Her Majesty The Queen Appellant v. Richard Lee Desautel, 2021 SCC 17

SUPREME COURT OF CANADA Citation: R. v.

Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533 Appeal Heard: October 8, 2020 Judgment Rendered: April 23, 2021 Docket: 38734 Between: Her Majesty The Queen Appellant and Richard Lee Desautel Respondent - and - Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of the Yukon Territory, Peskotomuhkati Nation, Indigenous Bar Association in Canada, Whitecap Dakota First Nation, Grand Council of the Crees (Eeyou Istchee), Cree Nation Government, Okanagan Nation Alliance, Mohawk Council of Kahnawà:ke, Assembly of First Nations, Métis National Council, Manitoba Metis Federation Inc., Nuchatlaht First Nation, Congress of Aboriginal Peoples, Lummi Nation and Métis Nation British Columbia Interveners Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 93) Rowe J. (Wagner C.J. and Abella, Karakatsanis, Brown, Martin and Kasirer JJ. concurring) Dissenting Reasons: (paras. 94 to 142) Côté J. Dissenting Reasons: (para. 143) Moldaver J.

Her Majesty The Queen Appellant v.

Richard Lee Desautel Respondent and Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of the Yukon Territory, Peskotomuhkati Nation, Indigenous Bar Association in Canada, Whitecap Dakota First Nation, Grand Council of the Crees (Eeyou Istchee), Cree Nation Government, Okanagan Nation Alliance, Mohawk Council of Kahnawà:ke, Assembly of First Nations, Métis National Council, Manitoba Metis Federation Inc., Nuchatlaht First Nation, Congress of Aboriginal Peoples, Lummi Nation and Métis Nation British Columbia Interveners Indexed as: R. v.

Desautel 2021 SCC 17 File No.: 38734. 2020: October 8; 2021: April 23. Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for british columbia Constitutional law — Aboriginal peoples — Aboriginal rights — Hunting — Citizen and resident of United States charged under provincial wildlife legislation with hunting in British Columbia without licence and while not being resident of province —

Charges defended on basis of constitutionally-protected Aboriginal right to hunt in traditional territory of ancestors — WhetherAboriginal people located outside Canada can assert Aboriginal rights under Canadian Constitution — If so, whether provincial wildlifelegislation of no force or effect by reason of Aboriginal right — Constitutional Act, 1982, s. 35(1). In October 2010, D, a citizen and resident of the United States of America, shot a cow-elk in British Columbia. He wascharged with hunting without a licence contrary to s. 11(1) of British Columbia’s Wildlife Act and hunting big game while not being aresident of the province contrary to s. 47(

a) of the Act. D defended the charges on the basis that he had an Aboriginal right to huntprotected by s. 35(1) of the Constitution Act, 1982, as he is a member of the Lakes Tribe of the Colville Confederated Tribes based in theState of Washington, a successor group of the Sinixt people, and he shot the elk within the ancestral territory of the Sinixt in BritishColumbia. At trial, it was accepted that the date of first contact between the Sinixt and Europeans was in 1811.

At that time, the Sinixtwere engaged in hunting, fishing, and gathering in their ancestral territory, which extended into what is now Washington State to thesouth, and into what is now British Columbia to the north. Until around 1870, the Sinixt continued their activities in the northern portionof their territory, located in Canada. In the course of time, a constellation of factors made the Sinixt people move to the United States.The trial judge did not find that the move was voluntary. Until 1930, members of the Lakes Tribe continued to hunt in British Columbia,despite living in Washington State.

After 1930, despite periods in which no hunting took place, the Lakes Tribe continued to have aconnection to the land where their ancestors hunted in British Columbia. The trial judge held that D was a member of the Lakes Tribe, and that the rights of the Sinixt continued with the LakesTribe. She applied the test for Aboriginal rights set out in R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507, and held thatD was exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by s. 35(1) of the Constitution Act,1982.

D’s Aboriginal right remained in existence and was protected by s. 35(1), despite the Lakes Tribe’s departure from the Canadianpart of their traditional territory and notwithstanding a period of dormancy in the exercise of the right. The trial judge held that the rightwas infringed by the Wildlife Act and the infringement was not justified. D was acquitted. The Crown’s two subsequent appeals weredismissed.

It now appeals to the Court, raising, as a constitutional question, whether the relevant provisions of the Wildlife Act are of noforce or effect with respect to D, by reason of an Aboriginal right within the meaning of s. 35(1) of the Constitution Act, 1982. Held (Moldaver and Côté JJ. dissenting): The appeal should be dismissed and the constitutional question answered in theaffirmative.

Per Wagner C.J. and Abella, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Persons who are not Canadian citizensand who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1) of the Constitution Act, 1982. On apurposive

interpretation of s. 35(1), the expression “aboriginal peoples of Canada” means the modern-day successors of Aboriginalsocieties that occupied Canadian territory at the time of European contact, and this may include Aboriginal groups that are now outsideCanada. As D is a member of the Lakes Tribe, which is a modern successor of the Sinixt, and as D’s claim satisfies the Van der Peet testfor an Aboriginal right under s. 35(1), ss. 11(1) and 47(

a) of the Wildlife Act are of no force or effect with respect to him. In order to assert rights protected under s. 35(1) of the Constitution Act, 1982, an Aboriginal group must be part of the“aboriginal peoples of Canada”. This is a threshold question, in the sense that if a group is not an Aboriginal people of Canada, there isno need to proceed to the test for Aboriginal rights set out in Van der Peet. Section 35(1) must be interpreted in a purposive way.

Areview of the jurisprudence shows that s. 35(1) serves to recognize the prior occupation of Canada by Aboriginal societies and toreconcile their contemporary existence with Crown sovereignty. These purposes are expressed in the doctrinal structure of Aboriginallaw, which gives effect to rights and relationships that arise from the prior occupation of Canada by Aboriginal societies.

Because thedoctrine of Aboriginal rights arises from the simple fact of prior occupation, the Aboriginal peoples of Canada under s. 35(1) are themodern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are nowoutside Canada. An

interpretation of the expression “aboriginal peoples of Canada” in s. 35(1) that includes Aboriginal peoples who werehere when the Europeans arrived and later moved or were forced to move elsewhere, or on whom international boundaries wereimposed, reflects the purpose of reconciliation. By contrast, an

interpretation that excludes Aboriginal peoples who were forced to moveout of Canada would risk perpetuating the historical injustice suffered by Aboriginal peoples at the hands of Europeans. As well, it bearsemphasis that s. 35(1) did not create Aboriginal rights. The practices, customs and traditions that underlie these rights existed before1982. An

interpretation of s. 35(1) that limits its scope to those Aboriginal peoples who were located in Canada in 1982 would fail togive effect to this point by treating s. 35(1) as the source of Aboriginal rights. If the threshold question is met, the analysis then proceeds under Van der Peet. The Van der Peet test is the same for groupsoutside Canada as for groups within Canada.

That Aboriginal rights must be grounded in the existence of a historic and present-daycommunity, and that modern-day claimants must establish a connection with the pre-sovereignty group upon whose practices they rely,is so for Aboriginal groups inside or outside Canada. There is no additional requirement, for groups outside Canada, of recognition by arelated Aboriginal collective residing in Canada. This requirement would place a higher burden on Aboriginal communities who seek toclaim rights if the group moved, was forced to move, or was divided by the creation of an international border.

It would risk definingAboriginal rights in a manner that excludes some of those the provision was intended to protect. Moreover, it would raise myriadpractical difficulties, such as which group within Canada has a say in the recognition of a claimant located outside Canada, where thereare competing groups, which body can represent a collective residing in Canada, and what happens if there is no related moderncollective residing in Canada.

