Summary
In 2010, Richard Lee Desautel, an American citizen, shot one cow elk in British Columbia in violation of a provincial wildlife statute, and was prosecuted by the Canadian government. Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes of the United States. The trial judge found that the Lakes Tribe is a modern-day successor group to the Sinixt people who were present in Canada at the time of European contact. The Sinixt people once hunted on lands located in present day British Columbia, and Mr. Desautel shot the elk on land that was located within the ancestral territory of the Sinixt. Mr. Desautel asserted an affirmative defense under the Constitution, claiming that his right to hunt on his peoples’ ancestral territory in British Columbia is protected as an Aboriginal right.
The Supreme Court of Canada had two issues to consider in this case. First, the Court had to address whether people who are not citizens or residents of Canada can exercise rights protected under s. 35(1) of the Constitution Act, the section which protects the rights of the Aboriginal peoples of Canada. Second, the Court had to consider whether Desautel’s actions were protected under the test from the Van der Peet case, which determines whether an aboriginal right exists.
Section 35(1) of the Constitution Act states: “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The Court discussed whether a group of people who are not Canadian residents or Canadian citizens can nevertheless be considered “Aboriginal peoples of Canada”. It concluded that “Aboriginal peoples of Canada” includes the modern-day successor societies of Aboriginal societies that occupied the territory of Canada when Europeans first arrived. The resulting conclusion is that individuals who are members of Aboriginal successor societies, but who are not citizens or residents of Canada, can be Aboriginal peoples of Canada.
Next, the Court considered if Mr. Desautel had an Aboriginal right under the Van der Peet test. The Van der Peet test determines if an Aboriginal right exists by characterizing the right claimed in the pleadings, determining whether the claimant has proven that a practice existed prior to European contact, and then by establishing whether the right has continuity with the pre-contact practice. In the trial court, the judge had found that at the time of European contact, hunting for food was integral to the distinctive Sinixt culture and that the modern-day practice of hunting in this area had continuity with the pre-European-contact practice. The Court agreed with the trial court judge that Mr. Desautel’s right to hunt for food for social and ceremonial purposes was an Aboriginal right protected by s. 35(1).
On its appeal to the Supreme Court of Canada, the Canadian government made several arguments to the Court. First, the government argued that any discussion of the right to cross the United States-Canada border invoked considerations of sovereignty, and the recognition of a right would be barred because it would be incompatible with that sovereignty. The Court rejected this argument because Mr. Desautel had crossed the border into Canada legally, so his border-crossing was not at issue in the case. The Canadian government also made an argument that s. 35(1) requires Aboriginal people to have a modern-day community in the area where an Aboriginal right is asserted. The Court rejected this argument as well, stating that ongoing presence on land has never been a part of the test for an Aboriginal right.
