On April 23, 2021, the Supreme Court of Canada confirmed that residents of the United States of America can hold Aboriginal rights in this country. The Court concluded that the Aboriginal rights protected by section 35 of the Constitution Act, 1982 — which applies to the “aboriginal peoples of Canada” — can be held by “modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact.” The decision confirms the three lower court decisions on this topic (see our previous Blakes Bulletin: American Citizen Secures Aboriginal Rights in Canada and Blakes Bulletin: Beyond Borders: B.C. Court Rules U.S. Resident Has Aboriginal Right to Hunt in Canada).
While the decision resolves the specific case, the Court cautions that its ruling is narrow in scope and does not address the broader implications of non-resident Indigenous groups claiming Aboriginal rights in Canada. Unfortunately, in declining to address those implications, the Court provides little guidance on how cross-border Aboriginal rights claims will be resolved in practice, creating uncertainty about the effect of non-resident claims on future consultation, accommodation and other aspects of Indigenous law in Canada.
Mr. Desautel resides on the Colville Reservation in Washington State as a U.S. citizen, and is a member of the Lakes Tribe of the Colville Confederated Tribes. In October 2010, Mr. Desautel entered Canada and killed an elk near Castlegar, B.C. Mr. Desautel was charged with two offences under the Wildlife Act: hunting without a licence and hunting big game while not being a resident.
This was a test case — Mr. Desautel reported his crime to conservation officers, admitted committing the offence and defended the charge solely on the basis of Aboriginal rights. The Colville Confederated Tribes dispute the Government of Canada’s decision to declare the Arrow Lakes Band extinct in 1956 (the last Canadian band that had members of the Sinixt people), and have already filed two Aboriginal title claims in British Columbia.
At trial, Mr. Desautel established that the Lakes Tribe is a successor group to the Sinixt people, whose traditional territory included an area surrounding the Arrow Lakes in B.C., and that he was exercising a right to hunt for food, social and ceremonial purposes within the meaning of s. 35(1) of the Constitution Act, 1982. The trial judge determined that the application of the Wildlife Act to Mr. Desautel constituted an unjustifiable infringement on his right to hunt and dismissed the charges.
The summary conviction appeal court agreed. The court concluded that the words “aboriginal peoples of Canada” must be interpreted to mean Aboriginal peoples who, prior to contact, occupied what became Canada. The court further concluded that the right asserted by Mr. Desautel was not incompatible with the sovereignty of Canada, since Mr. Desautel had entered Canada legally.
The B.C. Court of Appeal also upheld the decision. That Court rejected the idea that the claimant must be a member of a present-day Aboriginal community currently located in the geographic area where the claimed right is exercised, as this is not a requirement of the test for Aboriginal rights.
By a 7:2 majority, the Supreme Court of Canada upheld all of the findings of all three lower courts with only one modification: the determination of whether a group is one of the “aboriginal peoples of Canada” is a threshold issue that must be determined first. Where there is some ground for doubt that the claimant of an Aboriginal right belongs to an Aboriginal people of Canada, they must demonstrate that they belong to a modern-day successor of an Aboriginal society that occupied Canadian territory at the time of European contact. This is the only additional element (beyond the existing test for Aboriginal rights) that must be proven by U.S.-resident Indigenous peoples in order to claim Aboriginal rights in Canada.
The decision itself is narrow and serves only to interpret the phrase “aboriginal peoples of Canada” to include the Colville Confederated Tribes. The Court is clear that its decision does not address other non-residents’ potential Aboriginal rights claims.
The Court left unanswered a significant number of questions regarding the scope, extent and implications of such cross-border rights claims, including:
Duty to Consult Americans: The Court accepted that Indigenous people outside Canada can assert and hold section 35 rights, but “it does not follow that their rights are the same as those of communities within Canada” and that the “different circumstances of communities outside Canada may lead to different results.” However, the Court did not answer how the duty to consult might apply differently to communities outside Canada, other than stating that the Crown may not know of their asserted rights such that the duty to consult is not triggered.
Once the Crown is aware of Aboriginal rights asserted by American Indigenous peoples, are they entitled to the same regulatory, procedural and other rights as Canadian Indigenous peoples? If not, what differences are legitimate?
Will the accommodation “pie” be split ever more finely among Canadian and American Indigenous peoples, or will the Crown and proponents be expected to expand it proportionately?
Justifying Infringement of Aboriginal Rights: Similarly, the Court did not comment on the extent to which the fact that a holder of Aboriginal rights is located outside Canada may be relevant to determining whether government conduct that infringes such rights is justified. It stated only that this is a “feature … that may be taken into account” — but not how.
Sovereign Incompatibility: The Crown argued that Mr. Desautel’s asserted Aboriginal right was incompatible with Canadian sovereignty, because the right encompasses other rights necessary for its meaningful exercise — namely, the right to cross the border. The Court did not address this issue because Mr. Desautel did not claim a mobility right and had not been denied entry to Canada.
In our view, the Court’s direction that these issues be dealt with as they arise creates significant uncertainty in years to come. Almost invariably there will be other non-resident claims of Aboriginal rights in Canada. While perhaps limited by the number of groups that can advance credible claims, the implications of this decision will have to be sorted out by regulators at all levels of government in Canada, Indigenous communities, businesses, legislators and ultimately the courts.