pete dobinson
CGN frequent flyer
- Location
- Courtenay BC.
It doesn't surprise me, I wonder if the judge had tears in his eye's and gave him a hug.
B.C. court rules American Indigenous man has right to hunt in Canada
- Thread starter Thomas D'Arcy McGee
- Start date
Has been out of hand for a very long time.
So if the Supreme Court of Canada rules against this individual............then what?
Duzz'ee git 10.5 milly-yunzs?
Wow.... must be nice for that guy.
I'm Metis with a long family tree, my father descends from a chief that signed treaty 6 ...... and i gotta jump thru hoops for a stupid harvesters card and with that i can only hunt ducks and geese anytime i want....... but if i shot a elk, moose, deer, bear..... took a salmon out of season or on a closed river...... hunted my people traditional food the buffalo/bison without a tag...... I'd be hung to dry ;ike the rest of ya and being Metis with proof of heritage means jack sh*t. So in this case as far as I'm concerned..... indigenous or not, if you don't have a treaty with the crown..... you should have no more rights than I do and I gotta pay to play and abide by seasons and ### just like every other canadian. Just makes a guy shrug his shoulders and go WTF are they thinking. Just creates more divisiveness amongst us.
I'm Metis with a long family tree, my father descends from a chief that signed treaty 6 ...... and i gotta jump thru hoops for a stupid harvesters card and with that i can only hunt ducks and geese anytime i want....... but if i shot a elk, moose, deer, bear..... took a salmon out of season or on a closed river...... hunted my people traditional food the buffalo/bison without a tag...... I'd be hung to dry ;ike the rest of ya and being Metis with proof of heritage means jack sh*t. So in this case as far as I'm concerned..... indigenous or not, if you don't have a treaty with the crown..... you should have no more rights than I do and I gotta pay to play and abide by seasons and ### just like every other canadian. Just makes a guy shrug his shoulders and go WTF are they thinking. Just creates more divisiveness amongst us.
incorrect. I am an "Indian" but because I am BC metis I am not recognized under the indian act even though the supreme court ruled Metis are in fact Indian LOL BUT if the language in ottowa was changed to reflect that in the indian act offically canada wide..... By constitutional law, BC could no longer deny my indigenous rights to the land and they would be the same as first nations but dependent on territory. So I would have to hunt in alberta, treaty 6 lands.
CreamySmooth
CGN frequent flyer
Where are our First Nations protesting this??
Why would they want natives from the States coming here when you damn well know the U.S. won’t allow our FN to hunt there. And it’s our FN that should be worried about having competition and a further dwindling resource.... as well as further stigma and examination by the public for already poor resource management.
Why would they want natives from the States coming here when you damn well know the U.S. won’t allow our FN to hunt there. And it’s our FN that should be worried about having competition and a further dwindling resource.... as well as further stigma and examination by the public for already poor resource management.
Thomas D'Arcy McGee
CGN Ultra frequent flyer
It is interesting to note that in 1956 the Arrow Lake Band was declared extinct by the Federal Government of Canada and the Oatscott reserve reverted to the Crown. Under the Indian Act, without a Band a person cannot be granted an Indian Status card. Therefore, under Canadian law Desautel is not an Indian and is not covered under section 35 of the Constitution Act, 1982.
Here is the Court decision for R. v. Desautel, 2017 BCSC 2389 with Justice Sewell stating at paragraphs 80 to 83, 85 to 90 and 124:
[80] In Van der Peet, there was no dispute that the persons asserting the right in question were aboriginal peoples of Canada. The question before the Court was whether the right in question was an aboriginal right entitled to the protection of s. 35. Van der Peet therefore addresses the nature of aboriginal rights protected by s. 35 rather than the identity of the persons asserting the right. However, it is of some value to re-state briefly the requirements of the Van der Peet test to provide context to the issue before me.
[81] To establish an aboriginal right to a practice, custom or tradition, the claimant must establish that the practice, custom or tradition in question was a defining feature of the culture of the group to which he or she belongs (para. 59).
[82] In considering this question, the relevant time period is the period prior to contact between aboriginal and European societies (para. 60).
