Thomas D'Arcy McGee
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Rick Desautel, in a photo taken outside Nelson Courthouse, can continue to hunt in Canada after the BC Appeal Court ruled in his favour. — Photo courtesy Tina Wynecoop
BC Appeal Court rules in favour of Lakes Tribe man in elk-hunting case
ht tps://castlegarsource.com/news/bc-appeal-court-rules-favour-lakes-tribe-man-elk-hunting-case
The BC Court of Appeal has ruled in favour of a Washington State man, and his First Nations, the Sinixt, right to hunt in Canada, viewed at its ancestry territory.
The ruling, handed down Thursday, ruled in favour of 68-year-old Rick Desautel of the Lakes Tribe of the Colville Confederated Tribes (the “CCT”) and lives on the Colville Indian Reserve in Washington State.
“Appeal dismissed,” said the decision by Justice Daphne Smith on the BC Court of Appeal website. “Mr.#Desautel was not foreclosed from claiming an Aboriginal right to hunt in British Columbia even though he is not a citizen or resident of Canada.”
In 2010,#Desautel challenged the right to hunt in his territory by traveling across the Canada/US border into to B.C. to shoot an elk near Castlegar.
He then alerted B.C. Conservation officers of his actions before being charged under the Wildlife Act with hunting without a licence and being a non-resident.#
Desautel described his Lakes Tribe in court in 2017 as a “successor group” to the Sinixt people, who lived, hunted and gathered in B.C.’s Kootenay region prior to first contact with European settlers.
In a case heard in Nelson, the B.C. Supreme Court confirmed this right. The crown appealed the decision and Thursday, the BC Appeal Court upheld the ruling.
“Applying the Van der Peet test, the concept of continuity described therein addresses the necessary connection between the historic collective and the modern-day community,” the ruling said.
“Therefore, claimants who are resident or citizens of the United States can be “Aboriginal peoples of Canada” where they can establish the requirements set out in Van der Peet.”
“Mr.#Desautel did so as the trial judge found: (i)#Mr.#Desautel was a member of a modern-day community, the Lakes Tribe, who were descended from the Sinixt, (ii) and who had continued to the present day the practice of hunting in their traditional territory where Mr.#Desautel had hunted the elk.
“Therefore, there had been no breach of the continuity requirement in Van der Peet. An incidental mobility right does not arise in the circumstances of this appeal.”
There are believed to be about 3,000 people of Sinixt ancestry living in the U.S. with a small number in southeast BC.
The Sinixt maintain its traditional territory stretches from around Kettle Falls, Wash.#to Revelstoke.
FULL COURT DECISION: ht tps://www.courts.gov.bc.ca/jdb-txt/ca/19/01/2019BCCA0151.htm
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