By Darryl Korell
Section 35(1) of the Constitution Act, 1982 recognizes and affirms the existing Aboriginal rights of the “aboriginal peoples of Canada”. Aboriginal rights, for example, grant rights to certain Indigenous peoples to hunt, trap, and fish on their ancestral lands. In R. v. Desautel, the Supreme Court of Canada was asked to consider whether these rights can also apply to Indigenous persons who are not Canadian citizens and who do not live in Canada. A majority of Supreme Court justices agreed that they can.
Richard Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes based in the state of Washington. The Lakes Tribe is a successor group of the Sinixt people. When Europeans first encountered them in 1811, the Sinixt hunted, fished, and gathered across their ancestral territory, which extended from Kettle Falls, in what is now Washington to the Colombia River, north of Revelstoke in what is now British Columbia.
In 2010, Mr. Desautel entered Canada legally from the United States. He then shot a cow-elk near Castlegar, British Columbia, contrary to provincial wildlife rules, and advised provincial authorities that he had done so. He did not have a licence and was not a resident of British Columbia. As expected, he was charged under the provincial Wildlife Act.
The place where Mr. Desautel shot the elk was within the ancestral land of the Sinixt. He defended the charges arguing that he had an Aboriginal right to hunt in the traditional territory of his Sinixt ancestors, a right protected under section 35.
It is important to note that the Sinixt had lived and practiced seasonal hunting across that region of what is now British Colombia since time immemorial, until they were involuntary displaced and required to move south of the U.S.-Canada border. By 1930, most members of the Sinixt had relocated to Washington State and no longer hunted at all in their traditional territory in British Columbia. The Sinixt, however, never abandoned their claim to their ancestral land in the north.
Aboriginal peoples of Canada include their modern-day successors
The Supreme Court majority adopted an expansive interpretation of section 35 rights. Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by section 35. The scope of “aboriginal peoples of Canada” includes the modern-day successors of Indigenous societies who occupied Canadian territory at the time of European contact. Section 35 protects the rights of the descendants of the historical Indigenous peoples who occupied the lands that are now Canada, even if those descendants now live outside Canada.
Determining whether the claimed modern right is reasonably regarded as a continuation of the pre-contact practice is an important aspect of the legal test for establishing an Aboriginal right. In Desautel, because of past injustices, the claimant group had not practiced the claimed hunting right for approximately 80 years. Yet, this was not enough to break the chain of continuity necessary to establish an Aboriginal right.
The Supreme Court majority recognized that there may have been a period of “dormancy”, but it found that the Lakes Tribe continues to have a connection to the land where their ancestors hunted in British Columbia. Despite their departure from the northern part of their traditional territory, the trial judge found that the Lakes Tribe members remained connected to that geographical area. The evidence demonstrated that the land and the traditions were not forgotten, and that the connection to the land was still present in their minds.
Displacement of Aboriginal peoples is well acknowledged
The Supreme Court majority recognized that section 35 applies to 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. The displacement of Indigenous peoples as a result of colonization is “well acknowledged”. An interpretation that excludes Indigenous peoples who were forced to move – in this case out of Canada – would risk “perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers” (R. v. Desautel at paragraph 33).
The “migration” of the Lakes Tribe from British Columbia to a different part of their traditional territory in Washington did not cause the group to lose its identity or its status as a successor to the Sinixt. The majority recognized that consideration would have to be given to the possibility that a community may split over time, as well as to the “relative significance of factors such as ancestry, language, culture, law, political institutions and territory in connecting a modern community to its historical predecessor” (para. 49).
The Desautel decision is important because it confirms that section 35 protects the rights of descendants of the historical Indigenous peoples who occupied the lands that are now Canada, even if those descendants now live outside Canada. The Supreme Court majority aimed to limit the perpetuation of the historical injustice suffered by Indigenous peoples. It rejected an interpretation of section 35 that would have excluded Indigenous peoples from the protection of section 35, even if their ancestral lands were within Canada and even if they had been involuntarily displaced.