July 5, 2021
Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s.35(1) of the Constitution Act, 1982.
Under section 35(1) “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”
In R v. Desautel, the Supreme Court of Canada had to interpret the meaning of “aboriginal peoples of Canada” for the first time.
Mr. Desautel is a citizen and resident of the United States who shot an elk in British Columbia. He was charged with hunting without a license. His defence was that as a member of the Lakes Tribe based in the State of Washington he had an aboriginal right to hunt where he shot the elk as it was part of the traditional hunting ground of his people.
Modern political boundaries are constructs imposed post-contact by settlors. Prior to first contact, indigenous peoples defined their own territories, with boundaries that frequently are not the same as political boundaries today.
It was agreed that Mr. Desautel’s tribe had roots in both Canada and the United States, and that he had hunted on its traditional territory.
The Crown maintained however that as an American resident and citizen, Mr. Desautel was not part of the “aboriginal peoples of Canada”.
The Supreme Court disagreed with that narrow view, holding that the Aboriginal peoples of Canada under s.35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are now outside Canada.
Mr. Desautel was therefore part of the aboriginal peoples of Canada and entitled to hunt on the traditional lands of his people.
In addition to the practical implications for many people like Mr. Desautel, this result is consistent with the spirit and purpose of reconciliation. The boundaries that were imposed, and often, the forced relocation of aboriginal peoples on one side of the border or the other have undermined aboriginal culture and society. Excluding aboriginal peoples whose ancestors were forced out of Canada would risk “perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers” as was explained in a prior case.
This is a positive step forward, but only another small step towards reconciliation. In the decision, the court recognizes that this interpretation opens up a whole series of further questions which will need to be answered in the future. We look forward to more advances in understanding, and action.