Canada: Aboriginal Rights In Canada Can Include Indigenous Persons In The United States

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, [1996] 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:

  1. 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?
  2. 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?
  3. 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.

Geographic Requirements

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.

Implications

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.

Footnotes

1 At paras 51 to 53, citing Van der Peet and R v Sparrow, [1990] 1 SCR 1075.

2 At para 57

3 Ibid.

4 At para 62.

5 At para 66 – 68.

6 At para 70.

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 Mondaq.com.

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

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions