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HUNTING, FISHING AND LOGGING RIGHTS - Purpose - For food - Aboriginal lands and waters - Offences and penalties - Constitutional issues - Recognition of existing aboriginal and treaty rights

Monday, May 08, 2017 @ 7:51 AM  

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Trial of the defendant, DeSautel, for non-resident big game hunting and hunting without a licence contrary to the Wildlife Act. The defendant was an American citizen, a Washington state resident, and a member of the Lakes Tribe of the Colville Confederated Tribes (CCT). The defendant crossed the border into Castlegar, British Columbia and shot a cow-elk for the purpose of obtaining ceremonial meat. The defendant reported the hunt to British Columbia conservation officers and was issued an appearance notice and charged. The defendant submitted he was exercising an aboriginal right to hunt in the traditional territory of his Sinixt ancestors, which extended across the Washington and British Columbia border. The Crown submitted that no Sinixt aboriginal rights ever came into existence in Canada, as any traditional hunting practice straddling the border did not survive the assertion of sovereignty under the 1846 Boundary Treaty. Alternatively, the Crown submitted that the Washington Sinixt, now known as the Lakes Tribe, voluntarily ceased the traditional practice of hunting in the British Columbia portion of Sinixt territory, such that there was insufficient continuity of the practices of the pre-contact group. The Crown submitted that the absence of Sinixt in British Columbia meant there was no aboriginal collective capable of exercising the aboriginal right asserted by the defendant. In the further alternative, the Crown submitted any Sinixt aboriginal right in British Columbia did not survive the enactment of 1896 provincial legislation or s. 35 of the Constitution Act, 1982.

HELD: DeSautel was acquitted. There was overwhelming evidence that the Sinixt continued to exist today as a group, with the Lakes Tribe qualifying as a successor group to the pre-contact British Columbia Sinixt. Regardless of whether the Sinixt utilized their traditional territory north of the border after the 1930s, the land and traditions were not forgotten, and were ever present in the minds of members of the CCT Lakes Tribe. There was cogent proof that the practice of hunting was a central and significant part of the Sinixt's distinctive culture in pre-contact times. There was no breach of continuity such that Sinixt aboriginal rights ceased to exist in Canada, or such that their Washington successors ceased to have a right to hunt in their traditional territory in British Columbia. There was no voluntary abandonment of traditional Sinixt territory in British Columbia. The defendant established an aboriginal right to hunt for food, social and ceremonial purposes in Sinixt traditional territory in Canada. The defendant's exercise of that right was not incompatible with the Crown's assertion of sovereignty. The Sinixt aboriginal right to hunt in British Columbia was not extinguished and was protected by s. 35(1) of the Constitution Act. The Wildlife Act provisions under which the defendant was charged were an unjustified infringement of his proven aboriginal right. Pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, the Court determined that the appropriate remedy was to find that the offence provisions were inapplicable in the defendant’s case.

R. v. DeSautel, [2017] B.C.J. No. 558, British Columbia Provincial Court, L. Mrozinski Prov. Ct. J., March 27, 2017. TLD-May82017002