By Graeme Lee Rowlands
In 2010, Rick Desautel, a man from the Colville Reservation in Washington State, shot an elk while hunting in the traditional territory of the Sinixt/Lakes people, which today is known to many as the West Kootenay. As a descendent of the Sinixt, who were falsely declared “extinct” by Canada in 1956, Desautel is considered a member of a “foreign aboriginal group.”
As a result, he was charged with hunting as a non-resident and without a provincial license. Citing his constitutional aboriginal right to hunt in his people’s traditional territory, Desautel took his case to court. After losing in three different provincial courts, B.C. has now appealed to the Supreme Court of Canada, which is scheduled to hear the case this spring.
The province has not offered a public explanation for why it is fighting so persistently in R v. Desautel. However, B.C.’s arguments are available for anyone to read online in the court records. Readers might be surprised to uncover a rationale that is jarringly out-of-sync with the province’s new move to become the first in Canada to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). B.C. citizens need to know what the government is arguing for on their behalf.
The province has attempted to convince the five judges presiding over the original case and the two appeals with three core arguments. First, B.C. claimed that Sinixt left their traditional territory in Canada voluntarily to “[embrace] farming and ranching enthusiastically” on tribal reservation land in the U.S.
The judges rejected this, concluding that Sinixt people’s departure was “a matter of making the best choice out of a number of bad choices” and that “nothing in the evidence supports a finding that in doing so the Sinixt gave up their claim to their traditional territory.”
The judges also found that Sinixt people in the U.S. have maintained their connection to territory in Canada and that they are a true “successor group” to those present pre-colonization. Second, the province has insisted that Sinixt people in the U.S. do not have aboriginal rights under Section 35 of Canada’s Constitution Act. It argues that the term “aboriginal peoples of Canada” only applies to those living in Canada today (not those present pre-contact) and that the Sinixt were already “extinct” when the Constitution Act came into force in 1982.
On this point, the judges emphasized that the Constitution Act did not create aboriginal rights, which have existed since time immemorial by virtue of Indigenous people’s presence on the land. Rather, it “provides constitutional protection for aboriginal rights and limits the power of government to infringe those rights through legislation, regulation or otherwise.”
Third, B.C. asserts that recognition of Desautel’s aboriginal rights is incompatible with Canadian sovereignty, citing its concern over border control and the duty to “consult and accommodate the claims of non-citizens.” The judges disagreed that recognizing Sinixt aboriginal rights (like hunting) would prevent Canada from properly processing people at the border. They also noted that concern for practical challenges involved in governing is not a valid legal argument against the recognition of proven rights.
Seeking to dismiss otherwise legitimate rights for this reason seems more like an attempt to sidestep complex issues than a sincere interpretation of the law. The Desautel case presents an important test for the province in its new chapter of UNDRIP-informed governance. Choosing to continue its legal fight against Sinixt rights suggests that B.C. is not ready and lacks the will and ingenuity that will be needed to meet this challenge.
And yet, by introducing B.C.’s UNDRIP legislation as the start of a new direction, Premier John Horgan and his government have created a perfect political opportunity to change course and show their constituents they have what it takes when the rubber meets the road. B.C. citizens must hold them accountable.
Graeme Lee Rowlands is a published researcher and educator focused on the confluence of environmental, social, economic, and political issues in the Columbia River Basin.
