Land fight could grant thousands of indigenous Americans new rights in Canada

When Rick Desautel shot the elk perched high on a steep hillside, he followed his typical routine: he retrieved the fallen animal, dressed it and packed out the meat to his hunting camp in the forests of western Canada.

He then hiked down to an area with cell-phone reception and called the local conservation officers. “It took them a couple of days to find us,” he laughs.

He knew what was coming next: he was 40 miles north of the border and the officers would quickly find he was an American citizen without permits to hunt in the Canadian province of British Columbia.

A conservation officer himself, he knew the standard procedure: he would accept the tickets, and as before, they would be dropped.

But this time was different: after that hunting trip in 2010, the British Columbia government decided to bring the charges to court.

The ensuing legal journey lasted more than eight years, as Desautel fought to prove his indigenous heritage, and thus his right to hunt in lands which were his ancestors’ territory long before any border was drawn.

The case appeared to reach an end in December, when the the provincial government lost its appeal at the British Columbia supreme court.

Last month, however, the government filed papers to appeal yet again – a sign that it intends to continue its fight.

That fight, however, could have unintended consequences: Desautel’s case could set a precedent that would grant tens of thousands of Native Americans living in the United States a new set of rights – in Canada.

The legal tussles comes as the prime minister, Justin Trudeau, promises to abandon the strategy of forcing indigenous peoples to endure costly court battles to win recognition of rights.

Desautel identifies as Sinixt, an indigenous people whose territory once stretched from southern British Columbia into Washington state. The Canadian government, however, declared the Sinixt extinct in 1955.

But in March last year, the court affirmed his right to continue hunting in Canada – and restored the Sinixt’s legal status, in an outcome he says made him feel “elated and joyful”.

But the British Columbia supreme court went one step further: by determining Desautel did not need to be a resident of Canada to be granted hunting rights, it transformed the case into one not just about identity – but also about the border.

“Judges tend to write decisions so that the judgment is specific to the case at hand. They try not to write decisions which have a overarching implications for the whole country,” says Bruce Miller, an anthropologist at the University of British Columbia, who provided documentation to assist in proving the continued existence of the Sinixt.

The border between Canada and the United States has long served as a barrier to recognition of indigenous people’s traditional lands.

“It cuts off my relationship to my ancestors,” says Desautel. “I can go just as far as the border. After that, [the government] says I have no more past.”

Several indigenous groups have contested the border, some more forcefully than others. The Six Nations of the Iroquois Confederacy issues its own passports and many of its members refuse to recognize the frontier at all.

Experts believe the Desautel ruling could apply to tens of thousands of people living in the United States who were dispossessed of ancestral territory in Canada when the border was drawn, granting them new rights for hunting and fishing.

By recognizing the hunting rights of indigenous communities based in the United States, the province must now reckon with other rights that follow, says Gordon Christie, a law professor at the University of British Columbia who focuses on aboriginal legal issues.

This could apply to consultation on resource projects like pipelines, a contentious issue where indigenous communities hold significant power at the bargaining table.

Christie suspects this ruling could also apply to valuable water rights. The treaty governing the use of the Columbia River, one of North America’s largest rivers, is up for renegotiation in the coming months, he says.

“There could be some arguments that come up in those negotiations about what kinds of rights American tribes might have in relation to water that passes over the border,” he says.

By pursuing Desautel so aggressively, the government’s plan to make an example of him appears to have backfired, says Signa Daum Shank, a legal expert on Indigenous claims.

“He wasn’t hunting a large number of animals. He wasn’t trying to sell the meat somewhere,” she says. “The [government’s] stubbornness … really allowed all of this to happen.”

Ironically, there is no chance of this scenario unfolding in the other direction. In 2011, Stephen Stark, a Tsawwassen man in Canada, attempted to fish waters his people traditionally harvested – in America.

Stark was apprehended 765 yards over the border and learned, unlike Desautel, that there is no comparable provision in the United States constitution that could apply to indigenous peoples in Canada who pursue fishing rights south of the border.

In spite of his defence that he was fishing traditional waters, Stark is now facing felony charges and could spend up to five years in prison with a fine of $10,000

In Canada, there is little consistency to when and how treaties with aboriginal groups were signed – if at all.

The result is often confusion over land rights, resource use and property: governments tend to let court decisions clarify indigenous rights. These decisions become case law and often set the new precedent for governments to follow.

Desautel believes he had to start the process in order for future generations to benefit. “I just figured the snowball had to get rolling. This is one of the thing that I strive for: recognition, not only for me, but my ancestors, my children and my grandchildren.”

His fight is predicted to continue for years and costs millions of dollars. “My lawyer told me you’ll be an old man when this thing wraps up” says Desautel. “I’m starting to believe him.”