Canada: Beyond Borders: B.C. Court Rules U.S. Resident Has Aboriginal Right To Hunt In Canada

On March 27, 2017, in an unprecedented decision, the Provincial Court of British Columbia (Court) ruled in R. v. DeSautel (DeSautel) to recognize the aboriginal rights of a First Nation whose members reside in the United States and to allow for the exercise of those rights in Canada.


On October 1, 2010, the defendant, Mr. DeSautel, shot an elk for ceremonial meat near Castlegar, B.C. He was charged with two offences under the B.C. Wildlife Act: hunting without a licence and hunting big game while not being a resident.

Mr. DeSautel is a U.S. citizen and resident of the Colville Indian Reserve in Washington State. As a member of the Lakes Tribe, Mr. DeSautel's ancestors are the Sinixt people whose traditional territory spans the U.S.-Canadian border. The northern boundary is in the Kootenay region, near Revelstoke, B.C.

Mr. DeSautel argued that he had an aboriginal right to hunt in the Sinixt traditional territory.

DeSautel addresses two main issues:

  1. Whether the Sinixt have an aboriginal right to hunt in the B.C. portion of their historic traditional territory
  2. Whether the Sinixt's aboriginal hunting rights had been extinguished by any of the following: the 1846 Oregon Boundary Treaty (1846 Treaty), An Act to Amend the Game Protection Act, 1895 (1896 Act), or section 35(1) of the Constitution Act, 1982


The Court applied the test from the Supreme Court of Canada's decision in R. v. Van der Peet (Van der Peet) to determine the first issue. In doing so, the Court found that hunting for game in the northern portion of the Sinixt's traditional territory constituted an integral part of the Sinixt's pre-contact culture. The Van der Peet test also requires continuity between a pre-contact custom and its current expression. In this regard, the evidence at trial showed that members of the Lakes Tribe rarely hunted in B.C. after 1930. Nevertheless, the Court found that the interval between 1930 and 2010 did not "sever the continuity between the hunting practices of the pre-contact group and the present day Lakes Tribe or make it any less integral to the Lakes culture."

Regarding the second issue—whether the Sinixt's rights to hunt in B.C. had been extinguished—the Court ruled that the border imposed by the 1846 Treaty (between what was then the Colony of British Columbia and what is now Washington State) was compatible with the Sinixt's right to hunt in the B.C. portion of their traditional territory. As for the 1896 Act, which purported to make it unlawful for Indians not resident in B.C. to kill game at any time of the year—the Court regarded this as an attempt by the provincial government of the day to specifically regulate Indians qua Indians to the exclusion of other persons. As such, the Court found that the 1896 Act could not have extinguished the Sinixt's rights since the legislative power over "Indians" belonged to the federal government and the provisions of the 1896 Act would have been beyond the B.C. legislature's jurisdiction. In the alternative, the Court ruled that the 1896 Act was not sufficiently plain or clear to extinguish an aboriginal right.

Finally, the Crown argued that any Sinixt aboriginal right to hunt in B.C. did not survive the coming into force of section 35(1) of the Constitution Act, 1982 because section 35(1) only addresses the aboriginal and treaty rights of the "Aboriginal peoples of Canada". In response, the Court found that section 35(1) should not be read applying only to Aboriginal peoples holding Canadian citizenship as this would work "unintended hardship on those other non-citizen aboriginal peoples like the Lakes Tribe who also had unextinguished aboriginal rights in 1982." Rather than extinguishing the Sinixt's aboriginal right to hunt in B.C., the Court ruled that section 35(1) protects that right from extinguishment and unjustified infringement.

Having determined these issues, the judge ruled that sections 11(1) and 47(a) of the B.C. Wildlife Act infringed upon the Lake Tribe's aboriginal right to hunt in its traditional territory in Canada and could not be justified. Therefore, the charges against Mr. DeSautel were dismissed.


Because DeSautel is a provincial court decision, it may be considered by at least one higher court. (No appeal had been filed prior to the release of this Bulletin, but the time period to file an appeal (30 days) had yet to expire.)

For now, one of the main implications of DeSautel pertains to the duty to consult. At trial, the Crown pointed to various practical issues, such as the feasibility of consulting with non-citizens, in support of its argument that the Sinixt's right to hunt could not have survived the coming into force of section 35(1). This argument was rejected by the Court, citing the principle that practical difficulties cannot be allowed to preclude recognition of proven aboriginal rights.

Pending an appeal, DeSautel suggests that ?in circumstances where Aboriginal Peoples who reside in the U.S. credibly claim to exercise aboriginal rights in Canada, it may be advisable for the Crown to consider consulting such claimants where their rights may be adversely affected by Crown conduct. In the absence of such consultation, there is the potential for any Crown action affecting the asserted rights of these Aboriginal Peoples to be found invalid.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
12 Sep 2017, Seminar, Toronto, Canada

Please join us as we take an in-depth look at the legislation and the impact on the industry.

14 Sep 2017, Seminar, Toronto, Canada

Change, stress and uncertainty are ever]present factors in todayfs legal environment, and specific aspects about the practice of law make it difficult to thrive in the profession long term. Luckily, there are specific research]based strategies that have been shown to help lawyers thrive and lead to more effective ways to manage stress and pressure.

5 Oct 2017, Seminar, Toronto, Canada

Blakes is proud to host our New to In-House Series, designed to bring together junior and mid-level in-house counsel for a candid exchange of insights to highlight and address some of the challenges and opportunities facing in-house lawyers in their roles today.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.