[83] The reasons for this are explained in para. 61:
61. The fact that the doctrine of aboriginal rights functions to reconcile the existence of pre-existing aboriginal societies with the sovereignty of the Crown does not alter this position. Although it is the sovereignty of the Crown that the pre-existing aboriginal societies are being reconciled with, it is to those pre-existing societies that the court must look in defining aboriginal rights. It is not the fact that aboriginal societies existed prior to Crown sovereignty that is relevant; it is the fact that they existed prior to the arrival of Europeans in North America. As such, the relevant time period is the period prior to the arrival of Europeans, not the period prior to the assertion of sovereignty by the Crown. [Emphasis in original.]
[85] In this case, the Boundary Treaty of 1846 split the traditional territory of the Sinixt people into two pieces. By far the larger piece was north of the 49th parallel, in what was eventually to become Canada. A smaller portion became part of the United States. Despite this, the trial judge made unchallenged findings that hunting in the traditional territory that is now in Canada was carried on in pre-contact times, was integral to the Sinixt aboriginal culture and that there has been no breach of continuity in the practice.
[86] As a result of the actions of non-aboriginal authorities, the Sinixt people who make up the Lakes Tribe can only continue to exercise that activity by crossing an international boundary, but subject to the Crown’s sovereign immunity argument, I do not see how that necessity brings them outside of the protection of s. 35.
[87] I therefore conclude that the fact that the Sinixt people in issue in this case are now resident in the United States does not preclude them from being considered to be an aboriginal people of Canada.
[88] I find that recognizing that the Sinixt are aboriginal people of Canada under s. 35 is entirely consistent with the objective of reconciliation established in the jurisprudence. In my view, it would be inconsistent with that objective to deny a right to a group that occupied the land in question in pre-contact times and continued to actively use the territory for some years after the imposition of the international boundary on them.
[89] I conclude that the term aboriginal peoples of Canada as used in s. 35 means those peoples who occupied a part of what became Canada prior to first contact, and the rights referred to are those that are established in accordance with the Van der Peet test and sought to be exercised in Canada.
[90] I find that the trial judge made no error in applying the Van der Peet test to determine the issue before her because the Sinixt, of whom Mr. Desautel is a member are an aboriginal people of Canada. Her findings of fact confirm the deep connection between the Sinixt and their traditional territory in Canada. The right asserted is based entirely on the use and practices carried out by the Sinixt prior to first contact on lands that are now incorporated into Canada, and the continuity of the Lakes Tribe’s practices with those of their ancestors.
Disposition
[124] Accordingly, the appeal is dismissed except to the extent that the trial judge relied on s. 24(1) of the Charter. There will therefore be a finding that ss. 11(1) and 47(a) of the Wildlife Act do not apply to Mr. Desautel in this case.
Here is the Court decision for R. v. Desautel, 2017 BCSC 2389 with Justice Sewell stating at paragraphs 80 to 83, 85 to 90 and 124:
[80] In Van der Peet, there was no dispute that the persons asserting the right in question were aboriginal peoples of Canada. The question before the Court was whether the right in question was an aboriginal right entitled to the protection of s. 35. Van der Peet therefore addresses the nature of aboriginal rights protected by s. 35 rather than the identity of the persons asserting the right. However, it is of some value to re-state briefly the requirements of the Van der Peet test to provide context to the issue before me.
[81] To establish an aboriginal right to a practice, custom or tradition, the claimant must establish that the practice, custom or tradition in question was a defining feature of the culture of the group to which he or she belongs (para. 59).
[82] In considering this question, the relevant time period is the period prior to contact between aboriginal and European societies (para. 60).
[83] The reasons for this are explained in para. 61:
61. The fact that the doctrine of aboriginal rights functions to reconcile the existence of pre-existing aboriginal societies with the sovereignty of the Crown does not alter this position. Although it is the sovereignty of the Crown that the pre-existing aboriginal societies are being reconciled with, it is to those pre-existing societies that the court must look in defining aboriginal rights. It is not the fact that aboriginal societies existed prior to Crown sovereignty that is relevant; it is the fact that they existed prior to the arrival of Europeans in North America. As such, the relevant time period is the period prior to the arrival of Europeans, not the period prior to the assertion of sovereignty by the Crown. [Emphasis in original.]
