The West Kootenay found itself in front of the Supreme Court of Canada in Ottawa twice in 2021. One of those cases has deep implications for Indigenous rights in Canada.
The court decided that the Sinixt are “Aboriginal peoples of Canada,” as the term appears in Section 35 of the Constitution.
This was a landmark decision that could lead the way to rights and reconciliation.
Richard Desautel, a Sinixt resident in Washington State, shot an elk near Castlegar in 2010. He was arrested and charged with hunting out of season and as a non-resident.
But his case was about more than hunting rights.
“This is not only just for me,” Desautel told the Nelson Star following the April 23 decision. “It’s for my family, for future generations.”
But he admitted that this does not automatically erase the federal government’s 1956 declaration that the Sinixt are extinct in Canada.
“This is just the opening of the door,” he said.
Desautel was acquitted in 2017 in B.C. Provincial Court in Nelson on aboriginal rights grounds. The province twice appealed the decision, first to the Supreme Court of B.C. and then to the B.C. Court of Appeal, and lost both times with the judges in each hearing siding with Desautel.
The province then appealed the matter to the Supreme Court of Canada, which heard legal arguments in the matter in October 2020.
The central question the court considered was whether people who are not Canadian citizens and do not reside in Canada can exercise an Aboriginal right under the Canadian Constitution.
The majority of the judges said that “Aboriginal peoples of Canada” means the current descendants of societies that occupied Canadian territory at the time of European contact, even if those societies are now located outside of Canada.
The judges accepted that the Lakes Tribe is a successor group of the Sinixt people in Canada at the time of contact, and that the group’s territory included land that is now in Washington State and B.C.
The judges agreed that hunting in what is now Canada is a continuation of a historical Sinixt practice, stating that there is essentially no difference between the pre-contact practice and the current one.
Desautel’s lawyer Mark Underhill told the Nelson Star following the decision that one of the most important aspects of the decision was the court’s recognition that the Sinixt, in their exodus to Washington State in the early 20th century, were forced out of the Arrow Lakes area and did not leave voluntarily.
“To have that recognized obviously means a lot to the Sinixt and to other Aboriginal people,” he said. “That your rights are not going to depend on the forces of colonialism and whether you were forced out of your territory.”
While Underhill agreed that the decision was specifically about hunting rights, he said the fact that the Sinixt were recognized as Aboriginal people of Canada under the constitution means other rights could flow from that in the future.