Canada: Canada's Highest Court Recognizes That US Indigenous Communities Can Hold Constitutionally Protected Aboriginal Rights In Canada

The Supreme Court of Canada ruled last week that the Lakes Tribe in Washington State have a constitutionally protected Aboriginal right to hunt in a portion of British Columbia.

In this landmark decision, the Supreme Court of Canada was required to interpret the meaning of "the aboriginal peoples of Canada" in s. 35(1) of the Constitution Act,1982 and specifically whether a member of an Aboriginal group outside of Canada, and non-Canadian citizen and resident, could exercise s. 35 Aboriginal rights in Canada. The majority of the Court ruled in favour of the US applicant, holding that Aboriginal groups located outside of Canada may be "Aboriginal peoples of Canada" for the purposes of s. 35(1) provided they are a modern-day successor of an Aboriginal society that occupied what is now Canada at the time of European contact.

The full implications of this decision on future cross-border claims are not yet known as the majority left a number of difficult questions for another day. However, this decision will likely lead to more US-based Indigenous groups asserting s. 35 Aboriginal rights in Canada. This in turn may raise consultation and accommodation obligations for decisions that have the potential to adversely impact these asserted rights. While each case will need to be assessed based on its specific facts, this issue could further complicate the consultation and accommodation process in Canada for governments, proponents, and Indigenous groups in Canada.

Background

This appeal arose from a hunting prosecution of Richard Desautel, a member of the Lakes Tribe of the Colville Confederated Tribes in the State of Washington.

Mr. Desautel is a US citizen who resides on the Colville Indian Reserve in Washington. He entered Canada legally in 2010 and shot and killed a cow-elk near Castlegar, British Columbia. To advance a test case, he reported the kill to provincial wildlife conservation officers and was charged with hunting offences under the British Columbia Wildlife Act.

Mr. Desautel admitted to committing the offences but raised the defence that he was exercising a constitutionally protected s. 35 Aboriginal right to hunt in the traditional territory of his Sinixt ancestors. The northern portion of the Sinixt's traditional territory included part of what became British Columbia but most of the Sinixt population migrated to the southern portion of their territory in the United States and stopped hunting in the Canadian portion of their territory in and around 1930.  The Sinixt population that remained in Canada was very small and the band was declared extinct by the government of Canada when the last member died in 1956.  

The trial judge held that the Lakes Tribe was a successor to the Sinixt, such that Aboriginal rights held by the Sinixt were now held and could be exercised by the Lakes Tribe and its members. The trial judge applied the test set out by the Supreme Court of Canada in Van der Peet for the recognition of Aboriginal rights and concluded that Mr. Desautel was exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by s. 35(1) of the Constitution Act, 1982.  This decision was upheld on appeal to the Supreme Court of British Columbia and the BC Court of Appeal.

Decision of the Supreme Court of Canada

In reasons written by Justice Rowe, the majority of the Supreme Court of Canada held that the "[A]boriginal peoples of Canada" under section 35(1) "are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact", which may include Aboriginal groups that are now outside Canada.  The majority held that it is consistent with the purpose of reconciliation and s. 35(1) to include "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 majority noted that the displacement of Aboriginal peoples as a result of colonization is well-acknowledged and that "an interpretation that excludes Aboriginal peoples who were forced to move out of Canada would risk 'perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers'".   

The majority deferred to the factual findings of the trial judge that the Lake Tribes were a modern successor of the Sinixt and that the chain of continuity had not been broken. In so doing, they declined to answer a number of key questions that will be relevant for future claims of US based Indigenous groups, including:

(i) What criteria should be applied to determine whether a group is a modern successor to an Aboriginal society, particularly when there are competing claims?

(ii) Can an Aboriginal right be lost or abandoned by non-use?

(iii) Where a US Indigenous group holds s. 35 Aboriginal rights, is there an incidental right to enter Canada in order to exercise these rights and, if so, how is this right compatible with Canadian sovereignty and can limitations on this right be justified through the infringement/justification framework?

The majority decided to leave these questions for another day when there is a more detailed evidentiary record and the issues are more thoroughly argued and considered by the courts below.

