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.

Just Posted

RDCK sets deadline for Nelson to agree to compost plan

Mayor John Dooley said the timeline request is unreasonable

Rossland moves forward on single-use plastic bag ban bylaw

Bylaw given first reading at last council meeting

PHOTOS: Business after Business highlights Traction on Demand

It’s the first time Malpass has spoken formally to the business community about his purchase of Branch 51 of the Royal Canadian Legion

Premier Horgan talks jobs and opportunity at Castlegar mill

Upbeat visit brings message of hope and co-operation among Kootenay forestry players

Nelson couple expecting identical girl triplets

Pregnancies of this type are incredibly rare

VIDEO: Large dust devil swirls through town in B.C.’s interior

Residents look on as column climbs about 90 feet into the air

Second dump site of Dungeness crab discovered in northern B.C.

DFO confident new site related to larger April 2 dump

Northern B.C. high school student reaches 100,000 followers on YouTube

Voice actor, animator, Jericho Fortune has more than 30-million views on his channel GTAGAMER222

RCMP arrest B.C. man following threatening Vaisakhi Facebook post

Post made reference to pressure cooker bomb at massive Surrey parade

B.C. woman pleads for people to stop stealing daffodils meant to honour cancer victims

Cynthia Bentley honours memory of those lost to cancer by planting 100 daffodils each year

University mourns student who died in B.C. canoeing accident

Andrew Milner, 19, was in his second year with the University of Calgary’s basketball program

Canfor temporarily shutting down lumber mills across B.C.

Low lumber prices and the high cost of fibre are the cause of curtailment, according to the company

Two in critical condition, several still in hospital after Langley deck collapse

Close relative Satwant Garcha makes daily trips to visit those injured at the wedding

Allegedly intoxicated man arrested after 3 paramedics attacked at Kamloops hospital

Paramedics had transported the man to Royal Inlands Hospital for medical treatment

Most Read