(May 5, 2021) On April 23, 2021, the Supreme Court of Canada issued an opinion holding that an American citizen who is a member of an American Indian tribe with ancestral connections to an aboriginal group in Canada was not subject to criminal penalties under a British Columbia conservation law for hunting on public land without a license. (R. v. Desautel, 2021 S.C.C. 17 (Can.).)
History of the Sinixt People
Richard Lee Desautel is a United States citizen and a member of the Lakes Tribe of the Colville Confederated Tribes, a federally recognized tribe in the United States. The Lakes Tribe is a successor group of the Sinixt people, who, prior to the arrival of Europeans in western North America, hunted, fished, gathered, and traveled in a large swath of the region that is now Washington state and British Columbia. By the end of the 19th century, most of the Sinixt people had moved to the United States, but some members of the Lakes Tribe continually crossed the United States-Canada border to hunt in British Columbia until 1930. While the majority of the Sinixt people moved to the United States, some remained in Canada. In 1956, the last known Canadian member of the tribe died, and the reserve lands reverted to the provincial government.
Case Procedural History
On October 14, 2010, Desautel shot a cow elk without a license in British Columbia, on land that is part of the ancestral Sinixt territory. According to the memorandum of argument that Desautel submitted to the Supreme Court, he thereafter reported the hunt to British Columbia conservation officers and was charged with two violations of British Columbia’s Wildlife Act. Specifically, provincial authorities charged him with violating Wildlife Act sections 11(1) and 47(a), which criminalize hunting without a license and hunting big game while being a nonresident, respectively.
Desautel admitted to hunting without a license and being a resident of Washington state. In his defense, he asserted that he was “exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors,” which, he argued, was protected under s. 35(1) of the Constitution Act, 1982.
The trial court acquitted Desautel after determining that the requirements of the Wildlife Act had infringed on his aboriginal rights. A summary conviction appeal judge affirmed the trial court’s acquittal and dismissed the government’s appeal, as did the British Columbia Court of Appeal. In evaluating an appeal from the government, the Supreme Court had to “determine whether an Aboriginal people located outside Canada can assert rights protected under s. 35(1) of the Constitution Act, 1982.” (Desautel at para. 15.)
The Constitution Act, 1982, Section 35(1)
The Constitution Act, 1982, s. 35(1) provides that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” In an issue of first impression, the Supreme Court’s threshold question was whether rights for “aboriginal peoples of Canada” could apply to non-Canadians. Because section 35(1) has the dual purpose of “recogniz[ing] the prior occupation of Canada by organized, autonomous societies and [reconciling] their modern-day existence with the Crown’s assertion of sovereignty over them” (para. 22), the court held that individuals who are successors of aboriginal societies that occupied what is now Canada at the time of the European contact are considered “aboriginal peoples of Canada,” regardless of their national citizenship.
In reaching this conclusion, the court relied largely on case law emphasizing that aboriginal rights arise from prior occupation of the land now forming Canada’s provinces rather than modern day citizenship or residency within Canada’s borders. The court also noted that its holding supported reconciliation between the Crown government and aboriginal societies that were involuntarily displaced across national borders through colonization.
Van der Peet Test
The Supreme Court next asked whether Desautel’s hunting activities qualified as an aboriginal right as set out by R. v. Van der Peet,  2 S.C.R. 507 (Can.). The Van der Peet test, as restated in Lax Kw’alaams Indian Band v. Canada (Attorney General),  3 S.C.R. 535, is a three-part inquiry for cases analyzing aboriginal rights. Under this test, the court determines (1) the right being claimed, (2) whether this right was part of a pre-contact practice “integral to the distinctive culture of the pre-contact Aboriginal society,” and (3) whether the modern practice can be deemed “demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice” (Lax Kw’alaams Indian Band at para. 46). For its analysis, the Supreme Court focused on the third Van der Peet factor.
The court noted that determining whether a modern practice is a continuation of a pre-contact practice is fact-specific. As such, the court gave considerable deference to the trial court’s findings, which found that Desautel’s hunting met this factor. The court noted that “there was no significant dissimilarity between the pre-contact practice and the modern one.” (Desautel at para. 62.) In reaching this conclusion, the Supreme Court rejected arguments from the government that a finding of continuity required ongoing presence in the ancestral lands.
Holding that the facts giving rise to Desautel’s case met the threshold requirements under the Constitution Act, 1982, section 35(1) and the Van der Peet test, the Supreme Court affirmed the lower court and dismissed the appeal. Two members of the Supreme Court, Justices Côté and Moldaver, submitted dissenting opinions.