The majority briefly considered the impact on the Crown's duty to consult as well as the justification doctrine, but provided very limited guidance that left more questions than answers. They held that the Crown was free to act in the absence of any knowledge of claims by Aboriginal groups outside of Canada and the obligation was on these groups to put the Crown on notice. However, once the Crown is put on notice, it would have to determine whether a duty to consult arose and, if so, the scope of the duty. The majority did not comment further on the potential duty to consult Aboriginal groups outside Canada other than noting that the scope of that duty and the manner in which it is given effect may differ from Aboriginal groups in Canada, without explaining how and in what circumstances. 

The majority also found that the fact that a holder of an Aboriginal right is located outside of Canada "is a feature of context that may be taken into account in the justification analysis" but did not explain how and stated that the extent to which this feature may make a difference in the justification analysis is an issue better left for another day.

In her dissenting opinion, Justice Côté held that only Aboriginal groups in Canada could be entitled to the protections of s. 35(1), as the intent of the provision in 1982 had been to protect the rights of Aboriginal groups that were participants in and members of Canadian society, rather than of modern-day successor groups located outside of Canada. She further held that, even if the Lakes Tribe were an Aboriginal people of Canada under s. 35(1), the evidence led at trial was insufficient to meet the continuity requirement of the Van der Peet test necessary for establishing an Aboriginal right to hunt in the Sinixt traditional territories in British Columbia. In particular, Côté J. stated that the trial judge made a "legal error" in concluding that that the chain of continuity had not been broken, given what she characterized as "no direct evidence between 1930 and 1982 and between 1982 and 2010" of the exercise of an Aboriginal hunting right in British Columbia by the Lakes Tribe.  Justice Côté was joined by Justice Moldaver on this latter point and he concluded that Mr. Desautel had not demonstrated that the practice of hunting had sufficient continuity to establish an Aboriginal right under the test set out in Van der Peet.

Implications

This case resolved the immediate question before the Court but did not provide a framework to deal the various associated issues that arise with cross-border claims. The number of questions that the majority left for another day will likely lead to more litigation and additional practical challenges in consultation and accommodation for projects in areas where there are cross-border claims. 

It is anticipated that this decision will lead to more US groups asserting Aboriginal rights in Canada, which could expand the number of groups that need to be consulted and potentially accommodated in certain cases. Where credible cross-border claims are raised, this could impact the distribution of project benefits amongst Indigenous groups including the benefits available to Indigenous groups in Canada, depending on the strength of any such claims and the impacts at issue..

While the decision relates to s. 35 of the Constitution Act, 1982, the decision may also impact the interpretation of statutory obligations that are based on similar definitions of Aboriginal or Indigenous peoples of Canada and the way in which the federal and BC governments implement the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) and develop action plans related thereto. This includes any implementation work to address  provisions relating to obtaining "free, prior, and informed consent" of Indigenous groups, rights of redress, and Article 36 which deals with Indigenous groups divided by international borders. The BC Declaration on the Rights of Indigenous Peoples Act and the proposed federal legislation (Bill C-15) both link their respective definitions of "Indigenous peoples" to s. 35 of the Constitution Act, 1982. 

The BC statute defines "Indigenous peoples" as having "the same meaning as aboriginal peoples in section 35 of the Constitution Act, 1982" whereas Bill C-15 defines this term as having "the meaning assigned by the definition of aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982".  The latter defines Aboriginal peoples to include the "Indian, Inuit and Métis peoples of Canada" but the majority in Desautel expressly noted that this provision does not specify that the Aboriginal peoples must be citizens or residents of Canada. The BC statute and federal legislation are intended to provide a framework to implement UNDRIP over time, rather than give it immediate legal force and effect, but this decision will raise additional considerations for both governments as they move forward with their commitments to the implementation of UNDRIP.  

A similar issue will also arise with other federal and provincial statutes that include definitions of "Indigenous peoples of Canada" that are tied to section 35, such as the federal Impact Assessment Act and the Canadian Energy Regulator Act which contain the same definition as Bill C-15.

All of these issues will be important to watch as governments, Indigenous groups, and proponents are left to grapple with the implications of this decision.

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