Written by David Bursey, Sharon G.K. Singh and Charlotte Teal
On May 2, 2019, the British Columbia Court of Appeal released its decision in R v Desautel, 2019 BCCA 151. The Court of Appeal upheld the lower courts decisions to acquit Richard Desautel of charges under the Wildlife Act and confirmed his Aboriginal right to hunt in the Arrow Lakes Area, even though he is a resident and citizen of the United States.
This case raised novel questions about the territorial scope of the phrase "aboriginal peoples of Canada" in section 35 of the Constitution Act, 1982. The Court decided that section 35 Aboriginal rights can extend to Aboriginal peoples who are not citizens or residents of Canada, even though the modern Aboriginal group no longer occupies the same geographical area where the historic pre-contact collective exercised those rights.
Given the lengthy border that Canada shares with the United States, this case has implications for the exercise of a variety of aboriginal rights along that border.
We do not yet know if the Crown will appeal the decision to the Supreme Court of Canada.
Background to the Appeal
In October 2010, Mr. Desautel shot and killed a cow elk in the Arrow Lakes area of B.C. He was charged with hunting without a licence and hunting big game while not being a resident in B.C. under the Wildlife Act, RSBC, 1996, c. 488.
Mr. Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes in Washington State. He is neither a citizen nor resident of Canada. Mr. Desautel asserted that he was exercising his Aboriginal right to hunt for ceremonial purposes in the traditional territory of his Sinixt ancestors. The Crown argued that Mr. Desautel could not rely on this defence because the Lakes Tribe was not an "aboriginal peoples of Canada". In the alternative, their rights did not survive the assertion of Canadian sovereignty.
The BC Provincial Court applied R v Van der Peet,  2 S.C.R. 507, accepted Mr. Desautel's defence and acquitted him of the charges. The Court found that:
- the Lakes Tribe is a successor group to the Sinixt people that lived in B.C. at the time of contact;
- the Sinixt did not voluntarily move to their southern traditional territory or intend to abandon their claim in the North;
- despite an interval between 1930 and 2010 when the Lakes people appeared to cease hunting or traveling north of the 49th parallel, the chain of continuity had not been broken; and
- as a successor group to the Sinixt people living in B.C. at the time of contact, the Lakes Tribe is a modern day rights-bearing community capable of holding an Aboriginal right.
The Court did not consider it necessary to resolve the sovereign incompatibility issue.
On appeal to the B.C. Supreme Court, Sewell J. agreed and upheld the decision. The Crown appealed the decision to the B.C. Court of Appeal.
Issues on Appeal
The B.C. Court of Appeal considered three issues:
- Does the constitutional protection of Aboriginal rights contained in s. 35 of the Constitution Act, 1982 extend to an Aboriginal group that does not reside in Canada, and whose member claiming to exercise an Aboriginal right is neither a resident nor a citizen of Canada?
- Is it a requirement of the test for proving an Aboriginal right protected by s. 35 of the Constitution Act, 1982 that there be a present day community in the geographic area where the claimed right was exercised?
- In order to determine whether an Aboriginal person who is not a citizen or resident of Canada has an Aboriginal right to hunt in British Columbia, is it necessary to consider the incidental mobility right of the individual and the compatibility of that right with Canadian sovereignty?
Section 35(1) and Aboriginal Groups Outside of Canada
The Crown argued Mr. Desautel could not hold a constitutionally protected Aboriginal right in Canada because he was not a member of a group that was an "aboriginal peoples of Canada"; "aboriginal peoples of Canada" could only include contemporary rights-holding Aboriginal communities that are residents or citizens of Canada. The Crown further argued that the Van der Peet test is not the correct test for determining whether Mr. Desautel falls within "aboriginal peoples of Canada" and the Court must instead apply general principles of constitutional interpretation.
The Court applied a broader approach to interpretation, in line with the principles of reconciliation established in Van der Peet. Aboriginal rights differ from other rights protected under the Constitution. Section 35(1) requires a purposive analysis, since it is directed at the reconciliation of pre-existing Aboriginal claims to the territory that now constitutes Canada, and that the Court must take into account the perspective of the Aboriginal peoples claiming the right.1
The Court found that the Crown's formalistic interpretation to "aboriginal peoples of Canada" failed to take into account the Aboriginal perspective and did little to advance reconciliation.2 It could not be used to bar a claimant from the opportunity to establish an Aboriginal right under Van der Peet. If the requirements of the Van der Peet test are met, the modern Indigenous community will be an "aboriginal peoples of Canada".3
In this case, the Sinixt was the relevant historical collective. The Court relied on the trial judge's findings that the Arrow Lakes area was a significant part of the Sinixt's distinctive pre-contact culture and is still integral to the Lake Tribe's culture, that the Lakes Tribe is a successor group of the Sinixt, and that continuity had not been broken.
The Crown claimed that if Mr. Desautel is a member of the "aboriginal peoples of Canada", then he must be a member of a present day community in the geographic area where he exercised his claimed Aboriginal right to hunt. The Court rejected this argument and declined to modify the Van der Peet test to include such a requirement.
Imposing a requirement that Indigenous peoples may only hold Aboriginal rights in Canada if they occupy the same geographical area in which their ancestors exercised those rights, ignores the Aboriginal perspective, the realities of colonization and does little towards achieving the ultimate goal of reconciliation. In this case, such a requirement would extinguish Mr. Desautel’s right to hunt in the traditional territory of his ancestors even though the rights of his community in that geographical area were never voluntarily surrendered, abandoned or extinguished. I would not modify the Van der Peet test to add a geographic requirement that would prevent members of Indigenous communities, who may have been displaced, from the opportunity of establishing their Aboriginal rights in areas their ancestors had occupied pre-contact.4
Incidental Mobility Right
Finally, the Crown argued that the Court must consider any incidental right of access (mobility rights) in determining whether a non-citizen and non-resident has an Aboriginal right to hunt. It argued that the claimed right implies a right for Mr. Desautel to cross the border, which is incompatible with Canadian sovereignty.
The Court found that this issue did not need to be addressed in the appeal, and that an incidental right would not necessarily follow. The lawfulness of Mr. Desautel's entry into Canada was not in dispute at trial, and there was no evidentiary record to assess the nature or extent of Mr. Desautel's right. Past case law dealing with incidental rights arose where the exercise of the incidental right was the issue; this case considered Mr. Desautel's right to hunt, not to enter into Canada.5
The Court commented that other legal doctrines, including extinguishment, infringement and justification could be used to determine the scope of an incidental right.
The decision has far-reaching implications for the Crown, industry, and Indigenous groups. The case highlights the importance of considering the pre-European contact territory of Indigenous groups and the current pattern of settlement. The post-contact sovereign border is not determinative when considering the geographic reach of aboriginal rights.
The Crown owes a duty to consult Aboriginal groups when Crown conduct has the potential to affect Aboriginal rights, either proven or asserted. Because Aboriginal rights may extend to modern collectives resident in the United States, the Crown's duty to consult and accommodate may, in some cases, extend to groups not resident in Canada if they have rights claims in Canadian territory.
While the Crown raised the potential impact of the decision on the duty to consult and accommodate, the Court did not offer any guidance, finding it to be an ancillary question that is not material to the central issue. With the door open for Aboriginal groups resident in the United States to make claims in Canada, the scope of the duty to consult is left uncertain and is likely to result in further litigation in the future. It is also unclear how courts in the United States would deal with the reciprocal situation.
- At paras 51 to 53, citing Van der Peet and R v Sparrow,  1 SCR 1075.
- At para 57
- At para 62.
- At para 66 – 68.
- At para 70.