Constitutional protection of non-resident Aboriginal rights in Canada

Richard Desautel shot and killed an elk without a hunting license in the Arrow Lakes region in British Columbia in October 2010. He was charged with hunting without a license and hunting big game while not being a resident of British Columbia.

Richard admitted that he shot the elk, arguing he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors under s35 of the Constitution Act, 1982 (Canadian Constitution).

A U.S. citizen Richard is a member of the Lakes Tribe of the Colville Confederated Tribes and lives on reserve in Washington State; claiming that where he shot the elk was within the traditional territory of the Sinixt people – a predecessor to the Lakes Tribe.

The lower courts agreed that Richard was exercising his Aboriginal right to hunt for ceremonial purposes in the traditional territory -which happened to be in Canada – of his Sinixt ancestors.

The BC Court of Appeal held that members of a present-day Indigenous community situated in Washington State are entitled to exercise constitutionally protected Aboriginal rights within Canada.

The Supreme Court of Canada addressed whether the Canadian Constitution protects the Aboriginal rights of people who aren’t Canadian citizens, and do not reside in Canada; the Court interpreted “Aboriginal peoples of Canada” as expressed in s35 of the Canadian Constitution for the first time.

The majority of the Court held that a fundamental purpose of s35 was the recognition of the prior occupation of Canada by organised, autonomous Aboriginal societies. Therefore “Aboriginal peoples of Canada” includes the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, even if such societies are now located outside Canada. To exclude Aboriginal peoples who moved or were forced to move, or whose territory was divided by a border, would add to the injustice of colonialism.

The Court concluded that s35 provides that groups whose members are neither citizens nor residents of Canada can be considered part of the “Aboriginal peoples of Canada” and may claim an Aboriginal right.

The majority of the Supreme Court accepted the trial judge’s finding that that the Lakes Tribe, is a successor group of the Sinixt people. At the time of contact between the Sinixt and Europeans, their territory extended north into what is now British Columbia and as far south into what is now Washington State.

In 1846 an international border was created, by 1872, members of the Sinixt were living for the most part in Washington State, but travelled to British Columbia for hunting purposes. A majority of the Supreme Court agreed that this did not prevent the Lakes Tribe from being a successor group to the Sinixt, and they could be considered part of the “Aboriginal peoples of Canada” under s35 of the Canadian Constitution.

After establishing the Lakes Tribe as part of the “Aboriginal peoples of Canada”, the Supreme Court had to determine if s35 provided the group with Aboriginal rights; holding that the test to determine rights must be applied equally to groups outside Canada as for groups in Canada.

The court agreed with the trial judge, that the right to hunt, continued a historical practice that existed prior to European contact with no significant difference between the pre-contact practice and the modern one.

As a result, the Supreme Court of Canada (SCC) upheld the Court of Appeal for British Columbia decision that Richard was exercising an Aboriginal right and had been properly acquitted of all charges by the trial judge.

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