Comment: The NDP v. Desautel: Tearing up UNDRIP, reproducing colonialism

Their names might not be familiar to most people but Tomekichi Homma and Richard Desautel share an uncommon destiny – standing up to a provincial government determined to impose racist laws.

In 1900, Tomekichi Homma challenged the B.C. law that forbid Asian Canadians and Indigneous peoples from voting. He won his case in the provincial court and the B.C. Supreme Court. The B.C. government, however, refused to accept these judgments. Instead, B.C.’s attorney general appealed to the highest court in the British Empire in his quest to keep Indigenous ­peoples and Asian Canadians from voting.

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The B.C. government today appears to be repeating that travesty, losing in both the provincial and Court of Appeal and now appealing to the Supreme Court of Canada – in this case to prevent the descendants of the Sinixt people who inhabited the Arrow Lakes region from hunting on their traditional territories.

That they should do this when the United Nations Declaration on the Rights of Indigenous Peoples ­proscribes such action is, well, breathtaking. That they should rely on a disreputable 1846 treaty to deny the aboriginal rights of the Sinixt and turn them into ­“foreigners”, raises fundamental questions about the territories known as “British Columbia.”

Stephanie Kwetásel’wet Wood of the Narwhal recently broke the story of Richard Desautel and the Sinixt, members of the Arrow Lakes Tribe, in their fight at the Supreme Court for the right to hunt on their traditional territories.

On Oct. 14 2010, Richard Desautel shot and harvested an elk on Sinixt traditional territory near the Slocan River. He was arrested by B.C. Conservation and charged with hunting without a license under the B.C. Wildlife Act.

Desautel and the Sinixt people are part of the Lakes Tribe of the Colville Confederated Tribes based in ­Washington State. He crossed the border to hunt on Sinixt traditional territory in British Columbia. He has always lived in the United States.

Desautel’s actions in 2010 were purposeful. He ­undertook the hunt on instructions from the Colville Confederated Tribes to secure ceremonial meat. He reported his action to local B.C. conservation officers, who charged him with hunting without a licence, and hunting big game while not being a resident of B.C.

Desautel challenged the charges and the case ­eventually went to trial, seven years later. The province, then under the Liberals, lost in provincial court. The charges against Desautel were dismissed on March 27, 2017. The B.C. government appealed the court’s ruling and this time, with the NDP in charge, lost at the B.C. Court of Appeal.

Undeterred, the NDP government has taken the case to the Supreme Court of Canada.

The legal arguments put forward in this case go to the heart of this province’s history and the unwillingness of some to repudiate a past anchored in settler colonialism and white supremacy.

How did Desautel defend Sinixt rights?

He asserted that he had a lawful right to hunt in the traditional territory of his Sinixt ancestors based on ­Section 35 (1) of the Canadian Constitution whereby “The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”

Lawyers representing the provincial government refused to accept Desautel and the Sinixt tribe’s assertion of aboriginal rights, on the basis of three legal arguments:

• that the Sinixt people’s aboriginal rights “did not survive” the British and American governments signing of the 1846 Oregon treaty, when the boundary line along the 49th parallel was established, cutting through the traditional territory of the Sinixt peoples; or

• that the Sinixt people had “gradually and voluntarily” drifted south of the border and in so doing had discontinued any hunting tradition in Canada; or

• that an 1896 provincial law (the Games Protection Act – SBC 1896, c.22) made it unlawful for “Indians” not resident in the province to hunt game in British Columbia.

The provincial court judge did not accept the province’s arguments, nor did the Court of Appeal. And that is how it should be. In fact, it is how it must be if the NDP is going to uphold its own legislation, Bill 41 – the Declaration on the Rights of Indigenous Peoples Act that aims “to affirm the application of the Declaration to the laws of British Columbia.”

Article 36 of that Declaration reads as follows:

1. Indigenous peoples, in particular those divided by international borders, have the right to maintain and develop contacts, relations and cooperation, including activities for spiritual, cultural, political, economic and social purposes, with their own members as well as other peoples across borders.

2. States, in consultation and cooperation with indigenous peoples, shall take effective measures to facilitate the exercise and ensure the implementation of this right.

How, one might ask, can Attorney-General David Eby and the NDP government justify pursing the Desautel case at all, let alone to the Supreme Court of Canada in light of its UNDRIP commitments?

Not only does the pursuit of this case contravene its own laws, it reveals the fundamentally flawed foundations of what we call “British Columbia”.

