Colville Tribes Win Appeal In Desautel Hunting Rights Case

Rodney Cawston, the Chairman of the Confederated Tribes of the Colville Reservation (CCT), announced another significant legal victory for the Tribes in the ongoing Rick Desautel/Sinixt hunting rights case.  In the reasons for judgment released this morning, the Court of Appeal for British Columbia (B.C.) affirmed lower court rulings in the B.C. Supreme Court and Provincial Court, which held that Desautel, and by extension all sn̓ʕay̓ckstx (Sinixt/Arrow Lakes) people, including sn̓ʕay̓ckstx or Lakes members of the CCT, have the right to hunt in their traditional territory in Canada.

“We are very pleased that the courts of British Columbia have again held that the sn̓ʕay̓ckstx people are not ‘extinct’ in Canada and that Rick Desautel, as a sn̓ʕay̓ckstx  descendant, has the right to hunt in the traditional and historic territories of our people in British Columbia,” Chairman Cawston said today.

The sn̓ʕay̓ckstx or Lakes Tribe is one of twelve represented by the CCT.  For thousands of years the sn̓ʕay̓ckstx occupied a sizable territory in what is now British Columbia, and moved back and forth across what they view as an artificial boundary between the United States (U.S.) and Canada.  When the border was established in 1846, sn̓ʕay̓ckstx people on the “U.S. side” encountered increasing difficulties in exercising their rights north of the border, including the passage of a law in 1896 that made it illegal to hunt in their Canadian territory.  Ultimately, many sn̓ʕay̓ckstx were forced to settle south of the border, and were declared “extinct” in Canada in 1956. The Court of Appeal affirmed that the rights of the sn̓ʕay̓ckstx endure despite this displacement, stating:

“Imposing a requirement that Indigenous peoples may only hold Aboriginal rights in Canada if they occupy the same geographical area in which their ancestors exercised those rights, ignores the Aboriginal perspective, the realities of colonization and does little towards achieving the ultimate goal of reconciliation.  In this case, such a requirement would extinguish Mr. Desautel’s right to hunt in the traditional territory of his ancestors even though the rights of his community were never voluntarily surrendered, abandoned or extinguished….”

Rick Desautel today said that he is “very gratified to see our indigenous traditions, spirituality, and laws upheld once again, and I will continue my work to strengthen our relationships to the land and with the people of British Columbia.”

 Mark Underhill, lead counsel for Desautel, added this:  “Once again, the Courts have resoundingly rejected the argument that Aboriginal identity can be erased by the imposition of laws, government policy, or an international border. This is an important victory for all indigenous peoples on both sides of the border.”

 The next step in the legal process, if the government of British Columbia decides to take this matter further, is an application for leave (permission) to appeal to the Supreme Court of Canada in Ottawa. 

 “If the government chooses to pursue a further appeal, we will step up to defend it, and will do whatever it takes to ensure that the rights of our ancestors are preserved for future generations,” Chairman Cawston said, “but we sincerely hope that the government will instead consider the long overdue process of reconciliation with the sn̓ʕay̓ckstx, as the Canadian Constitution demands, rather than continuing to fight us in court.”

Read the decision here.

Alberta Court Gives Green Light to Summary Trial

Ensuring access to justice is the greatest challenge to the rule of law in Canada today.  As trials become increasingly expensive and protracted, summary trials offer an effective and affordable means of enforcing rights. This week, the Alberta Court of Queen's Bench dismissed a preliminary objection to proceeding by summary trial in a breach of contract claim by a First Nations leader who spent decades negotiating and advocating for the creation of the Peerless Trout First Nation.  Mark Underhill and co-counsel Bram Rogachevsky represented the plaintiff, whose claim will proceed to a summary trial in September of 2017.  

We understand the need to find the right strategy to resolve our clients' disputes in an efficient and cost-effective manner, including the use of summary trial procedures where appropriate.

To read the decision, click here.

Underhill Secures Landmark Victory on Aboriginal Hunting Rights

In a landmark decision, the Provincial Court of British Columbia ruled today that Richard Desautel, a Sinixt descendant resident in the United States, has an aboriginal right to hunt in his traditional territory in Canada.

In 2010, Mr. Desautel was charged with hunting elk as a non-resident, and without a licence, near Castlegar, B.C. He is a member of the Lakes or Sinixt tribe of the Confederated Tribes of the Colville Reservation in Washington State, and asserted a constitutionally protected right to hunt in Sinixt traditional territory in Canada. Sinixt territory stretches north from the Colville Reservation to the area in and around the Arrow Lakes in British Columbia.

At a lengthy trial held over several weeks in the fall of 2016, considerable expert evidence was led concerning the history and movement of the Sinixt, who travelled, fished and hunted for centuries throughout their traditional territory on both sides of the border, following a seasonal round. In the latter part of the 19th century, owing to a number of forces, many Sinixt moved south of what is now the international border. Legislation was later introduced to specifically make it illegal for the Sinixt to hunt in Canada. And in 1956, despite having knowledge of Sinixt people living on both sides of the border, the Canadian government declared the Arrow Lakes Indian Band to be “extinct”, paving the way for hydroelectric development in the area.

Notwithstanding that difficult history, Justice Lisa Mrozinksi held that the rights of the Sinixt people endured:

Members of the Lakes Tribe of the CCT who testified stated that they have always hunted; that they have maintained and not forgotten many of their Sinixt ancestors’ hunting traditions; that they continue to try to foster those conditions even against the headwinds of the modern world; and that they want to hunt in Sinixt traditional territory in British Columbia.

Rick Desautel commented that the decision “is of tremendous spiritual importance to all Sinixt people, and is entirely consistent with our indigenous and natural laws. I look forward to further strengthening our ties to our Canadian traditional territory and with the people of British Columbia”.

Dr. Michael Marchand, Chairman of the Colville Confederated Tribes, and one of the Sinixt witnesses who testified at trial, stated that:

Today’s ruling closes a dark chapter in the history of the Sinixt. We are very pleased that our history and identity, which are tied up in the spiritual and cultural significance of hunting, have finally been recognized by the Canadian courts, and while we know that further court proceedings lie ahead, we intend to begin a new chapter by focusing on the process of reconciliation and finding our proper place within Canadian society.

Mark Underhill, lead counsel for Mr. Desautel, added, “This decision affirms a simple but fundamentally important principle – no law, government policy or even international border can erase Aboriginal identity. All Sinixt people, regardless of where they now live, can finally start to feel whole again.”

To read the full decision click here.

Ontario Court of Appeal Upholds Exclusive Jurisdiction of Residential Schools' Claims Adjudicators

The Ontario Court of Appeal has held that the Independent Assessment Process (IAP)   established under the Indian Residential School Settlement Agreement is a "complete code” and that the courts must preserve the finality of the IAP process and respect the expertise of IAP adjudicators. The IRSSA is the largest and most complex class action settlement in Canada. Catherine Boies Parker acted for the Chief Adjudicator of the IAP.

The Court's decision can be found here:  Fontaine v. Canada (Attorney General), 2017 ONCA 26