Top court to decide today whether First Nation declared ‘extinct’ still exists in Canada

Top court to decide today whether First Nation declared 'extinct' still exists in Canada

Canada’s highest court will issue a ruling today that could reverse the federal government’s 65-year-old claim that an Indigenous nation from British Columbia’s interior no longer exists.

The Supreme Court of Canada ruling will determine whether the Sinixt, whose reservation is in Washington State, have an Indigenous right to hunt in their ancestral territory north of the border.

The case began in 2010 when Sinixt leaders sent one of their members, Richard Desautel, to shoot and kill an elk in their traditional territory of the Arrow Lakes region in southeastern British Columbia to reclaim their identity in Canada. 

Desautel phoned the B.C. Conservation Officer Service after his successful hunt to report himself, and was charged.

Desautel argued his right to hunt for ceremonial purposes in the traditional territory of the Sinixt is protected by Section 35(1) of the Constitution, which recognizes and affirms the rights of Indigenous Peoples.

But the Crown maintained Desautel didn’t have rights protected by the Constitution because he wasn’t part of any recognized Indigenous group in Canada.

Desautel won at every level of the B.C. court system — laying the groundwork for the Sinixt to be formally recognized again as an Indigenous people by the Supreme Court.

The Sinixt are part of the Salish people who primarily occupied territory in the B.C. interior and northwestern United States.

“A favourable ruling … will be quite a historic moment for the Sinixts,” said Mark Underhill, counsel for Desautel and a partner at Arvay Finlay LLP in Vancouver.

Richard Desautel was charged with breaking British Columbia’s Wildlife Act after he shot and killed a cow elk near Castlegar in 2010. (Getty Images)

Hunting is how the Sinixt people practise their culture and their very identity is bound up with their territory, which stretches from West Kootenay to Nelson and all the way up to Revelstoke, B.C, said Underhill.

Not being able to use their traditional lands has taken a tremendous toll on multiple generations of Sinixt people, he said. 

“You always have that tie back to the land, no matter where you are,” Underhill said.

“To have it illegal to be able to practice your culture, it just really impacted those people.”

An important case on both sides of the border

A favourable ruling could have broad implications for other Indigenous groups with ties to Canada. Underhill said those groups would have to show they maintained a continuous presence in Canada for thousands of years. 

“That will open the door for them hopefully to have their rights recognized in Canada,” he said. 

The trial judge held that the Sinixt engaged in hunting, fishing and gathering in their traditional territory in the Arrow Lakes area before and after first contact in 1811.

The trial judge said Desautel was exercising his traditional right to hunt for ceremonial purposes guaranteed under the Constitution, and the application of the Wildlife Act unjustifiably infringed on that right.

Desautel was acquitted.

The Supreme Court of British Columbia also dismissed a summary conviction appeal, as did the B.C. Court of Appeal. The B.C. government appealed to the Supreme Court of Canada on the grounds that it’s a case of national significance.  

The Sinixt say they lived in the north-south valley stretching from present-day Kettle Falls, Wash., to Revelstoke, B.C. well into the 1700s. Eighty per cent of their pre-contact traditional territory is in Canada. 

Smallpox and the arrival of missionaries, miners and settlers pushed the Sinixt out of the West Kootenay region of B.C. and off their territory. Some moved south to the U.S., taking up residence on the Colville Confederated Tribes Reservation in the late 1800s.

In 1902, the federal government set aside a reserve for the Arrow Lakes Band, which included a few Sinixt members who remained in their traditional territory in Canada.

In 1956, the last living member of the Arrows Lakes Band died and the federal government declared the Sinixt “extinct” and without the rights of a First Nation in Canada.

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