Aboriginal rights; Indigenous peoples; constitutional law; hunting in Canada; Sinixt Nation
In R v Desautel, decided April 23, 2021, 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, has an existing Aboriginal right on Canadian soil protected by section 35 of the Constitution Act, 1982. This is so, the majority held, where a community can show both 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 the practice for which it claims constitutional protection was integral to the ancestral community’s way of life at that time. The Lakes Tribe, whose members are American citizens living on a reservation in the state of Washington, was able to show that it descends from the Sinixt, an Indigenous nation whose traditional territory includes (and included at contact) much of south central B.C., and that hunting for food there was integral to the pre-contact Sinixt way of life. 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 Aboriginal rights claims, and the impact of the decision on Aboriginal title claims and the duty to consult.
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"Welcome Home: Aboriginal Rights Law after Desautel."
Osgoode Hall Law Journal