AN ELK SHOT, BIG QUESTIONS TRIGGERED
SUPREME COURT RULING ON ABORIGINAL RIGHTS ACROSS BORDERS A DECADE IN THE MAKING
It was never really about the 600-pound cow-elk, killed near the frosty banks of the Slocan River near Castlegar, B.C., some 35 kilometres north of the U.S. border. Richard Desautel knew that before he pulled the trigger.
“I was walking with my ancestors,” he said.
“It’s an area where my ancestors hunted for nigh-on to nigh-on centuries ago. For me to go back in my homeland where my ancestors hunted was an uplifting experience in my heart that I can’t really describe. It just runs chills up and down me,” said Desautel, who is a U.S. citizen and member of the Lakes Tribe in Washington state.
Bagging the elk on Oct. 14, 2010, did not just fill him with awe and his truck with ceremonial meat that he later shared with his community back on his reserve. Desautel was stalking much bigger quarry during his two-week hunting trip across the border.
His aim was true. By design, it triggered a charge under the provincial wildlife act and a Constitutional challenge that was argued for more than a decade.
“Pulling the trigger was the easy part,” Desautel said.
His claim, widely supported by First Nations groups, shot fear through federal and provincial governments: What if the Supreme Court of Canada decided that Constitutionally protected Aboriginal rights extend to Indigenous people outside of Canada?
The federal government warned of the “potentially significant effect” of “an Indigenous collective, resident entirely in the United States, being entitled to assert the full range of Aboriginal rights in Canada, including the right to limited and scarce resources”; B.C. said it would lead “foreign nationals” to claim “Canadian soil, too”; Quebec added another fear — it would help gangsters exploit the Canada-u.s. border.
Other provinces and territories that share a border with the United States — Ontario, Alberta, Saskatchewan, New Brunswick, Yukon — were also concerned enough to join the fight.
Last week, they all lost. It was the first Supreme Court decision to consider whether Aboriginal rights in Canada extend to Indigenous people outside the country and, following Desautel’s victory, no one is certain what it might mean. That’s the thing about Constitutional challenges, it is hard to predict how and where they might be applied.
For First Nations, big things are expected.
“I lift up Richard Desautel and the entire Sinixt Nation as this decision will impact Indigenous peoples whose territories span international borders,” Assembly of First Nations National Chief Perry Bellegarde said. “It’s incumbent now on all governments and jurisdictions to work together with First Nations and Indigenous peoples to bring life to the decision in ways that respect and uphold Indigenous and constitutionally protected rights across international borders.”
Murray Rankin, B.C.’S minister of Indigenous relations and reconciliation, declined to say if the province stands by its dire warnings expressed in court. He said the government is studying the decision.
“It will take time to examine the ruling in detail and determine the effect on provincial policies going forward,” Rankin said. “This decision contributes to our understanding of Aboriginal law in Canada, and it will help guide the province as we continue our work together with Indigenous peoples.”
That’s a lot from a single elk.
After Desautel shot and quartered the elk back in 2010, he and his wife lugged the meat to his pickup truck, slipping and sliding on the frosty hills. It took them several trips, back and forth. Then he reported the kill to conservation officers and waited for their response. Provincial wildlife officers arrived at their campsite several days later — “It took them a while to find us,” he said — and ticketed him for hunting without a licence and hunting big game while not a resident of B.C., just as he had hoped.
In provincial court, he admitted to each of the acts and claimed a single defence: he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors. That right, he declared, is protected by the Constitution of Canada.
Canada’s courts have established how to determine Aboriginal hunting, fishing and gathering rights in their normal course. They look at what the First Nations group was doing at the time of its first contact with European settlers, where it was doing it, and whether it has continued to do it in some fashion.
These considerations are at the heart of settling many of the country’s First Nations’ resource disputes, from the first Supreme Court case on the matter after the enactment of the Constitution Act, to recent disputes over lobster fishing in Nova Scotia.
What was different this time was the border.
Desautel wasn’t Canadian, he didn’t live in Canada, and the tribe he was a member of wasn’t located in Canada; his reserve doesn’t straddle or even abut the border.
The territory his ancestors once hunted on did, though. The traditional territory of the Sinixt spanned what became the international border between B.C. and Washington state.
Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes (CCT) in Washington. The Colville Reservation’s northern boundary ends in a line parallel to the border, but is 60 kilometres south of it. It is a union of 12 Indigenous groups, including the Lakes Tribe, named after B.C.’S Arrow Lakes. They are also known as the Sinixt.
As the Lakes’ name suggests, in pre-colonial times, the Sinixt traditional territory stretched north, to beyond present-day Revelstoke.
They didn’t stay there.
In the latter half of the 19th century, the Sinixt gradually moved to the southern portion of their territory that was in the United States. There was periodic hunting north of the border until 1930, despite it being outlawed by the province.
