Her Majesty the Queen v Richard Lee Desautel: Indigenous Rights, Transitory Peoples, and National Borders
Section 35(1) of the Constitution Act, 1982, recognizes and affirms existing Aboriginal and treaty rights. Section 35(2) defines “Aboriginal peoples of Canada” as being the “Indian, Inuit and Métis peoples of Canada.” This is the definition used when applying the required test for an Indigenous person claiming that a constitutionally protected right exists. What happens, however, if the claimant isn’t a resident or citizen of Canada at all? Does the definition extend to protect those Indigenous communities across the border, exercising their rights here?
Last month, the Supreme Court of Canada (“SCC” or “the Court”) granted leave to appeal a judgement of the British Columbia Court of Appeal (”BCCA”) in the case of Her Majesty the Queen v Richard Lee Desautel, 2019 BCCA 151 [Desautel]. The above questions sat at the center of the Court’s consideration of the case and its interpretation of Mr. Desautel’s claim. This article will explore the case’s judicial history, its significance for those whose rights are protected by section 35(1) and what the SCC may have to say on the matter.
Facts and Procedural History
In October of 2010, Mr. Desautel — a member of the Lakes Tribe of the Colville Confederated Tribes (CCT) in Washington State and a United States (US) citizen — hunted a cow elk near Castlegar, British Columbia, in the Arrow Lakes area (Desautel, para 4). Although Desautel was neither authorized nor licenced to hunt by the BC government, he was hunting “on the instructions of the Fish and Wildlife Director of the CCT to secure ceremonial meat” (para 5). Upon reporting that he had killed the animal to local wildlife conservation officers, he was charged with hunting without a licence and hunting big game while not being a BC resident, pursuant to ss. 11(1) and 47(a) of the BC Wildlife Act, RSBC 1996 c 488.
Admitting the actus reus (act element) of the offence, Mr. Desautel challenged the charges on the grounds that he had been exercising his constitutionally protected right to hunt in the traditional territory of his Indigenous community, the Sinixt First Nation — that territory happened to straddle what is now the US-Canada border.
The Crown, on the other hand, argued that Mr. Desautel’s hunting did not meet one of the central considerations under the “distinctive cultural” test required to be met to assert an Aboriginal right because “it did not survive the assertion of Canadian sovereignty” (para 7). The test for someone claiming the existence of a constitutionally protected Aboriginal right is outlined in the landmark case R v Van der Peet,  2 SCR 507 [Van der Peet] and a brief overview of this jurisprudence is helpful to frame Mr. Desautel’s case. The majority judgement in Van der Peet, written by Chief Justice Lamer, stated that in order to identify an Aboriginal right, the activity in question “must be an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right” (Van der Peet, para 46). The Court laid out a series of factors involved in a thorough and effective application of this test, which include, among others, the perspective of Indigenous peoples themselves (para 49), whether the practice is of “central significance to the aboriginal society in question” (para 55), and whether the practice has “continuity with the practices, customs and traditions that existed prior to contact” (para 60). The Court stressed that section 35(1) must be analysed purposively (para 21) and that if doubt or ambiguity were to arise regarding the scope and definition of section 35(1), such ambiguity would be resolved in favour of the Indigenous claimant (para 25).
The Crown argued that this requirement was not met because of three distinct exercises of Canadian sovereignty that it believed was “incompatible with the claimed Aboriginal right” (para 7): (1) that the border between the US and Canada had been established in 1846; (2) that in 1896, An Act to Amend the Game Protection Act was enacted, making it unlawful for non-resident Indigenous peoples to hunt in BC; and (3) the addition of section 35(1) of the Constitution Act, 1982 itself. Alternatively, the Crown also made the claim that the current community that Mr. Desautel belonged to failed to meet the requirement of continuity with “the pre-contact group’s practices” because the Lakes Tribe had knowingly moved away from their traditional practise of hunting in BC (para 8).
