Back in the fall of 2016, the case R v. Desautel finally reached the courtroom. The trial had been set in the small, basement courtroom in Nelson’s grand old stone courthouse. Everyone knew it was an historic moment, but of course no one knew how it would all turn out.
Back in 2010, I had been in court watching when Richard Desautel first pleaded not guilty to a charge that he had hunted in B.C. as an American. He did so based on his Aboriginal rights under Section 35 of the Canadian constitution. The judge overseeing that pleading smiled wryly from the bench and addressed Rick. Mr. Desautel you are not a young man. You’re going to be even older when this whole matter comes to an end.
I attended every day of the 2016 trial. There were a handful of us keeners. Sinixt people called as witnesses filed in and out over the course the three days. For me, it was not always easy to listen to the BC government argue to continue to exclude the Sinixt. As a citizen of Canada and longtime resident of BC, I was both embarrassed and furious that the Crown would argue against this tribe’s rights, in defiance of truth and history.
Here, from my notes, scribbled during the trial:
Today, dams divide the river. The politics of blame muddies the water.
Sitting in the courtroom, I listen as the BC Crown lawyer argues that the tribe willfully abandoned its territory during the era of mining frenzy and intense settlement, in the latter half of the nineteenth century. The foundation for their argument: the Sinixt voluntarily left BC, took up farming in the U.S. with enthusiasm, and cheerfully severed their ongoing love for homeland as well as any interest in aboriginal hunting rights.
It’s a classic case of blaming the victim.
The Crown riffles through its paper. Binders filled with paper line the lawyer’s desk. More paper sits in file boxes on a shelf nearby. Paper is stapled, distributed and entered into evidence. Paper, paper, paper. And what of the mountains? The water? These won’t fit in the witness box. It’s a face-off between the simple truth of history and the complexities of meeting a series of legal requirements and precedents. All that paper is an attempt to prove that a Sinixt man named Richard Desautel does not have an inherent aboriginal right to hunt in B.C. – because he is an American tribal member.
The international boundary is in fact a recent demarcation in the context of 5,000 or more years of human history along the upper Columbia. It doesn’t make any sense to find fault with the Indigenous people. No one asked them about the invisible line severing their territory, nor were they even provided with a reserve of any kind in BC until the bulk of the new province’s land had been claimed or purchased by newcomers.
People want a healthier river, just as Desautel wants to bag the occasional deer or elk in his ancestral home. Nothing could be better for the “Canadian” Columbia than a restoration of Indigenous rights.
I continued to follow the process as the case made its way through appeal after appeal. I attended the first appeal, held again in the Nelson courthouse the following year. The Crown produced more paper, and I listened as their lawyer once again stepped up to the podium to argue against the Sinixt. This time, the arguments were more circular. I had trouble following what he was even saying. A handful of Sinixt people sat in the galley with me. One of them worked at her beading while she listened. I missed the second appeal, at the Court of Appeal in Vancouver. Finally, the case reached Canada’s highest court.
The first judgment, and the final one, are important and absorbing. To read them is important, for they lay out precisely how undeniable truth can be. Truth is also disruptive. This case demonstrates that the Sinixt are the first people of the upper Columbia River mainstem, not the “Syilx Okanagan,” (who share a language and some relatives, but no tribal affiliation) or the Ktunaxa (who share territory with the Sinixt at the edges of Kootenay Lake).
The court action had a silver lining. It forced the Sinixt to do what none of the other tribes have done: the Sinixt proved their Aboriginal title in Canada both from oral testimony, and through detailed analysis of the historical record from 1811 (first colonial contact) to 1846 (establishment of the boundary between the U.S. and Canada).
Read the judgements:
There was a lot of media coverage. Start here: Supreme Court of Canada affirms trans-boundary Indigenous rights by Anna V. Smith, High Country News, April 23, 2021.