read those submissions. Perfect. Moving to our final submission, it is the position of the respondent that true reconciliation requires that this court acknowledge and appreciate the importance of self-determination and recognize that the application of this charter in this case would constitute a limitation to that right. This includes first looking at the importance of self-determination, which is an internationally recognized right under the United Nations Declaration on the Rights of Indigenous People, which has been accepted by Canada through Bill C-15 and its implementation plan to take all aspects of that declaration into effect. Important to upholding self-determination is not only allowing Indigenous people to make their own decisions, it is allowing them to use their own governance structures to make said decisions. As was mentioned during the appellant's argument, restricting the exercise of this right is a restriction of the right itself, meaning if the VGFN are not able to use the structures that are known to them, they are not fully self-determining. This also includes the issue of consent. A key aspect of this is during the charter's creation, Indigenous people were not given a true opportunity to consent to its creation or implementation and throughout the time since it's passing they have shown objections to its application to themselves as it conflicts with their understandings of values and how rights work within their community. So what does that say about reconciliation? If we say it applies to Canadians and their interaction with their governments, municipal, provincial and federal. The residents of the VGFN have a government although we're putting finger quotes around it, it's a government that the charter doesn't apply to. So what does that say about reconciliation when every other Canadian has the benefit of the charter but the residents of the VGFN do not? Well I would like to refer again to the fact that they still have the benefit of the charter in all the same interactions that other Canadian citizens have. But in their interaction with their government? Yes, for reconciliation I think that's a very big question of what does that mean to restructure entire governments to take out what has been a key facet of Canadian law within the charter. And it becomes a question of what do Indigenous communities want to do when it comes to how they run their communities and what they wish to have applied. It was referenced within the trial decision that the Nishka final agreement specifically references that they are subject to the charter, meaning that they made the decision in their negotiations to outwind this fact, something the VGFN say that they specifically did do. Isn't there an argument that the same thing happened here? Maybe not in quite that clear language but the reference to the agreement being subject to the Canadian constitution and that the residents continue to have the rights of Canadian citizens. Is there not an argument that that's in essence saying certain aspects of the charter at least have been adopted? It could be made an argument but the respondents position is that in saying that these legislations were made in conformity with the constitution is first different from saying that they are bound by it and saying that there are certain aspects of their agreement that do need to be bound by the constitution in order to work. As I previously mentioned there are funding arrangements between the federal and provincial government which are specifically delegated to each level of power meaning in that instance the constitution almost needs to apply for those governments to negotiate with each other on those matters and does not necessarily mean that they intended for the charter to then apply to their own government's decisions. I just wanna go back a little bit and correct me if I'm wrong here and in my reading of the Yukon self government agreement and the final agreement, there's a term contained in agreement which defines that certainty. I don't know if you read that term but the term is intended that the inherent rights associated with the communities in the Yukon self government agreement would hold their exercise of their rights in abeynes during the duration of the agreement in particular their inherent rights. So if this is the case, and again that could be wrong in my reading of it, to which First Nation agree to hold their rights to exercise their inherent rights including the right of residency and membership under this larger agreement? It seems that they would have held their rights during the negotiation period so that things could be worked out to both parties' satisfaction as best as possible but it didn't mean that they completely gave up that right once the agreement had been put into place and they'd started on the governance journey that they had intended from the beginning. Well, there was the whole purpose of the phrase certainty that allowed the negotiators to move away from the term extinguishment to allow negotiations to continue but not to exercise them and hold them in abeynes. Wouldn't that be the same as extinguishment? I would think that holding them in abeynes was just for the period on which negotiations were undertaken and now that we are, I believe at this point, 17 years past the agreement, that advance would no longer be applicable. So