U.S. Sinixt have hunting rights in Canada, court rules

Court decision brings Sinixt back from 'extinction' in Canada

Richard Desautel (centre) with supporters outside Nelson courthouse on Monday.

Richard Desautel (centre) with supporters outside Nelson courthouse on Monday.

Sinixt hunter Richard Desautel was acquitted Monday by a provincial judge of hunting without a licence as well as without being a resident.

Desautel is a resident of Washington State, but was charged in B.C. after killing an elk near Castlegar in 2010.

Judge Lisa Mrozinski, following a three-week trial in Nelson last fall, found that Desautel has an aboriginal right to hunt for food, social and ceremonial purposes in the Sinixt traditional territory in Canada. She also ruled that the B.C. hunting laws he was charged with are an infringement of that right.

“Tradition and honour, and the history of where we came from was the basis of the decision,” Desautel said outside the courthouse after the decision.

His lawyer, Mark Underhill, told the Star that the ruling is significant for the Sinixt because it means they are not extinct in Canada any more. The federal government declared the Sinixt extinct in 1956.

“This case says he has a right to hunt,” Underhill said, “but it is also the starting point in saying the Sinixt exist.”

He said because a Sinixt man was given the right to hunt in Canada, that means the Sinixt legally exist here, that they are capable of having a right.

“It is a big foot in the door. It was a door that was slammed shut and sealed with concrete, and this busts it down. It doesn’t mean they will have a land claim tomorrow or anything, but the door was closed and now it is open.

“That is a massive step for these people.”

Underhill said he expects the province to appeal the decision to the Supreme Court of B.C.

The judge’s reasons

Judge Mrozinski took about an hour to read her reasons for judgement to a courtroom filled to capacity, mostly with Sinixt people from Washington.

She made frequent reference to many witnesses who had testified at the trial, some of them academic experts, others Sinixt community members.

Mrozinski explained that to establish an aboriginal right under section 35 of the Constitution Act, the Sinixt had to show that hunting was a significant cultural practice before contact with European society, and that it still is. They had to show that that practice has continued through time to the present day.

She said the evidence presented by the Sinixt successfully convinced her of that.

The evidence showed, she said, that in pre-contact days and up until the late 19th century, the Sinixt hunted in a seasonal cycle by moving across the landscape in an area bounded by Revelstoke in the north to Kettle Falls in Washington.

The prosecutors argued in the trial that the Sinixt, by moving from Canada to the Colville Reservation in Washington State in the late 19th century, gave up any aboriginal right, and that they had made the move voluntarily and enthusiastically taken up farming.

Judge Mrozinski said she rejected that thesis because there was too little evidence for it, and found in favour of Desautel’s argument that life in Canada beginning in the 1850s had become increasingly difficult for the Sinixt because of incursions by settlers and miners.

“It was a constellation of factors that led them to move,” she said. “Moving south was the best choice out of a number of bad choices.”

The judge said that even though the Sinixt moved to Washington the bond with the Arrow Lakes area continued.

“The land was not forgotten and its traditional use not forgotten,” said. “There was no break, or if there was, it was not their fault. I am satisfied that there was not enough breach of continuity so as to destroy their aboriginal rights in Canada.”

She described the period of most of the 20th century when the Sinixt did not live in Canada as “a brief absence relative to the many thousands of years their ancestors lived in this land.”

During the trial, the judge heard evidence that Desautel’s genealogy can be traced back to two families who lived in the Arrow Lakes area of B.C. the mid-1800s.

Hunting: a significant cultural practice

Relying on a expert testimony in the trial, Judge Mrozinski said hunting was, from pre-contact until the present day, a significant cultural practice for the Sinixt, central to all aspects of their existence the only difference in recent decades being that it is not done as a group in seasonal cycles across a large landscape.

She concluded that because it is a significant cultural practice and that it has continued since pre-contact, the Sinixt have an aboriginal right to hunt in their traditional territory.

Judge Mrozinski then addressed the question of whether the two infractions Desautel was charged with (hunting without a licence and hunting as a non-resident) infringe on his aboriginal rights.

She said they do, and she acquitted Desautel of both charges.

“We have a long history of managing wildlife”

Outside the courthouse, some of Desautel’s supporters showed a visible sense of relief.

“We have been hoping and praying for this day since the 1800s,” said Michael Marchand, chair of the Colville Confederated Tribes (pictured at left). “We always felt this day would come, it was just a matter of when. And it’s here.”

And Marchand was already talking about the future.

“We have a long history of managing wildlife,” he said. “On our reserve we have brought back salmon, brought back animals that were gone, like antelope. We have improved the wildlife situation wherever we are. We have scientists, we have biologists, and we will continue to do that up here. We will work with game management up here and make this work, I am confident of that.”

Asked if the Sinixt will enter the land claims process in Canada, Marchand said, “We entered it a while ago, we have placeholder cases that we have not activated yet, but it has always been a long-term goal of ours.”