On May 2, 2019, in R. v. Desautel, 2019 BCCA 151, the British Columbia Court of Appeal found that "aboriginal peoples of Canada" in s. 35 of the Constitution Act, 1982 should be broadly interpreted to include persons who are not residents or citizens of Canada. In this case, the respondent (a United States citizen and descendant of the Sinixt people) was acquitted of the charges he faced under the Wildlife Act for hunting in British Columbia.
In 2010, Richard Desautel was charged for shooting a cow-elk near Castlegar, British Columbia. Mr. Desautel is not a British Columbia resident, nor did he have a hunting licence (both of which are requirements under the Wildlife Act). Mr. Desautel reported himself to the local wildlife conservation officers, and in his defence, claimed that he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors as a member of the Lakes Tribe (part of the contemporary Coville Confederated Tribes, located in the United States). He claimed their traditional territory extended from Washington State north into the Kootenay region of British Columbia.
Both the BC Provincial Court and the British Columbia Supreme Court agreed with Mr. Desautel and concluded that an Aboriginal group residing outside of Canada was not precluded from being an "aboriginal peoples of Canada" under s. 35 of the Constitution Act, 1982. Therefore, persons who are not residents or citizens of Canada may be able to exercise rights protected under section 35 of the Constitution. Further details of the facts and associated legal issues can be found in our previous bulletins summarizing the Provincial Court and British Columbia Supreme Court decisions.
The BCCA Decision
The central issue on appeal was whether the constitutional protection of Aboriginal rights enshrined in s. 35 of the Constitution Act, 1982 extended to an Aboriginal group located outside of Canada. The Crown contended that the phrase "aboriginal peoples of Canada" was limited to a contemporary rights-holding Aboriginal community located in the same geographic area where the claimed right is exercised.
In concluding that s. 35 may extend to Aboriginal peoples who are not residents or citizens of Canada, the BC Court of Appeal emphasized the importance of a purposive approach in reconciling the pre-existence of Aboriginal societies with the sovereignty of the Crown, and concluded that the test for proving an Aboriginal right (as set out in R. v. Van der Peet) did not require that a present day community be in the area where the right was exercised. Mr. Desautel's right to hunt was therefore recognized:
 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.
The Court of Appeal declined to add a geographic requirement to the well-established Van der Peet test for determining Aboriginal rights, and deferred to the findings of the trial judge who held that Mr. Desautel had established a "chain of continuity" with respect to hunting over their territory in Canada, even though the community has settled in the southern portion of their territory located in the United States.
The Court also considered whether, in recognizing that Mr. Desautel was exercising a s. 35 right to hunt, that right included an incidental right to cross the Canada/United States border (an "incidental mobility right"), and if so, whether that would be incompatible with Canadian sovereignty. The Court however declined to address the issue and did not agree that such a mobility right would necessarily follow from the s. 35 right.
Mr. Desautel has been successful at all levels of BC Court in establishing peoples who are non-citizens and non-residents can nonetheless hold rights under s. 35 of the Constitution Act, 1982. The Court emphasized that Indigenous perspectives must be taken into account together with the Crown's interests in meeting the needs of modern-day Canadian society. Anything less would be antithetical to "ultimate goal of reconciliation".
From a practical perspective, proponents of projects near the border ought to be mindful of the expanding consultation efforts across the border where there are Indigenous groups (like the Sinixt people) who assert traditional territories that extend into Canada.
Given the important issues under consideration in this decision, it is likely that the Crown will seek leave to appeal from the Supreme Court of Canada.