Members of the Colville Confederated Tribes, including Richard Desautel (front row fourth from right), gathered Friday morning to hear the Supreme Court of Canada decision. Photo: Submitted

Sinixt, First Nation bordering Canada-U.S., can claim Indigenous rights, top court rules

The decision essentially reverses a 1956 declaration the Sinixt were extinct

The Supreme Court of Canada has recognized the existence of the Sinixt in a landmark decision that could lead the way to rights, reconciliation and acknowledgement of a lost history.

Richard Desautel, a Sinixt resident in Washington State, shot an elk near Castlegar, B.C. in 2010. He was arrested and charged with hunting out of season and as a non-resident.

But his case, and now victory at Canada’s highest court following a 7-2 decision, was about more than hunting rights. It acknowledges the Sinixt as a people 65 years after they were declared extinct in Canada by the federal government.

“This is not only just for me,” Desautel told the Nelson Star following the decision Friday. “It’s for my family, for future generations.

“This is just the opening of the door. And as I’m looking at my grandchildren, I’m telling you this is for you, and I’m laying this down for you. But when you get older, you’re going to have to lay more groundwork for your grandchildren.”

Desautel was previously acquitted in B.C. Provincial Court in Nelson, B.C., on aboriginal rights grounds in 2017. The province twice appealed the decision, first to the Supreme Court of B.C. and then to the B.C. Court of Appeal, and lost both times with the judges in each hearing siding with Desautel.

The province then appealed the matter to the Supreme Court of Canada, which heard legal arguments in the matter in October before releasing its decision Friday.

Murray Rankin, B.C’s Minister of Indigenous Relations and Reconciliation, said in a statement the province will now need to determine how the ruling impacts its policies.

“As always, our government remains committed to creating and maintaining strong relationships with Indigenous peoples – one based on respect and the recognition of rights,” said Rankin.

“We will continue to work hard to move reconciliation forward – I’m excited to continue that work.”

The central question the court considered was whether people who are not Canadian citizens and do not reside in Canada can exercise an Aboriginal right under the Canadian Constitution.

One of the issues was the definition of “Aboriginal peoples of Canada,” as the term appears in Section 35 of the Constitution. This is the first time the Court has interpreted this phrase.

The majority of the judges said that “Aboriginal peoples of Canada” means the current descendants of societies that occupied Canadian territory at the time of European contact, even if those societies are now located outside of Canada.

The judges accepted the 2017 findings of the BC Provincial Court trial judge that Desautel’s group, the Lakes Tribe, is a successor group of the Sinixt people in Canada at the time of contact, and that the group’s territory included land that is now in Washington and B.C.

The judges agreed that hunting in what is now Canada is a continuation of a historical Sinixt practice, stating that there is essentially no difference between the pre-contact practice and the current one.

Desautel’s lawyer Mark Underhill told the Nelson Star that one of the most important aspects of the decision is the court’s recognition that the Sinixt, in their exodus to Washington State in the early 20th century, were forced out of the Arrow Lakes area and did not leave voluntarily.

“To have that recognized obviously means a lot to the Sinixt and to other Aboriginal people,” he says, “that your rights are not going to depend on the forces of colonialism and whether you were forced out of your territory.

“The Court said, no, rights aren’t going to work that way. And that is, at its simplest, what this decision is about.”

While Underhill agrees that the decision was specifically about hunting rights, he says the fact that the Sinixt were recognized as Aboriginal people of Canada under the constitution means other rights will flow from that.

“It is true to say that Desautel only established a right to hunt,” Underhill says. “However, the way the law works, if the federal and provincial governments are aware that a First Nation, including now the Sinixt, assert other rights, they have to consult and potentially accommodate those asserted rights in respect of all of their decision-making. So now, all resource decision-making in Sinixt territory will need to involve the Sinixt.”

Because of this, the Sinixt are, in effect, no longer extinct, he says, even though the federal government has not formally reversed its 1956 declaration of their extinction.

Groups recognized as Indigenous people in Canada have a right to be consulted by governments and industry about proposed activities and changes on their traditional territory, including such things as forest licences, mines, dams, and recreation tenures.

Asked what might happen if the provincial or federal government does not consult the Sinixt on such things, which they have never done in the past, Underhill said, “They don’t have any choice now.”

Rodney Causton, chair of the Colville Confederated Tribes, said he is committed to working closely with Canadian governments on all levels.

“We don’t want to stop all development,” he said. “But once you destroy cultural resources, or our ancestral grave sites, you can’t turn that back around again.”

Cawston said a large crowd of Sinixt people gathered early Friday morning at a historic fishing site on the Columbia River, waiting for notification of the decision.

“We wanted to gather in prayer, prior to the decision,” Causton said, “and we sang some of our songs. … So, a very good day for us today.”

