On March 27, 2017, in an unprecedented decision, the Provincial Court of British Columbia (Court) ruled in R. v. DeSautel (DeSautel) to recognize the aboriginal rights of a First Nation whose members reside in the United States and to allow for the exercise of those rights in Canada.
On October 1, 2010, the defendant, Mr. DeSautel, shot an elk for ceremonial meat near Castlegar, B.C. He was charged with two offences under the B.C. Wildlife Act: hunting without a licence and hunting big game while not being a resident.
Mr. DeSautel is a U.S. citizen and resident of the Colville Indian Reserve in Washington State. As a member of the Lakes Tribe, Mr. DeSautel’s ancestors are the Sinixt people whose traditional territory spans the U.S.-Canadian border. The northern boundary is in the Kootenay region, near Revelstoke, B.C.
Mr. DeSautel argued that he had an aboriginal right to hunt in the Sinixt traditional territory.
DeSautel addresses two main issues:
Whether the Sinixt have an aboriginal right to hunt in the B.C. portion of their historic traditional territory
Whether the Sinixt’s aboriginal hunting rights had been extinguished by any of the following: the 1846 Oregon Boundary Treaty (1846 Treaty), An Act to Amend the Game Protection Act, 1895 (1896 Act), or section 35(1) of the Constitution Act, 1982
The Court applied the test from the Supreme Court of Canada’s decision in R. v. Van der Peet (Van der Peet) to determine the first issue. In doing so, the Court found that hunting for game in the northern portion of the Sinixt’s traditional territory constituted an integral part of the Sinixt’s pre-contact culture. The Van der Peet test also requires continuity between a pre-contact custom and its current expression. In this regard, the evidence at trial showed that members of the Lakes Tribe rarely hunted in B.C. after 1930. Nevertheless, the Court found that the interval between 1930 and 2010 did not “sever the continuity between the hunting practices of the pre-contact group and the present day Lakes Tribe or make it any less integral to the Lakes culture.”
Regarding the second issue—whether the Sinixt’s rights to hunt in B.C. had been extinguished—the Court ruled that the border imposed by the 1846 Treaty (between what was then the Colony of British Columbia and what is now Washington State) was compatible with the Sinixt’s right to hunt in the B.C. portion of their traditional territory. As for the 1896 Act, which purported to make it unlawful for Indians not resident in B.C. to kill game at any time of the year—the Court regarded this as an attempt by the provincial government of the day to specifically regulate Indians qua Indians to the exclusion of other persons. As such, the Court found that the 1896 Act could not have extinguished the Sinixt’s rights since the legislative power over “Indians” belonged to the federal government and the provisions of the 1896 Act would have been beyond the B.C. legislature’s jurisdiction. In the alternative, the Court ruled that the 1896 Act was not sufficiently plain or clear to extinguish an aboriginal right.
Finally, the Crown argued that any Sinixt aboriginal right to hunt in B.C. did not survive the coming into force of section 35(1) of the Constitution Act, 1982 because section 35(1) only addresses the aboriginal and treaty rights of the “Aboriginal peoples of Canada”. In response, the Court found that section 35(1) should not be read applying only to Aboriginal peoples holding Canadian citizenship as this would work “unintended hardship on those other non-citizen aboriginal peoples like the Lakes Tribe who also had unextinguished aboriginal rights in 1982.” Rather than extinguishing the Sinixt’s aboriginal right to hunt in B.C., the Court ruled that section 35(1) protects that right from extinguishment and unjustified infringement.
Having determined these issues, the judge ruled that sections 11(1) and 47(a) of the B.C. Wildlife Act infringed upon the Lake Tribe’s aboriginal right to hunt in its traditional territory in Canada and could not be justified. Therefore, the charges against Mr. DeSautel were dismissed.
Because DeSautel is a provincial court decision, it may be considered by at least one higher court. (No appeal had been filed prior to the release of this Bulletin, but the time period to file an appeal (30 days) had yet to expire.)
For now, one of the main implications of DeSautel pertains to the duty to consult. At trial, the Crown pointed to various practical issues, such as the feasibility of consulting with non-citizens, in support of its argument that the Sinixt’s right to hunt could not have survived the coming into force of section 35(1). This argument was rejected by the Court, citing the principle that practical difficulties cannot be allowed to preclude recognition of proven aboriginal rights.
Pending an appeal, DeSautel suggests that in circumstances where Aboriginal Peoples who reside in the U.S. credibly claim to exercise aboriginal rights in Canada, it may be advisable for the Crown to consider consulting such claimants where their rights may be adversely affected by Crown conduct. In the absence of such consultation, there is the potential for any Crown action affecting the asserted rights of these Aboriginal Peoples to be found invalid.