Case: R. v. Chief Dsta’hyl, 2026 BCCA 176 (CanLII)
Keywords: Indigenous law; collateral attack; criminal contempt; excusatory defence
Synopsis:
Coastal GasLink is building a natural gas pipeline between Dawson Creek and Kitimat. The pipeline passes through Wet’suwet’n traditional territory. The Appellant, Chief Dsta’hyl, is a wing chief of the Sa Yikh (“Sun House”) of the Likhts’amisyu (“Fireweed”) Clan of the Wet’suwet’en Nation. The Appellant contravenes the “Coastal GasLink Injunction”, impeding work on the GCL pipeline by leading “a convoy of vehicles” to impede vehicular traffic, cut electrical wires, and remove batteries from heavy machinery. (See paras. 2, 27-29). For the Appellant, these actions are justified and “proportionate” because GCL is “trespassing on unceded Wet’suwet’en territory”, “the injunction doesn’t exist”, “the injunction is invalid”, and “there is no injunction” – it is a “piece of paper…completely invalid on our territory”. (See paras. 21-22, 26).
The Trial Judge (Tammen J.) concludes the evidence established beyond a reasonable doubt that the Appellant committed criminal contempt. The actus reus of the offence is conceded. Regarding mens rea, the Trial Judge finds the Appellant’s acts of public disobedience were “calculated to depreciate the court’s authority”. The Appellant’s position: he was “trying to uphold Wet’suwet’en law and did not intend to generate disrespect for the rule of law.” (See paras. 32-33). The legal question: whether a novel common law defence should be recognized under s. 8(3) of the Criminal Code that the Appellant’s conduct should be excused because “he was acting pursuant to a coexisting Indigenous legal order”. (See para. 34). The Trial Judge characterizes the Appellant’s position as “a collateral attack” on the Injunction, declining “recognition of an imprecisely defined law of trespass to the exclusion of the Canadian law of contempt”. For the Trial Judge, “the two legal orders cannot comfortably co-exist in the circumstances”. (See para. 45).
The Court of Appeal (Marchand, Fleming, and Iyer JJ.A.) dismisses the appeal, finding the Trial Judge’s collateral attack analysis was correct and that the proposed excusatory defence could only apply where there were no other lawful and peaceful means available to challenge the Injunction. (See paras. 68, 84, 97, 102).
Importance:
Regarding the applicable standard of review, the Court of Appeal described “whether the common law should expand to recognize the novel excusatory defence” as a question of law subject to correctness review. Ditto for the question of whether the proposed defence amounted to a collateral attack. (See paras. 47-48).
At paras. 55-66, the Court of Appeal engaged in a detailed discussion and analysis of Canada’s “multi-juridical tradition” of legal pluralism. Citing Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5, the Court described the “ideal” as Indigenous law and state law applying symmetrically and in harmony. (See paras. 57-59). The Court observed that:
- Indigenous communities, including the Wet’suwet’en themselves, are divided over the construction of the pipeline; and
- “some perspectives, interests and/or rights will necessarily have to give way to others”. (See paras. 59-60).
The Court also raised a number of key questions arising from the intersection of Indigenous and state legal systems at para. 63: “[i]n cases of apparently irreconcilable interests, complex issues may arise. Who represents the collective interest of the local Indigenous people? What if there is no general consensus within the Indigenous or non-Indigenous community? Whose interests prevail––and why?” Importantly, the Court found “Canadian courts play the challenging role of final arbiters, applying established and evolving legal principles to discharge that difficult task.” (See para. 64).
Regarding the Appellant’s proposed defence, the Court of Appeal found it would be open to expand the common law and develop new defences which are not inconsistent with the Criminal Code. (See para. 67; Amato v. The Queen, 1982 CanLII 31 (S.C.C.)). (See para. 67). However, in the circumstances here, the proposed defence “fails”. (See para. 68).
The Court of Appeal summarized the law of criminal contempt at paras. 70-73, noting that the actus reus is “defiance of disobedience of a court order in a public way” and the mens rea requires “intent, knowledge or recklessness as to the fact the public defiance or disobedience will tend to depreciate the court’s authority”. (See United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC) at p. 931). The Court emphasized the need to show public contravention of a court order is “calculated” to lessen societal respect for the courts. (See para. 74; Trans Mountain Pipeline ULC v. Mivasair, 2023 BCCA 299 at para. 61).
As to possible defences, the Court referred to “necessity” at paras. 77-82 but found that its application to “planned public defiance” was “hard to reconcile” because the premise underlying necessity is that it excuses morally involuntary conduct. (See para. 81). For the Court, if the Appellant’s proposed defence (i.e., one based on acting pursuant to a coexisting Indigenous legal order) were to be recognized, it would have to be grounded in conduct of last resort “with no lawfully available alternatives to breaching the court order”. In the circumstances here, however, there were alternatives (e.g., applying to vary, stay, or terminate the Injunction). (See para. 84).
Of further interest, the Court of Appeal also helpfully summarized the law of collateral attack at paras. 85-90. A few highlights:
- Court orders are valid until they are set aside, varied, or expire on their own terms (see para. 85); and
- Courts cannot and do not permit “self-help” measures (e.g., intentional breaches) because doing so would “undermine the rule of law and bring the administration of justice into disrepute” (see para. 88).
Ultimately, the Court of Appeal agreed with the Trial Judge that the Appellant was attempting to avoid the legal effect of the Injunction; the proposed excusatory defence amounted to an impermissible collateral attack. (See paras. 95-97).
At para. 1, the Court of Appeal noted that B.C.’s judiciary is “[i]ncreasingly…asked to adjudicate complex, sensitive, and sometimes divisive social questions”. (See para. 1). That statement matters. It is a reflection of the difficult task faced by jurists navigating a “multi-juridical country” and the need for clarifying guidance on the role of Indigenous law in Canada. (See para. 5). In the circumstances here, the Court of Appeal offered one way forward:
Indigenous law has been denied, supressed, and at times outlawed, for over a century in Canada. Canadian law has a role to play in undoing that harm and is learning to make space for Indigenous legal orders in various ways. But that work does not include allowing parties, Indigenous or non-Indigenous, to breach court orders.
Reconciling diverse interests within and between Indigenous and non-Indigenous communities about resource development projects can be difficult. For the justice system to play its vital role in maintaining societal harmony in this challenging context, all parties, not just successful ones, must abide by court orders. (See paras. 98-99).
In other words, it would appear that “[i]n cases where a project has been approved and an injunction issued, the proper way to address concerns about the injunction order is through an appeal or an application to vary, stay or terminate the injunction” rather than to act contrary to the injunction and assert an excusatory defence based in Indigenous law. (See para. 101).
Counsel for the Appellant: Frances Mahon (Pender Litigation, Vancouver)
Counsel for the Respondent: Lesley Ruzicka, K.C., Maegan Richards, and Monique Dull (BC Ministry of Attorney General, Vancouver)