R v Desautel, 2021 SCC 17

SUPREME COURT OF CANADA

Appeal Heard: October 8, 2020 Judgment Rendered: April 23, 2021 Docket: 38734

Between:

Her Majesty The Queen

Appellant

and

Richard Lee Desautel

Respondent

- and -

Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of New Brunswick, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of the Yukon Territory, Peskotomuhkati Nation, Indigenous Bar Association in Canada, Whitecap Dakota First Nation, Grand Council of the Crees (Eeyou Istchee), Cree Nation Government, Okanagan Nation Alliance, Mohawk Council of Kahnawà:ke, Assembly of First Nations, Métis National Council, Manitoba Metis Federation Inc., Nuchatlaht First Nation, Congress of Aboriginal Peoples, Lummi Nation and Métis Nation British Columbia

Interveners

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment: (paras. 1 to 93)

Rowe J. (Wagner C.J. and Abella, Karakatsanis, Brown, Martin and Kasirer JJ. concurring)

Dissenting Reasons: (paras. 94 to 142)

Côté J.

Dissenting Reasons: (para. 143)

Moldaver J.

Her Majesty The Queen Appellant

v.

Richard Lee Desautel Respondent

and

Attorney General of Canada,

Attorney General of Ontario,

Attorney General of Quebec,

Attorney General of New Brunswick,

Attorney General of Saskatchewan,

Attorney General of Alberta,

Attorney General of the Yukon Territory,

Peskotomuhkati Nation,

Indigenous Bar Association in Canada,

Whitecap Dakota First Nation,

Grand Council of the Crees (Eeyou Istchee),

Cree Nation Government,

Okanagan Nation Alliance,

Mohawk Council of Kahnawà:ke,

Assembly of First Nations,

Métis National Council,

Manitoba Metis Federation Inc.,

Nuchatlaht First Nation,

Congress of Aboriginal Peoples,

Lummi Nation and

Métis Nation British Columbia

Interveners

File No.: 38734.

2020: October 8; 2021: April 23.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

on appeal from the court of appeal for british columbia

Constitutional law — Aboriginal peoples — Aboriginal rights — Hunting — Citizen and resident of United States charged under provincial wildlife legislation with hunting in British Columbia without licence and while not being resident of province — Charges defended on basis of constitutionally‑protected Aboriginal right to hunt in traditional territory of ancestors — Whether Aboriginal people located outside Canada can assert Aboriginal rights under Canadian Constitution — If so, whether provincial wildlife legislation of no force or effect by reason of Aboriginal right — Constitutional Act, 1982, s. 35(1).

In October 2010, D, a citizen and resident of the United States of America, shot a cow‑elk in British Columbia. He was charged with hunting without a licence contrary to s. 11(1) of British Columbia's Wildlife Act and hunting big game while not being a resident of the province contrary to s. 47(a) of the Act . D defended the charges on the basis that he had an Aboriginal right to hunt protected by s. 35(1) of the Constitution Act, 1982 , as he is a member of the Lakes Tribe of the Colville Confederated Tribes based in the State of Washington, a successor group of the Sinixt people, and he shot the elk within the ancestral territory of the Sinixt in British Columbia.

At trial, it was accepted that the date of first contact between the Sinixt and Europeans was in 1811. At that time, the Sinixt were engaged in hunting, fishing, and gathering in their ancestral territory, which extended into what is now Washington State to the south, and into what is now British Columbia to the north. Until around 1870, the Sinixt continued their activities in the northern portion of their territory, located in Canada. In the course of time, a constellation of factors made the Sinixt people move to the United States. The trial judge did not find that the move was voluntary. Until 1930, members of the Lakes Tribe continued to hunt in British Columbia, despite living in Washington State. After 1930, despite periods in which no hunting took place, the Lakes Tribe continued to have a connection to the land where their ancestors hunted in British Columbia.

The trial judge held that D was a member of the Lakes Tribe, and that the rights of the Sinixt continued with the Lakes Tribe. She applied the test for Aboriginal rights set out in R. v. Van der Peet , [1996] 2 S.C.R. 507, and held that D was exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by s. 35(1) of the Constitution Act, 1982 . D's Aboriginal right remained in existence and was protected by s. 35(1) , despite the Lakes Tribe's departure from the Canadian part of their traditional territory and notwithstanding a period of dormancy in the exercise of the right. The trial judge held that the right was infringed by the Wildlife Act and the infringement was not justified. D was acquitted. The Crown's two subsequent appeals were dismissed. It now appeals to the Court, raising, as a constitutional question, whether the relevant provisions of the Wildlife Act are of no force or effect with respect to D, by reason of an Aboriginal right within the meaning of s. 35(1) of the Constitution Act, 1982 .

Held (Moldaver and Côté JJ. dissenting) : The appeal should be dismissed and the constitutional question answered in the affirmative.

Per Wagner C.J. and Abella, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ.: Persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1) of the Constitution Act, 1982 . On a purposive interpretation of s. 35(1), the expression "aboriginal peoples of Canada" means the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, and this may include Aboriginal groups that are now outside Canada. As D is a member of the Lakes Tribe, which is a modern successor of the Sinixt, and as D's claim satisfies the Van der Peet test for an Aboriginal right under s. 35(1), ss. 11(1) and 47(a) of the Wildlife Act are of no force or effect with respect to him.

In order to assert rights protected under s. 35(1) of the Constitution Act, 1982 , an Aboriginal group must be part of the "aboriginal peoples of Canada". This is a threshold question, in the sense that if a group is not an Aboriginal people of Canada, there is no need to proceed to the test for Aboriginal rights set out in Van der Peet . Section 35(1) must be interpreted in a purposive way. A review of the jurisprudence shows that s. 35(1) serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty. These purposes are expressed in the doctrinal structure of Aboriginal law, which gives effect to rights and relationships that arise from the prior occupation of Canada by Aboriginal societies. Because the doctrine of Aboriginal rights arises from the simple fact of prior occupation, the Aboriginal peoples of Canada under s. 35(1) are the modern successors of those Aboriginal societies that occupied Canadian territory at the time of European contact, even if they are now outside Canada.

An interpretation of the expression "aboriginal peoples of Canada" in s. 35(1) that includes Aboriginal peoples who were here when the Europeans arrived and later moved or were forced to move elsewhere, or on whom international boundaries were imposed, reflects the purpose of reconciliation. By contrast, an interpretation that excludes Aboriginal peoples who were forced to move out of Canada would risk perpetuating the historical injustice suffered by Aboriginal peoples at the hands of Europeans. As well, it bears emphasis that s. 35(1) did not create Aboriginal rights. The practices, customs and traditions that underlie these rights existed before 1982. An interpretation of s. 35(1) that limits its scope to those Aboriginal peoples who were located in Canada in 1982 would fail to give effect to this point by treating s. 35(1) as the source of Aboriginal rights.

If the threshold question is met, the analysis then proceeds under Van der Peet . The Van der Peet test is the same for groups outside Canada as for groups within Canada. That Aboriginal rights must be grounded in the existence of a historic and present‑day community, and that modern‑day claimants must establish a connection with the pre‑sovereignty group upon whose practices they rely, is so for Aboriginal groups inside or outside Canada. There is no additional requirement, for groups outside Canada, of recognition by a related Aboriginal collective residing in Canada. This requirement would place a higher burden on Aboriginal communities who seek to claim rights if the group moved, was forced to move, or was divided by the creation of an international border. It would risk defining Aboriginal rights in a manner that excludes some of those the provision was intended to protect. Moreover, it would raise myriad practical difficulties, such as which group within Canada has a say in the recognition of a claimant located outside Canada, where there are competing groups, which body can represent a collective residing in Canada, and what happens if there is no related modern collective residing in Canada.

Under the Van der Peet analysis, courts must characterize the right claimed in light of the pleadings and evidence; determine whether the claimant has proven that a relevant pre‑contact practice, tradition or custom existed and was integral to the distinctive culture of the pre‑contact society; and determine whether the claimed modern right is demonstrably connected to, and reasonably regarded as a continuation of, the pre‑contact practice. Continuity plays a role both at the second and the third stages of the Van der Peet analysis. At the second stage, showing that a practice is integral to the claimant's culture today, and that it has continuity with pre‑contact times, can count as proof that the practice was integral to the claimant's culture pre‑contact. At the third stage, the question is whether the modern practice which is claimed to be an exercise of an Aboriginal right is connected to, and reasonably seen as a continuation of, the pre‑contact practice. Continuity with the pre‑contact practice is required in order for the claimed activity to fall within the scope of the right. However, an unbroken chain of continuity is not required; it is not unusual for the exercise of a right to lapse for a period of time. The assessment of continuity, both at the second and third stages, is a highly fact‑specific exercise. The weighing of evidence in Aboriginal claims is generally the domain of the trial judge, who is best situated to assess the evidence, and is consequently accorded significant latitude in this regard.

In the present case, the threshold question is met. The trial judge found as a fact that the Sinixt occupied territory in what is now British Columbia at the time of European contact, and that the Lakes Tribe are a modern successor of the Sinixt. The migration of the Lakes Tribe from British Columbia to a different part of their traditional territory in Washington State did not cause the group to lose its identity or its status as a successor to the Sinixt. Accordingly, the Lakes Tribe is an Aboriginal people of Canada. Then, with respect to the Van der Peet test, the trial judge found, based on the evidence, that hunting for food, social and ceremonial purposes within the traditional territory of the Sinixt in British Columbia at the time of contact was integral to the distinctive culture of the Sinixt. The trial judge also found that the modern‑day practice of hunting in this territory, as D did, is a continuation of this pre‑contact practice. Setting aside the periods in which no hunting took place, there was no significant dissimilarity between the pre‑contact practice and the modern one. As a result, D was exercising an Aboriginal right protected by s. 35(1) .

