The Supreme Court of Canada has ruled that non-citizens and non-residents can assert aboriginal rights under the Constitution of Canada
Non-citizens and non-residents can invoke an aboriginal right under the constitution, the Supreme Court of Canada ruled on Friday.
The case concerned Section 35 of the Canadian Constitution's definition of "Aboriginal peoples of Canada." The fundamental question, according to the court, is whether people who are not Canadian citizens or who do not live in Canada can exercise this privilege.
The case involved Richard Desautel, an American citizen who shot and killed an elk in British Columbia without a hunting license in 2010. He is a member of the Colville Confederated Tribes' Lakes Tribe. He was found guilty of hunting without a licence or proof of British Columbia citizenship, despite claiming that he was practicing his aboriginal right to hunt in his ancestors' ancestral territories under section 35 of the Act. He said that the spot where he shot and killed the elk was his land.
The majority of the court decided that "Aboriginal peoples of Canada" refers to the modern-day descendants of aboriginal groups that lived on Canadian soil at the time of European contact. Even if those communities are now situated outside of Canada, this was the case. People who are not Canadian citizens and do not live in Canada can exercise an aboriginal right guaranteed by the Canadian Constitution, according to Justice Malcolm Rowe. Desautel was found to be exercising an aboriginal right, and the trial judge correctly acquitted him of all charges.
“While Aboriginal communities outside of Canada can claim and hold section 35 rights, it does not follow that their rights are the same as those of communities within Canada,” Rowe said in response to questions about the potential implications of groups like the Lakes Tribe being considered aboriginal peoples of Canada. Although the test for an Aboriginal right is the same in all countries, the circumstances of communities outside of Canada can result in different outcomes.”