Original Published on Jul 14, 2022 at 13:12

By Matt Simmons, Local Journalism Initiative Reporter

This article contains a reference to residential schools that may be triggering. Support for survivors and  their families is available. Call the Indian Residential School Survivors Society at 1-800-721-0066 or 1-866-925-4419 for the 24-7 crisis line. 

The government of British Columbia will  pursue criminal contempt charges against Indigenous land defenders and  supporters arrested last November in northwest B.C. In a now-infamous RCMP raid  on Wet’suwet’en territory — the third such operation in three years —  heavily armed police enforced TC Energy’s court-ordered injunction  issued against anyone impeding construction of their Coastal GasLink pipeline, arresting more than 30 individuals over two days. 

On July 7, the province’s legal team told  B.C. Supreme Court Justice Marguerite Church it would prosecute Sleydo’  Molly Wickham, Shaylynn Sampson (Gitxsan Lax Gibuu Wilp Spookxw),  Teka’tsihasere Corey ‘Jayohcee’ Jocko and Hannah Hall. The decision  brings the total to 19 individuals arrested during the raid that B.C.  Public Prosecution Service will pursue criminal charges against in the  coming months. The court invited the province to do so after arrests in  2019 and 2020. This is the first time B.C. has agreed to proceed with  prosecution — and so the first time land defenders could face prison  sentences for their actions.

Those arrested say they were protecting  Wet’suwet’en lands and waters and upholding sovereign Indigenous Rights  and Title as per a 1997 Supreme Court of Canada ruling.  The province and Mounties say they were participating in unlawful  protest, breaching the terms of the B.C. Supreme Court injunction order.

“I’m really disappointed with the outcome,  especially because three out of the four people that are now facing  criminal charges are Indigenous people with a voice, the ones that have  had a really strong voice,” Wickham told The Narwhal outside the  Smithers, B.C., courthouse after the hearing. 

The province declined to prosecute eight  others, including Jocelyn Alec, daughter of Dinï ze’ (Hereditary Chief)  Woos, on whose house territory the arrests were made. Among those facing  criminal charges is her fiancée, Jocko, who was with her when both were  arrested. 

When making its assessment, provincial  lawyers had to consider two things: the likelihood of securing a  conviction and whether it’s in the public interest. The decision not to  pursue charges against Alec and others hinges on the fact that the RCMP  didn’t do enough to inform individuals about the nature and scope of the  injunction order. 

“They didn’t have a copy of it with them  and they did not even make an effort to really tell people what it was  about,” Frances Mahon, legal counsel for a majority of the land  defenders, told The Narwhal. 

Sworn affidavits the Mounties filed with the court affirmed that on Nov. 18, 2021, “Inspector Ken Floyd read the  injunction at the 44 kilometer [sic] marker of the Morice West” Forest  Service Road and “reread the injunction a second time at the same  location.” The affidavits also affirmed that on the following day,  deeper on the territory and at a location where land defenders were  inside a cabin and tiny house, Floyd “read the injunction to the  protestors barricaded” inside the two wooden structures at 11:30 a.m.  and 11:46 a.m. 

According to The Narwhal’s review of audio  and video recordings, Floyd simply noted the existence of an injunction  order and failed to provide details of the terms. Speaking about the  charges that aren’t being pursued, B.C.’s prosecutor Tyler Bauman came  to the same conclusion and told the court, “The script read by the RCMP  was limited to road blocking and did not include the broader language of  the injunction.” 

The RCMP declined to speak with The  Narwhal, noting: “Our actions and those of the individuals arrested are  subject to a judicial process that we must respect.” The B.C. Public  Prosecution Service declined to answer questions for the same reason.

Provincial lawyers will argue that the  individuals now facing criminal contempt charges had either been  previously arrested, and therefore could not claim ignorance of the  contents of the injunction, or were active on social media in defiance  of the court order.

As for the issue of whether prosecution is  in the public interest or not, Mahon called it a “nebulous concept” but  suggested a driving factor is “the integrity of the court is being  called into question.”

‘Mass revolt against the authority of the court’ 

Breach of the injunction is a civil  matter, which means it’s between private parties, in this case between  Coastal GasLink and the individuals alleged to have impeded  construction. For civil contempt, the company’s legal team can choose  whether or not to pursue charges. Now that the province is intervening  on grounds of criminal contempt, the company is no longer involved and  it becomes a public matter.

The company’s legal counsel, Kevin  O’Callaghan, declined an interview request and referred The Narwhal to  TC Energy, Coastal GasLink’s parent company. TC Energy did not directly  answer The Narwhal’s questions and referred to a statement published on  its website.