Per Côté J. (dissenting): The appeal should be allowed and the constitutional question answered in the negative. The constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982 , does not extend to an Aboriginal group located outside of Canada. And even if it did, D cannot establish that he was exercising an Aboriginal right to hunt in the Sinixt traditional territory in British Columbia, as the modern group's claim lacks continuity with the pre‑contact group's practices. Accordingly, D's claim must fail and he should not be exempt from the Wildlife Act provisions under which he was charged. A verdict of guilty should be entered on both counts of hunting without a licence and hunting big game while not being a resident, and the matter should be remitted to the trial court for sentencing.

To be entitled to the protection of s. 35(1) of the Constitution Act, 1982 , the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact cannot be located anywhere other than Canada. The majority's conclusion that the constitutional protection of Aboriginal rights in s. 35(1) extends to an Aboriginal group located outside of Canada is contrary to a purposive analysis of s. 35(1) , having regard to its relevant linguistic, philosophic, and historical contexts. The framers' intent was to protect the rights of Aboriginal groups that are members of, and participants in, Canadian society.

First, a textual analysis of s. 35(1) reveals the significance of the drafters' choice to include the phrase "of Canada" rather than leaving the term "aboriginal peoples" without any qualifier. On the basis of the presumption against tautology, the words "of Canada" cannot be superfluous. In addition, similar limiting language is used repeatedly in the Constitution Act, 1982 , as a geographical qualifier. Interpreting "aboriginal peoples of Canada" in a more expansive fashion would be incongruent with the presumption of consistent expression and contrary to the intention of the drafters. Second, the philosophic context helps explain why residence or citizenship is not referenced in s. 35(1) , but is assumed. By framing s. 35(1) as a provision granting special constitutional protection to one part of Canadian society, the Court has consistently understood it to import a residency or citizenship requirement. Section 35(1) 's purpose should be understood in relation to the interests it was meant to protect, that is, Aboriginal peoples as full participants with non‑Aboriginal peoples in a shared Canadian sovereignty. The protections, therefore, do not and cannot apply to Aboriginal groups in other countries; it cannot be said that they fully participate with other Canadians in their collective governance, nor do they contribute to Canada's national diversity. Third, the historical record does not show that expanding the protections of s. 35(1) to non‑Canadian Aboriginal groups was ever considered. The limited historical sources that provide guidance as to the meaning of the expression "aboriginal peoples of Canada" show an intention to limit the constitutional protection of Aboriginal rights to only those groups located within Canada.

The conclusion that the enactment of s. 35(1) did not constitutionalize Aboriginal rights held by collectives located outside of Canada is further bolstered by the deleterious consequences that would arise from the opposite conclusion. First, s. 35.1 of the Constitution Act, 1982 , uses the phrase "aboriginal peoples of Canada" in setting out an obligation to invite representatives of these groups to constitutional conferences. It would be contrary to the organizing constitutional principle of democracy and inconsistent with the purpose of patriation to allow Aboriginal groups located outside of Canada to participate in Canadian democracy as required by s. 35.1. Second, a multitude of challenges would arise with respect to the Crown's duty to consult. The numbers of groups to consult and, where appropriate, accommodate, would dramatically increase, and it can be anticipated that in some cases accommodating the interests of s. 35(1) rights holders outside of Canada would run counter to accommodating the interests of s. 35(1) rights holders within Canada. Third, finding that Aboriginal groups outside of Canada are "aboriginal peoples of Canada" raises the possibility that these groups may, in principle, hold constitutionally protected Aboriginal title to Canadian lands. It would be a remarkable proposition that a foreign group could hold constitutionally protected title to Canadian territory. The drafters of s. 35(1) could not have intended these deleterious consequences to arise.

In the present case, the Lakes Tribe is wholly located in the United States. As D is not a member of a collective that is part of the "aboriginal peoples of Canada", he cannot exercise a constitutionally‑protected Aboriginal right to hunt in British Columbia. And even if there were agreement with the majority's conclusion that the phrase "aboriginal peoples of Canada" includes groups located outside of Canada, there is disagreement with its application of the Van der Peet test to D's claim. This test protects only those present‑day practices that have a reasonable degree of continuity with practices that existed prior to contact. While the test does not require an unbroken chain of continuity, and while continuity must be interpreted flexibly, such flexibility has its limits. While temporal gaps do not necessarily preclude the establishment of an Aboriginal right, failing to tender sufficient evidence that, at least, a connection to the historical practice was maintained during such gaps may be fatal. There is no direct evidence that the Lakes Tribe engaged in anything that could be considered a modern‑day practice of hunting in British Columbia after 1930. There was no basis upon which the trial judge could have drawn an inference of continuity; and given the Lakes Tribe's lengthy and unaccounted‑for absence from British Columbia between 1930 and 2010, continuity is not made out. As there was nothing in existence in 1982 to which s. 35(1) protection could attach, D's claim must fail.

Per Moldaver J. (dissenting): Even assuming that the majority is correct in holding that, as a member of an Aboriginal collective located outside Canada, D is entitled to claim the constitutional protection provided by s. 35(1) of the Constitution Act, 1982 , there is agreement with Côté J. that in this case, D has not met the onus of establishing the continuity element of his claim, under the test for Aboriginal rights pursuant to Van der Peet . The appeal should therefore be allowed on that basis and the remedy set out by Côté J. should be imposed.

Cases Cited

By Rowe J.

Applied: R. v. Van der Peet , [1996] 2 S.C.R. 507; distinguished : R. v. Powley , 2003 SCC 43 , [2003] 2 S.C.R. 207; referred to: Mitchell v. M.N.R. , 2001 SCC 33 , [2001] 1 S.C.R. 911; R. v. Sparrow , [1990] 1 S.C.R. 1075; Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14 , [2013] 1 S.C.R. 623; Calder v. Attorney‑General of British Columbia , [1973] S.C.R. 313; Roberts v. Canada , [1989] 1 S.C.R. 322; Guerin v. The Queen , [1984] 2 S.C.R. 335; R. v. Badger , [1996] 1 S.C.R. 771; Province of Ontario v. Dominion of Canada and Province of Quebec (1895) , 25 S.C.R. 434; Ontario Mining Co. v. Seybold (1901) , 32 S.C.R. 1; R. v. Gladstone , [1996] 2 S.C.R. 723; R. v. Sappier , 2006 SCC 54 , [2006] 2 S.C.R. 686; Delgamuukw v. British Columbia , [1997] 3 S.C.R. 1010; R. v. Marshall , 2005 SCC 43 , [2005] 2 S.C.R. 220; Beckman v. Little Salmon/Carmacks First Nation , 2010 SCC 53 , [2010] 3 S.C.R. 103; Mikisew Cree First Nation v. Canada (Governor General in Council) , 2018 SCC 40 , [2018] 2 S.C.R. 765; Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani‑Utenam) , 2020 SCC 4 , [2020] 1 S.C.R. 15; Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 S.C.R. 511; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) , 2004 SCC 74 , [2004] 3 S.C.R. 550; R. v. Côté , [1996] 3 S.C.R. 139; The Queen v. The Secretary of State for Foreign and Commonwealth Affairs , [1981] 4 C.N.L.R. 86 ; Native Women's Assn. of Canada v. Canada , [1994] 3 S.C.R. 627; R. v. Poulin , 2019 SCC 47 , [2019] 3 S.C.R. 566, Frank v. The Queen , [1978] 1 S.C.R. 95; Daniels v. Canada (Indian Affairs and Northern Development) , 2016 SCC 12 , [2016] 1 S.C.R. 99; Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers , 2004 SCC 45 , [2004] 2 S.C.R. 427; Nowegijick v. The Queen , [1983] 1 S.C.R. 29; Lax Kw'alaams Indian Band v. Canada (Attorney General) , 2011 SCC 56 , [2011] 3 S.C.R. 535; Tsilhqot'in Nation v. British Columbia , 2014 SCC 44 , [2014] 2 S.C.R. 257; R. v. Shipman , 2007 ONCA 338 , 85 O.R. (3d) 585; R. v. Meshake , 2007 ONCA 337 , 85 O.R. (3d) 575; R. v. Adams , [1996] 3 S.C.R. 101; Hwlitsum First Nation v. Canada (Attorney General) , 2018 BCCA 276 , 15 B.C.L.R. (6th) 91; Campbell v. British Columbia (Minister of Forests and Range) , 2011 BCSC 448 , [2011] 3 C.N.L.R. 151; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council , 2010 SCC 43 , [2010] 2 S.C.R. 650; Native Council of Nova Scotia v. Canada (Attorney General) , 2008 FCA 113 , [2008] 3 C.N.L.R. 286; Mississaugas of Scugog Island First Nation v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW‑Canada), Local 444 , 2007 ONCA 814 , 88 O.R. (3d) 583; R. v. Nikal , [1996] 1 S.C.R. 1013; First Nation of Nacho Nyak Dun v. Yukon , 2017 SCC 58 , [2017] 2 S.C.R. 576; Hunter v. Southam Inc. , [1984] 2 S.C.R. 145; R. v. Marshall , [1999] 3 S.C.R. 533; Clyde River (Hamlet) v. Petroleum Geo‑Services Inc. , 2017 SCC 40 , [2017] 1 S.C.R. 1069.

