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Canadian citizenship, residency not required to claim Aboriginal rights under the Constitution: SCC

Crown’s appeal dismissed against U.S. Aboriginal hunter who shot elk in B.C.

Canadian citizenship, residency not required to claim Aboriginal rights under the Constitution: SCC
Mark Underhill of Arvay Finlay LLP in Vancouver represented the successful respondent in the case.

In the first case to interpret the words “Aboriginal peoples of Canada,” the Supreme Court of Canada has ruled that groups whose members are neither citizens nor residents of Canada can be considered Aboriginal peoples of Canada and claim an Aboriginal right under section 35 of the Constitution.

In R. v. Desautel, the Supreme Court found that as a member of an Aboriginal collective located outside Canada, Richard Lee Desautel, and American citizen, is entitled to claim the constitutional protection provided by s. 35(1)  of the Constitution Act, 1982  since he is a member of a successor group of the Sinixt people of southwestern British Columbia and was hunting within the Sinixt traditional territory.

The decision recognizes “the prior occupation [of land] by Aboriginal peoples of Canada for thousands of years, before the Europeans,” says Mark Underhill, a partner in Arvay Finlay LLP in Vancouver and lead counsel for the respondent. “That's the key part of the decision, which is critical not just for the Sinixt, but for other cross-border groups” affected by the border between Canada and the United States.

“[A]n interpretation of ‘aboriginal peoples of Canada in s. 35(1) that includes Aboriginal peoples who were here when the Europeans arrived and later moved or were forced to move elsewhere, or on whom international boundaries were imposed, reflects the purpose of reconciliation,” wrote Justice Malcom Rowe for the majority. “The displacement of Aboriginal peoples as a result of colonization is well acknowledged . . .”

A number of Indigenous groups in Canada have traditional lands that similarly straddle the Canadian-U.S. border -- which did not exist pre-colonization -- so Friday’s decision has “a significant impact for a wider group,” says Maxime Faille.

“It’s a very positive decision that continues in the line of clear pronouncements from the Supreme Court,” says Faille, a partner in Gowling WLG (Canada) LLP in Vancouver and lead counsel for the intervener Whitecap Dakota First Nation, located just south of Saskatoon. The core issue was “the understanding that the purpose of Aboriginal law is … a reconciliation of assertions of crown sovereignty, and de facto crown sovereignty, with the prior existence, prior use and occupation of lands in what is now Canada by the original inhabitants.

“That was obviously very central to this case, and I think is the most fundamental principle that undergirds Aboriginal law.”

Desautel shot and killed a cow-elk without a hunting license in the Arrow Lakes region of British Columbia in October 2010. He is a member of the Lakes Tribe of the Colville Confederated Tribes and lives on reserve in the state of Washington.

Desautel was charged with hunting without a licence contrary to s. 11(1) of B.C.’s Wildlife Act, and also hunting big game while not being a resident of British Columbia. He claimed an aboriginal right to hunt for ceremonial purposes in the traditional territory of his Sinixt ancestors, and that that right is protected by s. 35(1) of the Constitution Act, 1982, which recognizes and affirms the “existing aboriginal and treaty rights of the aboriginal people in Canada.”

The trial judge held that the Sinixt before and sometime after contact in 1811 had engaged in hunting, fishing and gathering in their traditional territory north and south of the 49th parallel, including the Arrow Lakes area. Several factors led them to take up more or less full-time residency in their southern territory, south of the 49th parallel, which became part of the United States in 1846.

A majority of the Sinixt people, including the Sinixt who became known as the Lakes Tribe, went to live on the Colville Reserve in the United States in the late 1800s; they therefore rarely hunted in the Arrow Lakes Region in Canada and by the 1930s they no longer travelled to or hunted north of the border.

In 1902, the Canadian federal government set aside a reserve for the Arrow Lakes Band which included the few Sinixt members who remained in their traditional territory in Canada. In 1956, the last living member of the Arrow Lakes Band, Annie Joseph, died, and the federal government declared the Arrow Lakes Band extinct under the Indian Act.