[85] In this case, the Boundary Treaty of 1846 split the traditional territory of the Sinixt people into two pieces. By far the larger piece was north of the 49th parallel, in what was eventually to become Canada. A smaller portion became part of the United States. Despite this, the trial judge made unchallenged findings that hunting in the traditional territory that is now in Canada was carried on in pre-contact times, was integral to the Sinixt aboriginal culture and that there has been no breach of continuity in the practice.
[86] As a result of the actions of non-aboriginal authorities, the Sinixt people who make up the Lakes Tribe can only continue to exercise that activity by crossing an international boundary, but subject to the Crown’s sovereign immunity argument, I do not see how that necessity brings them outside of the protection of s. 35.
[87] I therefore conclude that the fact that the Sinixt people in issue in this case are now resident in the United States does not preclude them from being considered to be an aboriginal people of Canada.
[88] I find that recognizing that the Sinixt are aboriginal people of Canada under s. 35 is entirely consistent with the objective of reconciliation established in the jurisprudence. In my view, it would be inconsistent with that objective to deny a right to a group that occupied the land in question in pre-contact times and continued to actively use the territory for some years after the imposition of the international boundary on them.
[89] I conclude that the term aboriginal peoples of Canada as used in s. 35 means those peoples who occupied a part of what became Canada prior to first contact, and the rights referred to are those that are established in accordance with the Van der Peet test and sought to be exercised in Canada.
[90] I find that the trial judge made no error in applying the Van der Peet test to determine the issue before her because the Sinixt, of whom Mr. Desautel is a member are an aboriginal people of Canada. Her findings of fact confirm the deep connection between the Sinixt and their traditional territory in Canada. The right asserted is based entirely on the use and practices carried out by the Sinixt prior to first contact on lands that are now incorporated into Canada, and the continuity of the Lakes Tribe’s practices with those of their ancestors.
Disposition
[124] Accordingly, the appeal is dismissed except to the extent that the trial judge relied on s. 24(1) of the Charter. There will therefore be a finding that ss. 11(1) and 47(a) of the Wildlife Act do not apply to Mr. Desautel in this case.
Last edited:
Sakoman .308
CGN Ultra frequent flyer
- Location
- Nova Scotia
Good for him, I wonder if he used a longbow.
Section 35 says aboriginal rights and aboriginal people, not Indian rights. It does say "In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Métis peoples of Canada.", the term 'includes' does not restrict it to just those 3 classes of aboriginal peoples, at least that's my read of it.
I don't see this one going to the Supreme Court, the province will probably just take its lumps and live with it.
- Location
- Republic of Alberta
Yeah with an arrow moving at 3000fps.
Thomas D'Arcy McGee
CGN Ultra frequent flyer
In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada pursuant to subsection 35(2) of the Constitution Act.
Indian means a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian pursuant to subsection 2(1) of the Indian Act.
In the case of Desautel he is neither a registered Indian nor is he entitled to be a registered Indian pursuant to subsection 2(1) of the Indian Act. Desautel is a non-resident with no special status in Canada, nothing more!
The Court decision is bogus and the Crown should seek to appeal to the SCC!
Cordially,
TDM
Captmidnite
New member
- Location
- Kelowna BC
What if we all just "self identify" as native, much like all that self identify as one of the 15 transgender identities that are currently recognized. Then we all pay no tax and hunt wherever!
Jack Robinson
CGN Regular
- Location
- Alberta / Mazatlan
Just another example of "native privilege". the tail is wagging the dog in this country.
I'm a card carrying Status Indian and I pay lots of taxes and can't hunt wherever I want.
I get some tax relief on gas bought on the rez and the provincial portion of the HST, but I pay the rest of the taxes (income, property, school, gas taxes for gas bought off the rez...) as everyone else. I also have to hunt within my peoples traditional and treaty territory unless I get a letter from another band to shelter under their rights.
shackleford
CGN Regular
- Location
- S. Ontario