At Desautel’s original trial on his hunting charges, court heard that the small band of Sinixt remaining in Canada dwindled, and after the death of the last member on the government’s rolls in 1956, the Arrow Lakes Band was deemed extinct and its reserve lands reverted to the provincial government.
The original judge hearing the charges said the evidence was clear: “There is no dispute that Mr. Desautel was hunting well within the traditional territory of the Sinixt. There is also no serious dispute that wherever else Sinixt members may now live, they exist today as a group known as the Lakes Tribe of the CCT, and of course, Mr. Desautel is a member of the Lakes Tribe.”
Desautel was acquitted, but that didn’t end it.
The B.C. government appealed and appealed, and the case inevitably ended at the top court.
Members of the Lakes in the U.S. had periodically tested the idea its people retained rights in the north. Prior to Desautel’s challenge, the closest Canadian courts came to considering whether Indigenous people outside Canada had Aboriginal rights in Canada came from Sinixt claims.
In 1991, a U.S. member was convicted in B.C. of cultivating cannabis and was ordered deported. He argued his Aboriginal rights didn’t allow that. The Federal Court sent it back for an immigration hearing without a substantive ruling on the bigger issue. In 1994, another U.s.-born Sinixt crossed into Canada to visit a hereditary chief. He didn’t report to Canadian border officials and was arrested. His defence of exercising his Aboriginal right to travel within his territory was rejected by provincial court in B.C., but it didn’t escalate to the Supreme Court.
Legal scholars and government officials had been eyeing the Desautel case for years.
In 2018, it was a featured discussion at the annual conference of the Canadian Council on International Law, which debates international legal problems. There, a lawyer for the B.C. attorney general told scholars the case “constitutes a precedent for other eventual similar cases.”
When the case finally got to the Supreme Court, it attracted 19 interveners as public interest advocates, including the federal government, the governments of Ontario, Quebec, New Brunswick, Saskatchewan, Alberta, the Yukon and 13 First Nations and Indigenous organizations.
The B.C. government argued that extending the view of Aboriginal rights across an international border “would be incompatible with Canadian sovereignty.” The right to hunt was the thin end of the wedge, the province argued: “Typically, the Aboriginal right to hunt is considered to include the necessarily incidental right to access the hunting territory.” That would jeopardize border security and Canadian resource control, lawyers said.
The federal government was also worried. Ottawa’s arguments evoked COVID-19 fear.
“Control over borders is a crucial aspect of national sovereignty. Parliament must maintain the ability to make reasonable choices for the general welfare of the nation and therefore must be able to pursue pressing objectives such as maintaining national security and preserving public health,” federal lawyers told the court.
In response, Desautel’s lawyers argued all of that was irrelevant. The Sinixt were on the land before there was a province or a border. In a rebuke, his lawyers said the governments’ position ignores the core goal of Aboriginal rights being in the Constitution: reconciliation.
Desautel’s argument, however, did not ignore a wider potential. He was only charged for hunting, not for unlawful entry to Canada, and so the Supreme Court did not need to consider issues of border control, yet. That may come.
“There may be a future case where the government attempts to limit a Sinixt person’s ability to cross the border, but there was no such limit in Mr. Desautel’s case,” his lawyers told court.
As with any gruelling Constitutional challenge, a parsing of words and meanings ensured.
Lawyers devoted page after page arguing the meaning of a key phrase in Section 35 of the Constitution Act: “the Aboriginal peoples of Canada.” Specifically, the preposition “of.”
Things would have been clearer if the drafters of the Constitution had used the word “in” instead of “of” — if that is what they really meant — but they didn’t. Even the letter “s” at the end of “peoples” was examined in detail.
In the end, the Supreme Court rejected the government’s arguments.
“An interpretation that excludes Aboriginal peoples who were forced to move out of Canada would risk perpetuating the historical injustice suffered by Aboriginal peoples at the hands of Europeans,” the court said. Two of the nine judges dissented.
Not even the court knows where this might lead.
“I will say little more about what that means for the exercise of rights,” Justice Malcolm Rowe, writing for a majority of the court, said in the ruling. A narrow test case “is not well-suited to deal with such broader issues.”
“All this said,” Rowe concluded, “it is for the parties themselves to decide how they wish to proceed.”
Mark Underhill, Desautel’s lawyer, said the government’s main argument — fear over people from a foreign land accessing their territory and resources — is a “bitter irony” for First Nations people.
“They were here first. They’re the people you forced out, and are now saying you can’t come back in.”
IT’S AN AREA WHERE MY ANCESTORS HUNTED FOR NIGH-ON TO NIGH-ON CENTURIES AGO. FOR ME TO GO BACK IN MY HOMELAND WHERE MY ANCESTORS HUNTED WAS AN UPLIFTING EXPERIENCE IN MY HEART THAT I CAN’T REALLY DESCRIBE. — RICHARD DESAUTEL