They saw prayers, the court saw contempt: As indigenous protesters cite their duty to protect the land, will Canada’s judges listen?

When Tawahum Bige remembers what he did on August 14, 2018, he tries to square the actions he took with what a BC court found him guilty of.

Bige, a 28-year-old from the Łutsël K’é Dene First Nation, who is also Plains Cree, calls it “deep ceremony” and prayer, a mandate of indigenous law to protect the natural environment.

The Canadian legal system found him in contempt of court and sent him to jail for 28 days.

By the time Bige was sentenced, 200 people had already appeared in Vancouver court for the same thing: violating a court order against blocking access to Trans Mountain’s Burnaby Mountain workplace, where work was being done for the twin. of the Trans Mountain pipeline. .

Bige and two other indigenous men, Stacy Gallagher and James Leyden, were the first indigenous people to be sentenced to prison for blocking pipeline works. They each served 28 days, and Gallagher and Leyden face additional jail time for violating the court order again.

They were sentenced according to the same guidelines used for everyone else involved in violating the court order – a chart outlining fines and jail time for people who violated the court order based on when they were arrested.

But an ongoing case contends that their indigenous identity, the key to why they went to Burnaby Mountain in the first place, should have spared them a conviction, or at least jail time.

It’s an argument that indigenous law experts say will increasingly emerge in court cases, as conflicts between resource industries and indigenous objectors are still present in places like the Fairy Creek Basin on Vancouver Island and the Wet’suwet’en lockdown in northern British Columbia.

“What is unique about this case,” says David Milward, program director and University of Victoria law professor specializing in indigenous justice, “is that the protesters claim: ‘We are responding to a different legal order, one that has not been sufficiently addressed in Canadian courts and that should be dealt with in Canadian courts. ‘

“I think this is an important argument that the courts will have to grapple with sooner or later.”

Kate Gunn, a partner at the First Peoples Law group, says indigenous laws appear to be reaching Canadian courts more frequently in recent years as nations have worked to revitalize their own laws. He has seen cases related to projects and resource extraction rights, but also cases related to indigenous governance and family law.

“Many of the communities we work with say that indigenous laws do not depend on Canadian courts for recognition. These laws predate Canada and survived colonization, ”he said. “However, it is still important that Canadian courts address this problem, because there are real consequences for people if they do something to promote their nation’s law that conflicts with Canadian law.”

The case of Bige, Gallagher and Leyden (who are appealing their sentences together) points to a persistent problem in Canada’s judicial system when it comes to disputes like this: Does the court, which is required to consider indigenous identity in the courts? sentencing decisions, do they have to allow indigenous land defenders to complete actions that other Canadians cannot, or at least prevent them from going to jail?

Bige hopes that reckoning is already underway and that the court will find that he made a mistake in his case.

“Intergenerational trauma and the reasons why we did what we did are especially important in our case,” Bige told the Star. a colonial system “.

Bige, who told the court that his childhood involved poverty, violence and abuse brought on by a family history with foster care and the residential school system, earned a degree from Kwantlen University in Surrey, and is a participating poet and musician. in Indigenous Communities in the Lower Mainland of British Columbia He said his actions at Burnaby Mountain were spiritual, and stemmed from what he sees as his responsibility to protect the natural world as an indigenous person.

The day before her arrest, Bige arrived at what became known as the “watch house” on Burnaby Mountain, where members of the Tsleil-Waututh Nation Indian community and their guests watched the progress of an expansion project. of a pipeline they create. it is damaging the natural environment and wilderness of the Coast Salish people.

The next morning, Bige sat in a chair blocking an access road to the Trans Mountain terminal, holding hands with others, singing, praying and holding a pot for the ceremony.

“The only time I broke that moment of prayer was when I heard that he was under arrest.”

In sentencing Bige and the other two, BC Supreme Court Judge Shelley C. Fitzpatrick said that Bige’s interpretation of his actions as an indigenous ceremony does not exempt him from the court-ordered injunction.

“Indigenous issues in our society have clearly gained some prominence in public discourse,” he said. “However, that does not mean that Aboriginal citizens of Canada have a heightened ability to ignore court orders when they please, or by stating that they ‘had no choice’ but to act otherwise under Aboriginal laws or traditions. “.

Bige’s attorney, Sarah Rauch, said she believes it was a mistake and that the court should do more to learn about indigenous law as cases like this will continue to crop up.

“In my opinion, where the court falls short, and I see this all the time in my practice, is understanding how to incorporate that context into their decisions legally,” he said in an interview.

Rauch, who represents Bige and Gallagher but not Leyden, wanted to appeal his clients’ convictions and sentences, essentially to try again to get the court to give more weight to their indigenous identity.

But a decision by the BC Court of Appeals stated Tuesday that the court should appoint an attorney in order to appeal only their sentences, not their convictions.

Rauch said that considering indigenous identity in sentencing decisions is well accepted and “less controversial” in Canadian law than applying the same consideration to sentencing decisions.

But that argument is not going to go away.

Milward said that as indigenous protests against resource projects like logging in Fairy Creek continue, Canadian courts will continue to hear this argument that indigenous peoples must comply with indigenous laws.

He said his colleague John Burrows, Canada’s research chair in indigenous law, has explained the nature of the problem facing the courts: that the courts assume that Canada has sovereignty over the land.

“The argument (presented by Bige, Leyden and Gallagher) calls into question that jurisdiction of the court,” he said. “And these three guys are far from the only ones who will go out of their way to say that injunctions don’t apply to them.”

Gunn agreed that Canadian courts will have to grapple with these deeper issues.

“One of the general pieces of rhetoric that you hear from the court or the public in situations where there are people facing charges and trusting in their indigenous laws is that we must adhere to the rule of law and it applies to everyone equally. Gunn said. “Those kinds of comments are an important reminder to reflect on the different kinds of laws that already exist. And when we talk about the rule of law, we should consider some of Canada’s unanswered questions. “

For Bige, the consequences of going through the Canadian judicial system were dire. He said that going to jail was “more difficult than he could have imagined”, spending most of the day with his thoughts alone.

When it came out, he immediately began writing poetry and music, including his first single on earth connections, called “Shedding.”

“Even though what happened was deeply wrong, I knew that whatever happens we will make it right,” Bige said. “My heart is full.”

Leave a Comment