Nelson court hears appeal in Sinixt hunting case

The crown is appealing Richard Desautel’s not guilty verdict

By Eileen Delehanty Pearkes

Rick Desautel, the American Sinixt man found not guilty of hunting without a license in Canada earlier this year, was back in court last week in Nelson. The provincial government led an appeal of the decision, asking the B.C. Supreme Court to set aside the acquittal.

In 2010, Desautel shot an elk near Castlegar and was charged with hunting without a licence and hunting as a non-resident.

Judge Lisa Mrozinski acquitted him on the grounds that even though he did not live in Canada he was part of an aboriginal “rights-bearing group.”

The Crown’s appeal focused on the application of principles embedded in Canada’s Constitution.

Appearing before Justice Robert Sewell, the Crown framed the Sinixt story as one of their having “migrated” south across the international boundary in the late 19th century.

When they did so, the Crown asserted, they forfeited the right to be considered aboriginal people “of Canada.” Their argument referred to section 35 of the 1982 Constitution Act, a clause that confirms aboriginal rights as a founding principle.

They attempted to tie the application of such rights to contemporary residency, rather than historic and long-standing habitation.

Justice Sewell challenged Crown counsel Glen Thompson about whether or not his position was “arguing from silence,” given the lack of case law Thompson could provide to support the government’s position.

Desautel’s counsel Mark Underhill pointed out that Judge Mrozinski had ruled that the boundary’s existence had not stopped the Sinixt from hunting in their traditional territory for a number of decades following the boundary’s establishment, nor does it stop Desautel from legally entering Canada today.

In response to the Crown’s assertion that the boundary sets up a barrier to the Sinixt exercising an aboriginal right to hunt, Underhill said that this question could not be settled by the current matter under appeal, but would need to wait for another possible case, should one arise.

Citing case law from the past 20 years that has increasingly strengthened, defined and broadened the concept of aboriginal rights, Underhill asserted that aboriginal identity is formed by the people, not governments, and that identity must not be limited by residency.

The Sinixt, he said, no matter where they live today, are “from here,” and the aboriginal rights embedded in the Constitution apply to them, too. Interpreting the key constitutional phrase more broadly than the Crown, Underhill asserted that “Aboriginal people of Canada” reflected a culture of “belonging” and must be inclusive in its application.

Lawyer Rosanne Harvey, intervening on behalf of the Okanagan Nation Alliance (ONA), asked the judge to weigh carefully his use of language in defining the group to whom the aboriginal right to hunt applied.

A number of people claiming Sinixt ancestry live on other Canadian reserves in B.C., including some that are part of the ONA. Harvey argued that the terminology naming the tribe at issue is important, to preserve “the ability of Sinixt residents in B.C. to exercise their aboriginal rights.”

The Crown also asked the judge to consider that confirmation of aboriginal rights to the Sinixt (declared “extinct” by the federal government in 1956) might create challenges for the land claims process currently underway, could reduce populations of ungulates available to B.C. residents and aboriginals, and might limit the success of hunting and guiding operations, currently the service-provider for non-residents who wish to hunt here.

Justice Sewell reserved judgment and a written decision is expected later in the fall.

First Nations

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Comments are closed

Just Posted

RDCK: spring flooding financial relief available

The provincial funds are for those affected by flooding in May and early June

Pamela Allain, Laura Gellatly join the Nelson Star

Allain oversees Black Press’s West Kootenay papers, while Gellatly is the Star’s new publisher

Pivot Point Learning Centre launches community classroom in Nelson

The classes are focused on students with diverse needs

School District 8: about 25% of students returned to schools last month

The number of students who participated in part-time classes was below the provincial average

Oyxgen Art Centre launches virtual exhibition of emerging artists

If I Can’t Dance To It, It’s Not My Revolution is on until Aug. 15

All community COVID-19 outbreaks declared over in B.C.

Abbotsford manufacturer cleared by Dr. Bonnie Henry

B.C. First Nations vow to keep fighting after Trans Mountain pipeline appeal denied

Squamish Nation, Tsleil-Waututh Nation and Coldwater Indian Band made the application

‘Queue jumpers’ not welcome in B.C. as COVID-19 U.S. cases rise: Horgan

Premier Horgan said he’s heard concerns that Americans have stopped at Vancouver hotels instead of heading to their destination

US officer resigns after photos, connected to death of black man in 2019, surface

Elijah McClain died, last summer, after police placed him in a chokehold

Black worker files discrimination complaint against Facebook

Oscar Veneszee, Jr. has worked as an operations program manager at Facebook since 2017

Ottawa jail inmates argue anti-COVID measures a breach of charter rights

The prisoners allege guards did not wear masks until April 25

Nestle Canada selling bottled water business to local family-owned company

The Pure Life bottled water business is being sold to Ice River Springs

US unemployment falls to 11%, but new shutdowns are underway

President Donald Trump said the jobs report shows the economy is “roaring back”

Most Read