just to conclude, sorry, the respondent is requesting that this honorable court take the position that the VGFN's right to self-govern is vitally important to the preservation of their cultural and legal traditions which have been irrevocably harmed by colonization throughout the time post-contact. In order to be able to maintain these traditions and to an extent revive them where possible, it is important that they be able to determine their own governance structures as best as they are able and in order, sorry, applying the charter forcefully to this effect would face a limitation on their right to do so, meaning that they would be unable to repair many of those harms if they have to consistently then be held to the federal legislation that was such an issue when it was created. So it is for this reason that the respondent asked this court to find that the charter does not and should not apply to the VGFN's acts of self-governance. If there are no further questions from the bench, this concludes the respondent submissions. Thank you. I think we asked our questions as we went along, so thank you for your submissions. Thank you. Good evening, Chief Justice, Justices. My name is Nicola Hibbard and I represent the respondent, the Vuntut Gwich and First Nation on issue two. The question before the court is whether we should solidify our movement to a nation-to-nation relationship by respecting indigenous people's powers over their own governance systems or whether we should again usurp their inherent right to self-government. When the Vuntut Gwich and First Nation enacted the residency requirement, they were reviving their traditional law and political practices. To step in now would be to encroach on their inherent right to self-government and takes us a step back in the reconciliation process. As counsel for the Vuntut Gwich and First Nation, our submissions are twofold. First, we submit that there are compelling reasons for this court to exercise deference in the section one analysis. And second, we submit that the section one analysis unequivocally supports a determination that the residency requirement should be upheld. Given that my friend- Who bears the burden on the section one analysis? The Vuntut Gwich and First Nation, we do. And how would you describe the burden? On a balance of probabilities. Given that my friend has moved straight to section one, unless there are questions about the Vuntut Gwich and First Nation concession on section 15, I would suggest moving to section one. That's fine. If we have any questions as we go, we'll certainly ask you. For the benefit of the court, the beginning of the first main submission is that paragraph 45, page 23 of the respondents' factum. There are four reasons why this court should exercise deference in the section one analysis. The first of which is that it is necessary for reconciliation. The residency requirement is a revitalization of political traditions that were suppressed during colonization. Pre-contact, the Vuntut Gwich and First Nation was a political entity with a unique and sophisticated form of governance. Their leaders were selected based on connection with the land, knowledge of the land, and their commitment to community service. Decision-making was undertaken within the community by discussion and deliberation. During colonization, Europeans took control of that power that the Vuntut Gwich and First Nation had over their self-government. They replaced chiefs with colonial church leaders and the Vuntut Gwich and First Nation was not able to select a leader until the 1920s after that. The impacts of this manifest today through social, cultural, and economic disparities. Self-government addresses these by returning the power to the Vuntut Gwich and First Nation to enact solutions that are culturally responsive, local, and culturally relevant. The residency requirement is an act of self-government with passed by the Vuntut Gwich and First Nation in a constitutional amendment with which the appellant mystics and voted for herself. But it is also more than an act of self-government. So is the form of government in the First Nation now the same as it was pre-European contact, or is it in some way a compromise of modern values and traditional values to come up with something else? I'm just struggling with what, when an agreement gets signed, who comes in and signs it? It's not an Indian Act band, or is it? No, Justice, it's not an Indian Act band. So pre-contact, the traditions were largely similar to what they are now. Discussion and deliberation still take place for decision-making within settlement land in the community. Leaders are directly involved in service administration and service delivery. While it certainly looks different now, given that the Vuntut Gwich and First Nation government is responsible for education and housing and social welfare, it has modernized certainly, but the core elements of their government have not changed. And while they are able to modernize and combine elements of their pre-contact traditions with modern democratic traditions, the way they combine those are owed deference as well. You've used the term deference. I know you're gonna go through several reasons. Why we should give deference. But can you just give me a quick summary of how the principle of deference applies in the Section 1 analysis? If we agree