The appellant Crown appealed acquittals of the respondent, a United States citizen and member of the Lakes Tribe of the Colville Confederated Tribes, who was charged under British Columbia wildlife legislation after hunting elk in the traditional Sinixt territory in British Columbia.
The majority held that on a purposive interpretation of s. 35(1) of the Constitution Act, 1982, the expression 'aboriginal peoples of Canada' includes the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, even if those groups are now located outside Canada.
Applying the Van der Peet test, the Court found the respondent was exercising a constitutionally protected Aboriginal right to hunt for food, social and ceremonial purposes within the Sinixt ancestral territory in British Columbia.
The Crown's appeal was dismissed, with Moldaver and Côté JJ. dissenting on the grounds that s. 35(1) does not extend to Aboriginal groups located outside Canada and, in any event, that continuity had not been established.
