Secwépemc law presented in court, but judge says B.C.’s rules ‘reflect the public’s view’

During a sentencing for two Indigenous land defenders, a B.C. Supreme Court judge described the women’s lifelong obligation to protect their territories as a belief system not “materially different than the beliefs or views of most other Canadians.”

On May 19 at a courthouse in Tk’emlúps (Kamloops) in Secwepemcúl’ecw, Justice Shelley Fitzpatrick sentenced Secwépemc Matriarch April Thomas to 32 days in jail and Red Deer Billie Pierre of Nlaka’pamux Nation to 40 days of house arrest.

Prior to her decision, Fitzpatrick heard evidence from Secwépemc knowledge-keepers about the nation’s ancestral laws, ceremonies and generational connections to the land and water.

However, in the end, she grouped together Indigenous land stewardship with “Canadian” environmentalism and boiled the decision to oppose the pipeline down to a personal choice.

“In B.C., there are laws and a regulatory scheme — both federal and provincial — that reflect the public’s view: the protection of the environment, our lands and waters, is important to our society generally, which includes both our Indigenous citizens and non-Indigenous citizens,” said Fitzpatrick.

“Even accepting that Indigenous people generally have a duty and obligation to protect the land and water, that does not mean that they have a duty to oppose Trans Mountain’s pipeline.”

‘I acted in the heat of the moment’

Between Oct. 15 and 17, 2020, Thomas, Pierre and six other Indigenous and non-Indigenous land defenders were arrested and later charged with criminal contempt for disrupting the Trans Mountain pipeline expansion project’s (TMX) development in Secwepemcúl’ecw. All eight have been sentenced by Fitzpatrick, with six sentences handed out in February.

Thomas and Pierre were arrested on Oct. 15, following a water ceremony by Secwépemcetkwe (the Thompson River) in Sqeq’petsin (Mission Flats area) that escalated into people breaching the nearby TMX injunction-protected construction area.

During this month’s sentencing, Crown counsel Trevor Shaw — who replaced Crown prosecutor Neil Wiberg in this latest hearing — told the court that Pierre had zap-strapped herself to a TMX bulldozer and refused to leave, leading to four police officers carrying her from the area.

The court also heard that Thomas had climbed atop the bulldozer that Pierre was zap-strapped to, which she said was done to protect Pierre from a TMX worker who allegedly started the machine while she was still attached to it. After that, the court heard, Thomas went on top of an excavator in an attempt to take a selfie.

“Maybe I acted in the heat of the moment,” Thomas said in her submissions to the court, calling the selfie attempt “a stupid mistake.”

Four of the land defenders, including Thomas, have now been released on bail and are now pending the hearing of their appeals against their convictions and sentences.

Initially, the sentencing hearing for Thomas and Pierre was scheduled for February, but it was adjourned to May as the two awaited the completion of Gladue reports, which are pre-sentencing reports that detail the lived experiences of an Indigenous person, and are to be taken into consideration when being sentenced by a judge.

During the sentencing hearing between May 1 and 3, the court heard details from each of Thomas’s and Pierre’s Gladue reports — which included the ongoing impacts of colonialism, the effects of the residential “school” system on their families and upbringing, a loss of connection to their communities, cycles of abuse and experiences in the foster care system.

Their Gladue reports had also included references to an academic article by Graham Mayeda, which argues that injunctions and contempt of court proceedings are not appropriate in the context of Indigenous law.

Shaw took issue with the article, saying that it doesn’t assist the court in determining an appropriate punishment to impose. The defence counsel — which consisted of Benjamin Isitt representing Thomas and Rachel Smith representing Pierre — submitted an adjournment application, in order for Thomas and Pierre to have more time to gather witnesses to support their claim that they were fulfilling their duty to Indigenous law and to the land on their offence date.

The application was denied by Fitzpatrick. As a result, Secwépemc knowledge-keepers Miranda Dick and Mike McKenzie were called in on May 1 and 2, respectively, as last-minute witnesses to speak to Secwépemc laws, duties, decision-making structures, ceremonies and the obligation to protect the land.

‘We have to speak for our salmon’

As a Secwépemc matriarch with more than 20 years of experience carrying out ceremonies in her homelands, Dick detailed the nation’s matrilineal hereditary structure, as well as the role of ceremonies and the obligations of matriarchs around caring for their families, communities and the nation.

