A fundamental characteristic of any sovereign nation-state is that its government has the sole right and ability to make laws regulating activity within its national borders, including who can be legal members of that state. Yet this essential power was taken away from Canada’s federal government by the Supreme Court of Canada in its recent decision of R. v. Desautel. Canadians – and in particular Canada’s Indigenous people – should brace themselves for the unintended consequences about to be unleashed by this disastrous, if little-noticed, ruling.
In October 2010 Richard Desautel, an American citizen and resident of Washington state, travelled to British Columbia to shoot a cow elk without a licence, intentionally violating B.C.’s Wildlife Act. Once this task was complete, he then phoned the local authorities to inform them of what he had done, and was charged accordingly. His goal was to test the claim that as a member of the Lakes IndianTribe of Colville, Washington he possesses the right to hunt in this country as per section 35(1) of Canada’s Constitution, which recognizes pre-existing Aboriginal rights and treaties.
The Sinixt people traditionally used territory stretching across what is now southwestern B.C and northern Washington state. By the end of the 19th century, however, this group had voluntarily and almost entirely moved to the Colville reserve in Washington, a decision that proved permanent. In 1902 only 21 Sinixt still lived on any part of their traditional territory in Canada, at the Arrow Lakes Band reserve. By 1930 only one person remained on the band rolls, and after her death in 1956 the federal government declared the Arrow Lakes Band extinct. The reserve then reverted to the B.C. Crown.
Notwithstanding this well-documented historical record and his status as a foreigner, the Court turned centuries of legal logic on its head and accepted Desautel’s claim that he belongs to a “successor group” to Canada’s Sinixt. As a result of this April 2021 ruling, people who do not reside in Canada, are not Canadian citizens or landed immigrants, and otherwise have no loyalty or connection to Canada or any Canadian Aboriginal group, can now exercise Canadianrights.
“On a purposive interpretation of section 35(1) the expression ‘aboriginal peoples of Canada’ means the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of contact, and this may include Aboriginal groups that are now outside Canada,” reads the 7-2 majority decision, authored by Mister Justice Malcolm Rowe. Further, this “includes Aboriginal peoples who were here when the Europeans arrived and later moved or were forced to move elsewhere or on whom international boundaries were imposed.” Including the descendants of these people in the definition of the Aboriginal peoples of Canada, the Court said, “reflects the purpose of reconciliation.”
Laying the Groundwork
This disturbing and seemingly bizarre ruling did not appear from nowhere. Rather, it arises from a series of equally problematic decisions dating back almost two decades. In 2004’s Haida Nation v. British Columbia, for example, the Supreme Court denigrated and diminished the sovereign powers of Canada’s federal and provincial governments to make laws regulating the economy by elevating the status and authority of First Nations. The Court ruled that, regardless of federal or provincial law, nearby First Nations had to be consulted and, if necessary, accommodated as a condition of any proposed resource project on Crown or even private property.
“The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the principle of the honour of the Crown, which must be understood generously,” the ruling reads. If the court didn’t make up the “principle” of honour of the Crown on the spot, it certain stretched out of all recognition a modest but undefined old common-law principle that is nowhere mentioned in Canada’s Constitution. By judicial fiat, the Court had in effect amended the Constitution to make First Nations a third fount of constitutional sovereignty, alongside the federal and provincial governments. This in turn has given them a de facto veto over proposed resource projects. And despite subsequent modest attempts to walk back the veto blunder, pending federal legislation enshrining the United Nations Declaration on the Rights of Indigenous Peoples into Canadian law will further cement this immense transfer of political and legal authority.
Then in Daniels v. Canada in 2016 the Supreme Court, again by judicial fiat, once more effectively amended our Constitution by dramatically expanding who should be considered Native for the purposes of federal law. “There is no need to delineate which mixed‑ancestry communities are Métis and which are non‑status Indians,” the ruling states. “They are all ‘Indians’…by virtue of the fact that they are all Aboriginal peoples.” This entitled possibly another 600,000 people to benefits hitherto reserved for status Indians.
In these earlier examples, considerations of cost, practicality, social consequences as well as the Court’s proper role in a parliamentary democracy were ignored in favour of creating new race-based benefits for an ever-expanding class of Canadians. Now with Desautel, the Supreme Court is once more eroding Canadian sovereignty by offering American Natives a share of Aboriginal rights within Canada. This may include the right to hunt, fish and trap year-round as well as the profound and consequential right to be consulted and, if necessary, accommodated under certain circumstances.
Curiously, all this has been accomplished without any input from the country’s legislative or executive branches. The political pushback on Desautel has been effectively nil. Neither the Trudeau government nor the Opposition Conservatives have said anything on the matter. It appears no politician is brave enough to criticize the Court’s rampant expansion of Native rights.