Under the Van der Peet analysis, courts must characterize the right claimed in light of the pleadings and evidence; determinewhether the claimant has proven that a relevant pre-contact practice, tradition or custom existed and was integral to the distinctive cultureof the pre-contact society; and determine whether the claimed modern right is demonstrably connected to, and reasonably regarded as acontinuation of, the pre-contact practice. Continuity plays a role both at the second and the third stages of the Van der Peet analysis.

Atthe second stage, showing that a practice is integral to the claimant’s culture today, and that it has continuity with pre-contact times, cancount as proof that the practice was integral to the claimant’s culture pre-contact. At the third stage, the question is whether the modern

practice which is claimed to be an exercise of an Aboriginal right is connected to, and reasonably seen as a continuation of, the pre-contact practice. Continuity with the pre-contact practice is required in order for the claimed activity to fall within the scope of the right. However, an unbroken chain of continuity is not required; it is not unusual for the exercise of a right to lapse for a period of time. The assessment of continuity, both at the second and third stages, is a highly fact-specific exercise.

The weighing of evidence in Aboriginal claims is generally the domain of the trial judge, who is best situated to assess the evidence, and is consequently accorded significant latitude in this regard. In the present case, the threshold question is met. The trial judge found as a fact that the Sinixt occupied territory in what is now British Columbia at the time of European contact, and that the Lakes Tribe are a modern successor of the Sinixt.

The migration of the Lakes Tribe from British Columbia to a different part of their traditional territory in Washington State did not cause the group to lose its identity or its status as a successor to the Sinixt. Accordingly, the Lakes Tribe is an Aboriginal people of Canada. Then, with respect to the Van der Peet test, the trial judge found, based on the evidence, that hunting for food, social and ceremonial purposes within the traditional territory of the Sinixt in British Columbia at the time of contact was integral to the distinctive culture of the Sinixt.

The trial judge also found that the modern-day practice of hunting in this territory, as D did, is a continuation of this pre-contact practice. Setting aside the periods in which no hunting took place, there was no significant dissimilarity between the pre-contact practice and the modern one. As a result, D was exercising an Aboriginal right protected by s. 35(1) . Per Côté J. (dissenting): The appeal should be allowed and the constitutional question answered in the negative.

The constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982 , does not extend to an Aboriginal group located outside of Canada. And even if it did, D cannot establish that he was exercising an Aboriginal right to hunt in the Sinixt traditional territory in British Columbia, as the modern group’s claim lacks continuity with the pre-contact group’s practices. Accordingly, D’s claim must fail and he should not be exempt from the Wildlife Act provisions under which he was charged.

A verdict of guilty should be entered on both counts of hunting without a licence and hunting big game while not being a resident, and the matter should be remitted to the trial court for sentencing. To be entitled to the protection of s. 35(1) of the Constitution Act, 1982 , the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact cannot be located anywhere other than Canada.

The majority’s conclusion that the constitutional protection of Aboriginal rights in s. 35(1) extends to an Aboriginal group located outside of Canada is contrary to a purposive analysis of s. 35(1) , having regard to its relevant linguistic, philosophic, and historical contexts. The framers’ intent was to protect the rights of Aboriginal groups that are members of, and participants in, Canadian society. First, a textual analysis of s. 35(1) reveals the significance of the drafters’ choice to include the phrase “of Canada” rather than leaving the term “aboriginal peoples” without any qualifier.

On the basis of the presumption against tautology, the words “of Canada” cannot be superfluous. In addition, similar limiting language is used repeatedly in the Constitution Act, 1982 , as a geographical qualifier. Interpreting “aboriginal peoples of Canada” in a more expansive fashion would be incongruent with the presumption of consistent expression and contrary to the intention of the drafters. Second, the philosophic context helps explain why residence or citizenship is not referenced in s. 35(1) , but is assumed.

By framing s. 35(1) as a provision granting special constitutional protection to one part of Canadian society, the Court has consistently understood it to import a residency or citizenship requirement. Section 35(1) ’s purpose should be understood in relation to the interests it was meant to protect, that is, Aboriginal peoples as full participants with non-Aboriginal peoples in a shared Canadian sovereignty.

The protections, therefore, do not and cannot apply to Aboriginal groups in other countries; it cannot be said that they fully participate with other Canadians in their collective governance, nor do they contribute to Canada’s national diversity. Third, the historical record does not show that expanding the protections of s. 35(1) to non-Canadian Aboriginal groups was ever considered.

The limited historical sources that provide guidance as to the meaning of the expression “aboriginal peoples of Canada” show an intention to limit the constitutional protection of Aboriginal rights to only those groups located within Canada. The conclusion that the enactment of s. 35(1) did not constitutionalize Aboriginal rights held by collectives located outside of Canada is further bolstered by the deleterious consequences that would arise from the opposite conclusion.

First, s. 35.1 of the Constitution Act, 1982 , uses the phrase “aboriginal peoples of Canada” in setting out an obligation to invite representatives of these groups to constitutional conferences. It would be contrary to the organizing constitutional principle of democracy and inconsistent with the purpose of patriation to allow Aboriginal groups located outside of Canada to participate in Canadian democracy as required by s. 35.1. Second, a multitude of challenges would arise with respect to the Crown’s duty to consult.

The numbers of groups to consult and, where appropriate, accommodate, would dramatically increase, and it can be anticipated that in some cases accommodating the interests of s. 35(1) rights holders outside of Canada would run counter to accommodating the interests of s. 35(1) rights holders within Canada. Third, finding that Aboriginal groups outside of Canada are “aboriginal peoples of Canada” raises the possibility that these groups may, in principle, hold constitutionally protected Aboriginal title to Canadian lands.

It would be a remarkable proposition that a foreign group could hold constitutionally protected title to Canadian territory. The drafters of s. 35(1) could not have intended these deleterious consequences to arise. In the present case, the Lakes Tribe is wholly located in the United States. As D is not a member of a collective that is part of the “aboriginal peoples of Canada”, he cannot exercise a constitutionally-protected Aboriginal right to hunt in British Columbia.

And even if there were agreement with the majority’s conclusion that the phrase “aboriginal peoples of Canada” includes groups located outside of Canada, there is disagreement with its application of the Van der Peet test to D’s claim. This test protects only those present-day practices that have a reasonable degree of continuity with practices that existed prior to contact. While the test does not require an unbroken chain of continuity, and while continuity must be interpreted flexibly, such flexibility has its limits.

While temporal gaps do not necessarily preclude the establishment of an Aboriginal right, failing to tender sufficient evidence that, at least, a connection to the historical practice was maintained during such gaps may be fatal. There is no direct evidence that the Lakes Tribe engaged in anything that could be considered a modern-day practice of hunting in British Columbia after 1930. There was no basis upon which the trial judge could have drawn an inference of continuity; and given the Lakes Tribe’s lengthy and unaccounted-for absence from British Columbia between 1930 and 2010, continuity is not made out.

As there was nothing in existence in 1982 to which s. 35(1) protection could attach, D’s claim must fail. Per Moldaver J. (dissenting): Even assuming that the majority is correct in holding that, as a member of an Aboriginal

collective located outside Canada, D is entitled to claim the constitutional protection provided by s. 35(1) of the Constitution Act, 1982,there is agreement with Côté J. that in this case, D has not met the onus of establishing the continuity element of his claim, under the testfor Aboriginal rights pursuant to Van der Peet. The appeal should therefore be allowed on that basis and the remedy set out by Côté J.should be imposed. Cases Cited By Rowe J. Applied: R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507; distinguished: R. v. Powley, 2003 SCC 43,[2003] 2 S.C.R. 207; referred to: Mitchell v.