with you that there should be deference to the First Nation in the decisions that they make, how does that play out when we're doing the Section 1 analysis? Thank you, Chief Justice. Throughout the Section 1 analysis, the Vuntut Gwich and First Nation is asking that at each stage of the analysis, it is kept in mind that reconciliation is at the forefront of that analysis. And the impact of what it would mean to uphold the residency requirement must be at the forefront as well. It would be incredibly important to reconciliation and the Vuntut Gwich and First Nation to uphold the residency requirement and reconciliation and the wellbeing of the Vuntut Gwich and First Nation should be at the forefront. Practically, deference comes into play most at minimal impairment. My friend has given a list of alternatives that the Vuntut Gwich and First Nation could implement. However, those are not in accordance with the Vuntut Gwich and First Nation's traditions. And so that is when the court should keep in mind the deference to political traditions for self-governing First Nations. Looking at the 14-day requirement as well, while it could appear short on its face, it must be kept in mind during that analysis that Old Crow is 800 kilometers from Whitehorse and the Vuntut Gwich and First Nation has chosen this as the relevant time period, which would be suitable for them as they are closest to the community and they understand what is needed there best. Moving to the second reason to show deference at the section one analysis for the benefit of the court, set paragraph 51, page 26 of the respondents' factum. The case law that my friend relies on can be given only little weight, if any, because of the different legal and social context under which the court was operating in these cases. When courts struck down residency requirements under the Indian Act, they were operating in a vastly different legal context. The power that bands have under the Indian Act is delegated power, meaning that the federal government gave them that power to enact certain governance systems within the band. However, delegated power is not a tool of reconciliation because it fails to recognize the inherency of self-government. The court was therefore not undermining reconciliation when they chose to strike down that residency requirement in those cases. Further, case law on newly enacted residency requirements were often- So you're saying if the First Nation chooses to have a residency requirement, if they're exercising inherent authority under the right to self-govern, it's given deference. If they make exactly the same decision under the authority given them under the Indian Act, they don't get deference. We submit that while deference should be undertaken regardless when residency requirements are coming forward, it is certainly less of a reason to give deference if it's enacted under the Indian Act because delegated power does not recognize the inherency of self-government. And when an indigenous government is enacting laws under their inherent self-government, those should be given deference given its importance and reconciliation. Case law on newly enacted residency requirements is also operating in a vastly different social context. When residency requirements are newly enacted, they are not a revitalization of political traditions, which is inherent, which is very important to self-government. There was simply not as pressing of a reason to exercise deference in those cases. Moving to the third reason why this court should show deference in the section one analysis. This is at paragraph 53, page 27 of the respondents' factum. The third reason to show deference is the tension between individual rights and collective rights that is present in this case. The charter is founded on a conception of individual rights, which necessarily puts the well-being of the individual above that of the collective. On the other hand, indigenous rights are collective rights. The Vantat-Guichen First Nation has the inherent right to self-government by virtue of being a First Nation. That collective right is fundamental to the well-being of the Vantat-Guichen First Nation because it protects traditional territory, cultural and political traditions, and it results in successful development. That entire collective well-being is at risk when we apply the charter strictly in the case of individuals and their rights. Moving to the fourth reason to exhibit deference, the Honor of the Crown is engaged in these circumstances. This is at paragraph 59 of the respondents' factum. The Honor of the Crown requires that the Crown act with integrity in every interaction with indigenous peoples. It's engaged in these circumstances because the Crown has made a constitutional promise to facilitate the ability of the Vantat-Guichen First Nation to exercise self-government in accordance with their tradition and on their terms. The self-government agreement, which is protected under section five of the Constitution Act 1982, is the source of this constitutional right. I would also point the justices to the language and the self-government agreement, which references several times the Vantat-Guichen First Nation's desire to maintain traditional decision-making structures. So how does the Honor of the Crown, I mean, I would typically see that issue come up when the Crown is doing