Good Borders Make Good Neighbours
The Jay Treaty of 1794 established the international border between Canada and the United States from the Maritimes to what is now Northwestern Ontario. In 1818 it was agreed that 49° north latitude (the famous “49thparallel”) would be the Canada-U.S. border from Lake of the Woods (west of Lake Superior) to the Rocky Mountains. The 1846 Oregon Boundary Treaty extended that borderline all the way to the Pacific Ocean. Prior to these borders being established numerous Indian tribes had traditional territories occupying land on both sides. These were people, the Supreme Court opines in Desautel, “on whom international borders were imposed.”
Ironically, the ancestors of many American Natives who now stand to benefit from this declaration that the 49th parallel is an imaginary colonialist construct once depended on its physical presence for their very survival. During the U.S. Plains Wars of the late 19thcentury, the ancestors of today’s American Blackfoot and Sioux tribes referred to the 49th parallel as the “Medicine Line” because Canadian soil, defended as it was by the North West Mounted Police, offered them sanctuary from the predations of the U.S. Cavalry.
With Desautel’s offer of section 35(1) rights to descendants of the Sinixt who live on the other side of the Medicine Line, the Supreme Court is improperly expanding its powers of domestic jurisprudence to include foreign policy. Duly-elected governments do have the power to grant limited and narrowly prescribed rights to non-residents and non-citizens; examples of this are refugee rights, dual citizenship rights and the right to sue in Canadian courts. But these are conscious, policy-driven, legislative rights granted by politicians answerable to the electorate. Extra-territorial declarations of this nature should be the sole purview of the legislative and executive branches of any country and entirely off-limits to domestic courts. Nevertheless, in the absence of any outcry from Ottawa, we are now witness to Court-created rights for foreigners. What might be the consequences of this?
Let Fly the Unintended Consequences
Numerous Canadian Indigenous organizations intervened in the Desautel case on behalf of their cross-border American cousins, no doubt thinking it was another opportunity to tear away at the reputation and authority of Canadian governments. But this strongly appears to be a case of arguing against one’s own interests. And with potentially devastating consequences. This is because we can expect other American descendants of cross-border tribes like the Sinixt to soon to be demanding their share of Canadian Aboriginal rights and benefits. In fact, it’s already happening.
The Passamaquoddy Tribe claims traditional hunting grounds on both sides of the St. Croix River forming part of the boundary between Maine and New Brunswick. As a result of Desautel the American Passamaquoddy Nation is now considering lobster fishing in Canadian waters. Given recent friction over lobster harvesting between Canadians, the addition of new American claimants seems a grim prospect. Similarly, the Houlton Lake Maliseet Indian band, whose traditional territory was in the St. John River Valley that crosses the Canada-U.S. border, are also considering hunting in New Brunswick. “I can see this being something that people would be interested in,” Clarissa Sabattis, chief of the Houlton Band of Maliseet Indians, told the CBC. “It will definitely open some things up for some of our citizens who hunt.”
It seems reasonable to expect similar contentious claims will be made by U.S. tribes all along the borderlands. Using Desautel as their foundation, American Iroquois Indians in New York and Pennsylvania could claim Canadian Aboriginal rights to hunt and fish in Quebec and Ontario year-round without a licence. American Ojibwe from Michigan, Wisconsin, Minnesota and North Dakota could claim the same thing in Ontario and Manitoba. So too American Cree, Blackfoot and Assiniboine in North Dakota and Montana with regards to Manitoba, Saskatchewan and Alberta. In B.C., American Tsimshian Indians from Alaska could claim lucrative salmon fishing and hunting rights in the waters and lands of northwest B.C.
How long before many more Native leaders are talking like Maine’s Chief Sabattis? The results will be highly disadvantageous to Canada’s Indigenous population. Just as the Daniels decision created new tensions between Métis and status Indians over the distribution of a fixed pot of benefits, so too this legal innovation will lead to American Natives claiming a share of resources formerly reserved for Canadian-born Indigenous people. The pie is about to appear smaller for everyone involved.
Apologists for Desautel might say the Court did not explicitly grant cross-border Indigenous mobility rights to Americans. Indeed, this equally-fraught issue was deliberately left for another day; American Natives wishing to exercise their newly granted Canadian Aboriginal rights may find it difficult to do so.
Even so, the most profound of these newly granted extra-territorial rights does not require a physical presence. Haida Nation established a right to be consulted and, if necessary, accommodated in regard to any resource project that might affect a First Nation’s land or other rights. And these rights can presumably be asserted as easily from the comfort of a living room in Maine, Wisconsin, Montana or Alaska as any location inside Canada.
