Written By David Bursey, Radha Curpen, Sharon Singh and Deirdre Sheehan

On April 23, 2021, the Supreme Court of Canada (SCC) released its decision in R. v. Desautel, 2021 SCC 17, which upheld the lower court decisions to acquit Richard Desautel of charges under the Wildlife Act. The SCC confirmed his Aboriginal right to hunt in the Arrow Lakes area of British Columbia, even though he is a resident and citizen of the United States.

This case raised novel questions about the territorial scope of the phrase "aboriginal peoples of Canada" in section 35 of the Constitution Act, 1982. The Court decided that section 35 Aboriginal rights can extend to Aboriginal peoples who are not citizens or residents of Canada, even though the modern-day successor Aboriginal group that holds those rights no longer occupies the same geographical area where the historic pre-contact collective exercised those rights.

Given the lengthy border that Canada shares with the United States, this case has implications for the exercise of a variety of Aboriginal rights along that border and related procedural questions concerning the Crown's duty to consult.

Background to the Appeal

In October 2010, Mr. Desautel shot and killed a cow elk in the Arrow Lakes area of B.C. He was charged under the B.C. Wildlife Act for hunting without a licence and hunting big game while not being a resident in B.C.

Mr. Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes in Washington State, which the trial judge found to be a successor group of the Sinixt people. He is neither a citizen nor a resident of Canada. Mr. Desautel asserted that he was exercising his Aboriginal right to hunt for ceremonial purposes in the traditional territory of his Sinixt ancestors. This was a test case on that right.

At the trial court level, the judge applied the test for the recognition of Aboriginal rights set out in the SCC Van der Peet decision, and made the following findings of fact:

• the Lakes Tribe is a successor group to the Sinixt people that lived in B.C. at the time of contact;
• the Sinixt did not voluntarily move to their southern traditional territory or intend to abandon their claim in the north;
• by 1956, no Sinixt members lived in Canada and Canada declared the Arrow Land Band extinct and their reserve lands reverted to the provincial Crown;
• despite an interval between 1930 and 2010 when the Lakes people appeared to cease hunting or travelling north of the 49th parallel, the chain of continuity had not been broken; and
• as a successor group to the Sinixt people living in B.C. at the time of contact, the Lakes Tribe is a modern day rights-bearing community capable of holding an Aboriginal right.

The trial judge concluded that Mr. Desautel had established his Aboriginal right and acquitted him of the charges. Mr. Desautel's acquittal was upheld at the B.C. Court of Appeal and ultimately by the SCC, for the reasons that we will now explain.

Constitutional Question Before the SCC

The SCC considered whether Mr. Desautel, being a member of the Lakes Tribe of the Confederated Tribes of the Colville Reservation in Washington State, U.S.A., could assert an Aboriginal right under section 35 in to argue that the B.C. Wildlife Act did not apply to him.

Section 35(1) and "Aboriginal People of Canada"

To answer the constitutional question, the Court first considered whether an Aboriginal people located outside Canada can assert rights protected under section 35(1) of the Constitution Act, 1982.

The SCC distinguished the question of whether a group is an Aboriginal people of Canada from the question of whether the group has an Aboriginal right, although the evidence may be relevant to the analysis for both questions.

The SCC first deal with the threshold question of whether the group is an Aboriginal people of Canada, but noted that in most cases this question does not arise as it did in this case. To answer the question, the SCC explained the two purposes of section 35(1), as follows:

• 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.

Following this purposive approach to interpreting section 35(1), the SCC concluded that it is clear that “aboriginal peoples of Canada” must mean the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact. Thus, groups whose members are neither citizens nor residents of Canada can be Aboriginal peoples of Canada. The SCC elaborated that the two purposes of section 35(1) underlie both the tests for: 1) Aboriginal rights set out in Van der Peet; and 2) Aboriginal title set out in Delgamuukw v. British Columbia. Based on this "doctrinal structure" of Aboriginal rights, the majority of SCC concluded that Aboriginal groups outside Canada may be considered Aboriginal peoples of Canada if they are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact. The SCC cautioned that this criterion would need to be modified for the Métis because Métis communities arose after contact between other Aboriginal peoples and Europeans. However, the SCC left that issue to be resolved in a future case.

