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R. v. Desautel: Canadian Constitution Protects Non-Citizen Aboriginal People

Published:

May 10, 2021

Author(s):

• Harvey Morrison, KC
• Jeffery Callaghan
• Chris Pelkey

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The Supreme Court of Canada continues to expand the scope of Aboriginal rights. On April 23, 2021, in R. v. Desautel, for the first time the Court decided the term “aboriginal peoples” in section 35(1) of the Canadian Constitution encompasses Aboriginal people outside of Canada and furthermore, that those non-citizen and non-resident Aboriginal people can exercise Aboriginal rights under s. 35(1). But the Court left a number of other significant issues unresolved – and likely opened the door to claims by non-resident Aboriginal people to the right to enter Canada, the right to be consulted on major infrastructure and development projects in Canada, and the right to claim Aboriginal title to lands in Canada. The task of sorting out these issues will largely fall on boards and tribunals, regulators, Aboriginal people, governments and will ultimately require further court intervention to bring about clarity in this area of the law.

Aboriginal People of Canada Includes Non-Citizens

Richard Desautel, a United States resident, shot and killed a cow-elk in British Columbia. Mr. Desautel was charged with hunting without a licence contrary to the B.C.  and hunting big game while not being a resident, contrary to the B.C. Wildlife Act.  Mr. Desautel admitted he had committed the offence, but raised a defence that he was exercising his Aboriginal right to hunt in the traditional territory of his ancestors, the Sinixt Nation, and this right was protected by s. 35(1) of the Canadian Constitution. The Sinixt ancestral territory extended into British Columbia and encompassed the area where Mr. Desautel shot the elk. However, the Sinixt peoples had been located entirely in the U.S. and had not hunted or fished in British Columbia since around 1930. Despite this, the Court decided Mr. Desautel was exercising an Aboriginal right protected by s. 35(1) of the Canadian Constitution.

Reconciliation v. Sovereignty. The Court explained that s. 35(1) of the Constitution recognizes the prior occupation of Canada by Aboriginal people and reconciles that prior occupation with Crown sovereignty. Applying this principle the Court held that, because Aboriginal rights arose out of prior occupation of Canada, the expression “Aboriginal peoples of Canada” means the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact. This means that Aboriginal people who are not Canadian citizens and who do not reside in Canada can still exercise Aboriginal rights protected by s. 35(1) of the Constitution.

Legal Test. To claim those rights however, the non-resident Aboriginal people must demonstrate that the rights are grounded in the existence of a collective that occupied territory in what is now Canada at the time of European contact, and that they are a modern successor of that collective.

This is, however, a threshold question to determine whether Aboriginal people outside of Canada can claim Aboriginal rights under s. 35(1). If they meet this threshold then, just like Aboriginal people living within Canada, they must satisfy the three-part test the Court established in its 1996 decision in R. v. Van Der Peet to determine whether the Aboriginal right claimed actually exists:

• First, the Aboriginal person must characterize or explain the practice, tradition or custom they wish to exercise.
• Second, they must prove that practice, tradition or custom was integral to the distinctive culture of a pre-European contact society.
• Third, they must show the claimed modern right is connected to and a continuation of the pre-contact practice.

If the Aboriginal person meets this test, they can exercise the Aboriginal right claimed in Canada.

3 Key Implications

The Desautel decision is the first time the Supreme Court of Canada has recognized that Aboriginal people outside of Canada can have Aboriginal rights within Canada. In reaching this conclusion, the Court tipped the scale in favour of reconciliation at the expense of Crown sovereignty. Relying on the importance of reconciliation, the Court held that an interpretation of s. 35(1) that excluded Aboriginal people who moved or were forced out of Canada would be improper because it would risk perpetuating the historical injustice suffered by Aboriginal people at the hands of Europeans. While this logic is easily followed, the Court spent little time addressing the related issue of how the recognition of Aboriginal rights of people who are not residents or citizens of Canada can co-exist with the doctrine of Crown sovereignty. The decision will place significant pressure on the provincial, territorial, and Federal governments to recognize and implement the Aboriginal rights of non-resident Aboriginal people who can claim they are successor to a society whose traditional territory spanned the U.S.-Canada border at the time of European contact, and has wide-ranging implications beyond the right to hunt, trap and fish.

Border Crossing. The Court did not decide whether the rights of non-resident Aboriginal people carry the implicit right to cross the U.S.-Canada border. The courts will likely need to address this issue as U.S.-based Aboriginal people further claim Aboriginal rights in Canada or assert a constitutional right to engage in cross-border commerce or trade.

Duty to Consult. The Court also recognized that the Crown’s duty to consult Aboriginal people potentially adversely affected by Crown conduct can extend to non-resident Aboriginal people. However, the Court also emphasized that the duty to consult will not be triggered unless the Crown has actual or implied knowledge of the adverse impact of its conduct on those Aboriginal people. As such, non-resident Aboriginal people will be highly incentivized to assert and make known their claims in relation to development projects, regardless of whether those projects are located entirely in Canada. Once they have brought their claims to the Crown’s attention, the Crown’s duty to consult might be engaged, and those non-resident Aboriginal people could be entitled to be consulted in relation to those projects. However, the Court nevertheless indicated that the “depth” of consultation may vary between Aboriginal people within and outside of Canada.  Future decisions will be required to determine the scope and content of the Crown’s duty to consult as it applies to non-resident Aboriginal people.

Aboriginal Title. The Court declined to decide whether non-resident Aboriginal people can bring Aboriginal land title claims or how their non-resident status would affect the test for such claims. The Court did, however, recognize that, unlike Aboriginal rights, the historic date of proof of Aboriginal title is the date of Crown sovereignty and not the date of contact. While the historic date of proof might narrow claims to Aboriginal title, the Desautel decision could still serve as the catalyst for future Aboriginal land title claims by non-resident Aboriginal people.

Please contact your McInnes Cooper lawyer or any member of our Indigenous Law Team @ McInnes Cooper to discuss this topic or any other legal issue.

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