Defining Aboriginal Peoples of Canada to Include Non-Canadians

While Canada wrestles with the mounting tolls of historic deaths at residential schools, many are reconsidering how to celebrate Canada Day on July 1, 2021. There are calls for an independent probe, and even for criminal charges to be laid.

The upside is that this might be Canada’s moment of reconciliation, with unprecedented interest in the Truth and Reconciliation Commission. Accepting the realities of this past may be the first steps to creating a better future.

How the legal system deals with these issues is equally challenging, as illustrated by the Supreme Court of Canada’s decision earlier this year in R. v. Desautel.

The case involved an Aboriginal person of the Sinixt people who lived and was a citizen in the U.S. He shot an elk in Canada for ceremonial purposes on the historic hunting lands of his ancestors, but did so without a license, and was charged under s. 11(1) of British Columbia’s Wildlife Act.

The Applicant challenged these charges under s. 35 of the Charter, which states,

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Metis peoples of Canada.
(3) For greater certainty, in subsection (1) “treaty rights” includes rights that now exist by way of land claims agreements or may be so acquired.
Aboriginal and treaty rights are guaranteed equally to both sexes
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

The problem is that the Applicant’s ancestors, and most of the Sinixt people, moved to the U.S. in 1870, before B.C. even joined the Confederation of Canada in 1871. While many of them continued to hunt in their ancestral lands in Canada until 1930, they did so illegally and in contravention of the Game Protection Amendment Act, 1896. There was a period of dormancy after that time, where traditional hunting by the Sinixt in the U.S. was not known to occur until the modern day.

Although the Court in R. v. Van der Peet made it clear at para 65 that determining a distinctive culture under s. 35(1) does not require an unbroken chain of continuity, they also suggested at para 19 that Aboriginal rights enshrined in the Charter are held by aboriginal members of Canadian society.

The Charter itself may also suggest that this right is limited to the Canadian context, specifically using the wording “aboriginal peoples of Canada.” The French version of the same text is perhaps more ambiguous, using the term “des peuples autochtones du Canada,” which could perhaps be interpreted as people who came from Canada.

The Court in Van der Peet also emphasized at para 25 that due the fiduciary relationship of the Crown with aboriginal peoples, any doubt or ambiguity about the scope of definition of s. 35(1) should be resolved in favour of aboriginal peoples. However, this context related to the interpretation of rights and practices of aboriginal people under s. 35, and not what could be described as a threshold issue of whether an aboriginal people who are not Canadian could still be an aboriginal peoples of Canada.

Can an aboriginal person in the U.S. who is not a member of Canadian society claim s. 35 rights, despite not being a member of Canadian society? University students from across Canada struggled with this issue at the Lions Cup Moot on June 26-27, 2021, where counsel for the Applicant participated in the judging.

The trial level judge in Desautel agreed that it could, based on the testimony of Sinixt people in the U.S. who indicated they maintained a connection to the land and their traditions were not forgotten,

This finding was upheld by the Superior Court, the Court of Appeal, and ultimately the majority at the Supreme Court of Canada.

The Sinixt today largely live in the Colville Indian Reservation, which consists of 12 aboriginal tribes. All of the others except for the Sinixt appear to be based entirely in the U.S. at the time of European contact. However, there are also members of the Sinixt who have intermarried and effective merged with the Ktunaxa nation, an Aboriginal people who are entirely within Canada.

The Ktunaxa heard their own Supreme Court matter in 2017, where they were unsuccessful in their claims for land use. They have signed their own treaties with the province for some of the same land claimed by the Sinixt, and there are active negotiations around land use. This decision in Desautel could therefore create a situation where an Aboriginal peoples of Canada who are outside of the country come in conflict with the use of the land by Aboriginal peoples of Canada who are entirely within the same state. Adjudicating competing claims of Aboriginal peoples is not likely to further the goals of reconciliation.

The Crown attempted to rely on Justice Binnie’s holding in Mitchell v. M.N.R., where he indicated that claimed mobility rights of a Mohawk individual across international boundaries between Canada and the U.S. was incompatible with notions of sovereignty, and these limits were still justifiable by the reconciliation goals of s. 35. The trial judge in Desautel rejected this submission,

[146] I do not find it necessary in this case to define Mr. DeSautel’s claim as including a mobility right. The right as I find it ought to be defined is not, in my view, incompatible with sovereignty. That being said, I do not in any way discount the significance of border control as an incident of sovereignty. I find, however, that this important fact can be addressed without at the same time erasing the memory and existence of the Sinixt from the Canadian historical landscape. I find support for this in the reasons of Strayer J. at para 17 of Watt v. Liebelt, 1998 CanLII 9113 (FCA), [1999] 2 F.C. 455 where it was noted that proper control of the border may well be a justification for Canada to control or limit in some way the exercise of relevant and unextinguished Aboriginal rights…

…

[152] …as Chief Justice Lamer explained in Delgamuukw v. British Columbia, [1997] 2 S.C.R. 1010, at para 30, there is a distinction between laws that regulate aboriginal rights and those that extinguish them… The right continues to exist, subject to regulation…

The hunting rights by the Applicant could be facilitated by Canada with proper border control and passports [for non-Americans], without interfering with the Aboriginal right in question. The finding by the Court upholding this right would allow the Sinixt to engage in hunting without attempting to do so covertly or under the radar.

Further developments federally may also assist with reconciliation efforts. Bill C-8 will amend the oath of citizenship to acknowledge treaties with Indigenous communities, to reflect the 94th recommendation in the TRC report. Bill C-15 was also approved by the Senate recently, to align Canada with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Canada was one of four countries in the world that did not support UNDRIP in 2007. The professed reason at the time was potential conflicts with the Charter, and a belief that the Charter was already sufficient to protect aboriginal rights. Instead, the use of wording around the duty to consult likely was perceived to have implications for energy and development projects,

Article 19
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

Bill C-15 includes an action plan under s. 6 within 3 years, but also involves a review of all laws of Canada to ensure they are consistent with UNDRIP. That is a monumental task in of itself, but has the potential to completely transform the legislative landscape of Canada, especially because the process itself intends to involve consultation and cooperation with Indigenous people. This is the first time since Confederation that Canada will go about rewriting its laws to address Indigenous concerns, and will actually attempt to work with Indigenous peoples in doing so.

There is one twist here that Parliament may not have completely envisioned. The definitions under Bill C-15 under s. 2 includes the following,

Indigenous peoples has the meaning assigned by the definition aboriginal peoples of Canada in subsection 35(2) of the Constitution Act, 1982.‍ (peuples autochtones)

Someone may need to let them know that this rewriting of Canadian legislation, and the duty to consult and cooperate with Indigenous peoples, will now invariably include some people who are outside of Canada entirely.