M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. Sparrow, (SCC), [1990]1 S.C.R. 1075; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Calder v.Attorney-General of British Columbia, (SCC), [1973] S.C.R. 313; Roberts v. Canada, (SCC), [1989] 1S.C.R. 322; Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335; R. v. Badger, (SCC), [1996] 1 S.C.R.771; Province of Ontario v. Dominion of Canada and Province of Quebec (1895), 1895 CanLII 112 (SCC), 25 S.C.R. 434; OntarioMining Co. v. Seybold (1901), (SCC), 32 S.C.R. 1; R. v.

Gladstone, (SCC), [1996] 2 S.C.R. 723; R. v.Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010; R. v.Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103;Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765; Newfoundland and Labrador(Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15; Haida Nation v.

BritishColumbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (ProjectAssessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550; R. v. Côté, (SCC), [1996] 3 S.C.R. 139; The Queen v. TheSecretary of State for Foreign and Commonwealth Affairs, [1981] 4 C.N.L.R. 86; Native Women’s Assn. of Canada v. Canada, (SCC), [1994] 3 S.C.R. 627; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, Frank v. The Queen, (SCC),[1978] 1 S.C.R. 95; Daniels v.

Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99; Society ofComposers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, 2004 SCC 45, [2004] 2 S.C.R. 427;Nowegijick v. The Queen, (SCC), [1983] 1 S.C.R. 29; Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011SCC 56, [2011] 3 S.C.R. 535; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257; R. v. Shipman, 2007 ONCA338, 85 O.R. (3d) 585; R. v. Meshake, 2007 ONCA 337, 85 O.R. (3d) 575; R. v. Adams, (SCC), [1996] 3 S.C.R. 101;Hwlitsum First Nation v.

Canada (Attorney General), 2018 BCCA 276, 15 B.C.L.R. (6th) 91; Campbell v. British Columbia (Minister ofForests and Range), 2011 BCSC 448, [2011] 3 C.N.L.R. 151; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43,[2010] 2 S.C.R. 650; Native Council of Nova Scotia v. Canada (Attorney General), 2008 FCA 113, [2008] 3 C.N.L.R. 286; Mississaugasof Scugog Island First Nation v. National Automobile, Aerospace, Transportation and General Workers Union of Canada(CAW-Canada), Local 444, 2007 ONCA 814, 88 O.R. (3d) 583; R. v. Nikal, (SCC), [1996] 1 S.C.R. 1013; First Nationof Nacho Nyak Dun v.

Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145;R. v. Marshall, (SCC), [1999] 3 S.C.R. 533; Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40,[2017] 1 S.C.R. 1069. By Côté J. (dissenting) Mitchell v. M.N.R., 2001 SCC 33, [2001] 1 S.C.R. 911; R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507; R.v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; R. v. Marshall, (SCC), [1999] 3 S.C.R. 456; R. v. Powley, 2003 SCC 43,[2003] 2 S.C.R. 207; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; R. v.

Sparrow, (SCC), [1990] 1 S.C.R. 1075; Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40,[2018] 2 S.C.R. 765; Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; Reference re Secession of Quebec, (SCC),[1998] 2 S.C.R. 217; British Columbia (Attorney General) v. Canada (Attorney General), (SCC), [1994] 2 S.C.R. 41;Placer Dome Canada Ltd. v. Ontario (Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715; Frank v. The Queen, (SCC), [1978] 1 S.C.R. 95; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Beckman v.

LittleSalmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R.295; R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; Haida Nation v. BritishColumbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2S.C.R. 257; Campbell v. British Columbia (Minister of Forests and Range), 2011 BCSC 448, [2011] 3 C.N.L.R. 151; Lax Kw’alaamsIndian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535; Ktunaxa Nation v.

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No. 755 (QL), 2019 CarswellBC 1146 (WL Can.), affirming a decision of Sewell J., 2017 BCSC 2389 , [2018] 1 C.N.L.R. 135, [2017] B.C.J. No. 2665 (QL), 2017 CarswelBC 3648 (WL Can.), affirming the acquittals entered by Mrozinski Prov. Ct. J., 2017 BCPC 84 , [2018] 1 C.N.L.R. 97, [2017] B.C.J. No. 558 (QL), 2017 CarswellBC 769 (WL Can.). Appeal dismissed, Moldaver and Côté JJ. dissenting. Glen R. Thompson and Heather Cochran , for the appellant. Mark G. Underhill and Kate R. Phipps , for the respondent. Christopher Rupar , for the intervener the Attorney General of Canada.

Manizeh Fancy , for the intervener the Attorney General of Ontario. Tania Clercq , for the intervener the Attorney General of Quebec. Rachelle Standing , for the intervener the Attorney General of New Brunswick. Richard James Fyfe , for the intervener the Attorney General of Saskatchewan. Angela Edgington , for the intervener Attorney General of Alberta. Written submissions only by Elaine Cairns and Katie Mercier , for the intervener the Attorney General of the Yukon Territory. Paul Williams , for the intervener the Peskotomuhkati Nation. Bruce McIvor , for the intervener the Indigenous Bar Association in Canada.

Maxime Faille , for the intervener the Whitecap Dakota First Nation. Jessica Orkin , for the interveners the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government. Rosanne Kyle , for the intervener the Okanagan Nation Alliance. Francis Walsh , for the intervener the Mohawk Council of Kahnawà:ke. Julie McGregor , for the intervener the Assembly of First Nations. Kathy L. Hodgson-Smith , for the interveners the Métis National Council and the Manitoba Metis Federation Inc. Jack Woodward , Q.C. , for the intervener the Nuchatlaht First Nation.

Andrew Lokan , for the intervener the Congress of Aboriginal Peoples. John W. Gailus , for the intervener the Lummi Nation. Thomas Isaac , for the intervener the Métis Nation British Columbia. The judgment of Wagner C.J. and Abella, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. was delivered by [ 1 ] Rowe J. — Richard Lee Desautel entered Canada legally from the United States of America. He shot an elk contrary to provincial wildlife rules and advised provincial authorities that he had done so. As he expected, he was charged for this.

He defended the charges on the basis that he had an Aboriginal right to hunt the elk, one which is protected by s. 35(1) of the Constitution Act, 1982 . Thus, this is a test case, the central issue being whether persons who are not Canadian citizens and who do not reside in

Canada can exercise an Aboriginal right that is protected by s. 35(1). For the reasons that follow, I would say yes. On a purposiveinterpretation of s. 35(1), the scope of “aboriginal peoples of Canada” is clear: it must mean the modern-day successors of Aboriginalsocieties that occupied Canadian territory at the time of European contact. [2] Beyond agreeing with Mr. Desautel on this central issue, I will say little more about what that means for theexercise of rights protected under s. 35(1). That follows for two reasons.

First, questions of law are better resolved in cases where there isa dispute that requires the answering of those questions. And, second, the defence of a prosecution for a provincial regulatory offence,while it may serve as a test case (as here), is not well-suited to deal with such broader issues. Such issues are better dealt with in anaction setting out the right claimed, with a full evidentiary record, and seeking declaratory relief. I will return to such matters toward theend of my reasons. I. Background [3] On October 14, 2010, Mr. Desautel shot one cow-elk near Castlegar, British Columbia.

He was charged withhunting without a licence contrary to s. 11(1) of the Wildlife Act, R.S.B.C. 1996, c. 488, and hunting big game while not being a residentcontrary to s. 47(

a) of the Act. He did not have a licence and was not a resident of British Columbia. Mr. Desautel is a citizen of theUnited States, and a resident of Ichelium in the State of Washington. Mr. Desautel admitted the actus reus of the offences, but raised adefence that he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors, a right protected unders. 35(1). [4] Mr. Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes based in the State of Washingtonin the United States, a successor group of the Sinixt people.

At trial, the year 1811 was accepted as the date of first contact between theSinixt and Europeans. At this time, the Sinixt were engaged in a seasonal round of hunting, fishing, and gathering, travelling largely bycanoe in their ancestral territory. This territory ran as far south as an island just above Kettle Falls, in what is now Washington State, andas far north as the Big Bend of the Columbia River, north of Revelstoke in what is now British Columbia. The place where Mr.