The Supreme Court had the opportunity to limit the effect of this situation by declaring that the Haida Nation-invented duty to consult did not apply to American Native groups and that any new rights were limited to basic harvesting. Rather, it did the opposite. It is worth considering a lengthy passage from Desautel regarding the Crown’s brand-new duty to consult with foreigners when determining domestic policy:
“Consultation is part of a process of fair dealing and reconciliation which arises from the Crown’s assertion of sovereignty…Integrating groups outside Canada into consultations by the Crown with groups inside Canada may involve discussions within Aboriginal communities and with the Crown. While the consultation process may be more challenging when it involves groups outside Canada…the difficulty of identifying members of the [Aboriginal] community must not be exaggerated as a basis for defeating their rights under the Constitution of Canada.”
The court does acknowledge that even if a group of American Natives is consulted on a proposed Canadian resource project, it is highly unlikely they would have to be accommodated in a material way. But it is the interminable consultation process itself, rather than practical matters of actual compensation, that has proved the real obstacle to resource projects such as the Energy East, Keystone XL or Trans Mountain Expansion pipelines. And recall that much of this pipeline obstructionism has been funded by American interests through Canadian intermediaries. With Desautel, these sorts of attrition-based, competition-killing campaigns could soon be conducted without any need for Canadian proxies.
The Right to Have Rights
In her brilliant work The Origins of Totalitarianism, Hannah Arendt proposed that “In the sphere of international law, it has always been true that sovereignty is no more absolute than in matters of emigration, naturalization, nationality and expulsion.” The modern nation-state is grounded on the principle of national and territorial sovereignty. There are no citizenship rights within a nation-state other than those granted by the people of the nation-state through the exercise of their collective right to self-government manifested by their juridical laws.
Supreme logic: As Justice Suzanne Côté wrote in her dissenting opinion to Desautel, constitutional protections for “aboriginal peoples of Canada” should only be offered to “groups located within Canada.” (Source: Philippe Landreville, photographer SCC Collection)
Madame Justice Suzanne Côté, in her dissenting opinion in Desautel, relied on this logic in assessing who should and should not be able to assert rights within a state’s boundaries. “It is contrary to the organizing constitutional principle of democracy and inconsistent with the purpose of patriation to allow Aboriginal groups outside of Canada to participate in Canadian democracy,” she wrote. The Constitution’s use of the phrase “aboriginal peoples of Canada,” Côté concluded, was intended to offer “constitutional protection of Aboriginal rights to only those groups located within Canada,” people, she continued, who are “full participants with non-aboriginal peoples in a shared Canadian sovereignty…who fully participate with other Canadians in their collective governance.” Common sense, the plain meaning of language and traditional nation-state theory together all suggest that no other definition of this phrase should be possible.
Even Aboriginal peoples themselves never granted and still do not grant rights to other Aboriginals outside of their band, tribe or clan. They too insisted and continue to insist that the “right to have rights” depends upon the individual being a full memberof the organized political community within which those rights were being claimed. As the eminent Canadian anthropologist Diamond Jenness wrote in his comprehensive work The Indians of Canada:
“In the absence of chiefs and of any legislative or executive body within the tribes or bands, law and order depended solely on the strength of public opinion. There were no written laws…merely rules and injunctions handed down by word of mouth from an immemorial antiquity… strangers however, even people of a neighbouring tribe, might be robbed or killed with impunity; they had no rights unless they married into a band or placed themselves under the protection of some powerful family.” (Emphasis added.)
Membership has its privileges, as well as its obligations: With Desautel, the Supreme Court has essentially offered a share of the rights and privileges of Canadian citizenship to foreigners who owe no duty of loyalty to this country.
With its Desautel ruling, the Supreme Court has shown, to borrow another of Arendt’s apt phrases, “conspicuous disdain of the whole texture of reality.” In its place it has provided a radical version of judicial activism that ignores the entirety of Indigenous and non-Indigenous law-making, customs, values and traditions. This single judgment has given an ill-defined number of American Natives – strangers to Canada in every way – the right to assert Canadian Aboriginal rights within and against Canada, regardless of the economic, social and political consequences. They have been made de facto citizens in the absence of any corresponding requirements or duties. In essence, the Court is handing out citizenship for free. It is a decision we will all come to regret.
Peter Best is a lawyer based in Sudbury, Ontario and author of the 2020 book There Is No Difference: An Argument for the Abolition of the Indian Reserve System and Special Race-based Laws and Entitlements for Canada’s Indians. See www.thereisnodifference.ca