Decolonizing the International Border: Case Comment on Desautel
By Kate Gunn
The decision provides important affirmation that the definition of the “Aboriginal peoples of Canada” in the Canadian Constitution is not restricted to Indigenous Peoples whose members are Canadian citizens or reside in Canada, and that the Crown’s constitutional obligations may extend to Indigenous Peoples who have been separated from their ancestral territories by the creation of international boundaries.
What it is about
The Indigenous People of the Arrow Lakes
When fur trader David Thompson traveled down the Columbia River in 1811 on his way to the Pacific, he encountered Indigenous people near the present-day Arrow Lakes who spoke the Okanagan language (also referred to as Colville-Okanagan or, in the language itself, nsyilxcen). Following the Oregon Boundary Treaty in 1846 and the establishment of the international border between Canada and the United States, many of these people, sometimes referred to as “Sinixt”, moved south of the border and took up residence as part of the Lakes Tribe of the Colville Confederated Tribes in Washington State.
The Canadian federal government eventually created the Arrow Lakes Indian Band and set aside a reserve for them in the Arrow Lakes valley. When the last registered member of the Band died in 1956, the federal government took the unprecedented step of declaring the Band “extinct.”
The decisions of the lower courts
In 2010 Mr. Desautel, a member of the Lakes Tribe of the Colville Confederated Tribes and resident of Washington State, shot a cow-elk near Castlegar, British Columbia. He reported the kill to provincial authorities and was charged with hunting without a licence and without being resident in the province.
At trial Mr. Desautel relied on the defence that he was exercising an Aboriginal right to hunt in his tribe’s ancestral territory in Canada which was protected under section 35 of the Constitution Act. The Province argued that Mr. Desautel was not entitled to rely on an Aboriginal rights defence because the Lakes Tribe is not an “Aboriginal peoples of Canada.”
In the alternative, the Province argued that Mr. Desautel could not hold an Aboriginal right to hunt in British Columbia because the exercise of the right was incompatible with the assertion of Crown sovereignty, i.e. the establishment of the international boundary between Canada and the United States.
The provincial court rejected the arguments of the Province and acquitted Mr. Desautel of the charges. The court found that the Lakes Tribe in Washington State were part of the modern-day descendants of the historical Indigenous people of the Arrow Lakes; that the modern-day descendants of these Indigenous people had an Aboriginal right to hunt in their ancestral territory in British Columbia; that the definition of “Aboriginal peoples of Canada” did not necessarily exclude individuals who do not reside in Canada; and that it was unnecessary to consider arguments related to sovereign incompatibility.
Importantly, the court further acknowledged that the Lakes Tribe of the Colville Confederated Tribes is likely not the only successor group to the Indigenous people of the Arrow Lakes, and that there may be other modern-day collectives in Canada who also hold section 35 rights by virtue of their ancestral connection to the area.
The Province appealed the decision. In 2017, the BC Supreme Court dismissed the Province’s appeal and upheld the decision of the trial judge. The Province subsequently appealed that decision to the Court of Appeal.
What the Court said
The Court of Appeal dismissed the appeal and upheld the decisions of the lower courts.
The Court held that the Province’s argument that the term “Aboriginal peoples of Canada” in the Constitution only includes Indigenous Peoples currently living in Canada was unnecessarily restrictive and failed to properly account for the perspective of the Indigenous group claiming the right. The Court affirmed that in certain circumstances, the rights of Indigenous Peoples residing outside of Canada may be entitled to protection under section 35.
The Court similarly rejected the Province’s argument that the ancestors of the current-day Lakes Tribe had voluntarily abandoned their hunting practices in British Columbia. The Court held that to impose a requirement that Indigenous Peoples can only hold Aboriginal rights if they continue to occupy the same geographical area as their ancestors would ignore the perspective of the Indigenous group as well as the realities of colonization.
The Court further found that it was unnecessary to determine whether the right to hunt in British Columbia also included a right to cross the Canada-U.S. border. The Court noted that other legal doctrines, including the Sparrow infringement and justification framework, could be used at a later stage to determine whether and to what extent the exercise of the right might be limited.
Why it matters
The Court’s decision in Desautel marks the first time an appellate-level court in Canada has specifically confirmed that the definition of “Aboriginal peoples of Canada” can include Indigenous Peoples displaced from their ancestral territories by creation of an international boundary, and that the Crown’s obligations under section 35 can extend to Indigenous Peoples who reside outside of Canada.
More broadly, the decision also underscores the fundamental purpose of section 35 as a tool of reconciliation between Indigenous Peoples and the Crown and the critical importance of the perspective of Indigenous Peoples in defining what rights are entitled to protection under section 35.
Lastly, Desautel sends an important message to the Crown. The Court of Appeal is the third level of court to hear the Desautel case, and the third court to unequivocally reject the Province’s restrictive interpretation of the Crown’s obligations to Indigenous Peoples. Going forward, it remains open to the Province to seek leave to appeal the decision once again to the Supreme Court.
In the alternative, the Province could choose to accept the direction of the Court of Appeal, acknowledge the role that colonization has played in the dispossession of Indigenous Peoples from their ancestral lands and begin the process of fulfilling its obligations to Indigenous Peoples consistent with the underlying purpose of section 35.
Kate Gunn, lawyer, is an associate at First Peoples Law Corporation. Kate recently completed her Master's of Law at the University of British Columbia. Her most recent academic essay, "Agreeing to Share: Treaty 3, History & the Courts," was published in the UBC Law Review last year.Sign up for notification of our blog posts.
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