Desautelshot the elk in October 2010 was within the ancestral territory of the Sinixt. [5] Over the course of the latter half of the 19th century, the Sinixt gradually moved to occupy the southern portion oftheir territory full-time, the portion that lies in the United States. Until around the year 1870, the Sinixt continued their seasonal round inthe northern portion of their territory, located in Canada. In the course of time, a “constellation of factors” made the Sinixt people moveto the United States (2017 BCPC 84, [2018] 1 C.N.L.R. 97, at para. 110).

By 1872, a number of members of the Sinixt were living forthe most

part in Washington State. The trial judge did not find that the Sinixt were forced out of Canada “at gunpoint” (para. 101), butnor did she find that the move was voluntary, as the Lakes Tribe never gave up their claim to their traditional territory in Canada.

Untilthe year 1930, the evidence clearly showed that members of the Lakes Tribe continued to hunt in British Columbia, despite living on theColville Reserve in Washington State and in the face of the creation of an international border by the 1846 Oregon Boundary Treaty andthe outlawing of their hunting by British Columbia through the Game Protection Amendment Act, 1896, S.B.C., c. 22. From 1930 until1972, there may have been a period of dormancy.

As was found at trial, the Lakes Tribe continues to have a connection to the land wheretheir ancestors hunted in British Columbia. [6] Meanwhile, the population of Sinixt who had remained in Canada was small. By 1902, only 21 Sinixt still lived ontheir traditional territory in Canada, in the Arrow Lakes Band reserve. By 1930, only one person remained on the rolls of the ArrowLakes Band, and after her death in 1956, the government of Canada declared the Arrow Lakes Band extinct, and the reserve landsreverted to the provincial Crown. II. Judicial History A.

British Columbia Provincial Court, 2017 BCPC 84, [2018] 1 C.N.L.R. 97 (Mrozinski J.) [7] The trial judge held that there was no doubt that Mr. Desautel is a member of the Lakes Tribe, and saw the LakesTribe as a clear successor group to the Sinixt, such that the communal rights of the Sinixt could continue with the Lakes Tribe. The trialjudge applied the test this Court set out in R. v. Van der Peet, (SCC), [1996] 2 S.C.R. 507. She held that Mr.

Desautelwas exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by s. 35(1) of the Constitution Act, 1982. [8] Despite the Lakes Tribe’s departure from the northern part of their traditional territory, its members remainedconnected to that geographical area. The evidence demonstrated that the land and the traditions were not forgotten, and that theconnection to the land was still present in the minds of the members of the Lakes Tribe.

The trial judge found that the requirement ofcontinuity was met, notwithstanding a period of dormancy between 1930 and 1972, because there is no requirement of “an unbrokenchain of continuity” (Van der Peet, at para. 65). [9] Moreover, the trial judge decided it was not necessary to define the Aboriginal right as including a mobility right,so no issue of sovereign incompatibility arose. Mr. Desautel’s Aboriginal right remained in existence and was protected by s. 35(1). Thetrial judge held that the right was infringed by the provisions of the Wildlife Act and the infringement was not justified. Mr.

Desautel wasacquitted. B. British Columbia Superior Court, 2017 BCSC 2389, [2018] 1 C.N.L.R. 135 (Sewell J.) [10] The appeal was dismissed. The

summary conviction appeal judge held that the Sinixt people are the relevantcollective and that modern-day Lakes Tribe members are entitled to assert the Aboriginal rights held by the Sinixt, based on practicesthat were part of their distinctive culture at the time of contact, in their traditional territory in British Columbia. According to thesummary conviction appeal judge, the words “aboriginal peoples of Canada” in s. 35(1) must be interpreted in a purposive way, andmean Aboriginal peoples who, prior to contact, occupied what became Canada.

Therefore, modern-day members of the Sinixt are notprecluded from asserting rights under s. 35(1) merely because they now live in the United States. This

interpretation of s. 35(1) isconsistent with the objective of reconciliation. To establish an Aboriginal right to hunt, Mr. Desautel had to meet the requirements of theVan der Peet test. The

summary conviction appeal judge found that the trial judge made no error in applying the Van der Peet test.

[ 11 ] The

summary conviction appeal judge held that Mr. Desautel’s Aboriginal right to hunt is not incompatible with Canadian sovereignty. The fact that the government of Canada has the right to control its borders is not fatal to the assertion of an Aboriginal right to hunt in Canada by an Aboriginal group located in the United States. Mr. Desautel was not charged with coming into Canada unlawfully and there was no evidence that he was denied entry. In contrast with the claimant in Mitchell v. M.N.R. , 2001 SCC 33 , [2001] 1 S.C.R. 911, Mr. Desautel was not asserting an Aboriginal right to cross the border. C.

British Columbia Court of Appeal, 2019 BCCA 151 , 24 B.C.L.R. (6th) 48 (Smith, Willcock and Fitch JJ.A.) [ 12 ] The Crown’s appeal was dismissed. Under a purposive approach, the Court of Appeal concluded that an Aboriginal group that does not reside in Canada and whose members are neither residents nor citizens of Canada can claim constitutional rights under s. 35(1) of the Constitution Act, 1982 . It is not a requirement that there be a present-day Aboriginal community in the geographic area where the claimed right is exercised.

In this case, the Court of Appeal found that the relevant historic collective is the Sinixt and that the Lakes Tribe is a modern collective descended from the Sinixt. The finding of the trial judge that the chain of continuity had not been broken was entitled to deference. There is no requirement under the Van der Peet test, according to the Court of Appeal, that the claimant must be a member of a contemporary Aboriginal community currently located in the geographic area where the right was historically exercised.

Imposing such a requirement would fail to take into account the Aboriginal perspective, the realities of colonization and displacement, and the goal of reconciliation. The Court of Appeal concluded that the rights of Mr. Desautel’s community to hunt on their ancestral lands in British Columbia were never voluntarily surrendered, abandoned or extinguished. Therefore, Mr.

Desautel has an Aboriginal right to hunt in British Columbia. [ 13 ] It was further held that practical concerns about the expansion of Canada’s duty to consult to Aboriginal groups in the United States could not prevent a court from recognizing their inherent rights. Finally, the Court of Appeal determined that it was not necessary to consider Mr. Desautel’s incidental mobility right to cross the border and the compatibility of such a right with Canadian sovereignty, because this issue was not addressed at trial and its resolution was not necessary for the determination of the appeal. III.

Issue [ 14 ] The appellant Her Majesty the Queen in Right of British Columbia (hereinafter “the Crown”) raises the following constitutional question: Are ss. 11(1) and 47(

a) of the Wildlife Act , R.S.B.C. 1996, c. 488 , as they read in October 2010, of no force or effect with respect to the respondent, being a member of the Lakes Tribe of the Confederated Tribes of the Colville Reservation in Washington State, U.S.A., in virtue of s. 52 of the Constitution Act, 1982 , by reason of an Aboriginal right within the meaning of s. 35 of the Constitution Act, 1982 , invoked by the respondent? (A.R., vol.

I, at p. 139) [ 15 ] To answer this question, the Court must determine whether an Aboriginal people located outside Canada can assert rights protected under s. 35(1) of the Constitution Act, 1982 . IV. Submissions of the Parties A. Appellant: Her Majesty the Queen in Right of British Columbia [ 16 ] The Crown’s main submission is that Mr. Desautel cannot assert Aboriginal rights under s. 35(1) because the scope of this provision is limited to Aboriginal peoples located in Canada. At best, Mr. Desautel can claim a common law right to hunt, which would not constitute a defence to the regulatory charges against him.

In the Crown’s submission, the Van der Peet test for the recognition of rights under s. 35(1) requires the presence of a present-day collective in the area where the right was exercised historically. In the present case, the relevant modern collective would be the Lakes Tribe, a group located in the State of Washington, not in British Columbia. Moreover, because Mr.

