Supreme Court of Canada affirms the constitutional protection of cross-border Aboriginal rights

Canada Publication April 27, 2021

In a 7-1-1 split decision issued on April 23, the Supreme Court of Canada (SCC) upheld a Court of Appeal for British Columbia decision regarding the constitutional protection of non-resident Aboriginal rights in Canada: R. v. Desautel.1

The practical effect of R. v. Desautel is that Aboriginal groups in the United States can now be recognized as holding constitutionally protected Aboriginal rights in Canada. Whereas R. v. Desautel dealt with a regulatory prosecution under provincial wildlife management legislation in British Columbia, the case opens the door to the potential necessity of integrating non-resident Aboriginal groups into Crown consultation processes.  In this way, R. v. Desautel could affect regulatory approval processes for development activities, particularly if in proximity to the Canada-United States border.


Background

A US resident and citizen, Richard Desautel, was charged under provincial wildlife legislation in British Columbia for hunting big game without a license and as a non-resident in the Arrow Lakes region of British Columbia. A member of the Lakes Tribe of the Colville Confederated Tribes in Washington state, Mr. Desautel argued that the Arrow Lakes region formed part of the traditional territory of his Sinixt ancestors and he had a protected Aboriginal right to hunt there under s. 35(1) of the Constitution Act, 1982.

At first instance,2 the Provincial Court of British Columbia identified an unextinguished Aboriginal right for Mr. Desautel to hunt, including in lands within British Columbia.  This Aboriginal right was constitutionally protected in Canada, even though it was exercised by a US citizen, and it was unjustifiably infringed by the wildlife management legislation under which Mr. Desautel was charged.  Mr. Desautel was therefore acquitted.

The Crown’s first appeal to the Supreme Court of British Columbia was dismissed.3 Because they had occupied what later became Canada prior to their first contact with Europeans, the court accepted Sinixt people as “aboriginal peoples of Canada” under s. 35(1) of the Constitution Act, 1982.  The court did not see sovereign control over the Canada-US border as being incompatible with the recognition of constitutionally protected Sinixt hunting rights in Canada.  Accordingly, the Crown’s appeal was dismissed and Mr. Desautel’s acquittal was upheld.

The Crown launched a further appeal to the Court of Appeal for British Columbia,4 which also held that Aboriginal rights are rooted in pre-contact occupation, not in being Canadian or in the Constitution Act, 1982.  The existence (or not) of a constitutionally protected Aboriginal right to hunt was not dictated by whether Mr. Desautel had a constitutionally protected right to cross the Canada-US border to hunt.  The court declined to consider whether there is an incidental constitutionally protected mobility right for Sinixt people to cross the Canada-US border to exercise their hunting rights in British Columbia.

Leave to appeal from the Court of Appeal for British Columbia was granted to the Supreme Court of Canada. 

The SCC decision

The majority decision of the SCC dismissed the appeal and held that the existing Aboriginal rights of “aboriginal peoples of Canada” are constitutionally protected under s. 35(1) of the Constitution Act, 1982.  The term “aboriginal peoples of Canada” must be interpreted purposively, as meaning the modern-day successors of Aboriginal societies that occupied what is now Canadian territory—including modern-day successors of Aboriginal societies that are no longer resident within Canada’s borders.  This purposive interpretation reconciles the pre-sovereignty occupation of Canada by Aboriginal societies with Crown sovereignty, which underlies the doctrinal structure of Aboriginal law in Canada.  The test to establish an Aboriginal right is not influenced by the non-resident status of the individual asserting the right.

The SCC majority accepted that the Sinixt occupied territory that is now within British Columbia at the time of European contact.  As the Lakes Tribe was a modern-day successor of the Sinixt, its Aboriginal rights were accordingly protected under s. 35(1) of the Constitution Act, 1982.

The existence of an Aboriginal right of Lakes Tribe members to hunt in their traditional territory within British Columbia for food, social and ceremonial purposes was affirmed based on the evidentiary findings of the trial judge.  Hunting was integral to the distinctive culture of the Sinixt prior to European contact and the modern-day hunting by Lakes Tribe members was a continuation of the pre-contact practice.  The provisions of the wildlife management legislation under which Mr. Desautel was charged were accordingly of no force or effect as against him.  The majority upheld the decisions below and affirmed Mr. Desautel’s acquittal.

The majority opined on the potential of its decision to impact the duty to consult. It observed that the duty to consult is only engaged for rights known to the Crown.  There is no freestanding duty for the Crown to seek out Aboriginal groups (inside or outside of Canada) to identify rights that would otherwise be unknown—and rights of non-residents are less likely to be known to the Crown through historical interactions.  However, if the Crown becomes aware of a non-resident’s Aboriginal right, an obligation to consult may arise. 

Côté J. authored a set of dissenting reasons.  She reasoned that s. 35(1) of the Constitution Act, 1982 did not protect the rights of Aboriginal groups outside of Canada.  Further, she viewed the modern-day hunting practices of the Lakes Tribe as lacking the requisite degree of continuity with pre-contact Sinixt practices to constitute a constitutionally protected Aboriginal right.

Moldaver J. also dissented.  He declined to opine on whether non-resident Aboriginal groups may hold constitutionally protected rights in Canada; however, he agreed with Côté J. that Desautel had not proven his Aboriginal right.  In particular—as was held by Côté J.—Moldaver J. reasoned that Desautel had failed to establish the required continuity between pre-contact and modern-day hunting practices. 

Implications

R. v. Desautel was a test case with potentially significant implications.  Express in the decision of the SCC majority is recognition that non-resident, US-based Aboriginal groups may be constitutionally entitled to consultation about contemplated Crown conduct in relation to development activities in Canada that have the potential to adversely impact their asserted or proven rights, provided those rights are known to the Crown.  R. v. Desautel will accordingly motivate non-resident Aboriginal groups whose traditional territories span the Canada-US border to assert and make their rights known to the Crown.  Future cases will be required to determine how an Aboriginal group’s non-resident status impacts the required “depth” of consultation. 

The majority did not rule on whether a non-resident’s constitutionally protected Aboriginal right to engage in a traditional practice in Canada carries with it an incidental right to cross the border to do so.  This is an unresolved issue that will likely come to the fore if a non-resident Aboriginal group asserts a constitutionally protected right to engage in trade or commercial practices.

R. v. Desautel may also open the door to Aboriginal title claims by non-resident Aboriginal groups.  The majority expressly declined to opine on “the differences that may exist between the test for Aboriginal title claims by Aboriginal peoples within Canada and the test for such claims by peoples outside Canada.”5  However, it has been reported elsewhere that at least two Aboriginal title claims by non-resident Aboriginal groups have already been filed in British Columbia.  The day when the SCC is called upon to opine on Aboriginal title claims by non-residents is likely to come soon.

The authors wish to thank articling student Jenine Urquhart for her help in preparing this legal update.


Footnotes

1   R. v. Desautel, 2021 SCC 17 [Desautel SCC]

2   R. v. DeSautel, 2017 BCPC 84.

3   R. v. Desautel, 2017 BCSC 2389.

4   R. v. Desautel, 2019 BCCA 151.

5   Desautel SCC at para 81.



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