R. v DeSautel, 2017 BCPC 84
On March 27, 2017, Madam Judge Mrozinski of the provincial court of British Columbia (the "Court") rendered a decision that recognizes the ability of an individual who is a member of an Indigenous people called the Sinixt to exercise an Aboriginal right to hunt in B.C. A unique facet of this case is that Sinixt are an Indigenous people whose members now largely reside in the United States.
The defendant, Richard DeSautel, was charged with hunting without a license and hunting big game while not being a resident, contrary to ss. 11(1) and 47(a), respectively, of the B.C. Wildlife Act. These charges came after Mr. DeSautel shot an elk for ceremonial purposes near Castlegar, B.C.
Mr. DeSautel argued that he was exercising an Aboriginal right to hunt in the traditional territory of his Sinixt ancestors. Mr. DeSautel described the traditional territory of the Sinixt as spanning the U.S. - Canada border, extending from Revelstoke, B.C. in the north, to Kettle Falls, Washington State in the south. Mr. DeSautel is a member of a modern Sinixt group called the Lakes Tribe of the Colville Confederated Tribes ("Lakes Tribe"), and lives on the Colville Indian Reserve in Washington State. No evidence was provided relating to the existence of a modern Sinixt community on the Canadian side of the border.
The central issue dealt with by the Court was whether descendants of the Sinixt, a people who lived, travelled, hunted and harvested for thousands of years in what is now B.C. and the northwestern U.S., have an exercisable Aboriginal right to hunt on the B.C. side of the border, despite there being essentially no evidence of a modern Sinixt community existing in Canada.
The crown's position
At trial, there was no dispute that Mr. DeSautel was hunting within the traditional territory of the Sinixt. The Court observed that there was also "no serious dispute that wherever else Sinixt members may now live, they exist today as a group known as the [Lakes Tribe], and of course, Mr. DeSautel is a member of the Lakes Tribe." However, the Crown argued that Mr. DeSautel could not have been exercising an Aboriginal right because no Sinixt Aboriginal rights ever came into existence in Canada.
In support of its position, the Crown advanced two primary arguments: (i) that the Sinixt practice of hunting throughout their traditional territory did not survive the assertion of sovereignty which occurred upon the signing of the 1846 Oregon Boundary Treaty that established part of the Canada - U.S. border; or alternatively, (ii) that the Sinixt group in Washington State had gradually and voluntarily abandoned their traditional practice of hunting in Sinixt territory in B.C. and, consequently, the claim of the modern Sinixt group lacked the required continuity with the practice of the pre-contact Sinixt group.
In the further alternative, the Crown argued that any Sinixt Aboriginal right that may have come into existence in B.C. did not survive the coming into force of a certain 1896 enactment of the B.C. legislature, or s. 35(1) of the Constitution Act, 1982.
Existence of an aboriginal right in Canada
The Court first described and applied the test set out by the Supreme Court of Canada in R. v Van der Peet,  2 S.C.R. 507 which requires that claimed s. 35 Aboriginal rights be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right, with sufficient continuity into the present.
The Court described Mr. DeSautel's asserted right as one to hunt for food, social and ceremonial purposes in Sinixt traditional territory, including in the portion now situated in Canada. The Court found that hunting was a central and significant part of the Sinixt's distinctive culture in the pre-contact period, and that, because the Sinixt hunted over the whole of their territory (including the northern region which extended into Canada), the proper definition of the alleged Aboriginal right flowing from such a practice was not as "site-specific" as the Crown argued.
The Crown argued that the Sinixt had voluntarily abandoned the practice of hunting in B.C., and that this "abandonment" was sufficient to break the "chain of continuity" required to prove an Aboriginal right.
The Court rejected this argument and found on the evidence that there had been no breach of continuity, nor indeed any evidence of the Sinixt wanting to "discontinue" its historic practice of hunting in the Canadian portion of its territory. Although the evidence showed that the Sinixt had, for a variety of reasons, gradually transitioned from its northern territory to full-time residence in the south, the Court observed that the evidence showed that the Sinixt did not do so voluntarily. In the Court's words, taking note of the various colonial actions taken against Indigenous peoples in Canada at the time, this transition was a "matter of making the best choice out of a number of bad choices." The Court further observed that "[f]or whatever time and to whatever extent the [Sinixt] have been physically absent from the land here in British Columbia […] they have not lost their connection to the land." It also found that the Sinixt had continued the practice of hunting in its southern territory in a manner that was "faithful to the traditions of the Sinixt in the pre-contact era."
