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December 25, 2020
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Aboriginal rights across border to be considered by court
by Derwin Gowan

 

     A legal case concerning a man who shot an elk 10 years ago on the west coast could affect Peskotomuhkati rights in Canada. The Supreme Court of Canada reserved judgment after hearing an appeal in Ottawa on October 8 against the acquittal of Richard Lee Desautel, a resident of Colville Indian Reserve in Washington but of Sinixt descent from the Arrow Lakes region of British Columbia.
     Desautel admitted to purposely shooting the elk to obtain meat for ceremonial purposes in 2010 to get arrested and charged under British Columbia's Wildlife Act to test whether descendants of the Arrow Lakes Band -- declared extinct under the federal Indian Act in 1956 -- still had aboriginal rights in their traditional territory in Canada even if they lived full-time in the United States and were, in fact, American citizens.
     The trial judge acquitted Desautel, accepting that he had an aboriginal right to hunt for ceremonial purposes under section 35 of Canada's Constitution Act of 1982. Two provincial appeal courts upheld the decision, so the attorney general of British Columbia took it to the Supreme Court of Canada.
     Both the attorney general of New Brunswick and the Peskotomuhkati Nation at Skutik Passamaquoddy Recognition Group intervened in the Supreme Court proceedings but took sharply different stances.
     Rachelle Standing, representing New Brunswick's attorney general, contended that allowing people from across an international border to exercise aboriginal rights in Canada was not compatible with national sovereignty. She further urged the court to limit the scope of any decision concerning the west coast, given the different history between the Crown and aboriginal peoples in today's Maritime provinces.
     "The control of people and goods across the border is a fundamental attribute of sovereignty," Standing contended, citing a Supreme Court of Canada decision on this point. "It is New Brunswick's position that the international mobility integral for the meaningful exercise of the respondent's [Desautel's] claim to aboriginal rights is incompatible with sovereignty and, thus, is not a section 35 right," she argued, referring to the section of the Constitution Act of 1982 that affirms "the existing aboriginal and treaty rights of the aboriginal peoples of Canada."
     Interactions between the Crown and aboriginal peoples in Atlantic Canada go back 300 years earlier than with the Sinixt, she contended. British explorer David Thompson made contact with the Sinixt in 1811. "We would ask this court that the interpretation and the history and the application of aboriginal and treaty rights in the province of New Brunswick necessitate a cautious approach, in this case, that limits the relevance of this case to the Maritime provinces," Standing said.
     Paul Williams of Ontario, lead negotiator seeking official recognition for the Peskotomuhkati in Canada, was having none of it. The Peskotomuhkati are one nation whether they live in today's Maine or New Brunswick and should not have to prove it every time they cross "a line that Britain and the United States drew one rainy day in Paris 250 years ago," he contended in his allotted five minutes to address the court.
     He and other interveners said the court must decide what the words "aboriginal peoples of Canada" mean in section 35 of the Constitution Act of 1982. "Either those words acknowledge the timeless connection between an Indigenous people and its land in Canada, or the word 'of' is a possessive term, a word of control that enables the Crown's governments to distinguish between our Indians and somebody else's Indians," he said.
     He argued that the government of Canada, as successor to the British colonial regime, must maintain "the honor of the Crown" by interpreting treaties as far back as 1725 in a liberal fashion -- a different doctrine than in the United States, which broke with the Crown in a revolution. Since the Constitution Act of 1982, Canadian courts have ruled that these old treaties still have force of law.
     Standing and Williams both spoke against the backdrop of negotiations towards recognizing the Peskotomuhkati as a First Nation in Canada under the federal Indian Act, treaties signed in the 18th century and with unextinguished aboriginal rights and title -- three different concepts.
     The Peskotomuhkati have rights under treaty 50 years older than the United States, along with aboriginal rights and title, not quite the same as a case based purely on aboriginal rights and title, Williams wrote in an e-mail but, he wrote, "Of course, the Desautel case affects what we're doing."
     Many Peskotomuhkati "yearn to come home" to the Canadian side of the Skutik or Schoodic -- St. Croix -- river "for, historically, it was New Brunswick and Canada that made their families refugees and drove them away," Williams told the Supreme Court. Desautel's counsel contended that the Arrow Lakes Band, which included Sinixt, too, was made to feel unwelcome in Canada through actions including prosecution for hunting.
     The federal government declared the Peskotomuhkati extinct in Canada, too, but formal negotiations between Canada, New Brunswick and the Peskotomuhkati Nation at Skutik began formally in 2018. The parties negotiated an interim agreement to allow for the harvest of moose and deer in 2020, and there are other negotiations concerning fisheries.
     Williams acknowledges in his e-mail that the negotiations include resources but says little more. "And while your questions about who gets access to resources, and who manages that access, are entirely legitimate questions, I can say we are working on the issues but can't talk about the answers yet," he writes.
     Williams told the Supreme Court that he respects Canada's need for secure borders, but he calls the Peskotomuhkati a single nation with rights on both sides of a line through their traditional territory. The Desautel case allows the nine justices of the Supreme Court to provide guidance on dealing with this conflict. The court gave no indication on when it will render its decision, but Williams expects it about April.

 

 

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