The trial judge acquitted Mr. Desautel of the charges. On the basis of extensive historical evidence of the Sinixt First Nation and research pertaining to their lively existence prior to colonial contact, the trial judge found that there was a “clear and ancient link between the Sinixt and the Arrow Lakes region” (2017 BCPC 84, para 23). The evidence revealed that the Sinixt peoples were transitory and mobile in nature, engaging in cultural practices that included hunting in a region that was both north and south of what later became the US-Canada border. In applying the Van der Peet test, the trial judge found the evidence pointing to a continuous practice of these traditions both pre- and post-contact meant that the “chain of continuity had not been broken” (para 128). On the Crown’s points about the right to hunting not surviving beyond Canada’s assertion of sovereignty at the three presented times, the trial judge rejected all three, finding that none of them seemed to be acts asserting sovereignty.
At the summary conviction appeal judgment, Judge Sewell of the provincial court rejected the Crown’s arguments and dismissed the appeal, finding the same results on the basis of the evidence and submissions presented: that there was clear pre-contact continuity and adopting the restrictive view of the Crown would fail to duly account for the circumstances imposed by colonization (para 25).
BC Court of Appeal Decision
At appeal, the central question being asked was this: does the proper interpretation of section 35(1) of the Constitution Act, 1982 include Indigenous claimants who are not citizens or residents of Canada? The Court of Appeal sided with Mr. Desautel and answered yes, upholding the lower courts’ acquittal and becoming the third BC court to reject the Crown’s narrow interpretation of section 35(1). In doing so, it made three main points.
Firstly, the Court found that the rights recognized and affirmed by section 35(1) of the Constitution Act includes Indigenous claimants who do not live or have citizenship in Canada. With the knowledge of the presented historical evidence and a purposive approach to interpretation, Smith J stated that “if the Van der Peet requirements are met, the modern Indigenous community will be an ‘Aboriginal peoples of Canada’” for the purposes of section 35 (Desautel, para 57).
Turning then to the crux of the issue, the Court found that upholding the Crown’s restrictive view of the area covered by section 35(1) would “ignore the Aboriginal perspective, the realities of colonization and [do] little towards achieving the ultimate goal of reconciliation” (para 62). An interpretation in the Crown’s favour would hinge Mr. Desautel’s right to hunt in the territory of his predecessors on the mobility of his people, who, as Smith J stresses, “never voluntarily surrendered, abandoned or extinguished” their rights (para 62).
The Upcoming Supreme Court Decision
A leave acceptance, regardless of the final decision, means that the Justices see this case and the central issues it raises as being significant enough to be further elaborated on by the highest court. And although dismissing the leave to appeal would have been a much more efficient statement of endorsement of the lower court decisions, a SCC decision that interprets the issue in Desautel could mean a clarification and possibly an expansion of the way we approach section 35(1) rights and, more importantly, the way we perceive the communities and practices protected by it.
If the Court were to uphold the BCCA ruling, the decision could have the potential to deconstruct our current common perception of Indigenous peoples and the bar that needs to be met to establish a protected Aboriginal right under section 35(1). Depending on the reasons given by the Court in the case of an acquittal, such a decision could embody the idea that Indigenous peoples can be transitory, mobile, and heavily impacted by colonial changes in environment, thereby challenging Western notions about what it means to be an established community with established rights.
It could provide an authoritative precedent in how we think about these terms, both in law and in life — terms like “pre-contact and concepts like “borders” — that requires a certain deconstructive and decolonizing praxis to adequately embody the very notions and principles that the SCC has already stated: that section 35 did not create rights, it recognized and affirmed already existing ones (Van der Peet, para 28; Calder v Attorney General of British Columbia,  SCR 313). Rather than asking Indigenous legal claims to evolve to meet the courts’ narrow interpretation, shouldn’t the courts’ interpretation evolve to meet Indigenous realities?
With increasing conversations about borders and those who cross them in the North American legal culture, it seems timely for the Supreme Court to consider how much weight these borders — and the existence of Indigenous peoples far before any such demarcations were contemplated — have in the context of historical Aboriginal rights. An eventual consideration by the SCC has the potential to expand or restrict the application section 35 and its existing jurisprudence, setting an important precedent for Indigenous claimants either way.