On December 28, 2017, in R. v Desautel, 2017 BCSC 2389, the British Columbia Supreme Court (the “Court”) dismissed the Crown’s appeal of the respondent Richard Desautel’s acquittal on charges of hunting without a licence and hunting big game while not being a resident of British Columbia, contrary to the Wildlife Act, RSBC 1996, c 488. The Court agreed that s. 35 of the Constitution Act, 1982 is not restricted to Aboriginal peoples who are resident in Canada.
In R v. Desautel, 2017 BCPC 84, the BC Provincial Court had acquitted the defendant on the basis that the Sinixt people (now living in Washington State) have an Aboriginal right to hunt in British Columbia that is protected by s. 35(1) of the Constitution Act, 1982. The Crown had always taken the position that any rights the Sinixt people may have had in their traditional territory, which straddled what became the boundary line of Canada and the United States under the 1846 Oregon Boundary Treaty, did not survive the assertion of Canadian sovereignty. A more detailed explanation of the facts and the Court’s reasoning can be found in our previous bulletin on the Provincial Court decision.
The Crown appealed the Provincial Court’s decision to acquit Mr. Desautel, on two grounds:
- Mr. Desautel, a resident of the United States, was not an Aboriginal person of Canada, and therefore, not entitled to the protection of s. 35 of the Constitution Act, 1982; and
- The right asserted by Mr. Desautel was incompatible with Canada’s sovereignty and right to control its borders.
The Court’s Decision
Non-resident Aboriginal peoples can hold section 35 rights
The BC Supreme Court held that an Aboriginal group residing outside of Canada was not precluded from being an Aboriginal people of Canada under s. 35 of the Constitution Act, 1982. Section 35 rights are those that meet the Van der Peet test, and Aboriginal peoples of Canada are peoples who occupied any part of what would become Canada prior to first contact between Aboriginal and European peoples.
The trial judge found that Sinixt traditional territory includes areas now within Canada, in which the Sinixt hunted in pre-contact times and today. It was only a result of actions of non-Aboriginal persons that the Sinixt people had to cross an international boundary to carry out that hunting. The Court held that this fact did not preclude them from holding s. 35 Aboriginal rights.
Sinixt’s Aboriginal rights are not incompatible with Canadian sovereignty
The Court found this result was not incompatible with Canadian sovereignty. The Court agreed with the trial judge’s finding that the government’s right to control its borders was not fatal to the Aboriginal right of the Sinixt to hunt on their traditional territory. Border control may be a reason for limiting the right of access, but did not eliminate the right to hunt. Further, there was no evidentiary record on which to assess the nature and extent of Mr. Desautel’s right to cross the border to hunt.
The BC Supreme Court agreed with the BC Provincial Court in that s. 35 of the Constitution Act, 1982 is not restricted to Aboriginal peoples who are resident in Canada or those with Canadian citizenship. Aboriginal rights are grounded in prior occupation of land before contact as distinguished from Charter rights which are grounded in European concepts like citizenship. The decision is likely to have practical implications for the Crown and companies with respect to projects proposed in areas near the border, as consultation with Indigenous groups located in the United States may be required. On January 26, 2018, the Crown filed a Notice of Appeal of this decision at the BC Court of Appeal.