The British Columbia Supreme Court (BCSC) affirmed in R. v. DeSautel (DeSautel) that the constitutional protection of aboriginal rights in s. 35 of the Constitution Act, 1982 extends to an aboriginal group that resides in the United States.
In doing so, the BCSC upheld a prior decision of the Provincial Court of British Columbia (Court). For further details, see our Blakes Bulletin: Beyond Borders: B.C. Court Rules U.S. Resident Has Aboriginal Right to Hunt in Canada.
Mr. DeSautel resides on the Colville Indian Reserve in Washington State as a U.S. citizen and resident, and is a member of the Lakes Tribe of the Colville Confederated Tribes. The Lakes Tribe is a successor group to the Sinixt people, whose traditional territory included an area surrounding the Arrow Lakes in B.C.
On October 1, 2010, Mr. DeSautel shot and killed an elk near Castlegar, B.C. Mr. DeSautel reported the kill to wildlife conservation officers, who a few days later charged him with two offences under the Wildlife Act: hunting without a licence and hunting big game while not being a resident.
At trial, Mr. DeSautel successfully established that he was exercising an aboriginal right to hunt for ceremonial purposes in the Sinixt traditional territory in Canada. In its March 27, 2017, decision, the Court held that his right was protected by s. 35(1) of the Constitution Act, 1982 and therefore the application of the Wildlife Act to Mr. DeSautel constituted an unjustifiable infringement on his right to hunt.
The Crown appealed to the BCSC on two essential issues:
- Whether an aboriginal group that does not live in Canada is entitled to the constitutional protections provided by s. 35.
- Whether the right asserted by Mr. DeSautel is compatible with the sovereignty of Canada.
Constitutional Protection for Non-Residents
The Crown argued that “Aboriginal Peoples of Canada,” whose rights are protected by s. 35, does not include non-Canadians. The BCSC disagreed.
In coming to this decision, the BCSC relied on the decision of the Supreme Court of Canada concerning aboriginal rights in R. v. Sparrow (1990) and R. v. Van der Peet (1996), which established the following principles:
- The purpose of s. 35 is the affirmation of aboriginal rights and the reconciliation of the prior occupation of Aboriginal Peoples with the sovereignty of the Crown. To that end, a generous, liberal interpretation of the words used in s. 35 is required.
- To establish an aboriginal right, the claimant must establish that the practice, custom or tradition in question was a defining feature group’s culture to which he or she belongs
- The practices given constitutional protection are those that existed pre-contact and that continued to exist at the time of the adoption of the Constitution Act, 1982.
In the present case, the Court found that the hunting tradition Mr. DeSautel engaged in predated contact, and continued to exist in 1982 as well as the present time.
The BCSC concluded that the term “Aboriginal Peoples of Canada,” as used in s. 35, represents the peoples who occupied a part of what became Canada prior to first contact, even if they no longer live in Canada. The rights protected by s. 35 are exercised in Canada, and can be exercised by non-Canadians. The Court held that it would be inconsistent with the objective of reconciliation “to deny a right to a group that occupied the land in question in pre-contact times and continued to actively use the territory for some years after the imposition of the international boundary on them.”
Secondly, the Crown argued that the right asserted by Mr. DeSautel was incompatible with the sovereignty of Canada and, in particular, Canada’s right to control its borders.
The Crown relied on cases establishing that the right to fish or hunt in an area necessarily includes a right to access that area. However, the BCSC stated that in those cases it was the incidental right that was alleged to have been infringed by Crown action. In the present case, the incidental right was not in issue. Mr. DeSautel was not charged with entering Canada unlawfully, nor was there any evidence that he was denied entry. Since Mr. DeSautel made no claim to any special status or right to cross the international border, the BCSC agreed that there was no issue of sovereign incompatibility in this case.
Essentially, the BCSC’s decision is that s. 35 does not protect Mr. DeSautel’s right to enter Canada for purposes of hunting. Rather, if he is entitled to enter and remain in Canada, then s. 35 protects his right to hunt in Sinixt territory. Whether he can come and go from Canada (and, for example, bring in a gun and remove an elk carcass) remain questions of federal Canadian law, which he must comply regardless of s. 35 – at least for the time being.
The Crown filed an Application for Leave to Appeal the BCSC decision on January 26, 2018. The implications of the case will depend on the outcome of the appeal; however, as it stands now, DeSautel has potential implications for the duty to consult regarding Canadian projects near the American border.
Where American Aboriginal Peoples credibly claim to exercise aboriginal rights in Canada, the Crown and proponents should consider consulting such claimants if their rights may be adversely affected by Crown conduct, such as the approval of resource development in Canada. Without such consultation, Crown actions that effect such asserted aboriginal rights could be struck down by a Canadian court.