The trial judge held that Desautel was exercising an aboriginal right to hunt for ceremonial purposes guaranteed by s. 35 of the Constitution Act, 1982 and the application of ss. 11(1) and 47(a) of the Wildlife Act unjustifiably infringes that right. He was acquitted, and the Supreme Court of British Columbia dismissed a summary conviction appeal. The Court of Appeal likewise dismissed an appeal.

The Supreme Court was left to determine the definition of “Aboriginal peoples of Canada”; whether the group to which the respondent Desautel belonged could be considered part of the Aboriginal peoples of Canada; and, if so, whether the group has Aboriginal rights under s. 35.

“I have concluded that the Aboriginal peoples of Canada under s. 35(1)  are the modern-day successors of Aboriginal societies that occupied what is now Canada at the time of European contact (subject to modifications that may be necessary in the case of the Métis),” and even if those groups are now located outside Canada, wrote Justice Malcolm Rowe in his reasons for the majority.

“Where this is shown, the threshold question is met and the court ascertains the claimants’ rights using the Van der Peet test. The threshold question remains relevant in future cases where the claimant group is outside Canada, as Van der Peet does not address the required link between the modern-day collective (outside Canada) and the historic collective (that was inside what is now Canada).”

The majority found that excluding Aboriginal peoples who moved or were forced to move, or whose territory was divided by a border, would only add to the injustice of colonialism.

It also noted that the trial judge is typically best suited to assess the evidence as it is presented, and agreed that moving to live in the American part of their ancestral territory did not prevent the Lakes Tribe from being a successor group to the Sinixt. They therefore found that the Lakes Tribe could be considered part of the “Aboriginal peoples of Canada” under section 35 of the Canadian Constitution. 

“The forced displacement of the Sinixt people was not going to be a reason to deny them rights,” Underhill says of the court’s decision. One effect of colonialism in Canada, he says, was the institution of the Indian Act many years ago, which established a band structure. Sinixt peoples are members of different bands in Canada, he says, and in the United States were amalgamated into the Coville Confederated Tribes.

“So, the court has said that Sinixt, wherever they may be, are members of Aboriginal peoples of Canada.”

The test to determine the existence of rights is the same for groups outside Canada as for groups in Canada, the majority noted. A critical element of the test was whether that claimed right – in this case the right to hunt --  was a continuation of a historical practice that existed prior to European contact.

“It is different from the threshold question discussed earlier, about whether a modern group is a successor of a historic group,” Justice Rowe wrote. Here, the majority agreed with the trial judge that the claimed right was a continuation of a historical practice.

In dissenting reasons, Justice Suzanne Côté found that “Aboriginal peoples of Canada” referred only to residents of Canada, and therefore Aboriginal groups outside Canada cannot claim s. 35 protection. Even if the majority was correct in finding the opposite, Justice Côté found that Desautel’s claim still failed because the element of continuity – i.e., of hunting consistently over the years in the territory in question -- had not been met.

“As I see it, while temporal gaps in the actual practice do not necessarily preclude the establishment of an Aboriginal right (Van der Peet, at para. 65), failing to tender sufficient evidence that the practice was maintained or, at least, that a connection to the historical practice was maintained during such gaps may be fatal,” she wrote. “Aboriginal rights claims require that proper and sufficient evidence be gathered and adduced to meet the legal requirements for such rights . . .”

In a single paragraph of dissent, Justice Michael Moldaver also found that Desautel’s claim failed the continuity test.

The continuity issue was a very important aspect of the case, “and one that had potentially very significant repercussions for Indigenous peoples in Canada,” says Faille. The argument had been advanced by the Attorney General of British Columbia, and suggested that “the Aboriginal rights being asserted had to be exercised on lands that were more or less the same, and that [those rights] have been used continuously. And that would have been very problematic, [given] the enormous amount of displacement of Aboriginal peoples,” he adds.

“This decision contributes to our understanding of Aboriginal law in Canada and it will help guide the Province as we continue our work together with Indigenous peoples,” said Murray Rankin, B.C.’s Minister of Indigenous Relations and Reconciliation, in a statement to Canadian Lawyer. “As always, our government remains committed to creating and maintaining strong relationships with Indigenous peoples – one based on respect and the recognition of rights.”

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