Dsta’hyl, a hereditary chief of the Wet’suwet’en Nation of northern British Columbia, recently became the first person in Canada to be named a “prisoner of conscience” by Amnesty International. The organization defines prisoner of conscience as “any person imprisoned or otherwise physically restricted (for example, through house arrest), solely because of their … conscientiously held beliefs.”
The designation arose after Chief Dsta’hyl was convicted of criminal contempt and sentenced to a 60-day jail sentence to be served under house arrest by Justice Michael Tammen of the B.C. Supreme Court. The conviction pertains to actions nearly three years ago — violating an injunction that prohibited anyone from impeding Coastal GasLink’s construction of a natural gas pipeline through unceded Wet’suwet’en territory.
The court dismissed Chief Dsta’hyl’s justification that he was following Wet’suwet’en law that requires him to protect Wet’suwet’en territory for future generations. Yet Justice Tammen’s decision suggested the outcome might have been different if the Wet’suwet’en had previously successfully asserted “Aboriginal title” over their territory.
Ironically, the Wet’suwet’en had attempted to do exactly that more than 30 years ago as part of Canada’s first post-Charter of Rights and Freedoms case involving Indigenous title — Delgamuukw v. British Columbia.
Read more: Delgamuukw 25 years on: How Canada has undermined the landmark decision on Indigenous land rights
Oral history evidence
That trial, which took almost four years, saw the Wet’suwet’en share much of their culture as evidence — their songs, crests, oral histories, governance structures and systems of justice — that showed they are a People who have lived and governed a highly organized society since time immemorial. Their testimony was corroborated and supplemented by experts from a range of disciplines, including historical cartography, legal history, history and anthropology.
Chief Justice Allan McEachern, who heard the case at trial, had no idea how to deal with the oral history evidence he was hearing and, in the end, ignored it. In a decision criticized by some as racist and epitomizing colonial thinking, and by one historian simply as shoddy scholarship, McEachern would dismiss the Wet’suwet’en claim for title.
The case ultimately would go to the Supreme Court of Canada. In a unanimous decision, Canada’s final court concluded that “Aboriginal title” is still very much alive in non-treaty B.C.
Equally important was the Court’s assertion that, because Indigenous cultures are predominantly oral cultures, “the honour of the Crown” requires courts to pay heed to the oral history evidence of Indigenous Peoples to properly counterbalance the British emphasis on documentation.
Wet’suwet’en paid price for failure
But these would be pyrrhic victories for Wet’suwet’en. The Supreme Court’s affirmation of the continued existence of Aboriginal title would open the door for others. But McEachern’s failure to consider the oral history evidence left the higher court with only half the evidence it needed to decide on the Wet’suwet’en assertion of title — and thus it stopped short of doing so.
Although it was Chief Justice McEachern’s error, it is the Wet’suwet’en and Chief Dsta’hyl who have paid the price.
A quarter-century later, Coastal GasLink (CGL) would look to the governments of B.C. and Canada for permits to commence construction of a liquid natural gas pipeline running through Wet’suwet’en territory to the B.C. coast. And although the company would gain support from most of the band council chiefs, they did not get the support of the hereditary chiefs whose responsibility extends to Wet'suwet'en territory beyond the reserves. The project was approved by B.C.’s Ministers of Environment and Natural Gas Development over the objections of the Wet’suwet’en hereditary chiefs.
Need to reconcile laws
After encountering blockades to access roads in Wet’suwet’en territory, CGL followed Canadian law and obtained an injunction to allow it to continue work on the project. Following Wet’suwet’en law, the hereditary chiefs served CGL with a notice of eviction for trespassing on their territory without consent. The opposing actions made clear that underlying the conflict was a clash of legal orders.
Chief Dsta’hyl’s arrest, conviction and sentence exemplify what has become recognized as a key nexus of reconciliation, that is, the need to reconcile the laws of Indigenous Peoples and the laws of Canada.
Justice Tammen made no effort to do so, asserting that Canadian and Wet’suwet’en laws could not “comfortably co-exist,” leading him to conclude that Chief Dsta’hyl was guilty of contempt and that a jail sentence was appropriate.
No tempering of judgment
It is not entirely clear why Justice Tammen did not temper his judgment in light of developments elsewhere that lay a pathway to respecting Indigenous laws.
The governments of British Columbia and Canada had already taken positive steps by committing to ensure laws in their respective jurisdictions are consistent with the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). The very foundation of the UNDRIP is the need to respect Indigenous Peoples and their institutions and move forward on issues affecting them only with their participation and free, prior and informed consent.
Read more: UNDRIP 15 years on: Genuine truth and reconciliation requires legislative reform
Canada and B.C. already had established a memorandum of understanding with the Wet’suwet’en in 2020 that “recognized that Wet’suwet’en rights and title are held by Wet’suwet’en Houses under their system of governance,” and that Canada and B.C. “recognize aboriginal rights and title throughout the Yintah.”
The agreement also set out a timetable for negotiating a range of jurisdictional issues, a process that also was initiated with the Tŝilhqot’in after their successful assertion of Aboriginal title, and with the Haida through the Gaayhllxid/gíihlagalgang “Rising Tide” Haida Title Lands Agreement regarding Haida Gwaii.
Read more: Historic Haida Nation agreement shows the world how to uphold Indigenous rights
What respectful decisions might look like
Justice Sophie Bourque of the Québec Superior Court recently provided a glimpse of what respectful decision-making might look like as she grappled with a case involving the Haudenosaunee and importing tobacco.
Instead of simply accepting the findings of a jury who found the accused guilty, Justice Bourque accepted the Mohawk Nation Council of Chiefs as an intervenor. This allowed her to hear expert evidence regarding the history of treaties and Covenant Chain between the Haudenosaunee and Britain, whose implications she considered at length in her 440-page decision.
Rather than guilt or innocence under a colonial order, these cases call for broader discussion regarding rights and jurisdiction. Canadians — including judges — still have much to learn and appreciate about Indigenous Peoples. Discussions by legal scholars continue into how Canadian and Indigenous legal systems might co-exist. When that day happens, no doubt we will look back on the court’s treatment of Chief Dsta’hyl – a prisoner of conscience — with embarrassment and regret.
Ted Palys has received funding in the past from SSHRC, the BC Law Foundation, and SFU's Community Engagement initiative for a variety of research involving Indigenous justice issues.
This article was originally published on The Conversation. Read the original article.
