A hunt across the border - indigenous rights in case before Canada's Supreme Court

by Jack Graham | Thomson Reuters Foundation
Wednesday, 28 October 2020 12:00 GMT

General view of the Supreme Court of Canada building on Parliament Hill in Ottawa, Ontario, Canada September 17, 2020. REUTERS/Blair Gable

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Do the Sinixt tribe have indigenous rights that cross the border of Canada and the United States?

By Jack Graham

TORONTO, Oct 28 (Thomson Reuters Foundation) - In Canada's British Columbia, the mountainous West Kootenay region forms a rare inland temperate rainforest, where the Sinixt tribe has hunted game, fished for salmon and picked berries for thousands of years.

A decade ago, Rick Desautel followed in his ancestors' footsteps as the tribe's ceremonial hunter and shot a cow-elk to share with his fellow Sinixt descendants.

But the hunt broke provincial laws. Desautel was a U.S. citizen, not a Canadian resident, and he was hunting without a license.

He reported himself to authorities and was arrested.

The case reached Canada's Supreme Court, where it was heard this month in Ottawa, and Desautel awaits a landmark ruling as to whether he and other Sinixt members hold indigenous rights that cross the border.

The Sinixt traditional territories stretch from Canada into the U.S. state of Washington, where more than 3,000 descendents including Desautel form the Lakes Tribe - part of the Confederated Tribes of the Colville Reservation.

DECLARED 'EXTINCT'

In Canada they were declared "extinct" by the government in 1956 after all Sinixt members either had gone to the United States, joined other First Nations in Canada or died.

Desautel's arrest was no accident but rather an effort to use the justice system to argue for his community's rights north of the border.

"When they call me extinct and I'm somewhat invisible in this part of the country with my ancestors, I get a little upset because we were here pre-dawn of time," he told the Thomson Reuters Foundation.

At his trial in British Columbia, a judge acquitted Desautel in 2017, saying he was exercising "the aboriginal right" of the Sinixt people to hunt in their traditional territory.

The British Columbia Court of Appeal agreed, and the case advanced to the Supreme Court of Canada.

Canada's Constitution Act in 1982 said aboriginal people have protected rights such as hunting, fishing and gathering in their traditional territories.

The question is whether those rights should apply to successors no longer living in Canada.

Crown prosecutors argued that the constitution was referring only to indigenous peoples living in Canada at the time.

The defense argued that Desautel's hunting in Canada met a legally accepted criteria known as the Van der Peet Test - that rights should be granted if the activity in question is integral to the distinctive culture of the indigenous group.

"Their culture and their identity is inextricably tied up with land that is now in Canada," Desautel's attorney Mark Underhill said.

"What we're supposed to be doing in Canada is trying to reconcile that prior occupation with modern-day Canadian society," he said.

Sinixt campaigners say the tribe's connection to traditional lands never ceased after members moved south in the late 19th century.

At the trial, it was debated whether the Sinixt moved voluntarily and renounced their rights in Canada or were forced south to avoid persecution.

The judge decided they never gave up claims to their traditional territories.

"If Canada's truth is that people are not from the land, they're from the nation of Canada, then that's completely ignoring the tie of indigenous people to the land," said Shelly Boyd, a Sinixt campaigner and member of the Lakes Tribe.

'WE EXIST'

Boyd hopes the case will lead to a reversal of the declaration of their official extinction.

"That would mean so much to our people," Boyd said. "An actual document that we could hold up and say, 'You are important, my grandchildren are important, we exist.'"

Concerns were raised by the British Columbia government that granting the rights could lead to legal claims from other indigenous communities bordering Canada.

But such potential floodgates in fact are limited by issues like citizenship and the right to entry, said John Borrows, a professor of indigenous law at the University of Victoria.

"It's not going to be earth-shattering" if the Sinixt win, but it could benefit indigenous peoples split by borders in North America, from Alaska east to the Maritimes, he said.

"It's opening a door, however incrementally, that might lead to better relations for negotiating the reconnection of these historic and contemporary people," Borrows said.

A decision is not expected until next year.

In the meantime, Desautel is staying, and hunting, on the tribe's traditional lands in Canada over the winter.

"I have no interest in politics," Desautel said. "I like to think of myself as just a warrior."

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(Reporting by Jack Graham, editing by Ellen Wulfhorst. Please credit the Thomson Reuters Foundation, the charitable arm of Thomson Reuters, that covers the lives of people around the world who struggle to live freely or fairly. Visit http://news.trust.org)

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