Authors: Meaghan Conroy, Aaron Fritzler, Amelia Crowshoe, Sonia Eggerman, Rangi Jeerakathil
In R v Desautel, 2021 SCC 17, a majority of the Supreme Court of Canada held that persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right protected by s. 35(1) of the Constitution Act, 1982.
The phrase in s. 35(1), “Aboriginal peoples of Canada,” means the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, and this may include Indigenous groups that are now outside of Canada.
American Indigenous Man Charged for Hunting Without License in B.C.
Richard Desautel, a member of the Lakes Tribe of the Colville Confederated Tribes located in Washington State who was neither a citizen nor resident of Canada, shot and killed an elk in British Columbia to secure ceremonial meat for his Tribe. Desautel turned himself in and authorities charged him under the provincial Wildlife Act for hunting without a licence and hunting big game while not a provincial resident. This was a test case.
At trial, Desautel argued, and the trial judge agreed, that he should be acquitted of the Wildlife Act charges because he was exercising his Aboriginal right to hunt for ceremonial purposes pursuant to section 35 of the Constitution. Desautel argued the following in support of his defence:
- His Sinixt ancestors had occupied territory above the 49th parallel and in the area in which he was hunting;
- At the time of contact in 1811, his Sinixt ancestors had engaged in seasonal hunting, fishing and gathering throughout the territory; and
- The practice of hunting in the area had continued with the members of the Lakes Tribe, and they were modern-day successors of the Sinixt people.
The trial judge found that the Lakes Tribe was in fact a successor of the Sinixt people and a modern-day, rights-bearing community capable of holding Aboriginal rights in Canada despite being located in Washington state. Desautel was acquitted and the Crown appealed to the British Columbia Court of Appeal and then to the Supreme Court of Canada (SCC).
The Supreme Court of Canada’s Decision on Aboriginal Affirmation of Rights
A majority (7:2) of the top court upheld the trial judge’s decision. In its reasons, the SCC said the expression of “Aboriginal peoples of Canada” in s. 35(1) of the Constitution means the modern-day successors of Aboriginal societies that occupied what is now Canadian territory at the time of European contact. Successors of Aboriginal societies may include Aboriginal groups that are now outside of Canadian borders.
The majority also relied on the following key principles in concluding that the Lakes Tribe were capable of falling within the definition of “Aboriginal peoples of Canada”:
- The phrase “Aboriginal peoples of Canada” in section 35 includes Aboriginal people who were here before and when the Europeans arrived. An interpretation that excludes Aboriginal peoples who moved, were forced to move out of Canada or upon whom international boarders were imposed, would risk perpetuating the historical injustice suffered by Aboriginal peoples at the hands of colonizers.
- S. 35(1) of the Constitution did not create Aboriginal rights. Aboriginal rights long predated 1982. What s. 35(1) did was to give Aboriginal and Treaty rights — which it explicitly recognizes as already “existing” — constitutional protection. An interpretation of s. 35(1) that limits its scope to those Aboriginal peoples who were located in Canada in 1982 would fail to give effect to this point by treating s. 35(1) as the source of Aboriginal rights.
- This case did not require the Court to set out criteria for successorship of Aboriginal communities. This is a complex issue that should be dealt with on a fuller record and with legal argument.
Having found that the Lakes Tribe is an “Aboriginal people of Canada,” the next question was whether Desautel’s claim satisfied the legal test for an Aboriginal right under s. 35(1).
- The Court said the test for Aboriginal rights for groups outside Canada is the same as the test for groups within Canada (based on v. Van der Peet).
- The Aboriginal right claimed is a right to hunt for food, social and ceremonial purposes in the traditional territory of the Sinixt in British Columbia. The Court relied on the trial judge’s findings that at the time of contact this practice was integral to the distinctive culture of the Sinixt, and that the modern-day practice of hunting in this territory, as Mr. Desautel did, is a continuation of this pre-contact practice.
- The SCC rejected arguments put forward by British Columbia and the intervener Attorney General of Alberta that would have required proof of an ongoing presence in the lands over which an Aboriginal right is asserted in order to demonstrate “continuity.” The majority stated: “this has never been part of the test for an Aboriginal right. Nor is there any basis for adding it to the test, even where the claimant is outside Canada.” Proof of an unbroken chain of continuity is not required. It is not unusual for the exercise of a right to lapse for a period of time.
- The weighing of fact-specific evidence is the domain of the trial judge. The trial judge is in the best situation to assess the evidence and will be afforded “significant latitude” in these cases.
Implications of the Supreme Court’s Ruling on Aboriginal Rights of Groups Outside Canada
The potential implications of this case are significant:
- Desautel is important to many modern Indigenous communities whose traditional territories and connection to homelands cross the borders of modern states. Indigenous communities whose traditional boundaries pre-date and are within the territory of the Canadian state now have potential legal protections for their practices that date back generations.
- This decision could represent a step toward an inclusive, parallel interpretation of Indigenous rights in Canada. The Court recognized the impacts of colonization and historical displacement of many Indigenous nations. The SCC and the courts below place weight on the Tribes’ perspectives regarding their traditional territories and impliedly recognized the Indigenous perspective of sovereignty and nationhood distinct to the Tribes and their connection to the land. This arguably represents an evolution from the legal tests articulated in the cases of R v Van der Peet, R v Sparrow, R v Badger, and R v Powley which have been criticized for misunderstanding, mischaracterizing or disregarding Indigenous perspectives on Aboriginal rights.
- The SCC acknowledged that its holding could result in a duty to consult with groups located outside of Canada. The SCC clarified that those groups should “put the Crown on notice of their claims” because “[t]here is no freestanding duty on the Crown to seek out Aboriginal groups.” Any duty to consult with groups outside of Canada “may differ” from the duty to consult with groups still in Canada.
The SCC left open questions about the precise impact of R v Desautel on Aboriginal title claims, the duty to consult and how the Crown may justify infringements of section 35 rights where the rights holder is located outside Canada. The Majority reasons explained that “[w]hile Aboriginal communities outside Canada can assert and hold s. 35(1) rights, it does not follow that their rights are the same as those of communities within Canada. While the test for an Aboriginal right is the same, the different circumstances of communities outside Canada may lead to different results.”
The MLT Aikins Indigenous practice group will be watching for how the pronouncements in R v Desautel evolve in the case law.
If you have questions about how this case may affect you or your organization, we encourage you to reach out to one of the lawyers in our Indigenous practice group.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.