[WSMDiscuss] [REDlistserve] Indigenous Peoples outside Canada with ties to land are protected by Constitution : Supreme Court of Canada (Sean Fine)

[Swaha]

Wow - this is truly historic!  Thanks for sharing it!

On Sat, Apr 24, 2021 at 9:08 PM Jai Sen <jai.sen at cacim.net> wrote:

> Saturday, April 24, 2021
>
> *Turtle Island in movement…, Canada in movement…, Indigenous Peoples in
> movement…, Justice in movement…*
>
> [What seems to me, as an outsider, as being a very major development in
> thinking and jurisprudence on Turtle Island (aka ‘North America’) :
>
> The Supreme Court of Canada has widened the scope of constitutional rights
> protections for Indigenous peoples
> <https://www.theglobeandmail.com/topics/indigenous-peoples/>, saying they
> apply also to non-citizens who do not live in Canada but can show that
> their ancestors had ties to the land when Europeans arrived.
>
> “Indigenous peoples on both sides of the border see [the border] as the
> ultimate expression of colonization,” Bruce McIvor, a lawyer representing
> the Indigenous Bar Association, which intervened in the case, said in an
> interview. “And the court said ... that the aboriginal peoples of Canada
> are those that existed at the time of contact.”
>
> Murray Rankin, B.C.’s Minister of Indigenous Relations and Reconciliation,
> said the decision “contributes to our understanding of aboriginal law in
> Canada, and it will help guide the province as we continue our work
> together with Indigenous peoples.”
>
> *Indigenous Peoples outside Canada with ties to land are protected by
> Constitution : Supreme Court of Canada*
>
> Sean Fine <https://www.theglobeandmail.com/authors/sean-fine/>
>
> https://www.theglobeandmail.com/canada/article-supreme-court-ruling-grants-constitutional-rights-for-indigenous/
>
>
>
> The Supreme Court of Canada has widened the scope of constitutional rights
> protections for Indigenous peoples
> <https://www.theglobeandmail.com/topics/indigenous-peoples/>, saying they
> apply also to non-citizens who do not live in Canada but can show that
> their ancestors had ties to the land when Europeans arrived.
>
> The 7-2 ruling came in a test case involving an Indigenous hunter from
> Washington State who shot an elk in British Columbia in 2010, and was
> charged by a wildlife officer with violating provincial law. The Supreme
> Court said the hunter has constitutional rights in Canada that protect him
> from those charges.
>
> But the ruling’s implications are much wider than the right to hunt, fish
> or trap. The judgment opens the door to the possibility that Indigenous
> people who are not citizens and live outside of Canada could claim title to
> lands in Canada, a right to enter Canada and a right to be consulted during
> development projects. The court said it would leave those questions to
> another day.
>
> “Many Indigenous nations had their territories cut by the international
> boundary, from the Maritimes all the way to the West Coast,” Kent McNeil, a
> leading authority in aboriginal law and a professor emeritus at Osgoode
> Hall Law School, said in an interview. “This could mean that a lot of
> Indigenous members of those nations who have lived in the United States for
> a long time would have aboriginal rights in Canada.”
>
> Behind the decade-long legal fight that culminated in Friday’s ruling is
> the story of a people declared extinct by the Canadian government in 1956,
> but still seeking, from beyond Canada’s borders, to re-establish rights
> connected to their ancestral lands. The group has been known as the Sinixt,
> or Lakes or Arrow Lakes people.
>
> In 2010, Richard Lee Desautel, a member of the Lakes Tribe in Washington
> State, entered Canada legally and shot a cow-elk in Castlegar, B.C., on
> what he said was his people’s traditional territory, then reported the act
> to provincial wildlife officers. He was charged with hunting without a
> license and hunting big game while not being a resident of the province.
>
> He went to court to challenge the charges.
>
> A lower-court judge found that the Sinixt had lived for thousands of years
> on lands between the present-day Kootenay region near Revelstoke and Kettle
> Falls in the United States. The people’s move off their lands was not
> voluntary, the judge determined.
>
> Section 35 of the 1982 Constitution, called “Rights of the Aboriginal
> Peoples of Canada,” protects a wide range of pre-existing rights. But in
> the 1981 constitutional talks, nothing explicit was said about whether
> non-citizens beyond Canada’s borders could hold those rights.
>
> The B.C. government argued, among other things, that Mr. Desautel could
> not have a constitutional right to hunt in Canada when he did not have a
