R. v. Desautel, 2021 SCC 17

Nature of the Case

When Desautel, an American citizen who is Sinixt and a member of the Lakes Tribe, shot an elk in Canada, the government prosecuted him for violating a provincial wildlife statute. However, he asserted his Aboriginal rights to hunt under s. 35(1) of the Constitution Act as a defense. The Supreme Court of Canada held that Desautel had an Aboriginal right to hunt in Canada. It also held that the Constitutional protection of Aboriginal rights extends to protect the rights of non-resident Aboriginal individuals who are successors of the Aboriginal societies that occupied Canadian territory at the time of European contact.

Enforcement of the Decision and Outcomes

As a result of the decision, Mr. Desautel is not guilty of the offences under the Wildlife Act with which he was charged.  The case has broader enforcement ramifications, particularly with respect to the need for the Crown to consult with and accommodate the Sinixt people resident in the United States in light of their asserted Aboriginal rights in their traditional territory in Canada.

Significance of the Case

This case is a significant step toward reconciliation between the Crown’s sovereignty over present-day Canadian land and prior occupation of that land by Aboriginal tribal societies before Europeans arrived. This case demonstrates a recognition that forcible displacement of tribes by European settlers does not invalidate the Aboriginal rights those communities hold in their traditional territory and opens the door for historically displaced Aboriginal tribal members to undertake traditional activities on their ancestral land.

The case also provides important insight on the meaning of continuity of Aboriginal rights, by clarifying that practices need not be practiced continuously, so long as there are links between the pre- and post-contact practice.  At the same time, the case leaves a number of unanswered questions with respect to how the duty to consult will operate for non-resident Aboriginal communities,  whether some infringements of the rights of non-residents can be justified, what restrictions can be placed on border crossings, and how the test for Aboriginal title may operate with respect to non-resident communities.

For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.