On January 12, 2017, in R. v. DeSautel, 2017 BCPC 84, the BC Provincial Court found that the Sinixt people (now living in Washington State) have an Aboriginal right to hunt in British Columbia that is protected by s. 35(1) of the Constitution Act, 1982. Up to this point, the Crown had always taken the position that any rights the Sinixt people may have had in their traditional territory, which straddled what became the boundary line of Canada and the United States under the 1846 Oregon Boundary Treaty, did not survive that assertion of Canadian sovereignty.
Background on R. v. DeSautel, 2017 BCPC 84
The defendant, a member of the Lakes Tribe of the Coville Confederated Tribes and a United States citizen, was charged with offences under the Wildlife Act after shooting a cow-elk near Castlegar, British Columbia. The defendant was charged with hunting without a licence and hunting big game while not being a resident. After shooting the cow-elk, the defendant reported the hunt to BC conservation officers himself and waited several days for the conservation officers to arrive and issue an appearance notice. In his defence, the defendant claimed that he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors.
Members of the Lakes Tribe are descendents of the Sinixt people. In pre-contact times, Sinixt territory extended north in the Kootenay region near Revelstoke, British Columbia and as far south in Washington State as Kettle Falls. Prior to contact in 1811 and for some time after, the Sinixt engaged in a seasonal round in their territory hunting, fishing and gathering.
Following contact, the Sinixt people began to spend less time in the northern part of their territory. After the Oregon Boundary Treaty of 1846 which established the boundary between the United States and Canada, many Sinixt people moved to the Colville Indian Reservation in Washington State. A reserve was set aside in Canada for what was called the Arrow Lakes Band, made up in part of Sinixt people. By 1956, all members of the Arrow Lake Band had died. The government declared the Band extinct and the reserve lands reverted back to the provincial Crown.
Existence of an Aboriginal Right
The Court found that the appropriate test to determine an Aboriginal right was the test set out by the Supreme Court of Canada in R. v. Van der Peet. Under Van der Peet, the defendant bears the onus of proving that an activity is an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right. In this case, the right being claimed by the defendant was an Aboriginal right to hunt for food, social and ceremonial purposes in Sinixt traditional territory in Canada. After considering evidence from experts and Lakes Tribe community members, the Court found that the practice of hunting in what is now British Columbia was a central and significant part of the Sinixt’s distinctive culture in pre-contact times.
The Crown argued that the chain of continuity, a necessary element of the Van der Peet test, had been broken when the Sinixt people moved to Washington and rarely hunted in the Canadian portion of Sinixt territory. The Court found that, despite the 1896 enactment of the British Columbia legislature prohibiting hunting by non-resident Indians in British Columbia, there was evidence that members of the Lakes Tribe continued to hunt in British Columbia until the 1930s. Between the 1930s and 2010, the evidence suggested that hunting in British Columbia either ceased or was conducted discretely. Despite this, the Court found the chain of continuity was not broken in light of the flexible approach outlined by the Supreme Court in Van der Peet.
The Crown argued that proof of the elements of the Van der Peet test were largely irrelevant because no Sinixt Aboriginal right to hunt never came into existence in British Columbia. This was based on the argument that the Sinixt’s practice of a seasonal round did not survive the Crown’s assertion of sovereignty through; the 1846 Oregon Boundary Treaty, the 1896 enactment making it unlawful for Indians not resident in the province to kill game at any time of the year; or the 1982 Constitution Act.
The Court found the Sinixt right to hunt was not incompatible with the 1846 assertion of sovereignty. The right being claimed was not solely a mobility right, therefore it could co-exist with the assertion of sovereignty. With respect to the 1896 enactment, the Court disagreed that this was an exercise of Canadian sovereignty and found that it did not extinguish the Sinixt right to hunt.
The Crown argued that the defendant, as a U.S. citizen, could not have an Aboriginal right protected under s. 35 of the Constitution Act because he was not among the Aboriginal peoples of Canada. The Court found that this argument was one of extinguishment, not sovereign compatibility. On the issue of extinguishment, the Court found it was not plain and clear that Parliament intended to extinguish rights. There is nothing to demonstrate that s. 35 only applied to Canadian citizens:
 I do not read s. 35(1) as necessarily excluding the Sinixt aboriginal right to hunt in British Columbia from constitutional protection. I do not see that the purpose of s. 35(1) demands its exclusion. To the contrary, I find that to read s. 35(1) as intending to apply only to aboriginal peoples holding Canadian citizenship would work an unintended hardship on those other non-citizen aboriginal peoples like the Lakes Tribe who also had unextinguished aboriginal rights in 1982. There is nothing in s. 35(1) to indicate that Parliament intended to make such a distinction when it promised to reconcile the existence of aboriginal peoples on the land when the Europeans arrived with Crown sovereignty.
Infringement and Justification
The Court cited the BC Court of Appeal in Tsilhqot’in to summarize what constitutes an infringement of an Aboriginal right: a prima facie infringement requires proof of a meaningful diminution of a right, which includes “anything but an insignificant interference with that right”. The provisions of the Wildlife Act which provided a blanket prohibition on hunting without a licence as well as a prohibition on non-resident hunters were found to constitute a prima facie infringement of the defendants Aboriginal right to hunt. The Court found that the infringement was not justified. The Court acquitted the defendant of the charges on the basis that he was exercising an Aboriginal right of the Sinixt and Lakes Tribe people to hunt in their traditional territory.
The BC Provincial Court made it clear that s. 35 is not restricted to Aboriginal people with Canadian citizenship. While the implications of this are not yet clear, the judgement touched on the possible practical issues of s. 35 rights for Aboriginal groups outside of Canada, including issues of consulting with non-citizens and determining who to consult. The Court acknowledged these concerns but found that they could not preclude the recognition of proven Aboriginal rights:
 In further support of its argument that the Sinixt’s right to hunt could not have survived s. 35(1), the Crown pointed to various practical issues such as the feasibility of consulting with non-citizens, or even determining with whom to consult. In that regard, I would echo the comments by Groberman J.A. at para 151 of Tsilhqot’in Nation v. British Columbia, 2012 BCCA 285 (CanLII): without underestimating the challenges involved, such practical difficulties cannot be allowed to preclude recognition of aboriginal rights that are proven.