Aboriginal rights: modern collectives can establish aboriginal rights to traditional areas, even if they no longer live there (R v. Desautel, 2019 BCCA 151).

On May 2, 2019, the BC Court of Appeal confirmed that aboriginal rights protected by section 35 of the Constitution Act, 1982 may be exercised by modern indigenous collectives who descend from historic collectives that exercised the practice, custom, or tradition in that territory, if there is continuity between the practices of the modern and historic collectives. Reconciliation of pre-existing Indigenous societies with the assertion of Crown sovereignty requires the protection of those rights – even where the modern members no longer reside in the traditional area in question.

Factual Matrix

The case arose from charges brought by the Crown under the British Columbia Wildlife Act. Mr. Desautel, a U.S. citizen and member of the Washington State based Lakes Tribe, legally crossed the border into Canada. While in Canada and within the Arrow Lakes area of BC, Desautel shot and killed an elk, an act for which he was charged. He admitted that he harvested the elk but argued that the harvest was an expression of his Aboriginal right protected by section 35.

The Lakes Tribe is a successor group to the Sinixt people (also referred to as the “Lakes” or “Arrow Lakes” people) living in BC at the time of contact. After the 1846 Oregon Treaty and the establishment of the 49th parallel boundary between British Columbia and Washington, the Sinixt spent longer periods on the US side of the border, but continued to assert their rights in the Canadian part of their territory. In the early 1900’s, the Sinixt continued to live in their traditional territory in Canada, but by 1930, they did not appear to travel or hunt in the northern part of their territory. In 1956, the last living member of the “Arrow Lakes Band” died, and the federal government declared the Band (as it existed in Canada) extinct.

The trial judge accepted that the Sinixt’s gradual shift to almost full-time residence in their southern traditional territory was not a voluntary move in the sense that they intended to abandon their claim to their traditional territory in the North. Further, continuity existed between the modern Lakes Tribe in the US and the Sinixt people whose territory was partly within Canada. Mr. Desautel was a member of a modern collective, the Lakes Tribe, that was capable of holding, and did hold, an aboriginal right to hunt in the Arrow Lakes area. The trial judge acquitted Mr. Desautel, and was upheld upon summary conviction appeal. British Columbia appealed to the BC Court of Appeal, resulting in this decision.

Issues

Madam Justice D. Smith, writing for a unanimous court, considered three issues:

  1. Does section 35 protect the expression of Aboriginal rights by a modern rights bearing collective if they are not currently located in Canada? If it does, may a member of that Aboriginal group exercise the claimed right if they are neither a resident nor a citizen of Canada?
  2. To exercise a claimed Aboriginal right, must the claiming group have a present-day community in the geographic area where the right is exercised?
  3. If the claimant has a section 35 right to hunt in the Lakes area but is not a Canadian resident or citizen, is it necessary to consider whether that right carries with it an incidental mobility right to cross the Canada-US border? If so, is the incidental mobility right compatible with Canadian sovereignty?

The court reached two main conclusions.

1. Historical Connection to Community

Justice Smith determined that the current rights-holding collective does not need to occupy the same territory as the modern community to satisfy the continuity requirement in the Van der Peet test. Mr. Desautel was a member of the Sinixt Nation, whose territory was historically within Canada and the United States, and the court was satisfied that there was a clear connection between Mr. Desautel’s modern community and the Sinixt people.

2. State Infringement of the Right

Two state actions infringed Mr. Desautel’s aboriginal right to hunt. The first was the 1846 Oregon Treaty, which divided Canada and the United States, and created a political border between the northern and southern sections of Sinixt territory. Thus began a long, gradual and non-voluntary process of members moving south of the border but remaining within their territory and occasionally exercising their rights north of the border. This process made it more difficult for the Sinixt to hunt in the portion of their territory within Canada.

Second, the Wildlife Act regulations restricted hunting behaviour, making them, on their face, an infringement of the modern Sinixt descendants’ aboriginal right to hunt.

Imposing a requirement that indigenous peoples may only hold an aboriginal right to hunt in Canada if they occupy the same geographical area in which their ancestors exercised those rights does not achieve reconciliation. In this case, the Sinixt peoples’ aboriginal rights within the Arrow Lakes region of Canada were never voluntarily surrendered, abandoned, or extinguished. The infringement of Mr. Desautel’s rights was not justified in the circumstances.

Incidental Right to Movement

The Crown argued that the claimed right must carry with it an incidental right to cross the Canada-US border, and was therefore incompatible with Crown sovereignty. As Mr. Desautel entered Canada legally, the Court declined to determine the matter.

Implications

Desautel gives substance and effect to the purpose of s. 35 and the principle of reconciliation, and contributes to the development of the law in two ways:

  1. A modern indigenous collective does not have to reside in the same area as the historic collective in order to claim aboriginal rights associated with the historic geographic area; and,
  2. Canadian citizenship is not a requirement for holding an aboriginal right under s. 35.