By Côté J. (dissenting)

Mitchell v. M.N.R. , 2001 SCC 33 , [2001] 1 S.C.R. 911; R. v. Van der Peet , [1996] 2 S.C.R. 507; R. v. Blais , 2003 SCC 44 , [2003] 2 S.C.R. 236; R. v. Marshall , [1999] 3 S.C.R. 456; R. v. Powley , 2003 SCC 43 , [2003] 2 S.C.R. 207; Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14 , [2013] 1 S.C.R. 623; R. v. Sparrow , [1990] 1 S.C.R. 1075; Mikisew Cree First Nation v. Canada (Governor General in Council) , 2018 SCC 40 , [2018] 2 S.C.R. 765; Caron v. Alberta , 2015 SCC 56 , [2015] 3 S.C.R. 511; Reference re Secession of Quebec , [1998] 2 S.C.R. 217; British Columbia (Attorney General) v. Canada (Attorney General) , [1994] 2 S.C.R. 41; Placer Dome Canada Ltd. v. Ontario (Minister of Finance) , 2006 SCC 20 , [2006] 1 S.C.R. 715; Frank v. The Queen , [1978] 1 S.C.R. 95; British Columbia v. Imperial Tobacco Canada Ltd. , 2005 SCC 49 , [2005] 2 S.C.R. 473; Beckman v. Little Salmon/Carmacks First Nation , 2010 SCC 53 , [2010] 3 S.C.R. 103; R. v. Big M Drug Mart Ltd. , [1985] 1 S.C.R. 295; R. v. Poulin , 2019 SCC 47 , [2019] 3 S.C.R. 566; R. v. Stillman , 2019 SCC 40 , [2019] 3 S.C.R. 144; Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 S.C.R. 511; Tsilhqot'in Nation v. British Columbia , 2014 SCC 44 , [2014] 2 S.C.R. 257; Campbell v. British Columbia (Minister of Forests and Range) , 2011 BCSC 448 , [2011] 3 C.N.L.R. 151; Lax Kw'alaams Indian Band v. Canada (Attorney General) , 2011 SCC 56 , [2011] 3 S.C.R. 535; Ktunaxa Nation v. British Columbia ( Forests, Lands and Natural Resource Operations) , 2017 SCC 54 , [2017] 2 S. C.R. 386 .

By Moldaver J. (dissenting)

R. v. Van der Peet , [1996] 2 S.C.R. 507.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , s. 25.

Constitution Act, 1867 , s. 91(24).

Constitution Act, 1982 , ss. 3, 6 , 16 , 20 , 21 , 23 , 32 , 35 , 35.1 , 36 , 37 , 37.1 .

Game Protection Amendment Act, 1896 , S.B.C., c. 22.

Natural Resources Transfer Agreement (Alberta) [Schedule 2 of Constitution Act, 1930 , R.S.C. 1985, App. II, No. 26], paras. 10 and 12.

Natural Resources Transfer Agreement (Manitoba) [Schedule 1 of Constitution Act, 1930 , R.S.C. 1985, App. II, No. 26], paras. 11 and 13.

Natural Resources Transfer Agreement (Saskatchewan) [Schedule 3 of Constitution Act, 1930 , R.S.C. 1985, App. II, No. 26], paras. 10 and 12.

Royal Proclamation, 1763 (G.B.), 3 Geo. 3 [reproduced in R.S.C. 1985, App. II, No. 1] .

Wildlife Act , R.S.B.C. 1996, c. 488, ss. 11(1), 47 (a).

Treaties and Agreements

Carcross/Tagish First Nation Final Agreement (2005), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

Champagne and Aishihik First Nations Final Agreement (1993), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

First Nation of Nacho Nyak Dun Final Agreement (1993), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

Gwich'in Comprehensive Land Claim Agreement (1992), vol. 1, c. 4.

Kluane First Nation Final Agreement (2003), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

Kwanlin Dun First Nation Final Agreement (2004), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

Little Salmon/Carmacks First Nation Agreement (1998), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

Sahtu Dene and Metis Comprehensive Land Claim Agreement (1993), vol. 1, c. 4.

Selkirk First Nation Final Agreement (1998), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

Ta'an Kwach'an Council Final Agreement (2001), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

Teslin Tlingit Council Final Agreement (2001), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

Tr'ondëk Hwëch'in Final Agreement (1998), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

Vuntut Gwitchin First Nation Final Agreement (1993), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

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APPEAL from a judgment of the British Columbia Court of Appeal (Smith, Willcock and Fitch JJ.A.), 2019 BCCA 151 , [2020] 2 W.W.R. 191, [2019] 4 C.N.L.R. 217, 24 B.C.L.R. (6th) 48, 433 D.L.R. (4th) 544, [2019] B.C.J. No. 755 (QL), 2019 CarswellBC 1146 (WL Can.), affirming a decision of Sewell J., 2017 BCSC 2389 , [2018] 1 C.N.L.R. 135, [2017] B.C.J. No. 2665 (QL), 2017 CarswelBC 3648 (WL Can.), affirming the acquittals entered by Mrozinski Prov. Ct. J., 2017 BCPC 84 , [2018] 1 C.N.L.R. 97, [2017] B.C.J. No. 558 (QL), 2017 CarswellBC 769 (WL Can.). Appeal dismissed, Moldaver and Côté JJ. dissenting.

Glen R. Thompson and Heather Cochran , for the appellant.

Mark G. Underhill and Kate R. Phipps , for the respondent.

Christopher Rupar , for the intervener the Attorney General of Canada.

Manizeh Fancy , for the intervener the Attorney General of Ontario.

Tania Clercq , for the intervener the Attorney General of Quebec.

Rachelle Standing , for the intervener the Attorney General of New Brunswick.

Richard James Fyfe , for the intervener the Attorney General of Saskatchewan.

Angela Edgington , for the intervener Attorney General of Alberta.

Written submissions only by Elaine Cairns and Katie Mercier , for the intervener the Attorney General of the Yukon Territory.

Paul Williams , for the intervener the Peskotomuhkati Nation.

Bruce McIvor , for the intervener the Indigenous Bar Association in Canada.

Maxime Faille , for the intervener the Whitecap Dakota First Nation.

Jessica Orkin , for the interveners the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government.

Rosanne Kyle , for the intervener the Okanagan Nation Alliance.

Francis Walsh , for the intervener the Mohawk Council of Kahnawà:ke.

Julie McGregor , for the intervener the Assembly of First Nations.

Kathy L. Hodgson‑Smith , for the interveners the Métis National Council and the Manitoba Metis Federation Inc.

Jack Woodward , Q.C. , for the intervener the Nuchatlaht First Nation.

Andrew Lokan , for the intervener the Congress of Aboriginal Peoples.

John W. Gailus , for the intervener the Lummi Nation.

Thomas Isaac , for the intervener the Métis Nation British Columbia.

The judgment of Wagner C.J. and Abella, Karakatsanis, Brown, Rowe, Martin and Kasirer JJ. was delivered by

[ 1 ] Rowe J. — Richard Lee Desautel entered Canada legally from the United States of America. He shot an elk contrary to provincial wildlife rules and advised provincial authorities that he had done so. As he expected, he was charged for this. He defended the charges on the basis that he had an Aboriginal right to hunt the elk, one which is protected by s. 35(1) of the Constitution Act, 1982 . Thus, this is a test case, the central issue being whether persons who are not Canadian citizens and who do not reside in Canada can exercise an Aboriginal right that is protected by s. 35(1) . For the reasons that follow, I would say yes. On a purposive interpretation of s. 35(1), the scope of "aboriginal peoples of Canada" is clear: it must mean the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact.

[ 2 ] Beyond agreeing with Mr. Desautel on this central issue, I will say little more about what that means for the exercise of rights protected under s. 35(1) . That follows for two reasons. First, questions of law are better resolved in cases where there is a dispute that requires the answering of those questions. And, second, the defence of a prosecution for a provincial regulatory offence, while it may serve as a test case (as here), is not well-suited to deal with such broader issues. Such issues are better dealt with in an action setting out the right claimed, with a full evidentiary record, and seeking declaratory relief. I will return to such matters toward the end of my reasons.

I. Background

[ 3 ] On October 14, 2010, Mr. Desautel shot one cow-elk near Castlegar, British Columbia. He was charged with hunting without a licence contrary to s. 11(1) of the Wildlife Act , R.S.B.C. 1996, c. 488, and hunting big game while not being a resident contrary to s. 47(a) of the Act . He did not have a licence and was not a resident of British Columbia. Mr. Desautel is a citizen of the United States, and a resident of Ichelium in the State of Washington. Mr. Desautel admitted the actus reus of the offences, but raised a defence that he was exercising his Aboriginal right to hunt in the traditional territory of his Sinixt ancestors, a right protected under s. 35(1) .

[ 4 ] Mr. Desautel is a member of the Lakes Tribe of the Colville Confederated Tribes based in the State of Washington in the United States, a successor group of the Sinixt people. At trial, the year 1811 was accepted as the date of first contact between the Sinixt and Europeans. At this time, the Sinixt were engaged in a seasonal round of hunting, fishing, and gathering, travelling largely by canoe in their ancestral territory. This territory ran as far south as an island just above Kettle Falls, in what is now Washington State, and as far north as the Big Bend of the Columbia River, north of Revelstoke in what is now British Columbia. The place where Mr. Desautel shot the elk in October 2010 was within the ancestral territory of the Sinixt.

[ 5 ] Over the course of the latter half of the 19th century, the Sinixt gradually moved to occupy the southern portion of their territory full-time, the portion that lies in the United States. Until around the year 1870, the Sinixt continued their seasonal round in the northern portion of their territory, located in Canada. In the course of time, a "constellation of factors" made the Sinixt people move to the United States ( 2017 BCPC 84 , [2018] 1 C.N.L.R. 97, at para. 110 ). By 1872, a number of members of the Sinixt were living for the most part in Washington State. The trial judge did not find that the Sinixt were forced out of Canada "at gunpoint" (para. 101), but nor did she find that the move was voluntary, as the Lakes Tribe never gave up their claim to their traditional territory in Canada. Until the year 1930, the evidence clearly showed that members of the Lakes Tribe continued to hunt in British Columbia, despite living on the Colville Reserve in Washington State and in the face of the creation of an international border by the 1846 Oregon Boundary Treaty and the outlawing of their hunting by British Columbia through the Game Protection Amendment Act, 1896 , S.B.C., c. 22. From 1930 until 1972, there may have been a period of dormancy. As was found at trial, the Lakes Tribe continues to have a connection to the land where their ancestors hunted in British Columbia.

