On April 23, 2021, the Supreme Court of Canada issued reasons for judgment in R. v. Desautel, confirming that Mr. Desautel, as a member of the Lakes Tribe of the Colville Confederated Tribes in Washington State, has a constitutionally protected right to hunt in Canada in the traditional territory of his Sinixt ancestors.
In a landmark 7-2 ruling, the Court interpreted, for the first time, the meaning of “Aboriginal Peoples of Canada” for the purpose of determining who holds constitutionally-protected Aboriginal rights under section 35 of the Constitution Act, 1982. The Court held that the Aboriginal peoples of Canada are the modern successor groups of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are now resident outside Canada. In reaching that conclusion, the Court observed that an interpretation that excludes Aboriginal peoples who were forced to move out of Canada would risk perpetuating the historical injustice suffered by Aboriginal peoples as a result of colonization.
The decision is of fundamental importance to the Sinixt people, who occupied territory as far north as Revelstoke in what is now British Columbia since time immemorial. After contact, many Sinixt involuntarily migrated from British Columbia to the southern part of their traditional territory in Washington State. The SCC held that the migration did not cause the group to lose its identity or its constitutionally protected rights. The decision also has important implications for other trans-boundary groups and First Nations forced from their territory after European contact and settlement.
Mark Underhill and Kate Phipps of Arvay Finlay acted as counsel for Mr. Desautel through four levels of Court, including the Supreme Court of Canada. The reasons may be found here:https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18836/index.do