Case Summary: R v Desautel, 2021 SCC 17
June 11, 2021
Desautel, a citizen and resident of the United States, entered Canada legally and shot an elk in British Columbia. He was charged with hunting without a licence and hunting big game while not being a resident of the province, contrary to British Columbia’s Wildlife Act.
At trial, it was accepted that the date of first contact between the Sinixt and Europeans was in 1811. 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, a constellation of factors made the Sinixt people move to the United States involuntarily. Until 1930, members of the Lakes Tribe continued to hunt in British Columbia, despite living in Washington State. From 1930 until 1972, there may have been a period of dormancy in their hunting in British Columbia.
Desautel claimed he has 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 in British Columbia. The central issue was whether persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1). If they can, then the second issue is whether the Lakes Tribe has an Aboriginal right to hunt in its traditional territory in British Columbia.
At the British Columbia Provincial Court, the trial judge held that the Lakes Tribe was a clear successor group to the Sinixt, such that the communal rights of the Sinixt could continue with the Lakes Tribe. Despite the Lakes Tribe’s departure from the northern part of their traditional territory, its members remained connected to that geographical area. The evidence demonstrated that the land and the traditions were not forgotten, and that the connection to the land was still present in the minds of the members of the Lakes Tribe. The trial judge found that the requirement of continuity was met. The trial judge then applied the test stated by the Supreme Court of Canada in R v Van der Peet,  2 SCR 507 (“Van der Peet”). She held that Mr. Desautel was exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by s. 35(1).
The British Columbia Supreme Court and the British Columbia Court of Appeal each upheld the decision of the trial judge.
The majority of the Supreme Court of Canada held, per Rowe J., that persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1). The expression “aboriginal peoples of Canada”, found in s. 35(1), means the modern-day successor of Aboriginal societies that occupied Canadian territory at the time of European contact, and this may include groups that are now outside Canada. The majority further held that Desautel was exercising an Aboriginal right by hunting in the Sinixt traditional territory.
The dissent, per Côté J. and Moldaver J., found that the constitutional protection of Aboriginal rights contained in s. 35(1) does not extend to an Aboriginal group located outside of Canada. Even if it did, the Desautel did not 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.
Subsection 35(1) and “Aboriginal People of Canada”
To fall within the scope of the protection of s. 35(1), an Aboriginal group must be an “aboriginal people of Canada”. Subsection 35(1) had to be interpreted by the Court to determine what that expression means.
At the beginning of its analysis, the Court noted that s. 35(1) has to be interpreted in a purposive way. The Court explained that the two purposes of s. 35(1) are to recognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern-day existence with the Crown’s assertion of sovereignty over them. These purposes are reflected in the structure of Aboriginal rights and title doctrine, which first looks back to the practices of groups that occupied Canadian territory prior to European contact, sovereignty or effective control, and then expresses those practices as constitutional rights held by modern-day successor groups within the Canadian legal order. The same purposes are reflected in the principle of the honour of the Crown.
The Court wrote that an interpretation of “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. By contrast, 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 colonizers.
The Court discussed the interpretive principle that, in interpreting s. 35(1), any doubt or ambiguity should be resolved in favour of Aboriginal peoples. However, the Court wrote that this principle does not help settle the question at issue. A principle that ambiguities should be resolved in favour of Aboriginal peoples does not determine who those Aboriginal peoples are.
The Court did, however, remark that Aboriginal perspectives involve a strong connection to ancestral territory, even where the Aboriginal group has been dispossessed of that territory, or where the territory is now divided by international borders. The Court wrote that the conception of Aboriginal rights should incorporate both Aboriginal and non-Aboriginal legal perspectives.
The Supreme Court of Canada deferred to the trial judge’s finding of fact that the Sinixt had occupied territory in what is now British Columbia at the time of European contact and the Lakes Tribe was a modern successor of the Sinixt. Accordingly, the migration of the Lakes Tribe from British Columbia to a different part of its traditional territory in Washington did not cause the group to lose its identity or its status as a successor to the Sinixt.
Van der Peet Test for Aboriginal Rights
Having found that the Lakes Tribe was an “Aboriginal people of Canada” and therefore its rights fell under the protection of s. 35(1), the next issue for the Court to determine was whether the claim satisfied the Van der Peet test for an Aboriginal right under s. 35(1). The test for Aboriginal rights for groups outside Canada is the same as the test for groups within Canada.
The Van der Peet test requires the Court to:
(a) Characterize the right claimed in light of the pleadings and evidence.
(b) 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.
(c) Determine whether the claimed modern right is demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice.
The Court explained that continuity is about whether a modern practice is a continuation of a historic practice. It is different from the threshold of whether a modern group is a successor of a historic group. It plays a role both at the second and the third stages of the Van der Peet analysis. At the second stage of the Van der Peet analysis, continuity can play an evidentiary role. Showing that a practice is integral to the claimant’s culture today, and that it has continuity with pre-contact times, can help establish that the practice was integral to the claimant’s culture pre-contact.
At the third stage, continuity with the pre-contact practice is required in order for the claimed activity to fall within the scope of the right. It serves to avoid frozen rights, allowing the practice to evolve into modern forms.
The Court wrote that the test requires that modern-day claimants establish a connection with the pre-sovereignty group upon whose practices they rely. However, the Court further explained that this is so for Aboriginal groups inside or outside Canada. It does not support an additional requirement, for groups outside Canada, of recognition by a related Aboriginal collective residing in Canada.
In the present case, the Aboriginal right claimed was a right to hunt for food, social and ceremonial purposes within the traditional territory of the Sinixt in British Columbia. The trial judge found that at the time of contact this practice was integral to the distinctive culture of the Sinixt. She also found that the modern-day practice of hunting in this territory is a continuation of this pre-contact practice. As a result, she found that Mr. Desautel was exercising an Aboriginal right. The Crown submitted that the trial judge had erred in making this finding, because continuity requires an ongoing presence in the lands over which an Aboriginal right is asserted. However, the Supreme Court of Canada did not interfere with the trial judge’s finding, explaining ongoing presence has never been part of the test for an Aboriginal right.
The Crown also argued that this right is incompatible with Canadian sovereignty because the right encompasses other rights necessary for its meaningful exercise, including a right to cross the Canada-U.S. border. The Court was of the view that crossing the border is not the very purpose of the right claimed by Desautel. Sovereign incompatibility would relate only to the issue of whether there can be an Aboriginal right to enter Canada — an issue that is not raised in this case.
The Court remarked that while Aboriginal communities outside Canada can assert and hold s. 35(1) rights, it does not follow that their rights are the same as those of communities within Canada. While the test for an Aboriginal right is the same, the different circumstances of communities outside Canada may lead to different results. Also, the duty to consult may operate differently as regards those outside Canada. The Court further commented that the fact that an Aboriginal group is outside Canada is a feature of the context that is relevant to the test for justifying an infringement of an Aboriginal or treaty right.