“Since December 2018, Coastal GasLink has  dealt with numerous violations of enforceable B.C. Supreme Court  injunctions from individuals who have engaged in escalating disruptive  and dangerous actions,” the statement said.

“We are committed to delivering this  critical energy infrastructure project and any risk to the safety of our  workforce or others in the vicinity of the project route is of the  greatest importance. Our work is fully authorized and permitted and has  the unprecedented support of local and Indigenous communities across the  project route.” (On Wet’suwet’en territory, the company has signed  agreements with five of six elected band councils but the nation’s Hereditary Chiefs never consented to the project.) 

Criminal contempt isn’t the same as a  criminal charge for, say, theft or assault. Instead, it means the  province believes “the accused knew … their conduct constituted a public  defiance of a court order,” according to a B.C. Civil Liberties  Association report.  As the report notes, that public defiance can include breaching the  terms of an injunction “in front of television cameras or on social  media platforms, such as Facebook or Twitter.”

Neil Chantler, a defence attorney who represented numerous clients arrested at protests of the Trans Mountain pipeline, said the term “criminal contempt” is confusing.

“As soon as you’re encouraging, perhaps by  your actions, other people to commit contempt of court, to disobey  court orders, which the court of course relies on … you’re committing  criminal contempt,” he explained.

“In these cases where there are so many  people involved and the court’s integrity and authority is perhaps at  greatest risk of being undermined because there’s almost a mass revolt  against the authority of the court, the court invites the Crown to  prosecute, as opposed to leaving it to the private party to prosecute.

If convicted, the individuals could serve  up to 30 days of jail time, 150 hours of community service under the  supervision of a probation officer or pay $3,000 in fines, according to  sentencing positions filed with the courts.

“We are prepared to fully defend against the allegations,” Mahon said.

Upholding ‘colonial laws’

For Wickham, the escalation of charges from civil to criminal is in line with the history of colonization.

“All of the laws that have existed since  contact with Indigenous people have been absolutely horrific and used  for genocide,” she said. “It actually blows me away that people uphold  colonial law in the way that they do — colonial laws put our kids in  residential schools. They literally forced mass sterilizations and  murder of children and babies. And those are the laws that are being  upheld in this country.”

Murray Rankin, B.C.’s Minister of  Indigenous Relations and Reconciliation, declined an interview request  and the ministry referred The Narwhal to the prosecution service in  response to questions.

Chantler said it’s important to remember that the province approved these projects that sit at the centre of conflicts.

“These environmental disputes, these  resource extraction cases that have been before the courts so often in  the last 10 years, are a failure of government, and the failure of  government is a result of people voting for these governments.” 

He added that he believes civil disobedience has its place, particularly when Indigenous Rights are in play.

“It does continue to raise awareness and  it does shine a very bright spotlight on an issue,” he said. “People are  willing to put their own liberty at risk and get arrested over these  things. I think it’s a tremendous call and a real sacrifice to get  arrested and potentially get a record and to potentially do time for a  cause you believe in. But it’s a losing battle. I mean, at that point,  all you’re doing is public relations, you’re not actually going to stop  the project.”

Wet’suwet’en connection to the land remains strong

Prior to the enactment of laws that now  dictate what happens to those facing contempt charges, the Wet’suwet’en  and other nations lived under complex governance systems for thousands  of years.

“Our laws don’t mean anything to [Coastal  GasLink], or to the courts or to, you know, most of mainstream society.  It’s infuriating and frustrating,” Wickham said. 

While visibly shaken, she wasn’t swayed by the decision.

“The whole criminalization process is  meant to deter us from doing what’s right but I’m not going to be  deterred from upholding our laws and protecting our land.”

Despite a steady stream of industry  traffic and construction activity, coupled with the continual presence  of police and private security, Wet’suwet’en community members and their  allies continue to reconnect with the land, water and wildlife on the  territory. 

“Recently we had a young Indigenous person  get his first kill out there,” Wickham said. “We tanned the hide with  all the kids and processed all the meat and we’re going to have a  ceremony for him to celebrate.”

She added Wet’suwet’en youth are helping  build a balhats, or feast hall, at the confluence of Ts’elkay Kwe  (Lamprey Creek) and the Wedzin Kwa (Morice River), which will provide a  space for Elders and young families to connect with each other and the  land.

“There’s all these beautiful moments and  times and experiences, those little snippets of what it actually feels  like to be who you are,” she said. “Those are the moments that keep  Indigenous people’s spirits alive. I’d go to jail for that, for that one  moment.”

This item reprinted with permission from The Narwhal, Victoria, British Columbia