[ 6 ] Meanwhile, the population of Sinixt who had remained in Canada was small. By 1902, only 21 Sinixt still lived on their traditional territory in Canada, in the Arrow Lakes Band reserve. By 1930, only one person remained on the rolls of the Arrow Lakes Band, and after her death in 1956, the government of Canada declared the Arrow Lakes Band extinct, and the reserve lands reverted to the provincial Crown.

II. Judicial History

A. British Columbia Provincial Court, 2017 BCPC 84 , [2018] 1 C.N.L.R. 97 (Mrozinski J.)

[ 7 ] The trial judge held that there was no doubt that Mr. Desautel is a member of the Lakes Tribe, and saw the Lakes Tribe as a clear successor group to the Sinixt, such that the communal rights of the Sinixt could continue with the Lakes Tribe. The trial judge applied the test this Court set out in R. v. Van der Peet , [1996] 2 S.C.R. 507. She held that Mr. Desautel was exercising an Aboriginal right to hunt for food, social and ceremonial purposes guaranteed by s. 35(1) of the Constitution Act, 1982 .

[ 8 ] Despite the Lakes Tribe's departure from the northern part of their traditional territory, its members remained connected to that geographical area. The evidence demonstrated that the land and the traditions were not forgotten, and that the connection to the land was still present in the minds of the members of the Lakes Tribe. The trial judge found that the requirement of continuity was met, notwithstanding a period of dormancy between 1930 and 1972, because there is no requirement of "an unbroken chain of continuity" ( Van der Peet , at para. 65 ).

[ 9 ] Moreover, the trial judge decided it was not necessary to define the Aboriginal right as including a mobility right, so no issue of sovereign incompatibility arose. Mr. Desautel's Aboriginal right remained in existence and was protected by s. 35(1) . The trial judge held that the right was infringed by the provisions of the Wildlife Act and the infringement was not justified. Mr. Desautel was acquitted.

B. British Columbia Superior Court, 2017 BCSC 2389 , [2018] 1 C.N.L.R. 135 (Sewell J.)

[ 10 ] The appeal was dismissed. The summary conviction appeal judge held that the Sinixt people are the relevant collective and that modern-day Lakes Tribe members are entitled to assert the Aboriginal rights held by the Sinixt, based on practices that were part of their distinctive culture at the time of contact, in their traditional territory in British Columbia. According to the summary conviction appeal judge, the words "aboriginal peoples of Canada" in s. 35(1) must be interpreted in a purposive way, and mean Aboriginal peoples who, prior to contact, occupied what became Canada. Therefore, modern-day members of the Sinixt are not precluded from asserting rights under s. 35(1) merely because they now live in the United States. This interpretation of s. 35(1) is consistent with the objective of reconciliation. To establish an Aboriginal right to hunt, Mr. Desautel had to meet the requirements of the Van der Peet test. The summary conviction appeal judge found that the trial judge made no error in applying the Van der Peet test.

[ 11 ] The summary conviction appeal judge held that Mr. Desautel's Aboriginal right to hunt is not incompatible with Canadian sovereignty. The fact that the government of Canada has the right to control its borders is not fatal to the assertion of an Aboriginal right to hunt in Canada by an Aboriginal group located in the United States. Mr. Desautel was not charged with coming into Canada unlawfully and there was no evidence that he was denied entry. In contrast with the claimant in Mitchell v. M.N.R. , 2001 SCC 33 , [2001] 1 S.C.R. 911, Mr. Desautel was not asserting an Aboriginal right to cross the border.

C. British Columbia Court of Appeal, 2019 BCCA 151 , 24 B.C.L.R. (6th) 48 (Smith, Willcock and Fitch JJ.A.)

[ 12 ] The Crown's appeal was dismissed. Under a purposive approach, the Court of Appeal concluded that an Aboriginal group that does not reside in Canada and whose members are neither residents nor citizens of Canada can claim constitutional rights under s. 35(1) of the Constitution Act, 1982 . It is not a requirement that there be a present-day Aboriginal community in the geographic area where the claimed right is exercised. In this case, the Court of Appeal found that the relevant historic collective is the Sinixt and that the Lakes Tribe is a modern collective descended from the Sinixt. The finding of the trial judge that the chain of continuity had not been broken was entitled to deference. There is no requirement under the Van der Peet test, according to the Court of Appeal, that the claimant must be a member of a contemporary Aboriginal community currently located in the geographic area where the right was historically exercised. Imposing such a requirement would fail to take into account the Aboriginal perspective, the realities of colonization and displacement, and the goal of reconciliation. The Court of Appeal concluded that the rights of Mr. Desautel's community to hunt on their ancestral lands in British Columbia were never voluntarily surrendered, abandoned or extinguished. Therefore, Mr. Desautel has an Aboriginal right to hunt in British Columbia.

[ 13 ] It was further held that practical concerns about the expansion of Canada's duty to consult to Aboriginal groups in the United States could not prevent a court from recognizing their inherent rights. Finally, the Court of Appeal determined that it was not necessary to consider Mr. Desautel's incidental mobility right to cross the border and the compatibility of such a right with Canadian sovereignty, because this issue was not addressed at trial and its resolution was not necessary for the determination of the appeal.

III. Issue

[ 14 ] The appellant Her Majesty the Queen in Right of British Columbia (hereinafter "the Crown") raises the following constitutional question:

Are ss. 11(1) and 47(a) of the Wildlife Act , R.S.B.C. 1996, c. 488, as they read in October 2010, of no force or effect with respect to the respondent, being a member of the Lakes Tribe of the Confederated Tribes of the Colville Reservation in Washington State, U.S.A., in virtue of s. 52 of the Constitution Act, 1982 , by reason of an Aboriginal right within the meaning of s. 35 of the Constitution Act, 1982 , invoked by the respondent?

(A.R., vol. I, at p. 139)

[ 15 ] To answer this question, the Court must determine whether an Aboriginal people located outside Canada can assert rights protected under s. 35(1) of the Constitution Act, 1982 .

IV. Submissions of the Parties

A. Appellant: Her Majesty the Queen in Right of British Columbia

[ 16 ] The Crown's main submission is that Mr. Desautel cannot assert Aboriginal rights under s. 35(1) because the scope of this provision is limited to Aboriginal peoples located in Canada. At best, Mr. Desautel can claim a common law right to hunt, which would not constitute a defence to the regulatory charges against him. In the Crown's submission, the Van der Peet test for the recognition of rights under s. 35(1) requires the presence of a present-day collective in the area where the right was exercised historically. In the present case, the relevant modern collective would be the Lakes Tribe, a group located in the State of Washington, not in British Columbia. Moreover, because Mr. Desautel is a resident of the United States, the exercise of the right to hunt in British Columbia necessarily involves an incidental mobility right to cross the border, which is incompatible with Canadian sovereignty, and the result is that the s. 35(1) Aboriginal right claimed by Mr. Desautel never came into existence.

B. Respondent: Mr. Desautel

[ 17 ] Mr. Desautel argues that he has an Aboriginal right to hunt in the ancestral territory of the Sinixt, the relevant modern-day collective, in British Columbia. This right is protected under s. 35(1). To assert s. 35(1) rights, he argues, the only test that an Aboriginal people has to pass is the Van der Peet test. Therefore, there is no threshold issue distinct from the test elaborated by this Court for the recognition of Aboriginal rights. Moreover, the Van der Peet test has never required an additional requirement of geographic continuity. The fact that an Aboriginal people is solely based outside Canada has no impact on the recognition of the right as long as the requirements of the Van der Peet test are met. Finally, Mr. Desautel submits that there is no mobility right at issue in this case.

V. Analysis

A. The Scope of Section 35(1)

(1) The Threshold Question

[ 18 ] Section 35(1) of the Constitution Act, 1982 , says:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

Les droits existants — ancestraux ou issus de traités — des peuples autochtones du Canada sont reconnus et confirmés.

It is clear from the text of s. 35(1) that, to fall within its scope, an Aboriginal group must be an "aboriginal peopl[e] of Canada". The question raised by this appeal is whether a group whose members are neither Canadian citizens nor Canadian residents can meet this condition. The text of s. 35(1) does not provide a clear answer to this question. The words "of Canada" are capable of different meanings, as "of" can be used to express a range of different relationships.

[ 19 ] Whether a group is an Aboriginal people of Canada is, analytically speaking, a different question from whether the group has an Aboriginal right. This Court's decision in Van der Peet was about the latter question. It set out a test for having an Aboriginal right, not for being an Aboriginal people of Canada. The Van der Peet test by itself is not, therefore, dispositive of this appeal. That said, evidence that is relevant to the question whether a group has an Aboriginal right may also be relevant to the question whether the group is an Aboriginal people of Canada.

[ 20 ] Whether a group is an Aboriginal people of Canada is a threshold question, in the sense that if a group is not an Aboriginal people of Canada, there is no need to proceed to the Van der Peet test. But this threshold question does not arise in every case. In most cases there is no doubt that the claimant belongs to an Aboriginal people of Canada, so there is no need to address the threshold question. The threshold question is likely to arise only where there is some ground for doubt, such as where the group is located outside of Canada. It should not be construed as an additional burden on rights claimants that has to be satisfied in every case.

[ 21 ] No previous decision of this Court interprets the scope of the words "aboriginal peoples of Canada" in s. 35(1) . That is our task here. As this Court has often recognized, s. 35(1) must be interpreted in a purposive way ( R. v. Sparrow , [1990] 1 S.C.R. 1075, at p. 1106; Van der Peet , at paras. 21-22 ; Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14 , [2013] 1 S.C.R. 623, at para. 76 ).