Desautel is a resident of the United States, the exercise of the right to hunt in British Columbia necessarily involves an incidental mobility right to cross the border, which is incompatible with Canadian sovereignty, and the result is that the s. 35(1) Aboriginal right claimed by Mr. Desautel never came into existence. B. Respondent: Mr. Desautel [ 17 ] Mr. Desautel argues that he has an Aboriginal right to hunt in the ancestral territory of the Sinixt, the relevant modern-day collective, in British Columbia. This right is protected under s. 35(1).

To assert s. 35(1) rights, he argues, the only test that an Aboriginal people has to pass is the Van der Peet test. Therefore, there is no threshold issue distinct from the test elaborated by this Court for the recognition of Aboriginal rights. Moreover, the Van der Peet test has never required an additional requirement of geographic continuity. The fact that an Aboriginal people is solely based outside Canada has no impact on the recognition of the right as long as the requirements of the Van der Peet test are met. Finally, Mr. Desautel submits that there is no mobility right at issue in this case. V.

Analysis A. The Scope of Section 35(1)

(1) The Threshold Question [ 18 ] Section 35(1) of the Constitution Act, 1982 , says: The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Les droits existants — ancestraux ou issus de traités — des peuples autochtones du Canada sont reconnus et confirmés. It is clear from the text of s. 35(1) that, to fall within its scope, an Aboriginal group must be an “aboriginal peopl[e] of Canada”. Thequestion raised by this appeal is whether a group whose members are neither Canadian citizens nor Canadian residents can meet thiscondition. The text of s. 35(1) does not provide a clear answer to this question.

The words “of Canada” are capable of different meanings,as “of” can be used to express a range of different relationships. [19] Whether a group is an Aboriginal people of Canada is, analytically speaking, a different question from whether thegroup has an Aboriginal right. This Court’s decision in Van der Peet was about the latter question. It set out a test for having anAboriginal right, not for being an Aboriginal people of Canada.

The Van der Peet test by itself is not, therefore, dispositive of this appeal.That said, evidence that is relevant to the question whether a group has an Aboriginal right may also be relevant to the question whetherthe group is an Aboriginal people of Canada. [20] Whether a group is an Aboriginal people of Canada is a threshold question, in the sense that if a group is not anAboriginal people of Canada, there is no need to proceed to the Van der Peet test. But this threshold question does not arise in everycase.

In most cases there is no doubt that the claimant belongs to an Aboriginal people of Canada, so there is no need to address thethreshold question. The threshold question is likely to arise only where there is some ground for doubt, such as where the group islocated outside of Canada. It should not be construed as an additional burden on rights claimants that has to be satisfied in every case. [21] No previous decision of this Court interprets the scope of the words “aboriginal peoples of Canada” in s. 35(1). Thatis our task here.

As this Court has often recognized, s. 35(1) must be interpreted in a purposive way (R. v. Sparrow, (SCC), [1990] 1 S.C.R. 1075, at p. 1106; Van der Peet, at paras. 21-22; Manitoba Metis Federation Inc. v. Canada (Attorney General),2013 SCC 14, [2013] 1 S.C.R. 623, at para. 76). [22] For the reasons that follow, I am of the view that a consistent development of this Court’s s. 35(1) jurisprudencerequires that groups located outside Canada can be Aboriginal peoples of Canada.

As I will explain, the two purposes of s. 35(1) are torecognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern-day existence with theCrown’s assertion of sovereignty over them. These purposes are reflected in the structure of Aboriginal rights and title doctrine, whichfirst looks back to the practices of groups that occupied Canadian territory prior to European contact, sovereignty or effective control,and then expresses those practices as constitutional rights held by modern-day successor groups within the Canadian legal order.

Thesame purposes are reflected in the principle of the honour of the Crown, under which the Crown’s historic assertion of sovereignty overAboriginal societies gives rise to continuing obligations to their successors as part of an ongoing process of reconciliation. [23] On this

interpretation, the scope of “aboriginal peoples of Canada” is clear: it must mean the modern-day successorsof Aboriginal societies that occupied Canadian territory at the time of European contact. As a result, groups whose members are neithercitizens nor residents of Canada can be Aboriginal peoples of Canada.

(2) A Purposive

Interpretation of Section 35(1) [24] The prior occupation of Canadian territory by organized Aboriginal societies was recognized before s. 35(1) wasenacted. In Calder v. Attorney-General of British Columbia, (SCC), [1973] S.C.R. 313, the claimants sought a declarationof Aboriginal title in their traditional territory.

While the claim was unsuccessful, Judson J. characterized the source of Aboriginal title incomments that have been repeatedly cited by this Court: “the fact is that when the settlers came, the Indians were there, organized insocieties and occupying the land as their forefathers had done for centuries. This is what Indian title means” (Calder, at p. 328 (emphasisadded); see also Roberts v. Canada, (SCC), [1989] 1 S.C.R. 322, at p. 340; Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335, at pp. 377-78).

This point was taken up in Sparrow, where this Court laid out the analysis for justifiedinfringements of Aboriginal rights. In finding that the Musqueam had an Aboriginal right protected by s. 35(1), Dickson C.J. and LaForest J. observed that they “have lived in the area as an organized society long before the coming of European settlers” (Sparrow, atp. 1094 (emphasis added)). [25] In R. v. Badger, (SCC), [1996] 1 S.C.R. 771, this Court confirmed that the Sparrow test applies toinfringements of treaty rights. In arriving at this conclusion, Cory J. drew on a second theme from the pre-1982 jurisprudence.

TheCrown’s assertion of sovereignty over Aboriginal societies, he held, gave rise to a distinctive legal relationship. “[B]oth aboriginal andtreaty rights possess in common a unique, sui generis nature. In each case, the honour of the Crown is engaged through its relationshipwith the native people” (Badger, at para. 78 (emphasis added; citations omitted)). In the treaty context, this principle can be traced backto the dissenting reasons of Gwynne J. in Province of Ontario v. Dominion of Canada and Province of Quebec (1895), 1895 CanLII 112(SCC), 25 S.C.R. 434, at pp. 511-12; and in Ontario Mining Co. v.

Seybold (1901), (SCC), 32 S.C.R. 1, at p. 2. [26] These two themes were brought out explicitly in Van der Peet, where Lamer C.J. set out the test for Aboriginalrights.

Lamer C.J. first observed, at para. 30, that “when Europeans arrived in North America, aboriginal peoples were already here,living in communities on the land, and participating in distinctive cultures, as they had done for centuries” (emphasis in original).Second, he wrote at para. 31, s. 35(1) is “the constitutional framework through which the fact that aboriginals lived on the land indistinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of theCrown”.

In short, the aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizesthe fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as,second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory.[para. 43] [27] The two purposes of s. 35(1) underlie the test for Aboriginal rights set out in Van der Peet.

The court first looks backto the historic practices of Aboriginal societies in Canada prior to contact, and second, recognizes those practices as Aboriginal rights

held by their modern-day successors within the Canadian legal order: R. v. Gladstone, (SCC), [1996] 2 S.C.R. 723, atpara. 73; Mitchell, at para. 12. In R. v. Sappier, 2006 SCC 54, [2006] 2 S.C.R. 686, at para. 45, Bastarache J. explained that the doctrineof Aboriginal rights “arises from the simple fact of prior occupation of the lands now forming Canada”.

He added that “[t]he ‘distinctiveaboriginal culture’ must be taken to refer to the reality that, despite British sovereignty, aboriginal people were the original organizedsociety occupying and using Canadian lands” (para. 45, quoting the dissenting reasons of L’Heureux-Dubé J. in Van der Peet, atpara. 159 (emphasis added)). [28] The test for Aboriginal title, a variation of the Van der Peet test, reflects the same two purposes.

