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

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When Tawahum Bige thinks about what he did on August 14, 2018, he tries to accomplish the actions he found him guilty of doing by a BC court.

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utsl Bige, 28, of K’é Dene First Nation, who is also Plains Cree, calls it a “deep ceremony” and prayer – mandated by indigenous law to protect the natural environment.

The Canadian legal system considered this to be contempt of court and sent him to prison for 28 days.


At the time Bigge was sentenced, 200 people had already appeared before a Vancouver court – breaking a court-ordered order against blocking access to the Trans Mountain worksite at Burnaby Mountain, where the Trans Mountain oil pipeline was to be blocked. Work was underway to add. .

Bigge and two other Indigenous men, Stacy Gallagher and James Layden, were the first Indigenous people to be sentenced to prison for blocking pipeline work. They each served 28 days, and Gallagher and Leyden each again faced additional jail time for breaking the injunction.

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They were sentenced according to the same guidelines that were used for everyone involved in breaking an injunction—a chart that outlines fines and jail time for those who broke an injunction, when he was arrested.

But an ongoing case argues that their indigenous identity—the key to why they went to Mount Burnaby in the first place—should have been spared a conviction, or at least a prison sentence.

It’s an argument that Indigenous law experts say will emerge increasingly in court cases, as conflicts between resource industries and Indigenous objections exist in places like the Fairy Creek watershed on Vancouver Island and the Wet’suwaton blockade in northern British Columbia.

“What is unique about this case,” says David Millward, program director and professor of law specializing in Indigenous justice at the University of Victoria, “is what the protesters are insisting on: ‘We respond to a different legal order, Which has not been adequately addressed in Canada’s courts and which should be addressed in Canadian courts.’

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

Kate Gunn, partner at First People’s Law Group, says Indigenous laws are coming before Canadian courts more frequently in the past few years, as nations work to revive their laws. She has looked after resource-extraction projects and matters related to rights, but also matters relating to indigenous governance and family law.

“Many of the communities we work with state that Indigenous laws do not rely on Canadian courts for recognition. These laws predate Canada and survive colonialism,” she said. “However, there is still importance in addressing this issue in the Canadian courts, as there are real consequences for people if they are doing something for their country in advancing legislation that conflicts with Canadian law. “

The case of Big, Gallagher and Leyden (who are all appealing their sentences together) points to an issue that persists in Canada’s court system when it comes to such conflicts: whether the court , which is obliged to consider Indigenous identity in sentencing decisions, to allow Indigenous land defenders to perform tasks that other Canadians are not allowed to do, or at least release them from prison ?

Bigge expects that such a calculation is already underway, and that the court will conclude that he made a mistake in his case.

“Intergenerational trauma, and the reasons we did it, are particularly important in our case,” Bigge told Granthshala. “You can’t take the time I spent in prison, and the two-year court process going on in a colonial system.”

Bigge, who told the court that his childhood included poverty, violence and family history of abuse of foster care and the residential school system, received a degree from the University of Surrey, and is a poet and musician who has been involved in Indigenous communities in the lower mainland of B.C. They said that their actions on Mount Burnaby were spiritual, and they see as an indigenous person their responsibility to protect the natural world.

The day before he was arrested, Bige became known as the “Watch House” on Burnaby Mountain, where members of the Tsiel-Wuth Nation’s indigenous community and their guests monitored the progress of the oil pipeline expansion project, they believe. that is harming the natural environment and the unbroken area of ​​the Coastal Salish people.

The next morning, Bigge sat down in a chair that blocked an access road to the Trans Mountain terminal, shook hands with others, singing, praying and holding a smudge pot for the ceremony.

“I broke that moment of prayer only when I heard that I had been arrested.”

In the sentencing of Bigge and two others, B.C. Supreme Court Justice Shelley C. Fitzpatrick said Bigge’s interpretation of his actions as indigenous ceremonies does not exempt him from a court-ordered injunction.

“Indigenous issues in our society have clearly gained some prominence in public discourse,” she said. “However, this does not mean that Aboriginal citizens of Canada have some high capacity to disobey court orders when they feel so, or that they have the ability to act otherwise under Aboriginal laws or traditions. Other than ‘no choice’.”

BIG’s attorney Sarah Rauch said she thought it was a mistake, and that the court should do more to learn about indigenous law, as cases like this keep coming up.

“In my view, where the court falls short – and I see it all the time in my practice – is figuring out how to legally incorporate that context into its decisions,” she said in an interview.

Roach, who represents Biggie and Gallagher, but not Leiden, wanted to appeal the conviction and sentence of her clients, essentially re-attempting the court to give more importance to their indigenous identity. Can you

But the B.C. Court of Appeals ruling said Tuesday that the court should only appoint a lawyer for the purpose of appealing his sentence, not his conviction.

Rauch said indigenous identity is well accepted in sentencing decisions and “less controversial” in Canadian law, which applies similar considerations to sentencing decisions.

But this argument is not going to stop.

Millward said that as Indigenous protests against resource projects such as logging at Fairy Creek continue, Canadian courts will continue to hear arguments that Indigenous peoples should be held up to Indigenous laws.

He said his colleague John Burroughs, research chair in Canada’s Indigenous Law, explained the nature of the courts issue: the courts assume that Canada has sovereignty over the land.

“The argument (made by Big, Leyden and Gallagher) challenges that jurisdiction of the court,” he said. “And these three people are far from the only people who would try to say that the injunction doesn’t apply to them.”

Gunn agreed that Canadian courts would have to grapple with these deep questions.

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

For Big, the consequences of going through Canada’s justice system were dire. He said going to prison was “more stressful than I could imagine,” spending most of the day alone with his thoughts.

When he dropped out, he immediately began writing poetry and music, including his first single about his association with the land, called “Shedding”.

“Even though what happened was horribly wrong, I knew we would do well for whatever happens,” Bige said. “My heart is full.”

Alex McKeon is a Vancouver-based reporter for Star. Follow him on Twitter: @alex_mckeen

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