[ 22 ] For the reasons that follow, I am of the view that a consistent development of this Court's s. 35(1) jurisprudence requires that groups located outside Canada can be Aboriginal peoples of Canada. As I will explain, the two purposes of s. 35(1) are to recognize the prior occupation of Canada by organized, autonomous societies and to reconcile their modern-day existence with the Crown's assertion of sovereignty over them. These purposes are reflected in the structure of Aboriginal rights and title doctrine, which first looks back to the practices of groups that occupied Canadian territory prior to European contact, sovereignty or effective control, and then expresses those practices as constitutional rights held by modern-day successor groups within the Canadian legal order. The same purposes are reflected in the principle of the honour of the Crown, under which the Crown's historic assertion of sovereignty over Aboriginal societies gives rise to continuing obligations to their successors as part of an ongoing process of reconciliation.

[ 23 ] On this interpretation, the scope of "aboriginal peoples of Canada" is clear: it must mean the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of European contact. As a result, groups whose members are neither citizens nor residents of Canada can be Aboriginal peoples of Canada.

(2) A Purposive Interpretation of Section 35(1)

[ 24 ] The prior occupation of Canadian territory by organized Aboriginal societies was recognized before s. 35(1) was enacted. In Calder v. Attorney-General of British Columbia , [1973] S.C.R. 313, the claimants sought a declaration of Aboriginal title in their traditional territory. While the claim was unsuccessful, Judson J. characterized the source of Aboriginal title in comments that have been repeatedly cited by this Court: "the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means" ( Calder , at p. 328 (emphasis added); see also Roberts v. Canada , [1989] 1 S.C.R. 322, at p. 340; Guerin v. The Queen , [1984] 2 S.C.R. 335, at pp. 377-78). This point was taken up in Sparrow , where this Court laid out the analysis for justified infringements of Aboriginal rights. In finding that the Musqueam had an Aboriginal right protected by s. 35(1), Dickson C.J. and La Forest J. observed that they " have lived in the area as an organized society long before the coming of European settlers" ( Sparrow , at p. 1094 (emphasis added)).

[ 25 ] In R. v. Badger , [1996] 1 S.C.R. 771, this Court confirmed that the Sparrow test applies to infringements of treaty rights. In arriving at this conclusion, Cory J. drew on a second theme from the pre-1982 jurisprudence. The Crown's assertion of sovereignty over Aboriginal societies, he held, gave rise to a distinctive legal relationship. "[B]oth aboriginal and treaty rights possess in common a unique, sui generis nature. In each case, the honour of the Crown is engaged through its relationship with the native people " ( Badger , at para. 78 (emphasis added; citations omitted)). In the treaty context, this principle can be traced back to the dissenting reasons of Gwynne J. in Province of Ontario v. Dominion of Canada and Province of Quebec (1895) , 25 S.C.R. 434, at pp. 511-12; and in Ontario Mining Co. v. Seybold (1901) , 32 S.C.R. 1, at p. 2.

[ 26 ] These two themes were brought out explicitly in Van der Peet , where Lamer C.J. set out the test for Aboriginal rights. Lamer C.J. first observed, at para. 30, that "when Europeans arrived in North America, aboriginal peoples were already here , living in communities on the land, and participating in distinctive cultures, as they had done for centuries" (emphasis in original). Second, he wrote at para. 31, s. 35(1) is "the constitutional framework through which the fact that aboriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown". In short,

the aboriginal rights recognized and affirmed by s. 35(1) are best understood as, first, the means by which the Constitution recognizes the fact that prior to the arrival of Europeans in North America the land was already occupied by distinctive aboriginal societies, and as, second, the means by which that prior occupation is reconciled with the assertion of Crown sovereignty over Canadian territory. [para. 43]

[ 27 ] The two purposes of s. 35(1) underlie the test for Aboriginal rights set out in Van der Peet . The court first looks back to the historic practices of Aboriginal societies in Canada prior to contact, and second, recognizes those practices as Aboriginal rights held by their modern-day successors within the Canadian legal order: R. v. Gladstone , [1996] 2 S.C.R. 723, at para. 73 ; Mitchell , at para. 12 . In R. v. Sappier , 2006 SCC 54 , [2006] 2 S.C.R. 686, at para. 45 , Bastarache J. explained that the doctrine of Aboriginal rights " arises from the simple fact of prior occupation of the lands now forming Canada". He added that "[t]he 'distinctive aboriginal culture' must be taken to refer to the reality that, despite British sovereignty, aboriginal people were the original organized society occupying and using Canadian lands " (para. 45, quoting the dissenting reasons of L'Heureux-Dubé J. in Van der Peet , at para. 159 (emphasis added)).

[ 28 ] The test for Aboriginal title, a variation of the Van der Peet test, reflects the same two purposes. In Delgamuukw v. British Columbia , [1997] 3 S.C.R. 1010, this Court explained that Aboriginal title has two sources: first, Aboriginal possession of the land before the assertion of Crown sovereignty, and second, "the relationship between common law and pre-existing systems of aboriginal law" (para. 114). As LeBel J., concurring in R. v. Marshall , 2005 SCC 43 , [2005] 2 S.C.R. 220, at para. 129 , explained:

As with all aboriginal rights protected by s. 35(1) of the Constitution Act, 1982 , aboriginal title arises from the prior possession of land and the prior social organization and distinctive cultures of aboriginal peoples on that land. It originates from "the prior occupation of Canada by aboriginal peoples" and from "the relationship between common law and pre‑existing systems of aboriginal law". [Citations omitted.]

The test for title looks back to the historic occupation of Canadian territory by Aboriginal societies at the date of Crown sovereignty and recognizes this occupation as Aboriginal title, "a burden on the Crown's underlying title" ( Delgamuukw , at para. 145 ), within the Canadian legal order.

[ 29 ] The two purposes of s. 35(1) were reiterated in Mitchell by McLachlin C.J., who said:

Long before Europeans explored and settled North America, aboriginal peoples were occupying and using most of this vast expanse of land in organized, distinctive societies with their own social and political structures. . . . [T]he Crown asserted that sovereignty over the land, and ownership of its underlying title, vested in the Crown. With this assertion arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation, a duty characterized as "fiduciary" in Guerin . [Emphasis added; citations omitted; para 9.]

[ 30 ] In this Court's recent jurisprudence, the special relationship between Aboriginal peoples and the Crown has been articulated in terms of the honour of the Crown. As was explained by McLachlin C.J. and Karakatsanis J. in Manitoba Metis , at para. 67:

The honour of the Crown . . . recognizes the impact of the "superimposition of European laws and customs" on pre-existing Aboriginal societies . Aboriginal peoples were here first , and they were never conquered; yet, they became subject to a legal system that they did not share. Historical treaties were framed in that unfamiliar legal system, and negotiated and drafted in a foreign language. The honour of the Crown characterizes the "special relationship" that arises out of this colonial practice. [Emphasis added; citations omitted.]

While the honour of the Crown looks back to this historic impact, it also looks forward to reconciliation between the Crown and Aboriginal peoples in an ongoing, "mutually respectful long-term relationship" ( Manitoba Metis , at para. 66 ).

[ 31 ] As this review of the jurisprudence shows, s. 35(1) serves to recognize the prior occupation of Canada by Aboriginal societies and to reconcile their contemporary existence with Crown sovereignty. These purposes are given effect through the structure of Aboriginal rights doctrine, which looks back to Aboriginal societies that occupied Canadian territory at the time of contact, sovereignty or effective control, and then translates those historical practices into constitutional rights held by modern-day successors within the Canadian legal order. These purposes are also given effect through the honour of the Crown, which gives rise to continuing obligations to the modern-day successors of those Aboriginal societies as part of an ongoing process of reconciliation.

[ 32 ] I hasten to add that this criterion will need to be modified in the case of the Métis. Because Métis communities arose after contact between other Aboriginal peoples and Europeans, "the manner in which a court should look for continuity and the influence of European culture" must be adapted ( R. v. Powley , 2003 SCC 43 , [2003] 2 S.C.R. 207, at para. 37 ). I am not saying anything about what the criterion is in the case of the Métis; I will note only that it is different.

[ 33 ] I would add that an interpretation of "aboriginal peoples of Canada" in s. 35(1) that includes Aboriginal peoples who were here when the Europeans arrived and later moved or were forced to move elsewhere, or on whom international boundaries were imposed, reflects the purpose of reconciliation. As the Royal Commission on Aboriginal Peoples noted:

Aboriginal peoples were displaced physically — they were denied access to their traditional territories and in many cases actually forced to move to new locations selected for them by colonial authorities.

( Report of the Royal Commission on Aboriginal Peoples , vol. 1, Looking Forward, Looking Back (1996), at pp. 139-40)

By contrast, an interpretation that excludes Aboriginal peoples who were forced to move out of Canada would risk "perpetuating the historical injustice suffered by aboriginal peoples at the hands of colonizers" ( Van der Peet , at para. 31 ).

[ 34 ] Moreover, it bears emphasis that s. 35(1) did not create Aboriginal rights. As Calder and indeed the Royal Proclamation, 1763 (G.B.), 3 Geo. 3 (reproduced in R.S.C. 1985, App. II, No. 1), show, Aboriginal rights pre-existed the Constitution Act, 1982 . An interpretation of s. 35(1) that limits its scope to those Aboriginal peoples who were located in Canada in 1982 would fail to give effect to this point by treating s. 35(1) as the source of Aboriginal rights.

(3) Additional Arguments

[ 35 ] The parties and interveners made a range of additional arguments about the scope of s. 35(1). I do not take any of these arguments to be determinative, but will explain how they are consistent with the interpretation I have set out.

(a) Alternative Wording for Section 35(1)

[ 36 ] Several parties made submissions on what the words "of Canada" in s. 35(1) must mean. Both the Crown and Mr. Desautel suggested alternative wording that might have been used instead, had the drafters intended to limit or expand the scope of s. 35(1). I do not find this approach helpful for ascertaining the meaning of s. 35(1). The drafters chose the words they chose; what other words they might have used is not determinative of the meaning of the words they in fact used.