A Sinixt drum circle on the stage at the Capitol Theatre in Nelson, B.C, in 2018. Photo: Bill Metcalfe

A Sinixt drum circle on the stage at the Capitol Theatre in Nelson, B.C, in 2018. Photo: Bill Metcalfe

2010-2017: An elk is shot, and the Sinixt have their first day in court

When Desautel of Nespelem, Wash., crossed the U.S.-Canada border to shoot an elk in 2010, it was part of a long-term plan to achieve acknowledgement from a country that had abandoned his people decades prior.

Desautel said he did not try to hide from the B.C authorities, and in fact wanted to start a test case for what he saw as his Indigenous right to hunt for food, social and ceremonial purposes on what he saw as his traditional territory.

“I figured this was the way to do it,” Desautel said following the Supreme Court decision over a decade after he shot the elk. “To do it the traditional way, to say we’re coming up there to practice the same traditions that our ancestors practised. And if you can’t let us do that, throw me in jail.”

He was charged with hunting without a licence and hunting big game as a non-resident, and was tried in a provincial court room in Nelson in September 2016.

Because Sinixt traditional territory spans from south of the border near Kettle Falls, Wash., north through the West Kootenay to the Revelstoke area, Desautel said has a right to hunt in B.C., which he has been doing since the 1990s.

In 1956, the federal government, asserting that all Sinixt people in Canada had moved to the Colville Reservation in Washington in the previous decades, declared them extinct in Canada. Since then the group has had no status under the Indian Act and has been excluded from treaty, land claims, and consultation processes by both the federal and B.C. governments.

During the three-week trial in 2016, Crown prosecutor Glen Thompson and Underhill agreed that there was no dispute over certain facts of the case: Desautel shot an elk near Castlegar, he had no hunting licence, and he is not and has never been a resident of B.C.

What was under dispute, however, were his rights as a Sinixt person and whether such rights exist at all in Canada.

Underhill argued in court that a “rights-bearing community” of Sinixt people existed in Washington and in the Arrow Lakes areas of southern B.C. before contact in the early 19th century, and that it continues to the present day.

He said that hunting remains central to the culture of the Sinixt and that it is an integral part of their continued cross-border connection.

In addition to several Sinixt Elders, witnesses for the defence included Richard Hart, an expert in the ethnology and history of the area, and Dr. Andrea Laforet, an expert in ethnology and the genealogy of the Interior Salish people who has mapped the family trees of Desautel and many other families in the Okanagan and Washington.

Underhill argued that the Sinixt’s move to the United States in the early 20th century was a result of provincial and federal government policies that led to their persecution including violence by miners and settlers.

Thompson meanwhile called witnesses to show that Desautel is not covered by Section 35 of the Constitution, which sets out the definition of Indigenous rights and who is covered by them.

He also argued the Sinixt people’s move from B.C. to Washington in the early part of the 20th century was voluntary.

Thompson said the defence had failed to objectively show that a Sinixt diaspora has existed on both sides of the border, and he said that Sinixt success in this case would threaten Canadian sovereignty.

But Judge Lisa Mrozinsky sided with the defence and acquitted Desautel in March 2017, finding that he had an Indigenous right to hunt in the Sinixt traditional territory and that the B.C. hunting laws he was charged with are an infringement of that right and therefore unconstitutional.

She ruled that Sinixt hunting rights in Canada have endured to the present day and that even though he did not live in Canada, Desautel was part of an Indigenous rights-bearing group under the Constitution of Canada.

The Sinixt’s traditional territory stretches from northern Washington State through the West Kootenay to north of Revelstoke. Illustration: Colville Confederated Tribes

The Sinixt’s traditional territory stretches from northern Washington State through the West Kootenay to north of Revelstoke. Illustration: Colville Confederated Tribes

The Supreme Court of BC and the BC Court of Appeal

The provincial government then appealed the case to the B.C. Supreme Court and lost.

In a December 2017 decision, Justice Robert Sewell wrote, “Aboriginal rights are grounded in prior occupation of the land before contact … I therefore conclude that the fact that Sinixt people … are now resident in the U.S. does not preclude them from being considered to be an aboriginal people of Canada.”

The province appealed again, this time to the B.C. Court of Appeal, on the grounds that Mrozinzki was mistaken in including the Sinixt as Indigenous peoples of Canada as defined in the Constitution, and that she erred in her interpretation of the case law that defines Indigenous rights, and on the rightful effect of the U.S.-Canada border on the Sinixt.

In dismissing the appeal, which was heard in April 2019, Justice Daphne Smith said hunting in what is now British Columbia was a central and significant part of the Sinixt’s distinctive culture before European contact and remains integral to the Lakes Tribe.

The Supreme Court of Canada

The next and final appeal possibility after the B.C. Court of Appeal was the Supreme Court of Canada.