> constitutional right to enter the country. The federal government, and
> several provinces that share land borders with the United States, raised
> concerns about the duty to consult and other implications of granting
> non-resident, non-citizens constitutional protections under Section 35.
> National aboriginal organizations and several bands intervened on the other
> side.
>
> Mr. Desautel won at three lower-court levels. The B.C. Court of Appeal
> said it was not necessary to consider Mr. Desautel’s right to cross the
> border. It also said practical concerns about the duty to consult could not
> prevent a court from recognizing the inherent rights of Indigenous peoples.
>
> The Supreme Court endorsed the lower-court rulings. Under Section 35, “The
> Aboriginal peoples of Canada . . . are the modern successors of those
> Aboriginal societies that occupied Canadian territory at the time of
> European contact. This may include Aboriginal groups that are now outside
> Canada,” Justice Malcolm Rowe wrote for the majority. The right claimed
> must continue a practice that existed before contact with European
> settlers, he said.
>
> Dissenting, Justice Suzanne Côté wrote that the Constitution’s founders
> had an “implicit” understanding that the purpose of Section 35 was to
> protect only Indigenous peoples who are members of and participants in
> Canadian society. In a separate dissent, Justice Michael Moldaver said Mr.
> Desautel failed to prove continuity with pre-contact practices.
>
> Mr. Desautel said the ruling means everything to him.
>
> “It’s a declaration of non-extinction,” he said in an interview. “A
> declaration that your homeland is now your homeland again.”
>
> Rodney Cawston, chairman of the Colville Reservation and the Sinixt
> Confederacy, which includes the Lakes Tribe and has about 3,000 members,
> said the ruling means his people in the U.S. can now work with provincial
> officials and members of his people who are still in Canada to protect
> ancestral gravesites and other sacred sites, and improve the habitat for
> salmon.
>
> “It’s important for our future generations that we can bring them back to
> our ancestral homelands to enjoy those homelands like our ancestors once
> did, and to build a very strong identity with them,” he said in an
> interview.
>
> Indigenous leaders in Canada applauded the decision.
>
> “Indigenous peoples on both sides of the border see [the border] as the
> ultimate expression of colonization,” Bruce McIvor, a lawyer representing
> the Indigenous Bar Association, which intervened in the case, said in an
> interview. “And the court said ... that the aboriginal peoples of Canada
> are those that existed at the time of contact.”
>
> Murray Rankin, B.C.’s Minister of Indigenous Relations and Reconciliation,
> said the decision “contributes to our understanding of aboriginal law in
> Canada, and it will help guide the province as we continue our work
> together with Indigenous peoples.”
>
> The federal government had not responded to a request for comment by late
> Friday.
>
>
> ____________________________
>
> Jai Sen
>
> Independent researcher, editor; Senior Fellow at the School of
> International Development and Globalisation Studies at the University of
> Ottawa
>
> jai.sen at cacim.net &  <jsen at uottawa.ca>jsen at uottawa.ca
>
> Now based in Ottawa, Canada, on unsurrendered Anishinaabe territory (+1-613-282
> 2900) and in New Delhi, India (+91-98189 11325)
>
> *Check out something new** – including for copies of the first two books
> below, at a discount, and much more : **The Movements of Movements
> <https://movementsofmovements.net/>*
>
> Jai Sen, ed, 2017 – *The Movements of Movements, Part 1 : What Makes Us
> Move ?*.  New Delhi : OpenWord and Oakland, CA : PM Press.  Ebook and
> hard copy available at PM Press <http://www.pmpress.org/>; hard copy only
> also at The Movements of Movements <https://movementsofmovements.net/>
>
> Jai Sen, ed, 2018a – *The Movements of Movements, Part 2 : Rethinking Our
> Dance*.  Ebook and hard copy available at PM Press
> <http://www.pmpress.org/>; hard copy only also at The Movements of
> Movements <https://movementsofmovements.net/>
>
> Jai Sen, ed, 2018b – *The Movements of Movements, Part 1 : What Makes Us
> Move ?*  (Indian edition). New Delhi : AuthorsUpfront, in collaboration
> with OpenWord and PM Press.  Hard copy available at MOM1AmazonIN
> <https://www.amazon.in/dp/9387280101/ref=sr_1_2?ie=UTF8&qid=1522884070&sr=8-2&keywords=movements+of+movements+jai+sen>
> , MOM1Flipkart
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> and MOM1AUpFront <http://www.authorsupfront.com/movements.htm>
>
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