R v. Desautel under Van der Peet – is Section 35(1) bound to geography? By Danielle Blanchard (UNB)

Richard Desautel, a US resident and member of the Lakes Tribe of the Colville Confederated Tribes, was charged under the Wildlife Act with an offence for hunting moose in Castlegar, BC without a license, permit or authorization from the Government of BC. He submitted that he was exercising his lawful right to hunt in the traditional territory of his Sinixt ancestors under section 35(1) of the Constitution Act, 1982. He provided evidence that the Lakes Tribe were the modern-day successor collective of the Sinixt people. He was acquitted in both the Provincial court and the Supreme Court of BC, and the Crown appealed to the BC Court of Appeal, submitting that he did not belong to an “Aboriginal peoples of Canada” under section 35.

Evidence was presented about the Sinixt people’s historical relationship to the territory. Integral to the distinct culture is mobility, which necessitated seasonal movement across the 49th parallel to hunt, fish, and gather; all practices that flourished pre-contact[1]. Mr. Desautel also submitted that members of the current Sinixt collective were not all situated in the US. The trial judge found:

“The Sinixt's gradual shift to almost full-time residence in their southern traditional territory was not a voluntary move in the sense that they intended to abandon their claim to their traditional territory in the north[2].”

The Crown’s constructionist arguments were rejected by all levels of court, including the incidental requirement for border crossings. The Crown argued the modern approach to constitutional interpretation of the “existing and treaty rights of the Aboriginal Peoples of Canada” should necessarily impose geographical boundaries, linking the concept of reconciliation as applying uniquely to Canadian residents[3]. Using the purposive approach of Van der Peet, the court found that the Crown did not consider the Aboriginal perspective:

“The definition of an aboriginal right must, if it is truly to reconcile the prior occupation of Canadian territory by aboriginal peoples with the assertion of Crown sovereignty over that territory, take into account the aboriginal perspective, yet do so in terms which are cognizable to the non-aboriginal legal system[4].”

Mr. Desautel submitted that there was no principled reason that a modern collective must be in the same geographic area as the pre-contact collective[5]. The Van der Peet test is silent on the geographical component with respect to rights vis a vis Canadian borders, and Mr. Desautel argues the Crown does not have the authority to apply boundaries to a group that is not geographically restricted to the US.

In their analysis, every level of court incorporated aspects of principled approaches to the issues, and consistently rejected the constructionist view of the Crown. The judicial objective of reconciliation was affirmed by Justice Sewell at the Supreme Court of BC, finding that:

“Non-resident members of the Sinixt collective were not precluded from being considered an Aboriginal people of Canada merely because they now live in the United States[6].”

The ambiguity remaining from Van der Peet’s lack of geographical limitation obliged the courts to consider the perspective of the Aboriginal peoples when applying jurisprudence[7]. The intervenor confirmed to the court that restricting rights due to modern-day geographic bounds is inconsistent with the Aboriginal perspective[8]. The courts asserted that rights are specific to each Aboriginal community and rejected the Crown’s view that geographical bounds are applicable to all Aboriginal groups.

If the Crown’s arguments prevailed, there would exist the capacity to revoke rights of groups that have been displaced by colonialism. In applying current common law, the court found that the practices and occupation of land that existed at contact giving rights to Aboriginals under section 35(1) requires that non-residents have the right to those same protections, irrespective of resident status[9].

The Supreme Court of Canada heard the appeal in October 2020 and a decision was reserved. In their decision, the court will have to address some of the many unanswered questions left by its own court, despite the consistent and respectable application of principled approaches by inferior courts. Mitchell v M.N.R. (2001) left open the question of whether a right is justifiably infringed if it is inconsistent with Canadian sovereignty[10]. The court will also have to elaborate on the concept of groups that are to be protected by Section 35(1). Do the Sinixt and groups with similar cultures of mobility meet the constitutional understanding of an established community? Will the court continue to attempt to remedy past colonial practices that drove groups to leave their traditional territories? More importantly, how will the court address the contested parity of esteem? Some dream that the onerous burden of proof requirements of jurisprudence that froze rights to a vague notion of “pre-contact” may be unbraided from common law, and Aboriginal peoples can find refuge from paternalistic interference[11].

Perhaps the court will take an approach that will slice the pre-contact paradox into smaller fractions of resigned communities. The Crown will then be able to legitimately avoid the duty to consult with nations that do not have communities wholly and permanently situated above the 49th parallel.

Until Bill 41 – Declaration on the Rights of the Indigenous Peoples Act receives royal assent, the jurisprudence will provide the uncomfortable patchwork necessary to protect existing Aboriginal rights under the Canadian Constitution. Without a reconciliatory statute from parliament, we are left with common law to assess where the line is drawn between the right to thrive and “the magical assertions of Crown sovereignty[12].”

Endnotes

[1] R v. Desautel, [2019] B.C.J. No. 755 (para 9) [2] R v. Desautel, [2019] B.C.J. No. 755 (para 11) [3] R v. Desautel, [2019] B.C.J. No. 755 (para 35) [4] R. v. Van der Peet, [1996] 2 S.C.R. 507 (para 49) [5] R v. Desautel, [2019] B.C.J. No. 755 (para 44) [6] R v. Desautel, [2019] B.C.J. No. 755 (para 25) [7] R v. Desautel, [2019] B.C.J. No. 755 (para 52) [8] R v. Desautel, [2019] B.C.J. No. 755 (para 48) [9] R v. Desautel, [2019] B.C.J. No. 755 (para 62) [10] Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33 (para 61) [11] John Burrows, “Revitalizing Canada’s Indigenous Constitution: Two Challenges” in John Burrows et al, eds, Braiding Legal Orders: Implementing the United Nations Declaration on the Rights of Indigenous Peoples (Waterloo: Center for International Governance Innovation) p. 30 [12] John Burrows, “Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia” (1999) 37:3 Osgoode HL p. 596