Non-residents can claim aboriginal rights under the Constitution: Supreme Court of Canada

Non-citizens and non-residents can invoke an aboriginal right under the constitution, the Supreme Court of Canada ruled on Friday.


The case concerned Section 35 of the Canadian Constitution’s definition of “Aboriginal peoples of Canada.” The fundamental question, according to the court, is whether people who are not Canadian citizens or who do not live in Canada can exercise this privilege.

The case involved Richard Desautel, an American citizen who shot and killed an elk in British Columbia without a hunting licence in 2010. He is a member of the Colville Confederated Tribes’ Lakes Tribe. He was found guilty of hunting without a licence or proof of residence in British Columbia, claiming that he was upholding his aboriginal right to hunt in his ancestral lands.

The majority of the court decided that “Aboriginal peoples of Canada” refers to the modern-day descendants of aboriginal groups that lived on Canadian soil at the time of European contact. Even if those communities are now situated outside of Canada, this was the case.

People who are not Canadian citizens and do not live in Canada can exercise an aboriginal right that is covered under the law, according to Justice Malcolm Rowe.

“While Aboriginal communities outside of Canada can claim and hold section 35 rights, it does not follow that their rights are the same as those of communities within Canada,” Rowe said in response to questions about the potential implications of groups like the Lakes Tribe being considered aboriginal peoples of Canada. While the criteria for an Aboriginal right are the same, the community circumstances vary.

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