In Delgamuukw v.British Columbia, (SCC), [1997] 3 S.C.R. 1010, this Court explained that Aboriginal title has two sources: first,Aboriginal possession of the land before the assertion of Crown sovereignty, and second, “the relationship between common law andpre-existing systems of aboriginal law” (para. 114). As LeBel J., concurring in R. v.

Marshall, 2005 SCC 43, [2005] 2 S.C.R. 220, atpara. 129, explained: As with all aboriginal rights protected by s. 35(1) of the Constitution Act, 1982, aboriginal title arises from the prior possession of landand the prior social organization and distinctive cultures of aboriginal peoples on that land.

It originates from “the prior occupation ofCanada by aboriginal peoples” and from “the relationship between common law and pre-existing systems of aboriginal law”. [Citationsomitted.] The test for title looks back to the historic occupation of Canadian territory by Aboriginal societies at the date of Crown sovereignty andrecognizes this occupation as Aboriginal title, “a burden on the Crown’s underlying title” (Delgamuukw, at para. 145), within theCanadian legal order. [29] The two purposes of s. 35(1) were reiterated in Mitchell by McLachlin C.J., who said: Long before Europeans explored and settled North America, aboriginal peoples were occupying and using most of this vast expanse ofland in organized, distinctive societies with their own social and political structures. . . . [T]he Crown asserted that sovereignty over theland, and ownership of its underlying title, vested in the Crown.

With this assertion arose an obligation to treat aboriginal peoples fairlyand honourably, and to protect them from exploitation, a duty characterized as “fiduciary” in Guerin. [Emphasis added; citations omitted;para 9.] [30] In this Court’s recent jurisprudence, the special relationship between Aboriginal peoples and the Crown has beenarticulated in terms of the honour of the Crown. As was explained by McLachlin C.J. and Karakatsanis J. in Manitoba Metis, at para. 67: The honour of the Crown . . . recognizes the impact of the “superimposition of European laws and customs” on pre-existing Aboriginalsocieties.

Aboriginal peoples were here first, and they were never conquered; yet, they became subject to a legal system that they did notshare. Historical treaties were framed in that unfamiliar legal system, and negotiated and drafted in a foreign language. The honour of theCrown characterizes the “special relationship” that arises out of this colonial practice. [Emphasis added; citations omitted.] While the honour of the Crown looks back to this historic impact, it also looks forward to reconciliation between the Crown andAboriginal peoples in an ongoing, “mutually respectful long-term relationship” (Beckman v.

Little Salmon/Carmacks First Nation, 2010SCC 53, [2010] 3 S.C.R. 103, at para. 10; see also Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40,[2018] 2 S.C.R. 765, at para. 21, per Karakatsanis J.; and Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu ofUashat and of Mani-Utenam), 2020 SCC 4, [2020] 1 S.C.R. 15, at paras. 21 and 28, per Wagner C.J. and Abella and Karakatsanis JJ.;and at paras. 207-8, per Brown and Rowe JJ., dissenting).

The honour of the Crown requires that Aboriginal rights be determined andrespected, and may require the Crown to consult and accommodate while the negotiation process continues (Haida Nation v. BritishColumbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 25; see also Taku River Tlingit First Nation v. BritishColumbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24).

It also requires that the Crown act diligently tofulfill its constitutional obligations to Aboriginal peoples (Manitoba Metis, at para. 75). [31] As this review of the jurisprudence shows, s. 35(1) serves to recognize the prior occupation of Canada by Aboriginalsocieties and to reconcile their contemporary existence with Crown sovereignty.

These purposes are expressed in the doctrinal structureof Aboriginal law, which gives effect to rights and relationships that arise from the prior occupation of Canada by Aboriginal societies.Implicit in this doctrinal structure, and the purposes that underlie it, is the answer to our question. The Aboriginal peoples of Canadaunder s. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact.This may include Aboriginal groups that are now outside Canada. [32] I hasten to add that this criterion will need to be modified in the case of the Métis.

Because Métis communities aroseafter contact between other Aboriginal peoples and Europeans, “the manner in which the aboriginal rights of other aboriginal peoples aredefined is not necessarily determinative of the manner in which the aboriginal rights of the Métis are defined” (Van der Peet, at para. 67).Given that the present case is not about Métis s. 35(1) rights, I leave for another day precisely what criterion should be applied todetermine whether a Métis community is an “aboriginal peopl[e] of Canada”, in cases where there is doubt. [33] I would add that an

interpretation of “aboriginal peoples of Canada” in s. 35(1) that includes Aboriginal peoples whowere here when the Europeans arrived and later moved or were forced to move elsewhere, or on whom international boundaries wereimposed, reflects the purpose of reconciliation. The displacement of Aboriginal peoples as a result of colonization is well acknowledged: Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forcedto move to new locations selected for them by colonial authorities.

They were also displaced socially and culturally, subject to intensivemissionary activity and the establishment of schools — which undermined their ability to pass on traditional values to their children,imposed male-oriented Victorian values, and attacked traditional activities such as significant dances and other ceremonies. In NorthAmerica they were also displaced politically, forced by colonial laws to abandon or at least disguise traditional governing structures andprocesses in favour of colonial-style municipal institutions.

(Report of the Royal Commission on Aboriginal Peoples, vol. 1, Looking Forward, Looking Back (1996), at pp. 139-40) By contrast, an

interpretation that excludes Aboriginal peoples who were forced to move out of Canada would risk “perpetuating thehistorical injustice suffered by aboriginal peoples at the hands of colonizers” (R. v. Côté, (SCC), [1996] 3 S.C.R. 139,at para. 53). [34] Moreover, it bears emphasis that s. 35(1) did not create Aboriginal rights. As Calder and indeed the RoyalProclamation, 1763 (G.B.), 3 Geo. 3 (reproduced in R.S.C. 1985, App. II, No. 1), show, Aboriginal rights long predated 1982 (seeM. D.

Walters, “The ‘Golden Thread’ of Continuity: Aboriginal Customs at Common Law and Under the Constitution Act, 1982”(1999), 44 McGill L.J. 711). What s. 35(1) did was to give Aboriginal and treaty rights — which it explicitly recognizes as already“existing” — constitutional protection (Van der Peet, at paras. 28-29). Even though some s. 35(1) Aboriginal rights would not have beenrecognized under pre-1982 Canadian law (Côté, at para. 52), the practices, customs and traditions that underlie these rights existed before1982. An

interpretation of s. 35(1) that limits its scope to those Aboriginal peoples who were located in Canada in 1982 would fail togive effect to this point by treating s. 35(1) as the source of Aboriginal rights.

(3) Additional Arguments [35] The parties and interveners made a range of additional arguments about the scope of s. 35(1). I do not take any ofthese arguments to be determinative, but will explain how they are consistent with the

interpretation set out above. (

a) Alternative Wording for Section 35(1) [36] Several parties made submissions on what the words “of Canada” in s. 35(1) must mean. Both the Crown and Mr.Desautel suggested alternative wording that might have been used instead, had the drafters of the Constitution Act, 1982, wished toexclude their favoured

interpretations. I give these arguments no weight. As I explained earlier, the words used in s. 35(1) are capable ofdifferent meanings when considered in isolation. [37] However, the phrase “aboriginal peoples” does perhaps suggest those who were here originally — before theEuropeans — in line with the

interpretation I have set out. As Lord Denning once wrote, “[t]he Indian peoples of Canada have been therefrom the beginning of time. So they are called the ‘aboriginal peoples’”: The Queen v. The Secretary of State for Foreign andCommonwealth Affairs, [1981] 4 C.N.L.R. 86 (E.W.C.A.), at p. 89. (

b) Context Within the Constitution Act, 1982 [38] The phrase “aboriginal peoples of Canada” is used elsewhere in the Constitution Act, 1982.

