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The British Columbia Court of Appeal has upheld an American Indigenous man’s right to hunt in Canada because his ancestors traditionally did so.

Richard Desautel was originally charged under the Wildlife Act with hunting without a licence and hunting big game while not a resident of B.C. after he shot and killed an elk near Castlegar in 2010.

Mr. Desautel, a member of the Lakes Tribe in Washington state, argued in provincial court that he was exercising his constitutional right to hunt for ceremonial purposes.

The Lakes Tribe was described in court 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.

The B.C. Supreme Court confirmed his right in 2017 and the Appeal Court reaffirmed it in a ruling released Thursday.

In dismissing the Crown’s appeal on behalf of a three-judge panel, Justice Daphne Smith says hunting in what is now B.C. was a central and significant part of the Sinixt’s distinctive culture before European contact and remains integral to the Lakes Tribe.

“The Lakes Tribe is a modern collective descended from the Sinixt that has continued to hunt and maintained its connection to its ancestral lands in British Columbia. Mr. Desautel is a member of the Lakes Tribe. Therefore, he has an Aboriginal right to hunt elk in the Sinixt’s traditional hunting territory in British Columbia,” the ruling says.

The Crown had argued in its appeal that Canada’s constitutional protection of Aboriginal and treaty rights should not extend to non-residents.

It argued that words matter, pointing out that the Constitution recognizes the rights of “Aboriginal peoples of Canada.” That term can only mean contemporary rights-holding Aboriginal community members who are residents in or citizens of Canada, it said.

The Crown also warned of broader consequences that would come with granting Mr. Desautel the right to hunt.

An expanded interpretation of the right could extend the Crown’s duty to consult and accommodate Aboriginal groups in the United States, which may be incompatible with American law, the prosecution argued at the appeal.

It claimed affirming Mr. Desautel’s hunting rights in B.C. would also imply a right to cross the international border and that would be incompatible with Canadian sovereignty.

But the Appeal Court found it unnecessary to consider Mr. Desautel’s “mobility rights” across the border, or the consequences for consultation, when ruling on his claim.

“Aboriginal rights are inherent rights that existed at the time of contact. What flows from those rights continues to evolve,” the ruling says, adding that those concerns are “not material” to the central question of whether or not Mr. Desautel can hunt in Canada.

The decision says the Aboriginal and treaty rights recognized in the Constitution involve recognizing Indigenous perspectives on precontact and present-day customs alongside the Crown’s needs to meet the interests of modern-day Canada.

A continuing custom or practice that’s central and significant to an Indigenous culture may be exercised if the Indigenous person or group can show they are descended from a historic group that exercised the same one, the ruling says.

“The right claimed by Mr. Desautel falls squarely within the precontact practice grounding the right,” Justice Smith says in the decision.

“I would dismiss the appeal.”

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