April 23, 2021 marked a triumph for Aboriginal-rights holders at the Supreme Court of Canada (“SCC”). In its decisions in R. v. Desautel, 2021 SCC 17 (“Desautel”),the SCC clarified the scope of the application of section 35 of the Constitution Act, 1982 (“Section 35”) and took a purposeful step away from colonial constraints on the definition of Aboriginal peoples under Section 35, within the context of the Canadian state. The Court held that the expression “Aboriginal peoples of Canada” contained in Section 35 refers not only to Indigenous peoples who are Canadian citizens, but more specifically to the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, including Indigenous persons and groups that now reside outside of Canada. The court recognized that persons who belong to an Aboriginal people have protected and exercisable rights under Section 35, despite not being residents of Canada or Canadian citizens. The case is an important development in Aboriginal law and in the ongoing journey towards rights-recognition and reconciliation with Indigenous peoples.
History and Background
The Sinixt are an Indigenous group who at the time of contact occupied unceded traditional territories in the Kootenay region, across what is now the BC-Washington border. The Sinixt engaged in hunting, fishing, and gathering in the area but eventually relocated to the United States, leading the Canadian government to erroneously declare them extinct in 1956.
In October 2010, Sinixt leaders now residing in Washington State, decided to reassert their Aboriginal rights within Canada. They sent Mr. Richard Lee Desautel, an American citizen and member of the Lakes Tribe of the Colville Confederated Tribes (“Lakes Tribe”), to hunt an elk in the Arrow Lakes area of BC, a part of the traditional territory of the Sinixt people. Mr. Desautel turned himself into authorities and was charged with hunting without a license and for hunting big game while not a BC resident. However, Mr. Desautel argued that his actions were an exercise of his Aboriginal rights under section 35 of the Canadian Constitution, because the Lakes Tribe was a successor group of the Sinixt people. As such, he was hunting in the territory of his ancestors. Mr. Desautel successfully defended his case at trial and before the BC Supreme Court and Court of Appeal.
The Nature of Section 35
Section 35 recognizes, affirms, and protects the existing aboriginal and treaty rights of Aboriginal peoples within Canada. It states:
35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
It is important to recognize that the Aboriginal peoples of Canada have inherent rights that pre-date the existence of Canada as a nation. Therefore, Section 35 does not create new rights, but is rather an acknowledgement of rights that have existed since time immemorial. The SCC stated that the two purposes of Section 35 were 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.” Mr. Desautel asserted that hunting within the traditional territory of his ancestors was an exercise of his Aboriginal rights, protected by Section 35.
Defining “Aboriginal peoples of Canada”
The central issue in the case was whether Mr. Desautel, as an American citizen, can claim Aboriginal rights under Section 35.
Prior to the decision, the SCC had not interpreted the term “Aboriginal peoples of Canada” in Section 35 in relation to non-Canadian-resident Aboriginal groups. The interpretation the SCC settled on in Desautel is broad and intended to reflect the larger purposes of reconciliation. The Court stated:
“On this interpretation, the scope of “aboriginal peoples of Canada” is clear: it must mean the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact. As a result, groups whose members are neither citizens nor residents of Canada can be Aboriginal peoples of Canada.”
The SCC explained that this interpretation acknowledges the involuntary displacement of Indigenous peoples caused by colonialism. An alternative definition, excluding groups forced from Canada, “would risk perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers.” The Court concluded that as the modern-day successors of the Sinixt people, the Lakes Tribe, and by extension, Mr. Desautel, were Aboriginal peoples of Canada. It should be noted that there continue to be Sinixt people in Canada, who define themselves as the “Autonomous Sinixt Nation”. This case did not consider issues relating to the status of the Autonomous Sinixt Nation and its members.
Application of the Van der Peet test
Once the SCC established that the Lakes Tribe was an Aboriginal people of Canada, the Court applied the Van der Peet test to determine if there was a right that could be recognized. The test analyzes whether a modern practice is the continuation of a historic tradition that was part of the distinct culture of the pre-contact society. The Court clarified that the test does not require a continuous presence in the area where the right is being asserted, and that the test is the same for groups outside and inside Canada.
Hunting was and remains an important part of the cultural practices of the Sinixt peoples. The SCC held that the Van der Peet test was met and that Mr. Desautel’s actions were a legitimate exercise of his Aboriginal rights. He was acquitted of the charges against him.
If you’re interested in learning more about the Sinixt people and their fight to reverse their extinction, check out this CBC Radio program: The Doc Project, “Rumors of Extinction.”
Our Indigenous Law Group is also available to answer your questions or to provide you with legal representation in matters related to Aboriginal law and Indigenous rights, including in relation to business development, self-governance, and the United Nations Declaration of the Rights of Indigenous Peoples. If you require assistance, please contact Merle Alexander, QC, Tamara Napoleon, Tyson Lamarsh, or Yvan Guy Larocque.
A special thank you to our articling student, Linette Lubke, for her contributions to this blog post!