The SCC also considered the issue of the Sinixt being displaced involuntarily, and how reconciliation must reflect that circumstance.

The SCC emphasized a fundamental point that section 35(1) did not create Aboriginal rights, but gave existing Aboriginal rights constitutional protection. Section 35(1) is not the source of Aboriginal rights.

Turning to the second question, the SCC applied the test set out in Van der Peet, which is the same for groups outside Canada as for groups within Canada.

The SCC found that an unbroken chain of continuity in the exercise of a right is not required, and the exercise of the right may lapse for a period of time. The SCC stated that the assessment of continuity is highly fact‑specific exercise and "generally in the domain of the trial judge".

Applying the facts established by the trial judge to the Van der Peet test, the SCC concluded that Mr. Desautel has a section 35(1) Aboriginal right to hunt in the ancestral territory of the Sinixt in B.C.

Sovereign Incompatibility—Mobility Rights

The SCC declined to opine on the question of whether the Aboriginal right to hunt in British Columbia included the right to cross the Canada-U.S. border and how such a right reconciles with Canadian sovereignty over its borders.

The SCC commented that the mobility right, if is exists, would be incidental in this case. The issue of that right’s incompatibility did not arise in this case because Mr. Desautel was not denied entry into Canada.

Consequences of the Decision—Duty to Consult—Infringement

After answering the constitutional question, the SCC also dealt with several consequences of the decision in response to several issues raised by the Crown and attorneys general. In general, the SCC explained that although an Aboriginal community outside Canada can assert and hold Aboriginal rights in Canada, those rights may differ from the rights of communities within Canada.

Duty to Consult

The SCC commented that the duty to consult may operate differently for Aboriginal groups outside Canada that assert or hold rights in Canada. The difference relates to the Crown actual or constructive knowledge of the asserted right. Without any historical interaction with the group, the Crown may not have any basis to know of the rights claim.

The SCC explained that there is "no freestanding duty on the Crown to seek out Aboriginal groups, including those outside Canada, in the absence of actual or constructive knowledge of a potential impact on their rights." The group asserting a right has an onus to notify the Crown, and in the absence of knowledge of an asserted right, the Crown is free to act. If the Crown is notified, then it must determine whether its duty to consult arises and how to fulfil any duty.

Justification

The SCC stated that the fact that an Aboriginal group is outside Canada is a relevant factor that can be taken into account in a justification analysis related to the government's power to infringe Aboriginal rights.

Aboriginal Title

The SCC stated "while the test for Aboriginal title has the same basic structure as the test for other Aboriginal rights, it also has some important differences." The SCC noted that: 1) the historic date for proof of Aboriginal title is the date of Crown sovereignty, not the date of contact; and 2) Aboriginal title requires proof of exclusive occupation of territory, without any additional need to show that this occupation was culturally integral.

Implications

This decision has the potential for far-reaching implications for the Crown, industry, and Indigenous groups. It highlights the importance of considering the pre-European contact territory of Indigenous groups and the relationship to the current pattern of settlement. The post-contact sovereign border may not limit the geographic reach of Aboriginal rights.

The Crown owes a duty to consult Aboriginal groups when Crown conduct has the potential to affect Aboriginal rights, either proven or asserted. Since this decision establishes that Aboriginal rights may extend to modern collectives that are resident in the United States, the Crown's duty to consult and accommodate may likewise extend to those groups. While the decision explains that the duty may be applied differently to those groups, the procedural and substantive implications of cross-border consultations would be complex.

With the door open for Aboriginal groups resident in the United States to assert rights in Canada, the scope of the duty to consult and accommodate across the border remains an area that will be elaborated by future cases.

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