something that the First Nation takes issue with and says you're not behaving in a fashion that respects the Honor of the Crown. But here, the Crown is not a party. Are you suggesting that the court is somehow the Crown and that the court needs to act with the Honor of the Crown? I'm not suggesting that the court is the Crown. However, I'm suggesting that in these circumstances, when the court has a case before it where the Honor of the Crown is engaged. I thought the Honor of the Crown was engaged when the Crown was a party, but they're not a party here. I think in these circumstances, given the unique nature of this appeal, that it is incumbent on the court to look at the context and whether their actions will impact the Honor of the Crown and Canada's constitutional promise to allow the Vantat-Guichen First Nation to exercise self-government in accordance with their traditions. If the Honor of the Crown also proceeds a type of fiduciary obligations that's enacted, wouldn't the Vantat-Guichen First Nation also be in a fiduciary obligation to its members? And wouldn't that also extend the Honor of the Crown then becomes the Honor of the Vantat-Guichen First Nation? The Honor of the Crown, its source, comes from the Crown's assertion of sovereignty in the face of Indigenous Peoples' existence in Canada prior to that assertion of sovereignty, and it's attempting to reconcile those two very almost unreconsilable things. And so the Honor of the Crown applies, specifically to the Crown, Canada, and the provinces, but no, Mr. Justice, we would say that the Honor of the Crown does not apply to the First Nation. Wouldn't the First Nation have some sort of fiduciary obligation or responsibility to its members? In these circumstances, arising from the Honor of the Crown specifically, no, I do not believe that it would. Okay. So there are First Nations in Canada to whom the Charter is now applied. We understand that. And what you'd be saying here is that in this case, the residency requirement should be allowed so that would we then have a distinction between First Nations people who live in Wakelbach to whom the residency requirement, the Charter applies, and the people in this treaty lands where we're saying no, the distinction is appropriate. It's appropriate to have a residency distinction, whereas in other First Nations we're saying, no, it's not because the Charter applies. How does that reflect the Honor of the Crown if we're dealing with different First Nations people in such vastly disparate ways? That was a very poorly articulated question. I hope you can somehow find it in there. I was gonna ask you. Yeah. I'm not even sure what the question was. So if you can come up with an answer, good for you. Thank you, Mr. Justice. I think that each residency requirement needs to be evaluated contextually within the First Nation that it operates. And I think I do an example of this in my factum when I mention Clark, the case of Clark. And so in Clark, the residency requirement was up. Can you tell me where in the factum it is? I know I read it, but just I'm trying to find that. Yes, I'm just, so it's paragraph 76, page 36. So in Clark, the residency requirement for the Chief was upheld, but the residency requirement for the counselors were not upheld. And this is in the minimal impairment analysis, so I'm jumping a little bit ahead. But we submit that the residency requirement here is far closer than what my friend characterizes as a total ban. It's far closer to what is here in Clark. But Clark is admittedly less strict than the residency requirement here because it allows, it does not allow the residency requirement for counselors. However, when we look at the circumstances of Clark, Clark, their reserve was located 25 minutes from Charlottetown PEI. And here we have Old Crow, which is located 800 kilometers north of Whitehorse. When we have counselors and the Chief who are directly involved in delivering essential services to those citizens where the only access they have is the Vantat-Guichin First Nation government. And so the circumstances are much different there. The residency requirement in Clark was appropriate for the circumstances in Clark. And here, the residency requirement is appropriate for the circumstances for Vantat-Guichin First Nation. So would the residency requirement be dependent on the distance? Would it matter whether it's like 100 meters or 1,000 kilometers? So it is not entirely dependent on the distance. However, in this context, because Old Crow is 800 kilometers away and the Chief and the counselors are directly involved in service administration, I think that is certainly a large factor to take into account when we look at why do counselors and the Chief need to be residing in Old Crow. It's certainly something to be given a lot of weight, whereas here, because those members of the band have access to the largest city in PEI, it is less of a factor to give weight to. Building off of the fact that there's 800 kilometers of distance from Old Crow to Whitehorse, my friend has said that physical location should not matter in 2021. However, this assumes that citizens in Old Crow have stable internet access, which the evidentiary record showed that they did not. It also assumes that they have access to computers and cell phones, which we do not know that they do. Citizens in Old Crow depend