Nationhood and Aboriginal Rights

R. v. Desautel (2017 BCPC 84)

Nationhood and Aboriginal Rights

On March 27, 2017, the BC Provincial Court released R. v. DeSautel, a significant decision in which the Aboriginal rights test is applied where the creation of Canada geographically severs the ancient territory of Aboriginal Peoples. 

Mr. DeSautel is an American citizen and member of the Lake Tribe in Washington state. He was charged with unlawful hunting in British Columbia and successfully raised an Aboriginal rights defence based on the pre-contact hunting practice of the Sinixt people. 

Judge Mrozinski found that the pre-contact Sinixt utilized a territory along the Columbia River from north of Revelstoke south to Kettle Falls, Washington. That territory was divided by the establishment of the Canada-US boundary. Most Sinixt moved to the American portion of the Sinixt territory, with few Sinixt remaining in British Columbia. For some time, Canada recognized an Arrow Lakes Indian band, which included Sinixt peoples, and allotted a reserve to the band, but declared the band extinct in 1956, after the last remaining member died. Nevertheless, some Sinixt people continued to live in British Columbia with membership or affiliation in different bands (mainly Okanagan). In the United States, Sinixt were and are members of the Lake Tribe. 

According to the judge, it was indisputable that at contact with Europeans, hunting throughout their territory was an integral feature of Sinixt culture, founding the basis for an Aboriginal right. The issues in the case, therefore, dealt with continuity of that practice to the modern right, and, the ability of Mr. DeSautel, an American with membership in an American tribe, to hold an Aboriginal right protected by section 35 of the Constitution. 

The judge’s “continuity” analysis addressed the connection between the Sinixt’s pre-contact practice of hunting throughout their whole territory and the claimed modern right to hunt in BC. She found that numerous historial events impacted their ability to continue to hunt in BC, including depopulation, the establishment of the border and an 1896 law that prohibited non-resident Indians from hunting in BC. Although after about 1930, Sinixt did not hunt in the BC portion, their recollections of hunting and attachment to that territory in BC remained important. Taking into consideration the larger historical forces at work and that ongoing connection of the Sinixt, the fact that the Sinixt did not physically hunt in BC for those decades did not break the chain of continuity or undermine their right. 

The other element of continuity in the case relates to successorship of the Lake Tribe to the Sinixt pre-contact practice, and specifically, whether an American citizen with US tribal affiliation can claim a right under s. 35, which protects the rights of the Aboriginal Peoples of Canada. 

The judge found that s. 35 was not meant to exclude rights on the basis of nationhood. Rather, the “of Canada” element, in this case, was established by identifying the existence of an Aboriginal Peoples at contact, along with their continued existence as a group in Canada into the twentieth century, with some descendants remaining still in the country. The judge did not require (or need to decide whether there was) a Canadian successor group to hold the right. 

The conclusion that the Lake Tribe was a successor to and holder of the Sinixt Aboriginal right does not necessarily preclude other First Nations or collectives in Canada from also doing so. It will be interesting to see how or if these issues play out, not only in the Crown’s appeal, but in future Crown consultations with the Lake Tribe (which appears to be a new circumstance for the Crown) as well as with Canadian-based First Nations.