Supreme Court of Canada: In the instant matter, the bench of Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ., while deliberating upon a constitutional question that whether Aboriginal people located outside Canada can assert Aboriginal rights under Canadian Constitution; held that groups whose members are neither citizens nor residents of Canada can be considered part of the “Aboriginal peoples of Canada” and claim an Aboriginal right under S. 35 of the Constitution Act.
In October 2010, Richard Lee Desautel, a citizen and resident of the United States of America, shot a cow-elk in British Columbia. He was charged with hunting without a licence contrary to S. 11(1) of British Columbia’s Wildlife Act and hunting big game while not being a resident of the province contrary to s. 47(a) of the Act. Desautel contended that he had an Aboriginal right to hunt protected by S. 35(1) of the Constitution Act, 1982 as he is a member of the Lakes Tribe of the Colville Confederated Tribes based in the State of Washington, a successor group of the Sinixt people; and, he shot the elk within the ancestral territory of the Sinixt in British Columbia.
It was around the year 1811 that Europeans and Sinixt people first came in contact. At that time, the Sinixt were engaged in hunting, fishing, and gathering in their ancestral territory, which extended into what is now Washington State to the south, and into what is now British Columbia to the north. Until around 1870, the Sinixt continued their activities in the northern portion of their territory, located in Canada. In the course of time several factors made the Sinixt people move to the United States. Until 1930, members of the Lakes Tribe continued to hunt in British Columbia, despite living in Washington State. After 1930, despite periods in which no hunting took place, the Lakes Tribe continued to have a connection to the land where their ancestors hunted in British Columbia.
Legal Trajectory of the Case:
The aforementioned facts were presented before the Trial Judge. The Trial Judge held that Desautel was a member of the Lakes Tribe, and that the rights of the Sinixt continued with the Lakes Tribe. The Judge applied the test for Aboriginal rights set out in R. v. Van der Peet,  2 S.C.R. 507, and held that Desautel was exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by S. 35(1) of the Constitution Act, 1982. Desautel’s Aboriginal right remained in existence and was protected by S. 35(1), despite the Lakes Tribe’s departure from the Canadian part of their traditional territory and notwithstanding a period of dormancy in the exercise of the right. The trial judge held that the right was infringed by the Wildlife Act and the infringement was not justified hence he was acquitted.
The Crown raised a major constitutional question- whether the relevant provisions of the Wildlife Act are of no force or effect with respect to Desautel, by reason of an Aboriginal right within the meaning of S. 35(1) of the Constitution Act, 1982.
In order to resolve the dispute the Court had to interpret the expression “Aboriginal peoples of Canada” as stated in S. 35 (1) of the Constitution Act, 1982. With a ratio of 7:2, the Court gave the expression a purposive interpretation and noted that the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact may include Aboriginal groups that are now outside Canada. “In order to assert rights protected under S. 35(1) of the Constitution Act, 1982, an Aboriginal group must be part of the “aboriginal peoples of Canada”. This is a threshold question, in the sense that if a group is not an Aboriginal people of Canada, there is no need to proceed to the test for Aboriginal rights set out in Van der Peet. S. 35(1) must be interpreted in a purposive way”. The majority further observed that interpretation of the expression “aboriginal peoples of Canada” in S. 35(1) that includes Aboriginal peoples who were here when the Europeans arrived and later moved or were forced to move elsewhere, or on whom international boundaries were imposed, reflects the purpose of reconciliation. Whereas, an interpretation that excludes Aboriginal peoples who were forced to move out of Canada, would risk perpetuating the historical injustice suffered by Aboriginal peoples at the hands of Europeans. “An interpretation of S. 35(1) that limits its scope to those Aboriginal peoples who were located in Canada in 1982 would fail to give effect to this point by treating s. 35(1) as the source of Aboriginal rights”.
As per the Van der Peet Test, the Courts must characterize the right claimed in light of the pleadings and evidence; determine whether the claimant has proven that a relevant pre-contact practice, tradition or custom existed and was integral to the distinctive culture of the pre-contact society; and determine whether the claimed modern right is demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice. Continuity is the key in this Test.
The majority also noted that S. 35(1) serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty. These purposes are expressed in the doctrinal structure of Aboriginal law, which gives effect to rights and relationships that arise from the prior occupation of Canada by Aboriginal societies. “The doctrine of Aboriginal rights arises from the simple fact of prior occupation; the Aboriginal peoples of Canada under S. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are now outside Canada”.
The majority agreed with the decision of the Trial Judge and observed that the Sinixt occupied territory in what is now British Columbia at the time of European contact, and that the Lakes Tribe are a modern successor of the Sinixt. The migration of the Lakes Tribe from British Columbia to a different part of their traditional territory in Washington State did not cause the group to lose its identity or its status as a successor to the Sinixt. Accordingly, the Lakes Tribe is an Aboriginal people of Canada.
As per Justice Côté, the constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982, does not extend to an Aboriginal group located outside of Canada. And even if it did, Desautel cannot establish that he was exercising an Aboriginal right to hunt in the Sinixt traditional territory in British Columbia, as the modern group’s claim lacks continuity with the pre-contact group’s practices. “To be entitled to the protection of S. 35(1) of the Constitution Act, 1982, the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact cannot be located anywhere other than Canada. The framers’ intent was to protect the rights of Aboriginal groups that are members of, and participants in, Canadian society”. Justice Moldaver agreed with the observations made by Justice Côté.
It was concluded that groups who are non-citizens and non-residents both can claim an Aboriginal right under the Canadian Constitution. As Desautel is a member of the Lakes Tribe, which is a modern successor of the Sinixt, and as his claim satisfies the Van der Peet test for an Aboriginal right under S. 35(1) of the Constitution Act, the Wildlife Act provisions namely Ss. 11(1) and 47(a) are of no force or effect with respect to him.
[R v. Desautel, 2021 SCC 17, decided on 23.04.2021]
Sucheta Sarkar, Editorial Assistant has put this report together