Her Majesty the Queen v. Richard Lee Desautel
(B.C.) (Criminal) (By Leave)
Constitutional law - Aboriginal law, Aboriginal rights, Hunting, Mobility rights - Constitutional law - Aboriginal law - Aboriginal rights - Hunting - Mobility rights - Citizen and resident of United States of America hunts for ceremonial purposes in British Columbia in traditional territory of Aboriginal ancestors - Charged with hunting without a license and hunting big game while not being a resident of British Columbia - Whether constitutional protection of Aboriginal rights contained in s. 35 of the Constitution Act, 1982 extends to an Aboriginal group that does not reside in Canada - Whether phrase “aboriginal peoples of Canada” in s. 35 includes a collective located in United States of America - Applicability of Wildlife Act, R.S.B.C. 1996, c. 488.
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Mr. Desautel shot and killed an elk in the Arrow Lakes region in British Columbia, without a hunting license. He is a member of the American Lakes Tribe of the Confederated Tribes of the Colville Reservation, a citizen of the United States, and a resident on the Colville Indian Reserve in Washington State. He has never been a resident of British Columbia, a citizen of Canada or registered under the Indian Act, R.S.C., 1985, c. I-5. Mr. Desautel was charged with hunting without a licence contrary to s. 11(1) of the Wildlife Act, R.S.B.C. 1996, c. 488, and hunting big game while not being a resident of British Columbia contrary to s. 47(a) of the Act. He admits the actus reus but claims an aboriginal right to hunt for ceremonial purposes in the traditional territory of his Sinixt ancestors and that this right is protected by s. 35(1) of the Constitution Act, 1982 (U.K.), 1982, c. 11. The trial judge held that the Sinixt before and sometime after contact in 1811 engaged in hunting, fishing and gathering in their traditional territory north and south of the 49th parallel, including the Arrow Lakes area. A constellation of factors led them to more or less full time residency in their southern territory. Their territory south of the 49th parallel became part of the United States in 1846 pursuant to the Oregon Boundary Treaty. A majority of the Sinixt people, including the Sinixt who had become known as the Lakes Tribe, took up residence on the Colville Reserve in the United States around 1880 and 1890. Thereafter, members of the Lakes Tribe rarely hunted in the Arrow Lakes Region in Canada and by the 1930s, no longer travelled to or hunted north of the border. In 1902, the Canadian federal government set aside a reserve for the Arrow Lakes Band which included the few Sinixt members who remained in their traditional territory in Canada. In 1956, the last living member of the Arrow Lakes Band died and the federal government declared the Arrow Lakes Band extinct for the purposes of the Indian Act. The trial judge held that Mr. Desautel was exercising an aboriginal right to hunt for ceremonial purposes guaranteed by s. 35 of the Constitution Act, 1982 and the application of ss. 11(1) and 47(a) of the Wildlife Act unjustifiably infringes that right. Mr. Desautel was acquitted. The Supreme Court of British Columbia dismissed a summary conviction appeal. The Court of Appeal dismissed an appeal.
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