It is used in ss. 25 (“Theguarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty orother rights or freedoms that pertain to the aboriginal peoples of Canada”), 35(2) (“In this Act, aboriginal peoples of Canada includes theIndian, Inuit and Métis peoples of Canada”), 35.1(b) (“the Prime Minister of Canada will invite representatives of the aboriginal peoplesof Canada to participate in the discussions on [certain amendments to the Constitution]”), and the now-spent and repealed ss. 37(2)(“[The planned constitutional conference] shall have included in its agenda an item respecting constitutional matters that directly affectthe aboriginal peoples of Canada, including the identification and definition of the rights of those peoples to be included in theConstitution of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions onthat item”) and 37.1(2) (“[Each other planned constitutional conference] shall have included in its agenda constitutional matters thatdirectly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite representatives of those peoples toparticipate in the discussions on those matters”). [39] While there may be reason to interpret the phrase “aboriginal peoples of Canada” in the same way across theConstitution Act, 1982, this provides little assistance in the present appeal.

Section 25 shields the rights and freedoms that pertain toAboriginal peoples of Canada from being abrogated by the Canadian Charter of Rights and Freedoms, but it does not tell us who thosepeoples are. While the text of s. 35(2) defines Aboriginal peoples to include the Indian, Inuit and Métis peoples of Canada, this does notspecify whether they must be citizens or residents of Canada. [40] Nor do I take anything from the requirement under s. 35.1 and the repealed ss. 37 and 37.1 that the Aboriginalpeoples of Canada be represented at constitutional conferences.

The Crown points out that representatives of the Lakes Tribe have notbeen invited to the constitutional conferences held so far. But the practice at these conferences was for Aboriginal peoples to berepresented by umbrella organizations (see Native Women’s Assn. of Canada v. Canada, (SCC), [1994] 3 S.C.R. 627,and R. Romanow, “Aboriginal Rights in the Constitutional Process”, in M. Boldt and J. A. Long, eds., The Quest for Justice: AboriginalPeoples and Aboriginal Rights (1985), 73). It is not clear that there would be any obstacle to Aboriginal peoples outside of Canada beingrepresented in such processes.

The requirement of representation at constitutional conferences thus offers no guidance here. (

c) Legislative History [41] The Crown suggested that insight into the scope of s. 35(1) can be drawn from the Minutes of Proceedings andEvidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada. I agree that draftinghistory can be relevant to constitutional

interpretation (see R. v. Poulin, 2019 SCC 47, [2019] 3 S.C.R. 566, at para. 78). But in this caseit sheds no light. There is nothing in the record to show that the members of the Committee turned their minds at all to the question ofnon-citizen or non-resident Aboriginal peoples of Canada. (

d) The 1930 Natural Resources Transfer Agreements [42] The Crown and the Attorney General of Saskatchewan submit that s. 35(1) should be interpreted similarly to theNatural Resources Transfer Agreements (“NRTAs”), which were entered into between Canada and each of the Prairie provinces usingnearly identical language, and added as schedules to the Constitution. The NRTAs use both the phrases “Indians of the Province” and “Indians within the boundaries thereof”.[1] In Frank v. The Queen, (SCC), [1978] 1 S.C.R. 95, at pp. 101-2, this Court

explained that the former was narrower than the latter, in that the latter included “Indians” who were passing through the province, notjust those ordinarily resident in the province. Respectfully, there is no reason why “aboriginal peoples of Canada” in s. 35(1) of theConstitution Act, 1982, should be interpreted the same way as “Indians of the Province” in the NRTAs. In Daniels v.

Canada (IndianAffairs and Northern Development), 2016 SCC 12, [2016] 1 S.C.R. 99, this Court held that s. 91(24) of the Constitution Act, 1867, wasbroader than the NRTAs: the Métis are “Indians” under s. 91(24), but not under the NRTAs. The NRTAs, this Court explained, are“constitutional agreement[s], not the Constitution”, which requires “a completely different interpretive exercise” (para. 44). (

e) The Presumption of Territoriality [43] The Crown notes that there is a presumption, rebuttable only by clear words or necessary implication, that legislationdoes not apply extraterritorially (Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of InternetProviders, 2004 SCC 45, [2004] 2 S.C.R. 427, at paras. 54-55). As a result, it argues, s. 35(1) should be presumed to apply only togroups within Canada, and nothing in the text rebuts that presumption. But the presumption has no effect here.

Section 35(1) applies togroups outside of Canada only when claiming or exercising their rights within Canada. The presumption of territoriality does notpreclude such application, any more than it precludes the application of Canadian land laws to foreign owners of Canadian property. (

f) Principles of Construction and the Aboriginal Perspective [44] Several interveners suggest that interpretive principles in favour of Aboriginal peoples are relevant here. Relatedly,Mr. Desautel and some interveners also suggest that Aboriginal perspectives should be taken into account in interpreting s. 35(1). [45] The relevant interpretive principle is that, in interpreting s. 35(1), any doubt or ambiguity should be resolved infavour of Aboriginal peoples (Van der Peet, at para. 25; Nowegijick v.

The Queen, (SCC), [1983] 1 S.C.R. 29, at p. 36).In my view, this principle does not help settle the question at issue here. A principle that ambiguities should be resolved in favour ofAboriginal peoples does not determine who those very Aboriginal peoples are. To attempt to use the principle in this way would becircular. [46] That said, Mr. Desautel and several interveners explain that Aboriginal perspectives involve a strong connection toancestral territory, even where the Aboriginal group has been dispossessed of that territory, or where the territory is now divided byinternational borders.

As this Court held in Sparrow, at p. 1112, it is “crucia[l] to be sensitive to the aboriginal perspective itself on themeaning of the rights at stake”. Therefore, “a morally and politically defensible conception of aboriginal rights will incorporate both[aboriginal and non-aboriginal] legal perspectives” (Van der Peet, at para. 49, citing M. Walters, “British Imperial Constitutional Lawand Aboriginal Rights: A Comment on Delgamuukw v. British Columbia” (1992), 17 Queen’s L.J. 350, at p. 413; see also J. Borrows,“Creating an Indigenous Legal Community” (2005), 50 McGill L.J. 153, at p. 173).

This perspective confirms the

interpretation ofs. 35(1) which I set out above.

(4) Application [47] I have concluded that the Aboriginal peoples of Canada under s. 35(1) are the modern-day successors of Aboriginalsocieties that occupied what is now Canada at the time of European contact (subject to modifications that may be necessary in the case ofthe Métis).

Where this is shown, the threshold question is met and the court ascertains the claimants’ rights using the Van der Peet test.The threshold question remains relevant in future cases where the claimant group is outside Canada, as Van der Peet does not address therequired link between the modern-day collective (outside Canada) and the historic collective (that was inside what is now Canada). [48] In the present case, the trial judge found as a fact that the Sinixt had occupied territory in what is now BritishColumbia at the time of European contact.

She also found that the Lakes Tribe were a modern successor of the Sinixt — leaving open thepossibility that there may be others. I would defer to this factual finding. The migration of the Lakes Tribe from British Columbia to adifferent part of their traditional territory in Washington did not cause the group to lose its identity or its status as a successor to theSinixt. [49] This case does not require the Court to set out criteria for successorship of Aboriginal communities. This is acomplex issue that should be dealt with on a fuller factual record, with the benefit of legal argument.

For example, consideration wouldhave to be given to the possibility that a community may split over time, or, that two communities may merge into one, as well as to therelative significance of factors such as ancestry, language, culture, law, political institutions and territory in connecting a moderncommunity to its historical predecessor. Some of the difficulties here are brought out in the academic literature (see P. L. A. H.Chartrand, “Background”, in P. L. A. H. Chartrand, ed., Who are Canada’s Aboriginal Peoples? Recognition, Definition, andJurisdiction (2002), 27; R. K.

