Case Brief: R. v. Desautel, 2019 BCCA 151
Christopher Devlin, Darian Baskatawang
The BC Court of Appeal has decided that members of a present-day Indigenous community situated in Washington State are entitled to exercise constitutionally protected Aboriginal rights within Canada.
What this case is about
Mr. Desautel was charged under the BC Wildlife Act for killing a cow elk in the Arrow Lakes region of British Columbia. Judges in the provincial and summary conviction appeal courts granted an acquittal for Mr. Desautel, notwithstanding he is a member of the Lakes Tribe in Washington State (US). The lower courts held that he was exercising his Aboriginal right to hunt for ceremonial purposes in the traditional territory, which happened to be in Canada, of his Sinixt ancestors.
What the Court found
The BC Court of Appeal agreed. Writing for the court, the Hon. Madam Justice D. Smith, held:
- Aboriginal rights protected in s.35 of the Constitution Act, 1982 extends to Aboriginal groups that do not reside in Canada, and whose member claiming to exercise an Aboriginal right does not have to be a resident or citizen of Canada
- It is not a requirement of the Van der Peet test for proving an Aboriginal right protected by s. 35 of the Constitution Act, 1982 that there be a present-day community in the geographic area where the claimed right was exercised.
- It is not necessary to consider an Aboriginal non-resident’s or non-Canadian citizen’s ability to cross the Canada-US border in order to determine if they have an Aboriginal right to hunt in British Columbia. The Aboriginal right to hunt exists separate from an incidental mobility right to cross the international border.
The Court emphasized that the legal test from R. v. Van der Peet focusses on practices, customs, and traditions of historic Indigenous societies when defining Aboriginal rights (Van der Peet, para 61). The Court refused to modify the Van der Peet test for an Aboriginal rights claimant who is not a resident or citizen of Canada.
Thus, whether a member of the Lakes Tribe in the US, as a descendant from the cross-border Sinixt people, can claim the Aboriginal right in Canada depends on the ability to show continuity between the tradition performed by the Sinixt pre-contact and the actions performed now, per Van der Peet.
In Desautel, the historic nation is the Sinixt. Where Mr. Desautel shot the cow elk matters, because where he shot the elk was a central and significant part of the Sinixt’s distinctive culture pre-contact, and remained an integral part of the Lakes Tribe’s culture today. Mr. Desautel was able to establish a connection to the historic community that hunted in the traditional territory where the claimed right was exercised in Canada.
Why this case matters
Desautel will have implications for Indigenous nations along the Canada-US border. If such a community on the American side of the border is able to prove that it meets the Van der Peet requirements, that community may be included as one of the “Aboriginal peoples of Canada” for the purposes of Aboriginal rights. This is important, for example, should an American Indigenous person be charged with a wildlife or fishery offence.
The Crown has 60 days to seek leave to appeal to the Supreme Court of Canada. Leave to appeal depends on the court’s assessment of the national importance of the legal issues raised. The novelty of this case is unquestionable. The recognition of constitutionally protected rights to Indigenous people outside of Canada raises further questions about the Crown’s duties and responsibilities to those people (like the duty to consult and in certain cases, accommodate). However, three lower courts have dismissed the Crown’s arguments. Denying leave to appeal may be a simple way for the Supreme Court of Canada to endorse those judgments.