Case Brief: R. v. Desautel, 2021 SCC 17
By John Gailus and Lorenzo Rose
What this case is about
When Canada’s border with the United States was extended to the Pacific Ocean in 1846, the colonial governments did so with no consideration of the territories and boundaries of the Indigenous people living in the area. As the border solidified, Indigenous nations whose territory stretched across the 49th parallel were separated from portions of their territory. This case confirms that Indigenous nations who are now located within the United States may claim the protection of s. 35 (1) of the Constitution Act 1982 to exercise Aboriginal rights in their traditional territory in Canada.
Mr. Desautel is a member of the Lakes Tribe, which is now located in Washington State. He is an American citizen and resident. Mr. Desautel shot and killed an elk in British Columbia and was charged under the B.C. Wildlife Act for hunting without a license and hunting without being a resident.
Mr. Desautel argued that he had an Aboriginal right to hunt in the area where he shot the elk. He claimed that the Lakes Tribe was a successor of the Sinixt people, a group whose traditional territory was divided by the Canada-US border. A 7-2 majority of the Supreme Court of Canada, agreed that Mr. Desautel had established an Aboriginal right to hunt for ceremonial purposes in that area and upheld the lower court decisions dismissing the charges against him.
What the Majority Found
1. The phrase “Aboriginal peoples of Canada” in s. 35(1) of the Constitution Act 1982 means the successors of Aboriginal peoples who occupied Canada at the time of European contact
The central issue was whether an individual and community who are neither Canadian citizens nor residents can claim Aboriginal rights in Canada. To answer this question, the Court had to interpret s. 35(1) of the Constitution Act, 1982, which reads:
The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (emphasis added)
The majority held that the emphasized phrase means “the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact.” As a result, groups like the Lakes Tribe who are neither citizens nor residents of Canada may still be Aboriginal peoples of Canada. Such groups may have constitutionally protected Aboriginal rights, so long as they can show that they are a successor of a group that occupied Canadian territory at the time of contact.
2. The Lakes Tribe has an Aboriginal right to hunt within the traditional territory of the Sinixt
The Majority upheld the trial judge’s finding that Mr. Desautel was exercising an Aboriginal right when he shot the elk in traditional Sinixt territory. The majority rejected the Crown’s argument that the Sinixt had no such right because they had no ongoing presence in the land. The court rejected this argument as an ongoing presence “has never been part of the test for an Aboriginal right.”
The majority also rejected the Crown’s argument that Mr. Desautel could not have an Aboriginal right to hunt in British Columbia, as that would encompass a right to cross the Canada-U.S. Border, which the Crown submitted was incompatible with Canadian sovereignty. The court held that as Mr. Desautel had entered Canada legally, there was no requirement to decide whether there can be an Aboriginal right to enter Canada.
Why this case matters
The decision confirms that Indigenous communities located outside Canada may have Aboriginal rights that are protected under the Canadian constitution. This precedent will support other Indigenous groups who are currently located within America to safeguard and strengthen their connection to their Canadian territory. The decision also affirms that the duty to consult will compel the Crown to consult with American Indigenous groups where those can show the potential existence of an Aboriginal right in Canada. However, the court cautioned that the onus is on the Indigenous group to put the Crown on notice that it has a claim that may be adversely affected by Crown action.
The decision also touches on several other areas of law relevant to Indigenous peoples:
- A summary of the law regarding the honour of the Crown, which may become the basis for future honour of the Crown claims;
- A summary of the law of “sheltering,” which governs whether and when Aboriginal groups can claim the benefit of another group’s Aboriginal rights;
- An endorsement of negotiation as a method to reconcile Aboriginal rights and Crown sovereignty;
- A discussion of the test for Aboriginal rights and the role of continuity in that test;
- Repeated references to Indigenous law and the role of Indigenous legal orders.
John Gailus successfully appeared as counsel for one of the intervenors in the Desautel appeal. DGW’s team would be pleased to discuss the implications of this decision and how it may affect your interests. Please do not hesitate to contact us with any questions.