B.C. Provincial Court Finds Member Of U.S. Tribe Has Aboriginal Right To Hunt In Canada

R. v DeSautel, 2017 BCPC 84

On March 27, 2017, Madam Judge Mrozinski of the provincial court of British Columbia (the "Court") rendered a decision that recognizes the ability of an individual who is a member of an Indigenous people called the Sinixt to exercise an Aboriginal right to hunt in B.C. A unique facet of this case is that Sinixt are an Indigenous people whose members now largely reside in the United States.

The defendant, Richard DeSautel, was charged with hunting without a license and hunting big game while not being a resident, contrary to ss. 11(1) and 47(a), respectively, of the B.C. Wildlife Act. These charges came after Mr. DeSautel shot an elk for ceremonial purposes near Castlegar, B.C.

Mr. DeSautel argued that he was exercising an Aboriginal right to hunt in the traditional territory of his Sinixt ancestors. Mr. DeSautel described the traditional territory of the Sinixt as spanning the U.S. - Canada border, extending from Revelstoke, B.C. in the north, to Kettle Falls, Washington State in the south. Mr. DeSautel is a member of a modern Sinixt group called the Lakes Tribe of the Colville Confederated Tribes ("Lakes Tribe"), and lives on the Colville Indian Reserve in Washington State. No evidence was provided relating to the existence of a modern Sinixt community on the Canadian side of the border.

ISSUE

The central issue dealt with by the Court was whether descendants of the Sinixt, a people who lived, travelled, hunted and harvested for thousands of years in what is now B.C. and the northwestern U.S., have an exercisable Aboriginal right to hunt on the B.C. side of the border, despite there being essentially no evidence of a modern Sinixt community existing in Canada.

THE CROWN'S POSITION

At trial, there was no dispute that Mr. DeSautel was hunting within the traditional territory of the Sinixt. The Court observed that there was also "no serious dispute that wherever else Sinixt members may now live, they exist today as a group known as the [Lakes Tribe], and of course, Mr. DeSautel is a member of the Lakes Tribe." However, the Crown argued that Mr. DeSautel could not have been exercising an Aboriginal right because no Sinixt Aboriginal rights ever came into existence in Canada.

In support of its position, the Crown advanced two primary arguments: (i) that the Sinixt practice of hunting throughout their traditional territory did not survive the assertion of sovereignty which occurred upon the signing of the 1846...