[ 37 ] However, the phrase " aboriginal peoples" does perhaps suggest those who were here originally — before the Europeans — in line with the interpretation I have set out. As Lord Denning once wrote in an analogous context, "the aboriginal inhabitants . . . were there from time immemorial. It was their land. The Europeans who came to North America regarded the indigenous people as the native inhabitants of the country . . ." ( The Queen v. The Secretary of State for Foreign and Commonwealth Affairs , [1981] 4 C.N.L.R. 86, at p. 106 (Eng. C.A.)).

(b) Context Within the Constitution Act, 1982

[ 38 ] The phrase "aboriginal peoples of Canada" is used elsewhere in the Constitution Act, 1982 . It is used in ss. 25 ("The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada . . ."), 35.1, and the now-repealed ss. 37 and 37.1.

[ 39 ] While there may be reason to interpret the phrase "aboriginal peoples of Canada" in the same way across the Constitution Act, 1982 , this provides little assistance in the present appeal. Section 25 uses "aboriginal peoples of Canada" to describe those who have "aboriginal, treaty or other rights or freedoms". Given that the existence of Aboriginal rights held by a group outside Canada was previously undecided, it is unclear what significance to attach to this usage. Section 35.1, in turn, uses the phrase in setting out an obligation to invite representatives of Aboriginal peoples to constitutional conferences. Sections 37 and 37.1, which have been repealed, required Canada and the provinces to participate in constitutional conferences dealing with matters related to Aboriginal peoples. Whether there would be any constitutional difficulties in inviting representatives of groups outside Canada to constitutional conferences is a question I can leave for another day, since questions of law are better resolved when there is a dispute that requires their resolution.

[ 40 ] Nor do I take anything from the requirement under s. 35.1 and the repealed ss. 37 and 37.1 that the Aboriginal peoples of Canada be represented at constitutional conferences. The Crown points out that inviting representatives of Aboriginal groups from outside Canada to constitutional conferences might be problematic. But as I have already noted, questions of law are better resolved in contexts where their resolution is necessary. There is no need here to resolve potential questions about the operation of s. 35.1 in future cases.

(c) Legislative History

[ 41 ] The Crown suggested that insight into the scope of s. 35(1) can be drawn from the Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada (1980) (Joint Committee Minutes). Looking at the Joint Committee Minutes, the Crown found no evidence that a concern about the scope of s. 35(1) in relation to groups outside Canada was ever raised. I agree with the Crown that the Joint Committee Minutes do not provide positive evidence that the drafters intended to include groups outside Canada; the issue of groups outside Canada was not raised in those proceedings. But the absence of evidence is not evidence of absence. The drafters said nothing one way or the other about the issue.

(d) The 1930 Natural Resources Transfer Agreements

[ 42 ] The Crown and the Attorney General of Saskatchewan submit that s. 35(1) should be interpreted similarly to the Natural Resources Transfer Agreements ("NRTAs"), which were entered into between Canada and the prairie provinces in 1930 [1] and also protect the rights of "Indians". Under the NRTAs, the protected rights are held by "Indians" living on "unoccupied Crown lands" within the relevant province or "such other lands as may be agreed upon". The NRTAs do not protect the right of a non-resident to enter Canada to hunt. I agree that the NRTAs apply only to individuals living in Canada. However, the NRTAs are not the same as s. 35(1), and they were not drafted in the same context. This argument is not sufficiently persuasive to override my interpretation of s. 35(1).

(e) The Presumption of Territoriality

[ 43 ] The Crown notes that there is a presumption, rebuttable only by clear words or necessary implication, that legislation does not apply extraterritorially ( Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers , 2004 SCC 45 , [2004] 2 S.C.R. 427, at para. 54 ). This presumption applies to ordinary legislation. Constitutional provisions are, however, different in kind from ordinary legislation, and the presumption of territoriality does not apply to the interpretation of constitutional provisions. In any event, the issue in this case is not whether s. 35(1) applies extraterritorially, but whether a group located outside Canada can assert Aboriginal rights within Canada under s. 35(1).

(f) Principles of Construction and the Aboriginal Perspective

[ 44 ] Several interveners suggest that interpretive principles in favour of Aboriginal peoples are relevant here. Relatedly, Mr. Desautel and some interveners also suggest that Aboriginal perspectives support the interpretation I have set out.

[ 45 ] The relevant interpretive principle is that, in interpreting s. 35(1), any doubt or ambiguity should be resolved in favour of Aboriginal peoples ( Van der Peet , at para. 25 ; Nowegijick v. The Queen , [1983] 1 S.C.R. 29, at p. 36 ). Where the text of s. 35(1) is ambiguous, the doubt should be resolved in favour of Aboriginal peoples. I have explained why the purposive interpretation of s. 35(1) that I adopt is the better one; this principle reinforces my conclusion.

[ 46 ] That said, Mr. Desautel and several interveners explain that Aboriginal perspectives involve a strong connection to ancestral territory, even where the Aboriginal group has been dispossessed of that territory. I accept this, and it is consistent with the interpretation I have set out. However, it would not be appropriate to say more than this about the Aboriginal perspective without a more complete factual record on this point.

(4) Application

[ 47 ] I have concluded that the Aboriginal peoples of Canada under s. 35(1) are the modern-day successors of Aboriginal societies that occupied what is now Canada at the time of European contact (subject to modification in the case of the Métis). Groups located outside Canada can be Aboriginal peoples of Canada.

[ 48 ] In the present case, the trial judge found as a fact that the Sinixt had occupied territory in what is now British Columbia at the time of European contact. She also found that the Lakes Tribe are a modern successor of the Sinixt. These findings were not disturbed on appeal. The migration of the Lakes Tribe from British Columbia to a different part of their traditional territory, located in Washington State, did not cause the group to lose its identity or its status as a successor to the Sinixt people. Accordingly, the Lakes Tribe is an Aboriginal people of Canada.

[ 49 ] This case does not require the Court to set out criteria for successorship of Aboriginal communities. This is a complex issue that should be dealt with on a fuller factual record, with the benefit of argument specifically directed to it.

B. The Test for Aboriginal Rights

[ 50 ] Having found that the Lakes Tribe is an Aboriginal people of Canada, the next question is whether Mr. Desautel's claim satisfies the Van der Peet test for an Aboriginal right under s. 35(1) . As this Court has confirmed, the Van der Peet test applies to all groups who are Aboriginal peoples of Canada. There is no reason to apply a different test to groups located outside Canada, unless this Court's previous decisions require modification for such groups.

(1) The Van der Peet Test

[ 51 ] The analysis under Van der Peet was restated by this Court in Lax Kw'alaams Indian Band v. Canada (Attorney General) , 2011 SCC 56 , [2011] 3 S.C.R. 535, at para. 46 :

(a) Characterize the right claimed in light of the pleadings and evidence ( Van der Peet , at para. 53 ; Gladstone , at para. 24 ; Mitchell at paras. 14-19 ).

(b) Determine whether the claimant has proven that a relevant pre-contact practice, tradition or custom existed and was integral to the distinctive culture of the pre-contact society ( Van der Peet , at paras. 55, 59 and 64 ; Sappier , at para. 33 ; Mitchell , at para. 12 ).

(c) Determine whether the claimed modern right is "demonstrably connected to, and reasonably regarded as a continuation of, the pre-contact practice" ( Lax Kw'alaams , at para. 46).

[ 52 ] This analysis has been elaborated in detail in this Court's jurisprudence. For present purposes, it will suffice to comment on the role of continuity in the analysis. Continuity is about whether the modern practice claimed to be an Aboriginal right is connected to a pre-contact practice of the claimant's ancestors.

[ 53 ] At the second stage of the Van der Peet analysis, continuity can play a role in proof. Showing that a practice is integral to the claimant's culture today, and that it has continuity with pre-contact times, can count as proof that the practice was integral to the claimant's culture pre-contact ( Van der Peet , at para. 62 ).

[ 54 ] At the third stage, the question is whether the modern practice which is claimed to be an exercise of an Aboriginal right is connected to, and reasonably seen as a continuation of, the pre-contact practice. Continuity with the pre-contact practice is required in order for the claimed activity to fall within the scope of the right ( Van der Peet , at para. 63 ). That said, "an unbroken chain of continuity" is not required ( Van der Peet , at para. 65 ); "[i]t is not unusual for the exercise of a right to lapse for a period of time" ( Van der Peet , at para. 65 ).

[ 55 ] I would emphasize that the assessment of continuity, both at the second and third stages, is a highly fact-specific exercise. As McLachlin C.J. wrote in Mitchell , at para. 36 , the weighing of evidence in Aboriginal claims "is generally the domain of the trial judge, who is best situated to assess the evidence, and is consequently accorded significant latitude in this regard" .

(2) The Attorney General of Canada's Proposed Framework

[ 56 ] The intervener Attorney General of Canada submits that the proper approach to determine under what circumstances an Aboriginal claimant located outside Canada can claim rights under s. 35(1) is through a modified Van der Peet test that requires an Aboriginal group outside Canada to be recognized by a related Aboriginal collective within Canada. This would require, in effect, a form of sheltering that would work similarly to the sheltering recognized in the case law on treaty rights.

[ 57 ] In Powley , the Court modified, though it did not overrule, the Van der Peet test to accommodate the particular situation of the Métis (see paras. 14 and 18). It also offered some comments on how this modification could work in practice. If those comments establish a principle applicable to other groups outside the Van der Peet test, then on the Attorney General of Canada's submission, the idea of "sheltering" under a related group's rights could also be adapted to govern the situation of Aboriginal groups outside Canada.