on the Chief and the counselors for services daily. The Chief and the counselor are responsible for interacting with citizens in the community and ensuring that their needs are met. This simply cannot be done from 800 kilometers away. We respectfully disagree with my friend that this requirement rests on stereotypes about those who live off reserve or off settlement land. It is simply based on the geographical and social realities of the Vantequich and First Nation that this is the only government that they have to turn to when they need things regularly. I would like to emphasize at the minimal impairment stage that Corbière has never stood for the fact that non-residents and residents must be treated the same. It only stands for the fact that when those systems do treat residents and non-residents differently, that non-residents must be able to exercise meaningful and effective participation. That is exactly what the Vantequich and First Nations governance system does. With the permission of the court, unless there are any further questions, I propose to move to the conclusion. Go ahead. This appeal provides the opportunity to facilitate reconciliation by creating space for indigenous nations to exercise their inherent right to self-government. The residency requirement is the process by which the Vantequich and First Nation exercise their self-government. It therefore has exceptional significance to the Vantequich and First Nation and to reconciliation. If the court upholds this residency requirement, it will signal to indigenous nations in Canada that their inherent rights are respected and it will continue to rebuild the nation-to-nation relationship. We therefore ask this honorable court to uphold the residency requirement. Thank you very much for your submissions. All right, so that concludes the submissions of the appellants and the respondents. The appellants do have, if they wish, an opportunity for a brief reply, I understand it. Do you wish to take advantage of that? No, they almost don't. All right, you said everything there is to say. All right, well, we appreciate very much your submissions. The panel will reserve for a few minutes and return with, hopefully, with a decision. Please be seated. All has deliberated and considered the submissions, both the oral and written submissions of counsel. It was a difficult decision, but we've reached a unanimous conclusion on the merits of the appeal, and Justice Young will give you a brief summary of our reasons for finding as we did. Good evening, everyone. Well, that's basically what I tell. Well, that's, he's got a monotone, he's got a monotone. Good evening, everyone. I'm glad to be here and I'm glad to be able to report on what we found. We did have a unanimous decision and we did note that both parties, both the appellant and the respondent, had some very good strengths and they presented their arguments well, but we also noted that there were some weaknesses in how they presented their arguments, too, and we noted those ones, too. But overall, the strengths were very much more stronger than the weaknesses, right? And I think we were a little afraid of our questioning that we might have been a little too harsh and something like this, but sometimes you just want to jump in and say, okay, what about this, what about this, right? No, we're not supposed to do that. Well, we've decided that, you know, in favor of the respondent on the merits and we've determined that the Charter does not apply in this situation, you know? And if it did, it is, you know, it is saved by the analysis of section one, but we gave strongly persuaded by the deference argument that was made to First Nations exercise of their self-government authority. Okay, and that's our decision on the merits of the case. All right, thank you very much, Justice Young. Now, for the second part, maybe for some, this is the most important part, but we have the privilege, but a very tough decision of deciding who the winners of the Kits Award and the Smith Shield are. I should say the Kits Award is the one I won when I was a participant in the Smith Shield many years ago, so I have a great affinity for it, and things worked out pretty well for me having won that. So, I'll just say that comment and we will announce the winners of the Kits Award first. But before that, I think the consensus amongst the panel was the quality of advocacy was excellent across the board, you know, difficult questions, difficult issues. Everybody was prepared, everyone answered the questions, pushed back a little bit when they thought maybe the question wasn't quite on or they weren't prepared to accept the premise and that's good. So obviously a lot of preparation went into it and the results showed. So, it was a difficult decision, but one that had to be made. So, the winners of the Kits Award are Jacob Izzard and Nicola Hibbert. So, congratulations to you two. As I say, I have an affinity with both of you now, we share the same award. So, congratulations, but that means that the winners of the Smith Shield, who also did an excellent job, are Elizabeth Matheson and Kelsey War. So, congratulations to the two of you. So, round of applause. So, I guess that concludes the formal proceedings. Maybe we should close court and then we'll arrange for some pictures with Council and the bench. Thank you very much. Thank you.