Sinixt hunter Richard Desautel at the Nelson courthouse in 2017. Photo: Bill Metcalfe

Sinixt hunter Richard Desautel at the Nelson courthouse in 2017. Photo: Bill Metcalfe

UPDATED: Canada’s top court agrees to hear B.C.’s appeal on aboriginal hunting rights

Decision could reverse the Sinixt people’s status as extinct in Canada

The Supreme Court of Canada has given the B.C. government the go-ahead to appeal an aboriginal hunting case that started in a Nelson, B.C., court almost three years ago.

Richard Desautel, a Sinixt man who lives in Washington State, was charged in B.C. with hunting without a licence and hunting without being a resident. He was acquitted in B.C. Provincial Court in Nelson in 2017.

The judge found that Desautel had an aboriginal right to hunt in the Sinixt traditional territory, which straddles the U.S.-Canada border, and that the B.C. hunting laws he was charged with are an infringement of that right.

The Sinixt were declared extinct in Canada in 1956. The 2017 decision potentially opened the door to Sinixt rights and status in Canada.

The provincial government appealed the case to the B.C. Supreme Court and lost.

The court decision stated that the Sinixt are legitimately aboriginal people under the Constitution of Canada.

The province appealed that decision to the B.C. Court of Appeal and lost again.

The province then applied to the Supreme Court of Canada for leave to appeal.

The date of the hearing has not been announced.

Mark Underhill, lawyer for the Sinixt, told the Star the province’s main argument is that because the Sinixt are American citizens they can’t hold rights in Canada.

If the court agrees, that will be the end of the matter, Underhill said.

But if the court sides with the Sinixt, their extinct status could be overturned. In fact, Underhill says it has already been overturned.

“The evidence is that this was their territory, that is a proven fact now,” he said, referring to the B.C. Court of Appeal decision currently under appeal. “The extinction declaration is done, it is history, from our point of view. So it disappointing to have the provincial government continue to fight this.”

Asked by the Star for the reason the province is pursuing the case, the provincial Attorney General’s office said it would not comment because the matter is before the courts.

MLAs Katrine Conroy and Michelle Mungall, in whose ridings much of the Sinixt traditional territory sits, were not available for comment.

On Thursday the B.C. legislature formally recognized the United Nations Declaration on the Rights of Indigenous People.

Underhill said there is considerable interest in this appeal from other First Nations groups whose territory crosses the international border in eastern Canada and in the Yukon. He said he expects some of them to intervene in the case.

The date of the Supreme Court of Canada hearing has not been announced.

Related:

• Sinixt hunter acquitted in Nelson court

• U.S. hunter defends Sinixt rights in Nelson court

• Province loses Sinixt hunting appeal

• B.C. appeals Sinixt hunting case again

• B.C.’s top court upholds Sinixt rights in elk-hunting case

• Canada’s top court asked to hear appeal of Sinixt man’s hunting rights

• B.C. to be first to implement UN Indigenous rights declaration

This story was updated on Oct. 25 to include all of the material following the first mention of lawyer Mark Underhill.



bill.metcalfe@nelsonstar.com

Like us on Facebook and follow us on Twitter

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

The trustees of the Spences Bridge Improvement District argue that one reason the EV charging station (l) should be moved is because it could compromise emergency response from the nearby fire hall. (Photo credit: Barbara Roden)
Time is running out for Spences Bridge EV charging station

Lease for the site runs out at the end of January and no new agreement has been reached

Areas in blue show properties in Cache Creek zoned C1, which the village’s Cannabis Regulatory Framework proposes as properties where retail cannabis stores could be sited. The area outlined with a dotted orange line shows a 200 metre buffer zone around Cache Creek Elementary School, within which no retail cannabis establishments could operate. (Photo credit: Village of Cache Creek)
Cache Creek council gets more input on cannabis regulations

Council considers options to regulate retail cannabis sales and production within the village

(from l) Gordon and Lee Berdan in front of the framed ensign from HMCS Sudbury which they recently presented to the Ashcroft Legion. (Photo credit: Barbara Roden)
Ashcroft Legion continues helping community in tough times

Branch now also displays a recently donated artifact from WW II corvette HMCS Sudbury

Odours emanating from the former Wander Inn restaurant in Cache Creek, which now houses a cannabis grow op, has spurred a petition asking for more regulations around the production of cannabis for personal medical use. (Photo credit: <em>Journa</em>l files)
Cache Creek council supports petition seeking cannabis regulation

Petition asks for reform to licensing, oversight of production of cannabis for personal medical use

Maj.-Gen. Dany Fortin, vice-president of logistics and operations at the Public Health Agency of Canada, speaks at a news conference on the COVID-19 pandemic in Ottawa, on Friday, Jan. 15, 2021. THE CANADIAN PRESS/Justin Tang
B.C. records 500 new COVID-19 cases Wednesday, 14 deaths

Outbreak at Surrey Pretrial jail, two more in health care

Vancouver Canucks’ Travis Hamonic grabs Montreal Canadiens’ Josh Anderson by the face during first period NHL action in Vancouver, Wednesday, Jan. 20, 2021. THE CANADIAN PRESS/Jonathan Hayward
Horvat scores winner as Canucks dump Habs 6-5 in shootout thriller

Vancouver and Montreal clash again Thursday night

Interior Health has declared the Cariboo Chilcotin a community cluster. (Angie Mindus photo)
Interior Health declares Cariboo Chilcotin region a COVID-19 cluster, 215 cases since Jan. 1

Most cases are related to transmission at social events and gatherings in Williams Lake

A woman writes a message on a memorial mural wall by street artist James “Smokey Devil” Hardy during a memorial to remember victims of illicit drug overdose deaths on International Overdose Awareness Day, in the Downtown Eastside of Vancouver, on Monday, August 31, 2020. THE CANADIAN PRESS/Darryl Dyck
B.C. paramedics respond to record-breaking number of overdose calls in 2020

On the front lines, COVID-19 has not only led to more calls, but increased the complexity

Vernon's Noric House long-term care facility is dealing with an influenza outbreak amid the COVID-19 pandemic. (File photo)
Two more deaths at Vernon care home

Noric House case numbers remain steady, but death toll rises

Eighteen-year-old Aidan Webber died in a marine accident in 2019. He was a Canadian Junior BMX champion from Nanaimo. (Submitted)
Inadequate safety training a factor in teen BMX star’s workplace death in 2019

Aidan Webber was crushed by a barge at a fish farm near Port Hardy

Southern resident killer whales in B.C. waters. Research shows the population’s females are more negatively influenced by vessel traffic than males. (Photo supplied by Ocean Wise Conservation Association)
Female orcas less likely to feed in presence of vessel traffic: study

Research the southern resident population raises concerns over reproduction capacity

(Black Press Media files)
Transport Canada not budging on enclosed deck rules, despite calls from BC Ferries union

There have been at least 23 cases of the U.K. variant detected in Canada, four of which are in B.C.

The Elk Valley Hospital is adapting to meet the needs of patients in the Elk Valley.
1-in-5 COVID tests coming back positive in and around Fernie, sparking concern

Dr Ron Clark of Elk Valley Hospital said one in five tests was returning positive for COVID-19

Most Read