[ 58 ] The idea of "sheltering" emerges from case law concerning "whether an Aboriginal person can lawfully 'shelter' under a treaty he is not a signatory to" ( R. v. Shipman , 2007 ONCA 338 , 85 O.R. (3d) 585, at para. 1 ; see also R. v. Meshake , 2007 ONCA 337 , 85 O.R. (3d) 575). In these cases, an Aboriginal person is not a member of the treaty group but seeks to assert rights under the treaty nonetheless. In Shipman and Meshake , the Court of Appeal held that an individual Aboriginal person can shelter under the treaty rights of a related group if there is evidence of a close connection between the individual's group and the treaty group.

[ 59 ] The Attorney General of Canada proposes that we adapt the Powley and sheltering frameworks to govern the situation of Aboriginal rights claimants outside Canada. In my view, there is no need to do so. I see no need to require Aboriginal peoples outside Canada to satisfy a requirement of recognition by a related Aboriginal collective residing in Canada.

[ 60 ] This requirement would place a higher burden on Aboriginal communities who seek to claim rights if the group moved, was forced to move, or was divided by the creation of an international border. It would risk defining Aboriginal rights in a manner that excludes some of those the provision was intended to protect. Moreover, it would raise myriad practical difficulties, such as which group within Canada has a say in the recognition of a claimant located outside Canada, where there are competing groups, which body can represent a collective residing in Canada, and what happens if there is no related modern collective residing in Canada.

[ 61 ] For these reasons, the test for an Aboriginal right is the same whether the claimant is inside or outside Canada.

(3) Application

[ 62 ] In the present case, the Aboriginal right claimed is a right to hunt for food, social and ceremonial purposes within the traditional territory of the Sinixt in British Columbia. The trial judge found that this right was exercised at contact, and that it continued to be exercised until 1930, notwithstanding the movement of the Sinixt to the United States and the creation of the international border. She also found that, setting aside the periods in which no hunting took place, there was no significant dissimilarity between the pre-contact practice and the modern one. For the reasons I have given above, I see no error in the trial judge's approach to continuity.

[ 63 ] The Crown and the intervener Attorney General of Alberta submit that this was an error, because continuity requires an ongoing presence in the lands over which an Aboriginal right is asserted. I disagree. The Van der Peet test does not require ongoing geographic presence. What it requires is that the right claimed by the modern group be demonstrably connected to, and reasonably seen as a continuation of, the pre-contact practice of the claimant's ancestors. The trial judge's findings of fact support the conclusion that the right claimed by Mr. Desautel satisfies this requirement.

[ 64 ] In effect, we are asked to hold that an Aboriginal right can be lost or abandoned by non-use: a proposition that Lamer C.J. left undecided in Van der Peet , at para. 63 . Would accepting this proposition advance the goals of reconciliation? It would mean, effectively, that rights can be lost through the colonial displacement that s. 35(1) was meant to remedy. That seems to me contrary to the purposes of s. 35(1). In any event, based on the evidence, there was a continuing connection between the Lakes Tribe and the lands in Canada even during the period of dormancy.

C. Sovereign Incompatibility

[ 65 ] The Crown submits that even if Mr. Desautel's claim would otherwise meet the test for an Aboriginal right, this right is incompatible with Canadian sovereignty because the right encompasses other rights necessary for its exercise, including the right of Mr. Desautel to cross the border. While an Aboriginal right can be incompatible with Canadian sovereignty — as illustrated by the right claimed in Mitchell — I am of the view that no such incompatibility arises here.

[ 66 ] I am of the view that, unlike the right claimed in Mitchell , the very purpose of the right claimed by Mr. Desautel is not to cross the border. The mobility right, if it exists, is incidental in the sense that it is not itself the right claimed by Mr. Desautel. The right Mr. Desautel claims is an Aboriginal right to hunt in the ancestral territory of the Sinixt in British Columbia. The fact that the exercise of this right, given that Mr. Desautel is resident in the United States, happens to involve crossing the border does not turn the claimed right into a right to cross the border. To hold otherwise would be to say that Aboriginal groups located outside Canada can never have Aboriginal rights in Canada. I reject that proposition, for the reasons I have given above.

D. Common Law Aboriginal Rights

[ 67 ] The Crown contends that while Mr. Desautel cannot have a s. 35(1) Aboriginal right, because he is not a member of an Aboriginal people of Canada, he can still have common law Aboriginal rights, which would not constitute a defence to the regulatory charges against him. Given my conclusion that Mr. Desautel does have a s. 35(1) Aboriginal right, I need not address the Crown's argument that common law rights would not constitute a defence.

[ 68 ] Before 1982, common law Aboriginal rights were recognized in Canada under British imperial law ( Calder , at pp. 328 and 402; Mitchell , at paras. 62-64 ). Under the imperial doctrine of succession of states, these rights were inherited by Canada. Section 35(1) then elevated these common law rights to constitutional status ( Mitchell , at para. 11; Sparrow , at p. 1105).

[ 69 ] On the other hand, this Court has held that the existence of a common law Aboriginal right is sufficient to ground a s. 35(1) right ( Delgamuukw , at para. 136 ). Recognizing common law Aboriginal rights as existing alongside and potentially giving rise to s. 35(1) rights shows that common law rights were not extinguished by s. 35(1). As one scholar has observed:

while a legal historian might one day accept that the effect of the Van der Peet trilogy was to create a new test, and a new doctrine, the Supreme Court has stated that the doctrine which gives rise to aboriginal rights under s. 35(1) did not itself arise with s. 35(1). [Emphasis in original.]

('"Existing' Aboriginal Rights in Section 35 of the Constitution Act, 1982 " (2009), 88 Can . B ar Rev . 51, at p. 84; see also G. Otis, "Le titre aborigène: émergence d'une figure nouvelle et durable du foncier autochtone?" (2005), 46 C. de D. 795, at p. 800)

[ 70 ] However, in light of my conclusion that Mr. Desautel has a s. 35(1) Aboriginal right to hunt in the ancestral territory of the Sinixt in British Columbia, it is not necessary to address this matter further.

E. The Consequences of This Decision

[ 71 ] The Crown and several attorneys general raised concerns about the possible consequences of groups like the Lakes Tribe being held to be Aboriginal peoples of Canada. In this section, I explain why those concerns do not undermine my interpretation of s. 35(1).

(1) The Duty to Consult

[ 72 ] The duty to consult "arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it" ( Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 S.C.R. 511, at para. 35 ). As this Court explained in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council , 2010 SCC 43 , [2010] 2 S.C.R. 650, at para. 31 :

Actual knowledge arises when a claim has been filed in court or advanced in the context of negotiations, or when a treaty right may be impacted. Constructive knowledge arises when lands are known or reasonably suspected to be subject to Aboriginal rights or title.

[ 73 ] As I will explain, given the requirement of actual or constructive knowledge, the duty to consult may well operate differently as regards those outside Canada.

[ 74 ] Given the long history of Crown-Aboriginal relations in Canada, the Crown will often be aware of the existence of Aboriginal groups within Canada and may have some sense of their claims. The situation may be different in the case of groups outside Canada. The Crown may not know or have reason to know of the potential claims of groups outside Canada. Accordingly, constructive knowledge may be harder to establish for a group outside Canada.

[ 75 ] There is no freestanding duty on the Crown to seek out Aboriginal groups, including those outside Canada, in the absence of actual or constructive knowledge of a potential impact on their rights. Without such knowledge, the duty to consult is not triggered.

[ 76 ] Once the Crown is put on notice, however, it has to determine whether a duty to consult arises and, if so, what the scope of the duty is. As I mentioned earlier, consultation is part of a "process of fair dealing and reconciliation" ( Haida Nation , at para. 41). The scope of the duty to consult is proportionate to the strength of the claim and the seriousness of the potential impact ( Haida Nation , at para. 39 ). The fact that a rights holder is outside Canada may be a relevant consideration in determining what consultation is required.

(2) Justifying Infringements of Aboriginal Rights

[ 77 ] The fact that an Aboriginal group is outside Canada is relevant to the Sparrow test for justifying an infringement of an Aboriginal or treaty right.

[ 78 ] This Court has emphasized the role of context in determining whether an infringement of an Aboriginal right is justified. In Sparrow , at p. 1111, the Court noted "the importance of context and a case-by-case approach to s. 35(1)". In Newfoundland and Labrador (Attorney General) v. Uashaunnuat (Innu of Uashat and of Mani-Utenam) , 2020 SCC 4 , [2020] 1 S.C.R. 15, at para. 51 , the Court noted that:

the framework for analysing aboriginal rights laid out in Sparrow depends to a considerable extent on the legal and factual context of that appeal. In this case, where . . . the context varies significantly from that of Sparrow , the Sparrow framework must be adapted accordingly.

[ 79 ] The fact that the holder of an Aboriginal right is located outside of Canada is a feature of the context that may be taken into account in the justification analysis. The government's power to regulate the exercise of Aboriginal rights may be informed by the fact that the rights holder is outside of Canada, including in determining whether an infringement is justified and what accommodation is appropriate.

(3) Aboriginal Title

[ 80 ] The present case involves an Aboriginal right to hunt for food, social and ceremonial purposes. It does not involve a claim for Aboriginal title. Aboriginal title is not a right to carry out an activity, but a right to the land itself; it "is a right to the land itself" ( Tsilhqot'in Nation v. British Columbia , 2014 SCC 44 , [2014] 2 S.C.R. 257, at para. 70 ). The test for Aboriginal title requires, inter alia, that the claimant establish present occupation as well as occupation at the time of sovereignty ( Tsilhqot'in Nation , at paras. 30-32 and 35 ).

[ 81 ] Given these special features of the test for Aboriginal title, and given that the present case does not involve a title claim, I would leave for another day the differences that may exist between the Aboriginal title framework and the Aboriginal rights framework as applied to groups outside Canada.