The nine judges of the court heard the case in October 2020. The appeal proceeding was restricted to one-hour legal arguments from lawyers for each side, plus 10-minute presentations from intervenors, who in this case included several provinces intervening on the side of B.C. as well as a number of Indigenous groups intervening on the side of Desautel.

To read the complete Supreme Court of Canada decision, click here.

READ MORE:

• U.S. hunter defends Sinixt rights in Nelson court

Historic trial on Sinixt rights nears conclusion

• Sinixt hunter acquitted in Nelson court

• Province loses Sinixt hunting appeal

• B.C. appeals Sinixt hunting case again

• B.C.’s top court upholds Sinixt rights in elk-hunting case

Sinixt and B.C. argue rights at Supreme Court of Canada

B.C.’s top court upholds Sinixt rights in elk-hunting case

Supreme Court of Canada will hear Sinixt appeal

• Sinixt hunting case accepted for hearing by Supreme Court of Canada

• B.C. to be first to implement UN Indigenous rights declaration



bill.metcalfe@nelsonstar.com

Like us on Facebook and follow us on Twitter

Just Posted

Allayah Yoli Thomas had recently turned 12 years old when she died of a suspected drug overdose April 15. (Courtesy of Adriana Londono)
Suspected overdose death of Saanich girl, 12, speaks to lack of supports, says mom

Allayah Yoli Thomas was found dead by her friend the morning of April 15

The Malahat SkyWalk will open to visitors in July 2021. (Malahat SkyWalk photo)
Malahat SkyWalk will open to visitors this July

Highly anticipated attraction will take guests 250m above sea level

Port Alberni RCMP are investigating a homicide on Third Avenue. (SUSAN QUINN / Alberni Valley News)
RCMP investigating homicide in Port Alberni apartment

Investigators are still trying to determine the identity of the deceased

A man who allegedly spat at and yelled racial slurs at an Asian family was arrested for hate-motivated assault Tuesday. (Black Press Media file photo)
Man arrested for allegedly spitting, yelling anti-Asian racial slurs at a mother and kids

The man was arrested for hate-motivated assault near Quadra Elementary School Tuesday

Victoria police said Wednesday that they continue to look for Belinda Ann Cameron, who was last seen on May 5, 2005. (Photo courtesy of VicPD)
Victoria police still looking for Belinda Cameron who was last seen 16 years ago

Cameron was reported missing on June 4, 2005, and her case is deemed suspicious

Protesters attempt to stop clear-cutting of old-growth trees in Fairy Creek near Port Renfrew. (Will O���Connell photo)
VIDEO: Workers, activists clash at site of Vancouver Island logging operation

Forest license holders asking for independent investigation into incident

James Taylor, a Saanich resident and member of the Curve Lake First Nation, walked all over Greater Victoria on May 5 in honour of Red Dress Day and the National Day of Awareness for Missing and Murdered Indigenous Women and Girls. (Devon Bidal/News staff)
Indigenous man walks Greater Victoria to honour missing and murdered women and girls

James Taylor’s march among many ways Islanders marked Red Dress Day

B.C. average home price and sales level to 2023, showing steep drop in sales expected next year. (Central 1)
Forecast calls for B.C. home sales to ‘explode,’ then drop off

Average price to rise another 10% in 2021, credit unions say

Illegal goods seized in the simultaneous April 23 busts in Saanich and Sooke. (Courtesy of West Shore RCMP)
RCMP drug busts net trucks, cocaine, cash and Hells Angels gear

Simultaneous searches coordinated between West Shore, Saanich and Sooke police

Members of Vancouver Symphony Orchestra. (File photo)
B.C.-wide #DayOfMusic to feature 100-plus free virtual concerts May 15

‘Our colleagues across the province have figured out new ways to perform and connect,’ VSO boss says

Two passengers were recently fined thousands of dollars after they faked their pre-flight COVID-19 test results. (Paul Clarke/Black Press)
2 passengers in Canada fined thousands for faking pre-flight COVID-19 tests

The government issued a warning Thursday to others thinking of doing the same – do it and you’ll be ordered to pay

The Vancouver Island Regional Correctional Centre on Wilkinson Road in Saanich. (Black Press Media file photo)
Police watchdog investigating after man found unresponsive at Saanich jail

Man was in Victoria police custody the day before being found

Victoria police is asking for the public’s assistance in identifying this suspect after they allegedly robbed a Douglas Street bank on Tuesday. (Photo courtesy of VicPD)
Police seek identity of suspect who allegedly robbed Victoria bank

Officers were called to a bank in the 1000-block of Douglas Street just after 5:30 p.m. on Tuesday

(File)
With revenge porn on the rise in 2021, B.C. seeks feedback for new legislation

New legislation could help victims take down images and receive compensation

Most Read