The judge underscored that the Treaty of Oregon (1846) was the legal basis for the assertion of British sovereignty, that it imposed the 49th parallel that cut in two the traditional territory of the Sinixt people, but that the Indigenous right to hunt across the border did not necessarily infringe or harm Canadian sovereignty:

[148] Without deciding the point, I am prepared to accept the 1846 [Oregon] Treaty had an impact on the Sinixt’s prior practice of moving about their territory at will. The Treaty had the effect of imposing a boundary that the Sinixt had and have to acknowledge and live with. It does not follow that this assertion of sovereignty cannot co-exist with their right to hunt in their traditional territory north of the 49th parallel.

This ruling is an attempt to reconcile Canadian sovereignty with that of Indigenous peoples who were sovereign in their own right before 1846. It embodies the spirit of reconciliation – one that the NDP government refuses to accept.

In rejecting this ruling and appealing to the Supreme Court, the province is now shining a light back on themselves – what right do they have to deny the rights of Indigenous peoples? They, and the courts, assert that the power of the Crown derives from the Treaty of Oregon.

Few people in this province are familiar with the Oregon Treaty but some Indigenous people know it well. Decades ago, the late Dave Elliot, an Elder of the W̱SÁNEĆ (Saanich) peoples wrote: “It was 1846 when they divided up the country and made the United States and Canada. We lost our land and our fishing grounds. It very nearly destroyed us, all of a sudden we became poor people. Our people were rich once because we had everything. We had all those runs of salmon and that beautiful way of fishing.”

The Treaty of Oregon gave some people a lot of power and took it from others.

“When they divided up the country we lost most of our territory,” recalls Dave Elliot. “It is now in the State of Washington. They said we would be able to go back and forth when they laid down the boundary, they said it wouldn’t make any difference to the Indians. They said that it wouldn’t affect us Indians. They didn’t keep that promise very long; Washington made laws over our Federal laws, British Columbia made laws over those Federal laws too, and pretty soon we weren’t able to go there and fish. Some of our people were arrested for going over there.”

Concerned with the power and destructiveness of this virtually unknown treaty, we began investigating it two years ago and our findings were published in the peer-reviewed journal B.C. STUDIES (“Whose Land Is It?” Special Issue 204).

We found that before 1846 Indigenous peoples such as the W̱SÁNEĆ or Mowachaht-Muchalaht exercised their own forms of sovereignty over the land, based partially on “organic concepts of being in which people do not own the earth but, rather, belong to it.”

Building on the work of the geographer Daniel Clayton, we also illustrated that when the British and American governments crossed swords in negotiating the Treaty of Oregon the only basis for justifying their assertion of control was on myths of “discovery”.

Just as the Spanish pointed to Christopher Columbus as their basis for claiming the Americas, in negotiating the Oregon Treaty the British pointed to James Cook, George Vancouver, Alexander McKenzie and David Thompson as their “discoverers” of the Pacific Northwest.

Needless to say, neither the British nor the American government took into account or consulted the 100,000 or more Indigenous peoples who inhabited these territories even though they were well aware of their presence.

Indeed, Henry Howell, a British philanthropist, had written the British foreign secretary during the treaty talks that there were more than 100,000 Indigenous people in Oregon “to whom it rightfully belongs, and not in equity to either of the nations claiming the same.”

In other words, the Oregon Treaty and its offspring, “British Columbia,” embodies a wilful and racist erasure of Indigenous peoples from the land, predicated on the “Doctrine of Discovery” a concept that has been roundly condemned by all Indigenous organizations as well as by the Truth and Reconciliation Commission.

That the province continues to pick away at old wounds, to invoke disreputable imperial agreements such as the Oregon Treaty as justification for their own power, while assailing the Sinixt, Lummi and many others as either “extinct” or foreign is pernicious in the extreme.

It reveals a settler mentality that, intentional or not, can only reproduce the unjust colonial past and systemic racism towards Indigenous people.

In 1902, Tomekichi Homma lost his case when the British highest court validated the racist contention of then attorney-general David M. Eberts that the province could and would deny Indigenous people and Asian Canadians the vote.

David Eby might want to review his government’s decision to appeal the acquittal of Richard Desautels to the Supreme Court. Otherwise, Eby’s name and that of his predecessor may be forever associated with racism and injustice.

John Price is a professor emeritus (history) at the University of Victoria; Nicholas XEMŦOLTW̱ Claxton teaches in UVic’s Faculty of Human and Social Development and is elected chief of the Tsawout First Nation.

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