Nelson court hears appeal in Sinixt hunting case

The crown is appealing Richard Desautel’s not guilty verdict

By Eileen Delehanty Pearkes

Rick Desautel, the American Sinixt man found not guilty of hunting without a license in Canada earlier this year, was back in court last week in Nelson. The provincial government led an appeal of the decision, asking the B.C. Supreme Court to set aside the acquittal.

In 2010, Desautel shot an elk near Castlegar and was charged with hunting without a licence and hunting as a non-resident.

Judge Lisa Mrozinski acquitted him on the grounds that even though he did not live in Canada he was part of an aboriginal “rights-bearing group.”

The Crown’s appeal focused on the application of principles embedded in Canada’s Constitution.

Appearing before Justice Robert Sewell, the Crown framed the Sinixt story as one of their having “migrated” south across the international boundary in the late 19th century.

When they did so, the Crown asserted, they forfeited the right to be considered aboriginal people “of Canada.” Their argument referred to section 35 of the 1982 Constitution Act, a clause that confirms aboriginal rights as a founding principle.

They attempted to tie the application of such rights to contemporary residency, rather than historic and long-standing habitation.

Justice Sewell challenged Crown counsel Glen Thompson about whether or not his position was “arguing from silence,” given the lack of case law Thompson could provide to support the government’s position.

Desautel’s counsel Mark Underhill pointed out that Judge Mrozinski had ruled that the boundary’s existence had not stopped the Sinixt from hunting in their traditional territory for a number of decades following the boundary’s establishment, nor does it stop Desautel from legally entering Canada today.

In response to the Crown’s assertion that the boundary sets up a barrier to the Sinixt exercising an aboriginal right to hunt, Underhill said that this question could not be settled by the current matter under appeal, but would need to wait for another possible case, should one arise.

Citing case law from the past 20 years that has increasingly strengthened, defined and broadened the concept of aboriginal rights, Underhill asserted that aboriginal identity is formed by the people, not governments, and that identity must not be limited by residency.

The Sinixt, he said, no matter where they live today, are “from here,” and the aboriginal rights embedded in the Constitution apply to them, too. Interpreting the key constitutional phrase more broadly than the Crown, Underhill asserted that “Aboriginal people of Canada” reflected a culture of “belonging” and must be inclusive in its application.

Lawyer Rosanne Harvey, intervening on behalf of the Okanagan Nation Alliance (ONA), asked the judge to weigh carefully his use of language in defining the group to whom the aboriginal right to hunt applied.

A number of people claiming Sinixt ancestry live on other Canadian reserves in B.C., including some that are part of the ONA. Harvey argued that the terminology naming the tribe at issue is important, to preserve “the ability of Sinixt residents in B.C. to exercise their aboriginal rights.”

The Crown also asked the judge to consider that confirmation of aboriginal rights to the Sinixt (declared “extinct” by the federal government in 1956) might create challenges for the land claims process currently underway, could reduce populations of ungulates available to B.C. residents and aboriginals, and might limit the success of hunting and guiding operations, currently the service-provider for non-residents who wish to hunt here.

Justice Sewell reserved judgment and a written decision is expected later in the fall.

Just Posted

NDP bring Green New Deal to the Kootenays

MPs Wayne Stetski and Peter Julian held climate change talks in Nelson, Cranbrook and Revelstoke

Elk River reclaims property as its own

Laws make it harder to protect private land than ever before says farmer, local government

Smoke-free summer a boon for West Kootenay tourism

Tourism centres seeing numbers up

Saving lives on grocery list for Castlegar responders on Wednesday

Crews attended local supermarkets three times during the day

Black Press Kootenay Career Fair underway in Cranbrook

Today, Thursday, August 22, around 40 employers will be waiting to meet potential new employees

New police force in Surrey must avoid VPD, RCMP errors made in Pickton case: Oppal

Boots are scheduled to be on the ground by spring 2021

Conan turns to the Property Brothers for tips on buying Greenland

Jonathan Scott suggests removing glaciers and mountains to bring in ‘more natural light’

Forests minister visits B.C. town hit by multiple mill shutdowns

A third of Mackenzie turns out for rally, not much to cheer about

B.C. sockeye returns drop as official calls 2019 ‘extremely challenging’

Federal government says officials are seeing the same thing off Alaska and Washington state

B.C. music teacher accused of sexual misconduct involving girls

Police believe other victims could be out there after the arrest of Lamar Victor Alviar

B.C. family stranded in Croatia desperate to come home

Funds being raised to bring back mom and two children

B.C. man on trial for daughters’ murders says an intruder broke in

Andrew Berry takes stand in his defense for December 2017 deaths of young daughters

‘Plenty of time for a deal’: Teachers’ union expects kids back in school on Sept. 3

BCTF says class size, composition at the heart of the issue

Most Read