In further support of its conclusions in this regard, the Court also observed that: (i) it was "not convinced that the concept [of continuity as discussed in Van der Peet] requires in all circumstances an actual physical presence on the land"; (ii) Van der Peet did not require Aboriginal groups to provide evidence of "an unbroken chain of continuity between their current practices, customs and traditions, and those which existed prior to contact"; and (iii) Van der Peet in fact contemplates instances where an Aboriginal group may cease to engage in a practice or custom or tradition, only to resume it at a later date and, in fact, instructs trial judges to take a flexible approach in that regard.
(b) Extinguishment and sovereign incompatibility
Turning to the Crown's arguments that the Sinixt's rights had been extinguished in each of 1846, 1896, and/or 1982, the Court disagreed and found that this had not occurred.
First, Court did not accept the Crown's argument that the border created by the 1846 Oregon Boundary Treaty (between what was then the Colony of British Columbia and what became Washington State) rendered the Sinixt's claim to rights in B.C. incompatible with the occurrence of sovereignty. The Court first found it unnecessary to include a cross-border mobility right as part of defining the Sinixt's harvesting right, and although the Court acknowledged that the creation of the Canada - U.S. border was relevant and had some effects that "that the Sinixt had and have to acknowledge and live with", it did not give rise to application of the sovereign incompatibility doctrine as discussed by the Supreme Court of Canada in Mitchell v Canada, 2001 SCC 33.
Second, in response to the Crown's argument that it had passed 1896 provincial legislation prohibiting non-resident Indians from hunting and that this operated to extinguish the Sinixt's rights, the Court found that the cited legislation was either: (i) a clearly impermissible attempt to legislate in respect of Indians open only to the federal government pursuant to s. 91(24) of the Constitution Act, 1867 and therefore ultra vires the provincial legislature; or (ii) did not contain sufficiently plain or clear language to extinguish Aboriginal rights, as required by the test for extinguishment established by the Supreme Court of Canada in R. v. Sparrow,  2 S.C.R. 495 and Delgamuukw v. British Columbia,  3 S.C.R. 1010.
Third, the Court rejected the Crown's position that the Sinixt right to hunt did not survive the coming into force of section 35(1) of the Constitution Act, 1982. The Court noted that Aboriginal rights "existed and were recognized by the common law long before the coming into force of s. 35", as established in the seminal case of Calder v Attorney General of British Columbia,  S.C.R. 313. Despite observing that the Crown had "pointedly argued" that the drafters of s. 35 "could not have intended to include the Sinixt" within the scope of rights s. 35 was enacted to protect, the Court again addressed this argument in terms of extinguishment. Again, the Court found that s. 35 lacked the clear and plain language required to establish an intent to extinguish Aboriginal rights. On this point, the Court held that s. 35 did not "necessarily [exclude] the Sinixt [A]boriginal right to hunt in British Columbia from constitutional protection" and stated that there was no evidence to support a finding that Parliament "intended to make such a distinction when it promised to reconcile the existence of [A]boriginal peoples on the land when the Europeans arrived with Crown sovereignty." Rather, in the Court's view, to read s. 35(1) as applying only to Aboriginal peoples holding Canadian citizenship would "work an unintended hardship on those other non-citizen Aboriginal peoples" like the Sinixt.
Infringement and justification
The Court briefly dealt with the question of infringement of rights under the Sparrow analysis, finding that ss. 11(1) and 47(a) of the Wildlife Act infringed Mr. DeSautel's right to exercise his Aboriginal right to hunt in B.C. The Court observed that there had been no consultation by B.C. relating to this infringement, nor was any provision made for the Sinixt on account of the Wildlife Act specifically excluding members of the Lakes Tribe from any opportunity to hunt whosoever by limiting the Aboriginal right to hunt to persons defined as Indians under the federal Indian Act, RSC 1985, c I-5.
Having determined Mr. DeSautel's Aboriginal rights to be infringed, the Court found that the infringement could not be justified, and acquitted him of all charges.