The Supreme Court of Canada, in R. v. Desautel, 2021 SCC 17, has found that Indigenous groups located outside of Canada can hold Aboriginal rights protected by section 35(1) of the Constitution Act, 1982. Writing for the majority, Justice Rowe explained that the phrase “aboriginal peoples of Canada” within s. 35(1) may include groups whose traditional territories were within the current borders of Canada before European contact, even when they now reside outside of Canada.
In 2010, Richard Desautel shot and killed an elk in southern British Columbia without a hunting license. Mr. Desautel lives in Washington State, USA and is a member of the American Lakes Tribe of the Confederated Tribes of the Colville Reservation. He is not a resident or citizen of Canada. Mr. Desautel was charged with hunting without a licence contrary to s. 11(1) of the British Columbia Wildlife Act, and hunting big game while not being a resident of British Columbia contrary to s. 47(a) of the same Act. At trial, Mr. Desautel claimed an Aboriginal right to hunt for food, social, and ceremonial purposes under section 35 of the Constitution Act, 1982, as he was hunting in the traditional territory of his ancestors, the Sinixt people, which covers land in what is now Canada and the United States. With the creation of the border in the early 1900s, the majority of the Sinixt people took up residence in Washington State. The last member of the Canadian group of Sinixt people, known as the Arrow Lakes Band, died in 1956 and the federal government declared the band extinct for the purposes of the Indian Act.
Lower Court Decisions
At trial before the BC Provincial Court, 2017 BCPC 84, (see a summary of the decision in our related bulletin), Mr. Desautel established his First Nation descended from the Sinixt people whose territory covered portions of what is now British Columbia and Washington State. Mr. Desautel also established that while the US Sinixt people infrequently hunted in Canada since the 1930s, the Lakes Tribe maintained traditional hunting practices where they resided. The Court concluded Mr. Desautel met the test to establish an Aboriginal right under s. 35(1) set out in the Supreme Court of Canada’s seminal decision, R. v Van der Peet. The Court rejected the Crown’s argument that any rights the Sinixt people may have had did not survive the assertion of Canadian sovereignty.
This decision was upheld on appeal to the BC Supreme Court, 2017 BCSC 2389, (see a summary of the decision in our related bulletin), and to the BC Court of Appeal, 2019 BCCA 151 (see a summary of the decision in our related bulletin).
The Supreme Court of Canada Decision
The Supreme Court of Canada (with two judges dissenting), agreed with the lower court decisions, concluding that Indigenous groups located outside of Canada can hold Aboriginal rights within Canada that are protected by s. 35(1).
In order to assert s. 35(1) rights, an Indigenous group must be an “[A]boriginal peoples of Canada”. The majority viewed this as a threshold question before the Van der Peet test can be applied. However, this question will only arise where the group claiming the right is located outside of Canada and should not be construed as an additional burden to be satisfied in every case.
The majority found that “Aboriginal peoples of Canada”, for the purposes of s. 35(1), are the modern successors of Indigenous societies that occupied Canadian territory at the time of European contact. Aboriginal rights protected by s. 35(1) arise from prior occupation, meaning Indigenous groups whose ancestors occupied Canadian territory, but now occupy non-Canadian lands, may still be Aboriginal peoples of Canada. This interpretation reflects the purpose of reconciliation, rather than the alternative: excluding Indigenous peoples that were forced to move or on whom international boundaries were imposed, which would risk furthering injustices experienced by Indigenous peoples from colonization. In this case, before contact with Europeans, the Sinixt people occupied territory in what is now British Columbia. The people of the Lakes Tribe in Washington State are modern successors of the Sinixt.
In reaching its decision, the majority acknowledged that the Indigenous perspective, advanced in argument by Mr. Desautel and the interveners, includes a strong connection to ancestral territory, even if they no longer occupy that territory. The Court noted that this perspective supports its interpretation of s. 35(1).
Once a group establishes it is an “Aboriginal peoples of Canada”, they then must establish that they meet the criteria set out in Van der Peet to establish Aboriginal rights. This is the same test for groups within Canada. The rights must therefore be grounded in a historic and present-day community, and there must be a connection with the group pre-sovereignty, and the practice they assert must be integral to their distinctive culture. There must also be continuity of the practice, but continuity does not require an ongoing presence in the territory.
The majority declined to consider mobility rights and the question of whether there can be an Aboriginal right to enter Canada, leaving that question for another day.
In dissent, Justice Côté disagreed that Aboriginal peoples of Canada could extend to groups located outside of Canada, and, in any event, both Justice Côté and Justice Moldaver, were of the view that Mr. Desautel had not established continuity of his hunting practices within Canada. They would have allowed the appeal and found Mr. Desautel had not established, and indeed could not establish, a s. 35 right.
Implications of the Court’s Decision
In response to practical concerns raised regarding the extension of s. 35(1) rights to groups outside of Canada, the majority stated (at para. 71):
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.
The majority then addressed the Crown’s duty to consult Indigenous groups, which arises when it has actual or constructive knowledge of an asserted Aboriginal right that may be affected by Crown conduct. Recognizing that the Crown is less likely to have this sort of knowledge when Indigenous groups are located outside of Canada, the Court stated the Crown will not be required to seek out groups in the absence of that knowledge. Therefore, the onus falls on the groups asserting rights to put the Crown on notice of these claims. However, once the Crown knows of a claim, the Haida duty to consult will be engaged. This will be something of concern for project proponents near in the border regions across Canada.
Ultimately, the Supreme Court of Canada’s conclusion emphasizes the importance of Indigenous perspectives when interpreting s. 35(1). This recognition reflects the purposes underlying reconciliation between Indigenous groups and the Crown. As the Court stated, 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.”