Document Type

Article

Publication Date

10-19-2021

Keywords

Aboriginal hunting rights, common law Aboriginal rights, Constitution Act 1982 section 35, cross-border Indigenous rights, Indigenous territories, sovereign incompatibility

Abstract

In R v Desautel, decided April 23, 2021, a majority of the Supreme Court of Canada held, for the first time, that an Indigenous community located in the United States, whose members are neither citizens nor residents of Canada, can have an existing Aboriginal right, protected by section 35 of the Constitution Act, 1982, to hunt a specified area within Canada. This will be so, the Supreme Court majority held, where the community can show that it descends from (is a successor of) an Indigenous community that was present in what is now Canada at the time of the ancestral community’s first contact with Europeans and that hunting in the relevant part of Canada was integral to its way of life at that time. Justices Côté and Moldaver dissented. This article analyzes the majority decision, comments on the dissenting judgments. and delves into some unresolved issues that will need attention in light of the decision. They include the status of common law Aboriginal rights, the notion of sovereign incompatibility, the optimal way of litigating claims of Aboriginal right, and the impact of the decision on Aboriginal title claims and the duty to consult.

Comments

Forthcoming in Osgoode Hall Law Journal 59:3.

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