Above photo: Wet’suwet’en Hereditary Wing Chief Dsta’hyl speaks to his lawyer Rebecca McConchie outside the Smithers courthouse after he was sentenced to two months’ house arrest for impeding work on the Coastal GasLink pipeline in 2021. Amanda Follett Hosgood.
Chief Dsta’hyl sentenced to house arrest, but plans to appeal criminal conviction.
A Wet’suwet’en Hereditary Chief will spend two months under house arrest for interfering with construction on the Coastal GasLink pipeline project nearly three years ago.
The sentence comes more than four months after Chief Dsta’hyl, a Wing Chief of the Likhts’amisyu Clan who also goes by Adam Gagnon, was found guilty of criminal contempt for breaching a court injunction obtained by Coastal GasLink. The injunction bars anyone from impeding work on the controversial pipeline project.
As he emerged from the Smithers courthouse following Wednesday’s sentencing, Dsta’hyl announced he will appeal his conviction.
“It’s not over yet. This is just beginning,” Dsta’hyl told dozens of supporters who spilled from the courthouse following the two-day sentencing hearing. “I just thank all of you for all of your support.”
Dsta’hyl was arrested in October 2021 after a series of interactions over several days with pipeline workers and security contractors on the Shea Creek Forest Service Road on his clan’s traditional territory.
At a trial last year, he and other Likhts’amisyu Hereditary Chiefs testified that they were upholding their duty to preserve and protect Wet’suwet’en territory, or yintah, by enforcing a traditional trespass law.
In finding Dsta’hyl guilty, Justice Michael Tammen ruled that the Wet’suwet’en trespass law “cannot comfortably coexist” with the B.C. Supreme Court injunction order issued to Coastal GasLink.
But while the novel defence failed at trial, defence lawyer Rebecca McConchie argued that it was relevant to sentencing, describing a “direct line” between Dsta’hyl’s duty to uphold Wet’suwet’en law and his actions in October 2021.
Tammen agreed, describing the circumstances that led to those actions as unique and transcending factors commonly considered by the court.
“We like to lump things into ‘mitigating circumstances’ [and] ‘aggravating circumstances,’” he said. “They’re not classically mitigating circumstances. They are something different. They, like Aboriginal title, are probably sui generis,” or in a class by themselves.
Tammen said Dsta’hyl’s experiences as an Indigenous person shed light on why “a first offender of good character, who holds a governance position within Wet’suwet’en society, came to be before the court.”
Coastal GasLink, a 670-kilometre pipeline project to deliver fracked gas from northeast B.C. to an LNG export facility in Kitimat, reached completion late last year.
During its roughly five years of construction, it received fierce opposition — resulting in several high-profile police actions — from hereditary leaders within the Wet’suwet’en Nation, who have long opposed pipelines through their traditional territory.
Both pipeline builder TC Energy and the B.C. government have pointed to benefits agreements signed with five of six Wet’suwet’en elected band councils as evidence of support for the project.
In his decision, Tamman acknowledged colonial policies like the Indian Act have created division over who has authority to govern Wet’suwet’en traditional territory. He also recognized the “frustration” that led some Hereditary Chiefs to appoint Dsta’hyl as an enforcement officer to seize Coastal GasLink equipment and evict workers from his clan’s territory in 2021.
“Systemic and background factors related to the mistreatment of Indigenous people in Canada played a role in the creation of that underlying conflict,” Tammen determined.
He pointed to the groundbreaking Delgamuukw court decision, which affirmed in 1997 that Wet’suwet’en title had never been extinguished, and the 2020 memorandum of understanding between Wet’suwet’en hereditary leaders, B.C. and Canada that was meant to lead to a resumption of title negotiations.
The agreement, which came on the heels of a five-day police action on Wet’suwet’en territory in February 2020, recognized that “Wet’suwet’en rights and title are held by Wet’suwet’en Houses under their system of governance.” It promised to negotiate a title agreement with hereditary leaders over the three months that followed.
But that never happened, Tammen said.
“Apparently, little was done to further those negotiations, which inaction fuelled understandable frustration on the part of the Wet’suwet’en Hereditary Chiefs,” he said. As a result, outstanding claims to Aboriginal title on Wet’suwet’en territory “remain unresolved,” Tammen added.
That broader context is relevant in the assessment of Dsta’hyl’s “moral blameworthiness,” Tammen said.
The court also grappled with fresh case law regarding sentencing of Indigenous land defenders.
In March, the BC Court of Appeal dismissed an attempted appeal by Lexlixatkwa7 Nelson, a member of the Lil’wat First Nation, who pleaded guilty to criminal contempt for impeding logging operations at Fairy Creek. Nelson appealed her sentence of 50 hours community service and 12 months’ probation, saying the judge failed to consider her Indigenous heritage and belief in Indigenous laws.
Appeal judges upheld the sentencing decision, determining that Nelson relied on Indigenous laws “in very general terms.”
The appeals court reached a similar conclusion last month after three Indigenous land defenders, James Leyden, Stacy Gallagher and Justin Bige, argued that their breach of an injunction issued to Trans Mountain pipeline was required under Indigenous laws.
But Tammen’s sentencing decision found there was “a direct connection between [Dsta’hyl’s] beliefs and the offending conduct.”
“In the present case… Chief Dsta’hyl’s reliance on Indigenous laws and customs was set out in very specific terms over five days of detailed defence evidence,” Tammen said.
As he delivered his decision, Tammen said letters of support from the community were “as impressive a collection as I have seen in my more than 35 years as a lawyer and judge in these courts.”
“Chief Dsta’hyl is described as a bridgebuilder and someone whose actions embody principles of reconciliation,” Tammen said. “Collectively, the letters speak eloquently to the unblemished, indeed stellar, character of Chief Dsta’hyl.”
The court also made accommodations for Chief Dsta’hyl to make daily trips to the local aquatic centre, a therapeutic remedy for the Stage 4 lymphoma he was diagnosed with last year.
This is the first sentence following a trial relating to the Coastal GasLink injunction. Despite more than 75 people having been arrested on Wet’suwet’en territory since opposition to the project first boiled over in 2019, most have not faced criminal charges.
While nearly two dozen people have been charged with criminal contempt over the past two years, most charges have been dropped or the accused have pleaded guilty.
The first Coastal GasLink criminal charge to reach trial ended in a not guilty verdict in November. Tammen accepted that Sabina Dennis had peaceful intentions when she stepped onto a bridge over the Morice Forest Service Road, an area covered by the injunction, as RCMP moved to arrest people on Nov. 18, 2021.
In January, Tammen convicted three Indigenous land defenders arrested on Nov. 19, 2021. An application to dismiss the charges based on RCMP conduct during the arrests remains before the court, with the next hearing scheduled for September.
In Dsta’hyl’s case, Crown prosecutors had argued for up to three months imprisonment.
BC Prosecution Service lawyer Kathryn Costain said that a jail sentence would be appropriate given Chief Dsta’hy’s leadership role and the need to send a “strong message of deterrence.” She also suggested the sentence could be served in the community.
“In addition to his own actions, Chief Dsta’hyl counselled multiple other individuals to take similar actions, including blocking roads and interfering with CGL equipment,” Costain said. “Once Chief Dsta’hyl was arrested, the blockade ended quite quickly.”
The defence argued that the 24 hours the Hereditary Chief spent in police custody following his arrest on Oct. 27, 2021, plus two months’ probation, would be a sufficient sentence.
“Imprisonment is just simply not required,” McConchie said.