(4) Modern Treaties

[ 82 ] Some modern treaties make provision for Aboriginal individuals who are not Canadian citizens to have treaty rights. [2] Other treaties exclude this possibility. [3] The intervener Attorney General of Canada notes that some modern treaties may contain language suggesting that the parties did not intend to include groups like the Lakes Tribe in the scope of the treaty. Nothing I say in these reasons affects the interpretation of those treaties.

F. The Vindication of Aboriginal Rights

[ 83 ] As I mentioned at the outset of these reasons, beyond agreeing with Mr. Desautel on the central issue, I have said little more about what this means for the exercise of s. 35(1) Aboriginal rights by the Lakes Tribe. I will explain why.

(1) It Is for the Courts to Interpret Section 35(1)

[ 84 ] This Court has to be mindful of its proper role in the vindication of Aboriginal rights. As this Court held in Hunter v. Southam Inc. , [1984] 2 S.C.R. 145, at p. 169, "the judiciary is the guardian of the constitution". Section 35(1) is a constitutional provision, and its authoritative interpretation is for the courts. In particular, it is not for the Crown to decide unilaterally which Aboriginal groups are Aboriginal peoples of Canada. As the Court noted in Mikisew Cree First Nation v. Canada (Governor General in Council) , 2018 SCC 40 , [2018] 2 S.C.R. 765, at para. 21:

Although s. 35(1) recognizes and affirms "the existing aboriginal and treaty rights of the aboriginal peoples of Canada", defining those rights is a task that has fallen largely to the courts. The honour of the Crown requires courts to take this task seriously.

[ 85 ] When the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada were recognized and affirmed by the enactment of the Constitution Act, 1982 , this gave rise to an obligation on governments to identify and give effect to those rights. These rights have not disappeared; if they have not been settled through treaty processes, they remain in place.

[ 86 ] In my view, the authoritative interpretation of s. 35(1) of the Constitution Act, 1982 , is for the courts. It is for Aboriginal peoples, however, to define themselves and to choose by what means they seek to advance their interests.

(2) Negotiation Can Foster Reconciliation

[ 87 ] Negotiation has significant advantages for both the Crown and Aboriginal peoples as a way to obtain clarity about Aboriginal rights:

Negotiation . . . has the potential of producing outcomes that are better suited to the parties' interests, while the range of remedies available to a court is narrower. . . . The settlement of indigenous rights through negotiation is better suited to the complexity of those rights. It is a more dignified process for Aboriginal parties . . . .

(S. Grammond, Terms of Coexistence, Indigenous Peoples and Canadian Law (2013), at p. 139)

Negotiation also provides certainty for both parties ( Beckman , at para. 109 , per Deschamps J., concurring). As the Court said in Clyde River (Hamlet) v. Petroleum Geo-Services Inc. , 2017 SCC 40 , [2017] 1 S.C.R. 1069, at para. 24: "The goal of reconciliation, to which both Canada and Aboriginal peoples aspire, demands nothing less."

[ 88 ] Good faith from both parties is required. As the Court said in Haida , at para. 25, the honour of the Crown "requires the Crown . . . to participate in processes of negotiation" (see also B. Slattery, "Aboriginal Rights and the Honour of the Crown" (2005), 29 S.C.L.R. (2d) 434 , at p. 444). At the same time, it must be recognized that Aboriginal peoples have "an independent duty to act in good faith" ( First Nation of Nacho Nyak Dun v. Yukon , 2017 SCC 58 , [2017] 2 S.C.R. 576, at para. 35 ).

[ 89 ] As this Court has held on many occasions, the Crown has an "obligation to achieve the just settlement of Aboriginal claims through the treaty process" ( Rio Tinto , at para. 32; see also Haida , at para. 20 ; Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) , 2004 SCC 74 , [2004] 3 S.C.R. 550, at para. 2 ; Beckman , at para. 10 ). Modern treaties are the culmination of the negotiation process: they represent the end-point of the process of reconciliation.

[ 90 ] When parties are considering possible courses of action, it is useful to bear in mind that criminal and regulatory proceedings have inherent limits proper to their nature. In these types of cases, courts are constrained to deal only with what the accused is charged with.

Although many of the aboriginal rights cases that have made their way to this Court began by way of summary conviction proceedings, it is clear to me that we should re-think the appropriateness of litigating complex Aboriginal rights questions in the context of summary conviction proceedings. Such proceedings have features that limit the ability of courts to do complete justice. For example, the range of remedies available is narrow; the process is not designed to deal with complex questions or to develop a complete evidentiary record; and there are limitations on the parties who can participate in the proceedings, which is a significant concern when the rights of third parties may be affected. ( R. v. Marshall , [1999] 3 S.C.R. 533 , at para. 25 , per Binnie J., concurring)

[ 91 ] Therefore, [ translation ] "[t]he negotiating table should not be seen as a substitute for the courtroom, nor the courtroom as an alternative to the negotiating table" (P. Dionne, "La reconnaissance et la définition contemporaines des droits ancestraux: négocier ou s'adresser au juge?", in G. Otis, ed., Droit, territoire et gouvernance des peuples autochtones (2005), 71, at p. 78). Both processes are complementary to each other and must interact with each other within their proper limits.

[ 92 ] All this said, it is for the parties themselves to decide how they wish to proceed.

VI. Disposition

[ 93 ] The appeal is dismissed. The constitutional question is answered in the affirmative.

The following are the reasons delivered by

[ 94 ] Côté J. (dissenting) — Does the constitutional protection of Aboriginal rights contained in s. 35(1) of the Constitution Act, 1982 , extend to an Aboriginal group located outside of Canada, and whose member claiming to exercise an Aboriginal right is neither a resident nor a citizen of Canada? The courts below, and my colleague Rowe J., say that it does, but in my view, and with respect, that conclusion is contrary to a purposive analysis of s. 35(1) that examines the linguistic, philosophic, and historical contexts of that provision. This Court's s. 35(1) jurisprudence has characterized — properly, in my view — reconciliation in terms of the relationship between non-Aboriginal Canadians and Aboriginal peoples as full and equal members of, and participants in, Canadian society. In addition, s. 35(1) elevated to constitutional status the common law rights of the "aboriginal peoples of Canada" that were "existing" in 1982 ( Mitchell v. M.N.R. , 2001 SCC 33 , [2001] 1 S.C.R. 911, at para. 11 ). Aboriginal groups located outside of Canada's borders do not fit within this understanding.

Solicitors for the appellant: Attorney General of British Columbia, Victoria.

Solicitors for the respondent: Underhill Boies Parker, Vancouver.

Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Vancouver.

Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.

Solicitor for the intervener the Attorney General of Quebec: Attorney General of Quebec, Québec.

Solicitor for the intervener the Attorney General of New Brunswick: Attorney General of New Brunswick, Fredericton.

Solicitor for the intervener the Attorney General of Saskatchewan: Attorney General of Saskatchewan, Regina.

Solicitor for the intervener the Attorney General of Alberta: Attorney General of Alberta, Edmonton.

Solicitor for the intervener the Attorney General of the Yukon Territory: Attorney General of the Yukon Territory, Whitehorse.

Solicitors for the intervener the Peskotomuhkati Nation: Williams Legal, Campbellton, N.B.

Solicitors for the intervener the Indigenous Bar Association in Canada: First Peoples Law, Vancouver.

Solicitors for the intervener the Whitecap Dakota First Nation: Gowling WLG (Canada), Ottawa.

Solicitors for the interveners the Grand Council of the Crees (Eeyou Istchee) and the Cree Nation Government: Olthuis Kleer Townshend, Toronto.

Solicitors for the intervener the Okanagan Nation Alliance: Woodward & Company, Victoria.

Solicitors for the intervener the Mohawk Council of Kahnawà:ke: Dionne Schuller, Montréal.

Solicitor for the intervener the Assembly of First Nations: Assembly of First Nations, Ottawa.

Solicitors for the interveners the Métis National Council and the Manitoba Metis Federation Inc.: Semaganis Worme Lombard, Saskatoon.

Solicitor for the intervener the Nuchatlaht First Nation: Jack Woodward, Q.C., Campbell River, B.C.

Solicitors for the intervener the Congress of Aboriginal Peoples: Paliare Roland Rosenberg Rothstein, Toronto.

Solicitors for the intervener the Lummi Nation: DGW Law Corporation, Victoria.

Solicitors for the intervener the Métis Nation British Columbia: Cassels Brock & Blackwell, Vancouver.

[1] Natural Resources Transfer Agreement (Manitoba) (Schedule 1 of Constitution Act, 1930 , R.S.C. 1985, App. II, No. 26), at paras. 11 and 13; Natural Resources Transfer Agreement (Alberta) (Schedule 2 of Constitution Act, 1930 , R.S.C. 1985, App. II, No. 26), at paras. 10 and 12; Natural Resources Transfer Agreement (Saskatchewan) (Schedule 3 of Constitution Act, 1930 , R.S.C. 1985, App. II, No. 26), at paras. 10 and 12.

[2] See for example: Carcross/Tagish First Nation Final Agreement (2005), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; Champagne and Aishihik First Nations Final Agreement (1993), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; Kluane First Nation Final Agreement (2003), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; Kwanlin Dun First Nation Final Agreement (2004), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; Little Salmon/Carmacks First Nation Agreement(1998), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; First Nation of Nacho Nyak Dun Final Agreement (1993), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; Selkirk First Nation Final Agreement (1998), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; Ta'an Kwach'an Council Final Agreement (2001), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; Teslin Tlingit Council Final Agreement (1993), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; Tr'ondëk Hwëch'in Final Agreement (1998), vol. 1, c. 3, ss. 3.2.2 to 3.2.3; Vuntut Gwitchin First Nation Final Agreement (1993), vol. 1, c. 3, ss. 3.2.2 to 3.2.3.

[3] See for example: Gwich'in Comprehensive Land Claim Agreement (1992), vol. 1, c. 4; Sahtu Dene and Metis Comprehensive Land Claim Agreement (1993), vol. 1, c. 4.