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In R v Desautel, 2017 BCSC 2389, released on December 28, 2017, the British Columbia Supreme Court (“BCSC”) dismisses the Crown’s appeal of R v DeSautel, 2017 BCPC 84, and upholds Mr. Desautel’s acquittal on hunting charges. The BCSC confirms Mr. Desautel’s defence that he was exercising an aboriginal right to hunt for ceremonial purposes when he shot and killed a cow elk near Castlegar, British Columbia.

Mr. Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes (“Lakes Tribe”) and is a resident and citizen of the United States. At trial, the judge found that the Lakes Tribe is a successor group of the Sinixt people whose traditional territory extends both north and south of the international border, including where Mr. Desautel was hunting in British Columbia.

Decision

Justice Sewell identifies two issues on appeal. The first issue is whether an aboriginal group needs to reside in Canada to be considered an aboriginal people of Canada with constitutional protections in s. 35 of the Constitution Act, 1982. The second issue is whether Mr. Desautel’s hunting right is incompatible with Canadian sovereignty.

1) Aboriginal Peoples of Canada in Section 35

Section 35 protects the aboriginal and treaty rights of the aboriginal peoples of Canada, including the Indian, Inuit and Metis peoples of Canada.  Justice Sewell finds that the meaning of “aboriginal peoples of Canada” is not plain and obvious with respect to aboriginal groups who are not resident in Canada and therefore it is necessary to judicially interpret s. 35. He finds that the Crown’s arguments attempting to limit aboriginal peoples of Canada to Canadian residents or citizens is inconsistent with the purposes of s. 35.

As is clear from the case law, aboriginal rights are grounded in prior occupation of the land before contact.  Justice Sewell notes that “[t]he jurisprudence with respect to s. 35 recognizes that a key aspect of nationhood and citizenship in a first nation is its connection to its traditional territory” and the Sinixt people who are also members of the Lakes Tribe continue to have a deep connection with the portion of their traditional territory in Canada.

After considering the purposes of (1) reconciliation of the prior occupation of territory by aboriginal peoples with the Crown’s assertion of sovereignty and (2) the affirmation of aboriginal rights in s.35, Justice Sewell concludes that the term “aboriginal peoples of Canada” in s. 35 means those people who occupied a part of what became Canada prior to first contact, and the test for proof of aboriginal rights remains the test in Van der Peet: the Indigenous person or group must show that the activity at issue (here hunting) was integral to the distinctive culture of the group prior to contact with Europeans, and that there is continuity between how the activity was practiced in the past and how it is practiced today.

2) Sovereign Incompatibility

The second issue raised by the Crown is sovereign incompatibility which engages the right of the government of Canada to control its own borders. The Crown argued that the right to hunt in the Arrow Lakes area asserted by Mr. Desautel is incompatible with Canadian sovereignty and the trial judge erred by failing to find that the right included a mobility right to cross an international border. Justice Sewell confirms the trial judge’s conclusion that a mobility right issue does not arise in this case. In addition, there was nothing in the record to engage a mobility right as Mr. Desautel was not denied entry to Canada.

Justice Sewell notes that the trial judge did consider Canada’s right to control its border and confirms her finding that Canada’s right to control its borders could justify limiting “the right of access without eliminating the right to hunt.” He also notes that it would be inappropriate to consider an aboriginal right to cross the international border in this case without the federal government being a party to the litigation as the right to enter Canada is within federal jurisdiction.

Potential Implications

The interpretation of s. 35 in this case has implications for who can rely on Canada’s constitutional protections with respect to aboriginal rights. This decision of the BCSC finds an individual does not have to be a resident or citizen of Canada to be included in aboriginal peoples of Canada for the purposes of s. 35 if that individual can otherwise meet the Van der Peet test.  In this way the Court has recognized that the unilateral imposition of the 49th parallel which divided so many Indigenous Nations does not on its own eliminate the territorial rights of the Indigenous people.  A continuing presence in and connection to the territory are factors the court will consider in deciding whether Indigenous people who are not citizens or residents of Canada can nevertheless exercise their harvesting rights in Canada with the right to do so being protected by s. 35.

This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.