The province of B.C.’s appeal of a West Kootenay Indigenous hunting case will be heard May 12 by the Supreme Court of Canada.
According to the Sinixt First Nation’s lawyer Mark Underhill, the court will decide whether the Sinixt are an Indigenous people of Canada, capable of possessing constitutionally protected rights.
These questions first arrived in a Nelson courtroom in 2016 after a Sinixt man, Richard Desautel, a resident of Washington state, killed an elk near Castlegar in 2010.
He was charged with hunting as a non-resident and without a licence. Desautel fought these charges on aboriginal rights grounds, and successive judges in the B.C. Provincial Court, B.C. Supreme Court and B.C. Court of Appeal, have all ruled that Desautel had a right to hunt in B.C. and that the B.C. hunting laws he was charged with are an infringement of that right and therefore unconstitutional.
The case landed in each of these courts because the provincial government appealed each successive decision, now finally reaching the Supreme Court of Canada.
The Sinixt were declared extinct in Canada by the federal government in 1956 but have maintained active communities in Washington state.
The Provincial Court of B.C. is the only court in this series of hearings that has heard witnesses and evidence. Subsequent courts have only heard legal arguments about that evidence, and that will also be the case with the Supreme Court of Canada.
According to Underhill, the parties (the Sinixt and the province) will get an hour each in front of the judges in Ottawa, having already submitted written arguments.
The Attorneys General of several other provinces will be intervening in the case, and they will get 15 minutes, bolstered by written arguments already presented.
Any people or organizations other than provincial governments who wish to intervene must apply to the court in advance and may or may not be accepted. The court can then decide whether accepted intervenors must submit their arguments in writing or orally, in which case they get five minutes in front of the judges.
Several First Nations groups across Canada have applied for intervenor status. Underhill says that is because they also have cross-border claims, although they are not as dramatic as having been declared extinct.
Underhill expects the entire court hearing to take one day. It’s unknown how long the judges will take to make a decision.
If the Sinixt win, he said, it will mean they can hunt in Canada. However, it will also be a foot in the door for future decisions about other Sinixt rights in Canada.