Canada’s Supreme Court says Native Americans can hunt in British Columbia

TORONTO - The Supreme Court of Canada ruled Friday that Indigenous people who are not Canadian citizens and who do not live in Canada can have constitutionally protected rights in the country if they belong to groups that are modern-day successors of ones that once occupied territory there.

The decision could have far-reaching ramifications for Indigenous people on both sides of the U.S.-Canada border.

The ruling in the case of Richard Desautel, a U.S. citizen and member of the Lakes tribe of the Colville Confederated Tribes in Washington state, ended a legal battle that began in 2010 when he shot a cow elk in the Arrow Lakes region of British Columbia.

He alerted a conservation officer and was charged with hunting without a license and hunting big game while not a resident of British Columbia.

Desautel argued that he was exercising his right under Section 35 of Canada’s Constitution Act, which recognizes and affirms rights afforded to “aboriginal peoples of Canada.” He said he had a right to hunt for ceremonial purposes on the traditional territory of his ancestors, the Sinixt, a group whose ancestral lands extended into what is now British Columbia and who Canada declared “extinct” several decades ago.

A trial court in British Columbia agreed and acquitted him. The B.C. Supreme Court and the province’s court of appeal dismissed the state’s appeals. It then appealed to Canada’s top court, arguing that the case, officially titled Her Majesty the Queen v. Richard Lee Desautel, was of national importance.

He intended his action to be a test case. Desautel argued that he was exercising his right under Section 35 of Canada’s Constitution Act, which recognizes and affirms rights afforded to “aboriginal peoples of Canada.” He said he had a right to hunt for ceremonial purposes on the traditional territory of his ancestors, the Sinixt,whose ancestral lands extended into what is now British Columbiaand whom Canada declared “extinct” many decades ago.

A trial court in British Columbia agreed and acquitted him. The B.C. Supreme Court and the province’s court of appeal dismissed government attorneys’ appeals. They then appealed to Canada’s top court, arguing that the case, officially titled Her Majesty the Queen v. Richard Lee Desautel, was of national importance.

The main question before the court was whether rights afforded to “aboriginal peoples of Canada” by the Constitution Act can extend to groups that do not live in Canada.

Government attorneys argued that the section should be limited to Indigenous peoples in Canada and that granting Desautel such rights would be incompatible with Canadian sovereignty.

In a 7-to-2 decision, Canada’s highest court dismissed the appeal.

“Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1) of the Constitution Act,” Justice Malcolm Rowe said, writing for the majority, adding, “The scope of ‘aboriginal peoples of Canada’ is clear: it must mean the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact.”

An interpretation of Section 35 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,” the court said.

One that does not, it continued, “would risk perpetuating the historical injustice suffered by Aboriginal peoples at the hands of Europeans.”

“I’m very, very, very happy,” Desautel told The Washington Post. “I don’t know how to express the joy and relief.”

Before first contact with the Europeans in 1811, the Sinixt hunted, fished and gathered in traditional territory that stretched from Revelstoke, in what is now British Columbia, to just above Kettle Falls, in what is now Washington state, in the south.

Over time, the Sinixt settled in the southern part of their territory, in what would later become the United States. A trial judge in British Columbia found that a “constellation of factors” led to this migration - not all of them voluntary - and that the group never gave up its claim to its ancestral lands in Canada.

Many of the Sinixt, who had become known as the Lakes tribe, took up residence on the Colville Reservation in Washington state, where Desautel lives. Those in Canada were moved in 1902 to a reserve set up for the Arrow Lakes Band.

Canada declared the Sinixt extinct under the Indian Act in 1956 after the tribe’s last member died.

Having found that Desautel belonged to a group that is an Aboriginal people of Canada, the court also considered whether his alleged right to hunt for ceremonial purposes met the “Van der Peet test,” which is used to determine whether a constitutionally protected Aboriginal right exists.

The test requires claimants to establish that a pre-contact practice existed and was integral to that society’s culture. They must then show that the modern-day right is connected to and a continuation of that practice.

The court said Desautel met the test.

Several groups in the United States with ancestral lands divided by the U.S.-Canada border were granted status comparable to “friend of the court” standing in U.S. courts in the case.

Government attorneys raised concerns about what the consequences would be for such groups from a decision in Desautel’s favor, including that Canadian governments could have a duty to consult with them on projects affecting their traditional lands.

The court said the worries “do not justify any change to the law as set out in these reasons.”