Supreme Court of Canada ruling could reset Sinixt presence in West Kootenay

Two weeks after the Supreme Court of Canada ruled in favour of Sinixt hunting rights, the head of the American tribe that launched the case is still excited.

“I think my feet have finally hit the ground,” said Rodney Cawston, chairman of the Confederated Tribes of the Colville Reservation. “This is really exciting for us – it was really exciting for our people. It was an amazing day Friday when we received the decision.”

But while Cawston’s phone has been ringing with messages of congratulations, he still hasn’t heard from any official level of the Canadian government since the ruling. Politicians and the legal experts are still trying to come to terms with the implications of the decision

“Nothing like normal communication or anything yet, but it’s still very soon,” he told the Valley Voice. “So if they don’t talk to us, we’ll reach out to them.”

He said the Colville Confederacy had some meetings with government while the Desautel case moved up the courts, “but not at the level we’ve needed to… with the appeals, there was too much unknown,” he said. “Now with the Supreme Court ruling, it will have to go forward.”

“There is a very steep learning curve here. I think until we start working with the different ministries, we don’t know what we are going to encounter,” he says. “This is all very new.”

Supreme Court ruling

Richard Lee Desautel was charged in 2011 after he came to Canada from his home in Washington State with the express purpose of challenging the province’s hunting laws. He shot an elk in the Slocan Valley, and then called conservation officers to turn himself in.

That began a decade-long grind through the courts to recognize his right to hunt as an Aboriginal person in his nation’s traditional territory.

On April 23, the top court’s judges ruled Desautel was exercising his constitutionally protected Aboriginal hunting rights – even though he didn’t live in Canada. The decision backed up the ruling by the first trial judge, who threw the initial case out on constitutional grounds.

“Because the doctrine of Aboriginal rights arises from the simple fact of prior occupation, the Aboriginal peoples of Canada under section 35 (1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are now outside Canada,” said the majority ruling.

“The trial judge also found that the modern-day practice of hunting in this territory, as [Desautel] did, is a continuation of this pre-contact practice,” they continued. “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, [Desautel] was exercising an Aboriginal right protected by [Section 35 (1) of the Canadian Constitution].”

But the ruling wasn’t unanimous, with some judges ruling the Colville Confederated Tribes’ base in the US precludes them having rights in Canada.

“The constitutional protection of Aboriginal rights contained in section 35 (1) of the Constitution Act 1982 does not extend to an Aboriginal group located outside of Canada,” said Suzanne Cote in the minority opinion. “And even if it did, [Desautel] 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, [Desautel’s] claim must fail and he should not be exempt from the Wildlife Act provisions under which he was charged.”

Reaction cautious

Besides initial reactions, not much has been said by officials since the ruling. BC’s Indigenous Affairs Minister Murray Rankin was cautious in his first comments. While he called the ruling a “strong decision,” he told CBC “…the court was very careful to say that it applied only to the facts of that [Indigenous hunting rights] case, and was very reluctant to speculate about what it means in other contexts."

He said his government would be sitting down with the Sinixt and Okanagan Nation Alliance, an intervenor in the case, to discuss next steps.

And a Kootenay political anthropologist and scholar said the decision may not change the ultimate status of Sinixt rights to the land.

“Sinixt still have no First Nation government recognized by Canada and are still precluded from entering into government-to-government relationships with BC and Canada,” says Lori Barkley. “This also means there is no mechanism to participate in the contemporary land claims process, despite their filing a land claim decades ago and creating contention in Sinixt traditional territory.

“In sum, [the ruling] affirmed Sinixt Aboriginal rights of Sinixt living on the Colville Reservation in the US to use the land, but did not recognize Sinixt rights to the land itself, nor to be consulted on what happens to it regardless of which side of the border they live.”

And local Sinixt also pointed out the ruling does not help their legal status.

“We take note that the Supreme Court of Canada affirms our ongoing connection to the land of our ancestors,” stated Sinixt Smum iem Matriarch Marilyn James. “However, it is one thing to acknowledge our hunting rights in our tum xula7xw (homeland), and another to accord us our unceded rights to our land.”

The Desautel case only deals with Sinixt from the Colville Confederacy of Tribes as non-residents of BC to use the land without hunting or other licenses, James said, something the Autonomous Sinixt in BC had already established prior to this case.

“The Colville Confederated Tribes of the US, who initiated the Desautel hunting case, have repeatedly stated that this case will automatically reverse Sinixt ‘extinction.’ Unfortunately, this is simply not the case,” she added.

Expectations of change

While intervenors and legal observers differ on the implications of the Desautel case to wider Sinixt rights, Cawston says his government eventually expects to have the right to weigh in on issues like resource management, environmental protection, and the establishment of reserve lands for the Sinixt.

“Thinking about dual citizenship, Aboriginal land claims – those are all things we want to work on in the future,” he says. “At the same time we know there are many issues that have taken place, the protection of natural resources or archaeological or cultural sites, ancestral graves sites… things we want to begin working on as soon as possible.”

But he cautions that there’s a long way to go before they get to that stage. The CCT wants to start off on the right foot, simply holding a celebration of the legal victory in Canada once the pandemic fades. He says the tribal council wants to reach out and build relations with the region’s First Nations communities, including ones who also claim rights to the Sinixt traditional lands.

“We want to reach out to the other First Nation reserves in Canada, because we know we’re not the only Sinixt – there were others enrolled in Canada,” he says. “We want to reach out to them and come together, and work with other reserves as well because we want to have a strong confederacy of our Sinixt people, both from the US and Canada. So that’s one of the first things we think about.”

There’s years of work ahead for both sides, Cawston says. But he sees the CCT eventually having a cooperative and productive presence in the West Kootenay.

“I would expect so… and if there is anything that impacts natural resources or the interests of the tribe, that we do receive notice as early on as possible, to allow for us to comment before anything is moved forward,” he says. “Really looking at a government-to-government relationship.

“We’re doing as much as we can to be a good neighbour… but we have a long way to go. We don’t want to come up as a negative force. We want to be viewed in a way we can be helpful to each other, in protecting the environment, doing what we can to improve water quality, habitat, anything we can do together.”

Cawston can even see the day when the CCT has a government office in the West Kootenay.

“That is a dream of mine and many of us… we want to work towards establishing government offices in Canada… now that our people have the opportunity to go back and forth. It opens up opportunity for many of our people for creating reserve land, if possible, if we can explore that, and some of our people can move back to traditional areas we came from.”

Working it out

It may take years to work out just how – or even if -- the US-based Sinixt can have a legal and political presence on their traditional lands in Canada.

The Supreme Court offered no guidance on that matter. While outlining the requirement for government to establish a new relationship with a non-resident Aboriginal group, it would only say: “It is for the parties themselves to decide how they wish to proceed.”