The provincial court acquitted the man in March, but the Crown appealed to the higher court, arguing that Desautel is not an Aboriginal person of Canada and not entitled to rights under the constitution.

Desautel’s lawyer, Mark Underhill, said the argument goes back to a 1956 declaration by the federal government that said the people of the small First Nation in the Kootenays were extinct.

For the Sinixt, that declaration has “weighed on the collective psyche for generations,” Underhill said.

“What this case has been about from the outset is whether the Sinixt still legally exist and can possess constitutionally protected rights. And that means everything for these folks,” he said in an interview.

In a written decision released Friday, Justice Robert Sewell dismissed the Crown’s appeal saying Desautel’s tribe traditionally lived on both sides of the border and has deep connections to its territory in Canada.

Desautel is an Aboriginal person of Canada and denying his Aboriginal rights would go against the idea of reconciliation, Sewell says in the decision.

“In my view, it would be inconsistent with that objective to deny a right to a group that occupied the land in question in pre-contact times and continued to actively use the territory for some years after the imposition of the international boundary on them,” he says.

Sewell noted the term Aboriginal Peoples of Canada refers to people who occupied an area of what became Canada prior to first contact with Europeans.

Underhill said the decision is a clear statement that where First Nations come from is what counts, not citizenship or international borders.

Sinixt members may have moved to other places, but they remain deeply connected to their traditional territory in southeastern B.C., Underhill said.

“Their identity is so tied to their connection to the land … You can’t be Sinixt if you can’t be on that territory and be connected to it,” he said.

Desautel said in a statement that he is “extremely pleased” with the decision, which he said upholds Indigenous traditions and natural laws.

Underhill said the Sinixt want to pursue reconciliation and that includes further recognition of their existence.

He said that recognition could include a welcome centre in Nelson, B.C., where visitors would learn about Sinixt history.

“What we’re not talking about is thousands of people moving up en masse to shoot every animal in sight or otherwise take over,” he said. “What the Sinixt people want is to enjoy their territory in whatever way that’s possible, but together with the many folks that now reside in the territory.”

Underhill said the province could appeal the decision, and if that happens, the Sinixt are prepared to continue their legal battle all the way to the Supreme Court of Canada, if necessary.

— By Gemma Karstens-Smith in Vancouver

The Canadian Press