In Appeal, British Columbia Argues Washington Tribe Has No Rights in Canada

Sep 8, 2017

What was expected to be a two-day hearing on tribal sovereignty spilled into its third day Friday. The provincial government in British Columbia is appealing a landmark decision that reestablished hunting rights for members of an Indian tribe who live on both sides of the border.

In March, a provincial court judge ruled that Washington state resident Rick Desautel acted within his indigenous rights when he shot an elk in British Columbia, because he is Sinixt. It’s a tribe the Canadian government deemed extinct six decades ago.

“What we’re fighting about is really, who holds rights?” said attorney Mark Underhill, who represents Desautel and other Sinixt members whose ancestors relocated to the Colville Reservation in Washington.

He said it’s all about control.

“If you’ve got a group of people who has rights, the province has to talk to them and they can’t just do what they want in that territory,” Underhill said.

The government’s lawyer cannot comment on the case. Underhill expects a final judgement from British Columbia’s Supreme Court in late December.

As part of its appeal, the provincial government argued that reconciliation between the government and the tribe could be complicated, because some Sinixt members reside outside Canada.

The following is a transcript from our correspondent Emily Schwing’s interview with Mark Underhill.

Mark Underhill: “… what we believe the province is trying to set up here is trying to get a judge to accept ‘well, those American Sinixt people can’t have rights in Canada, they’re the only ones who could possibly assert a right, so nobody gets to have a right here.”

Emily Schwing: “Not even the Sinixt that live here in British Columbia?”

MU: “Exactly, not even the Sinixt here, so this is all a set-up to say, those Americans can’t have rights, they’re they only ones who could possible could and because of that, nobody gets rights.”

ES: “Well, that’s like taking your ball and going elsewhere—taking your elk and going elsewhere…”

MU: “Exactly. And in my respectful view, that’s how the government rules in most of these cases.”

ES: “Yeah, I wanted to ask you—how unique is this to Canada that that would be sort of the assertion of power over an indigenous group?”

MU: “Yeah. This is an argument we have heard before. I mean, it’s unique in the sense that we’re dealing with a cross-border people, but the Crown comes up with these arguments to try to argue that there’s really nobody who can assert rights in a particular area of the province, because what it means for the province is if you’ve got a group of people who has rights, the province has to talk to them and they can’t just do what they want in that territory. That’s what this is all about. They don’t want to have to talk to anybody about what they do here in Nelson and the surrounding area.”

ES: “Might they have to go backward and talk about things that they have done—consultations that didn’t happen in the past?”

MU: “Well, and what the Supreme Court of Canada has said about that is they might have to pay some money about things they did that infringed people’s rights a long time ago and so they’re also concerned about that.”

ES: “Is this still a landmark case?”

MU: “It very much is.”