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HUNTING, FISHING OR TRAPPING - Offences and penalties - Constitutional issues - Recognition of existing Aboriginal and treaty rights

Friday, April 23, 2021 @ 1:24 PM  


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Appeal by the Crown from a decision of the British Columbia Court of Appeal that confirmed the acquittal of the respondent Desautel on charges of hunting without a licence and hunting big game while not being a resident of the province. In 2010, Desautel, a citizen of the United States, shot a cow-elk in British Columbia. He was a member of the Lakes Tribe of the Coville Confederated Tribes in Washington state, a successor group of the Sinixt people. He shot the elk within the ancestral territory of the Sinixt people in British Columbia. The trial judge found Desautel was exercising an Aboriginal right to hunt guaranteed by the Constitution Act, 1982. She held the right was infringed by the Wildlife Act and was not justified. She acquitted Desautel. The summary conviction appeal judge and the Court of Appeal dismissed the Crown’s appeals and confirmed Desautel’s Aboriginal right to hunt in British Columbia. On appeal, the Crown raised as a constitutional question whether the relevant provisions of the Wildlife Act were of no force or effect with respect to Desautel by reason of an Aboriginal right within the meaning of s. 35(1) of the Constitution Act, 1982.

HELD: Appeal dismissed. Persons, such as Desautel, who were not Canadian citizens and did not reside in Canada could exercise an Aboriginal right that was protected by s. 35(1) of the Constitution Act, 1982. The scope of “aboriginal peoples of Canada” in s. 35(1) meant the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact. Such a scope reflected the purposes of section 35(1) to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty. Groups whose members were neither citizen nor residents of Canada could be Aboriginal peoples of Canada. The test for an Aboriginal right was the same whether or not the claimant was inside or outside Canada. The trial judge found as a fact that the Sinixt had occupied territory in what was now British Columbia at the time of European contact. She also found that the Lakes Tribe were a modern successor of the Sinixt. The migration of the Lakes Tribe from British Columbia to a different part of their traditional territory in Washington did not cause the group to lose its identity or its status as a successor to the Sinixt. The trial judge did not err in finding the test in R. v. Van der Peet for an Aboriginal right to hunt for food, social and ceremonial purposes under s. 35(1) was satisfied. The constitutional question was answered in the affirmative and ss.11(1) and 47(a) of the Wildlife Act were of no force or effect with respect to Desautel. Dissenting justices concluded that the constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982, did not extend to an Aboriginal group located outside of Canada, and that Desautel had not established the continuity element of his claim under the test for Aboriginal rights set out in R. v. Van der Peet.

R. v. Desautel, [2021] S.C.J. No. 17, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., April 23, 2021. Digest No. TLD-April192021013-SCC