Groves, “The Curious Instance of the Irregular Band: A Case Study of Canada’s Missing RecognitionPolicy” (2007), 70 Sask. L.R. 153; and B. Olthuis, “The Constitution’s Peoples: Approaching Community in the Context of

Section 35 ofthe Constitution Act, 1982” (2009), 54 McGill L.J. 1). B. The Test for Aboriginal Rights [50] Having found that the Lakes Tribe is an Aboriginal people of Canada, the next question is whether Mr. Desautel’sclaim satisfies the Van der Peet test for an Aboriginal right under s. 35(1). As I will explain, the test for Aboriginal rights for groupsoutside Canada is the same as the test for groups within Canada, and the trial judge did not err in finding that the test was satisfied here.

(1) The Van der Peet Test [51] The analysis under Van der Peet was restated by this Court in Lax Kw’alaams Indian Band v. Canada (AttorneyGeneral), 2011 SCC 56, [2011] 3 S.C.R. 535, at para. 46: (

a) Characterize the right claimed in light of the pleadings and evidence (Van der Peet, at para. 53; Gladstone, at para. 24;Mitchell at paras. 14-19).

(

b) Determine whether the claimant has proven that a relevant pre-contact practice, tradition or custom existed and was integralto the distinctive culture of the pre-contact society (Van der Peet, at para. 46; Mitchell, at para. 12; Sappier, at paras. 40-45). (

c) Determine whether the claimed modern right is “demonstrably connected to, and reasonably regarded as a continuation of,the pre-contact practice” (Lax Kw’alaams, at para. 46). [52] This analysis has been elaborated in detail in this Court’s jurisprudence. For present purposes, it will suffice tocomment on the role of continuity in the analysis. Continuity is about whether a modern practice is a continuation of a historic practice.It is different from the threshold question discussed earlier, about whether a modern group is a successor of a historic group.

It plays arole both at the second and the third stages of the Van der Peet analysis. [53] At the second stage of the Van der Peet analysis, continuity can play a role in proof. Showing that a practice isintegral to the claimant’s culture today, and that it has continuity with pre-contact times, can count as proof that the practice was integralto the claimant’s culture pre-contact (Van der Peet, at paras. 62-63; Gladstone, at para. 28; Delgamuukw, at para. 152; Tsilhqot’in Nationv. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257, at para. 45).

As Kent McNeil explains, “continuity of this sort has to be shownonly when Aboriginal peoples rely on post-sovereignty occupation or post-contact practices, customs, and traditions as evidence of theirpre-sovereignty occupation or pre-contact practices, customs, and traditions” (“Continuity of Aboriginal Rights”, in K.

Wilkins, ed.,Advancing Aboriginal Claims: Visions/Strategies/Directions (2004), 127, at p. 138). [54] At the third stage, the question is whether the modern practice which is claimed to be an exercise of an Aboriginalright is connected to, and reasonably seen as a continuation of, the pre-contact practice. At this stage, continuity with the pre-contactpractice is required in order for the claimed activity to fall within the scope of the right. It serves to avoid frozen rights, allowing thepractice to evolve into modern forms (Van der Peet, at para. 64; Mitchell, at para. 13).

The right claimed “must be allowed to evolve”,because “[i]f aboriginal rights are not permitted to evolve and take modern forms, then they will become utterly useless” (Sappier, atparas. 48-49). [55] I would emphasize that the assessment of continuity, both at the second and third stages, is a highly fact-specificexercise.

As McLachlin C.J. wrote in Mitchell, at para. 36, the weighing of evidence in Aboriginal claims “is generally the domain of thetrial judge, who is best situated to assess the evidence as it is presented, and is consequently accorded significant latitude in this regard”(see also Côté, at para. 59).

(2) The Attorney General of Canada’s Proposed Framework [56] The intervener Attorney General of Canada submits that the proper approach to determine under what circumstancesan Aboriginal claimant located outside Canada can claim rights under s. 35(1) is a contextual one. In particular, it would require non-resident rights claimants to find a connection with a contemporary Aboriginal collective residing in Canada, and to obtain recognitionand authorization by that collective to exercise the claimed s. 35(1) rights. The proposed test draws on R. v.

Powley, 2003 SCC 43,[2003] 2 S.C.R. 207, and on the jurisprudence on sheltering rights. As I will explain, I would not give effect to this proposal. [57] In Powley, the Court modified, though it did not overrule, the Van der Peet test to accommodate the particularsituation of the Métis (see paras. 14 and 18). It also offered some comments on how courts can determine membership in the Métiscommunity in the absence of formalized procedures (para. 29). Importantly, these comments were not about who is an “aboriginalpeopl[e] of Canada” under s. 35(1), but rather about how courts can identify Métis individuals.

The Court noted that “groups of Métishave often lacked political structures and have experienced shifts in their members’ self-identification” (para. 23), such that “determiningmembership in the Métis community might not be as simple as verifying membership in . . . an Indian band” (para. 29). The Court inPowley suggested that an individual who self-identified as Métis also needed to show a link to a historic Métis community andacceptance by a modern successor of that community.

This reflected the fact that not all people with both First Nations and Europeanancestry are Métis. [58] The idea of “sheltering” emerges from case law concerning “whether an Aboriginal person can lawfully ‘shelter’under a treaty he is not a signatory to” (R. v. Shipman, 2007 ONCA 338, 85 O.R. (3d) 585, at para. 2; R. v. Meshake, 2007 ONCA 337,85 O.R. (3d) 575, at paras. 1-2).

In these cases, the Ontario Court of Appeal held that Aboriginal people from other communities canexercise treaty rights only if they have the permission or consent of the community that is a signatory to the treaty (Shipman, at paras. 41-46), or as a result of marriage and acceptance in that community (Meshake, at paras. 31-33). As this makes clear, the idea of shelteringarises from the specific context of treaty rights. [59] The Attorney General of Canada proposes that we adapt the Powley and sheltering frameworks to govern thesituation of Aboriginal rights claimants outside Canada.

In my view, there is no need to do so in this case. I certainly accept thatAboriginal rights must be grounded in the existence of a historic and present-day community (Powley, at para. 24). As this Court wrote inMarshall, at para. 67, “[m]odern-day claimants must establish a connection with the pre-sovereignty group upon whose practices theyrely”. But this is so for Aboriginal groups inside or outside Canada.

It does not support an additional requirement, for groups outsideCanada, of recognition by a related Aboriginal collective residing in Canada. [60] This requirement would place a higher burden on Aboriginal communities who seek to claim rights if the groupmoved, was forced to move, or was divided by the creation of an international border between Canada and the United States. It wouldrisk defining Aboriginal rights “in a manner which excludes some of those the provision was intended to protect” (R. v. Adams, (SCC), [1996] 3 S.C.R. 101, at para. 27).

Moreover, it would raise myriad practical difficulties, such as which group withinCanada has a say in the recognition of a claimant located outside Canada, where there are competing groups (Hwlitsum First Nation v.Canada (Attorney General), 2018 BCCA 276, 15 B.C.L.R. (6th) 91), which body can represent a collective residing in Canada(Campbell v. British Columbia (Minister of Forests and Range), 2011 BCSC 448, [2011] 3 C.N.L.R. 151), and what happens if there is

no related modern collective residing in Canada. [ 61 ] For these reasons, the test for an Aboriginal right is the same whether the claimant is inside or outside Canada.

(3) Application [ 62 ] In the present case, the Aboriginal right claimed is a right to hunt for food, social and ceremonial purposes within the traditional territory of the Sinixt in British Columbia. The trial judge found, based on the evidence before her, that at the time of contact this practice was integral to the distinctive culture of the Sinixt. She also found that the modern-day practice of hunting in this territo

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