It’s at sacred fire ceremonies where Dick said that Elders provide testimonies on water and usage, and where Youth speak on what their duties are to land issues pertaining to protection.

“A sacred fire consists of setting tobacco, meaning setting intention,” she explained. “Whether that be any outcome from setting a sacred fire, that is then your duty. That becomes your obligation to the land, water and the watershed areas as well.”

She noted that for many Secwépemc people, they go through a ceremony that binds them to speaking and caring for their salmon relatives.

“Since our salmon cannot speak, we have to speak for our salmon,” she said. “Meaning that if they’re in harm, we will voice them if there is harm. We will voice concern, and from there, you make your best judgement on that.”

With matriarchs being bound by an obligation to the matrilineal hereditary structure, Dick said that it would be difficult for Thomas to make decisions for herself when responding to B.C. laws in accordance with Secwépemc law, for which decisions are typically made in consultation with the heads of the family.

“It’s almost like a freeze or flight moment where you make your own decision based on duty, obligation, as well as your role to the land and being a woman, making your own decision based off of that,” said Dick.

In her submissions, Thomas said that she had no remorse for her actions on her offence date.

“I’m only doing what I was taught, what I grew up knowing. And that is to protect the land,” she said.

‘A responsibility that we have above all else’

While the oral evidence provided by Dick was deemed admissible in the court, both Shaw and Fitzpatrick did not consider it to be expert evidence due to concerns around objectivity and impartiality.

Dick herself was one of eight land defenders to have been sentenced by Fitzpatrick, who described the decision by the defence counsel to call her as a witness “an interesting, if not odd, choice.”

Secwépemc land defenders have meanwhile called into question the court’s apparent protection of corporate interests and what they’ve previously called “blatant bias against Indigenous communities and in favour of TMX pipeline’s illegal encroachment on Indigenous territories.”

Secwépemc territories were never given up by its original inhabitants, but colonized by “British Columbia” and “Canada.” Canada now owns the Trans Mountain pipeline and the B.C. Supreme Court operates under provincial law.

In his witness testimony, McKenzie — who has been a board member and Youth representative with the Shuswap Nation Tribal Council (SNTC) — said that he was raised by knowledge keepers for his entire life, and worked closely with SNTC’s Elders’ Council.

“The Elders’ Council have never changed their position against this pipeline. They’ve always been against it,” said McKenzie.

“They’ve actually tasked our people to stand up to it in all ways possible — whether it’s the courts, legal, to bring lawsuits — whatever way possible really to stand against the project.”

He shared one of the words for stewardship — yecminme7 — which he explained means from birth, you are taught how to become a caretaker of the land.

“It speaks to a responsibility that we have above all else to take care of the land, and how we fit in our laws,” he said.

He presented the court with the Save the Fraser Declaration from 2010, a document that was signed in Secwépemc and Coast Salish territories by more than 40 Indigenous nations in the Fraser River Watershed.

While the declaration was designed to defend the lands and waters from the Enbridge Northern Gateway Pipelines project, McKenzie said that consideration was given to whether that pipeline could shift to a new name in the future.

“We were concerned that because the Enbridge Northern Gateway Pipeline could become another pipeline, leadership was tasked to ensure that all pipelines across these waters were included in this declaration,” said McKenzie.

‘I followed in my own ancestors’ footsteps’

Following the testimonies provided by Dick and McKenzie, defence lawyer Smith said that the evidence detailing an Indigenous person’s duty to the land is relevant to sentencing, and should be considered.

“How is that materially different from a person who’s born and bred environmentalist, who’s considered it their moral duty to do what they can to protect the land?” asked Fitzpatrick.

When Smith referenced the lengthy-history of an Indigenous person’s connection to the land, Fitzpatrick noted that she was “pretty sure” that her ancestors in Ireland, who were potato farmers, were connected to the land, too.

“There’s a spectrum of the past history of what connects an individual to the land and to their nation. It’s something that can’t be simply equated to a passion for environmentalism,” Smith replied.

“I submit that it goes beyond any interest in a specific cause, and it becomes a part of an identity of an individual. These laws are a part of them, part of their community, part of their history and families.”

In her submissions, Pierre outlined the Nlaka’pamux Nation’s historical alliances with the Secwépemc people, referencing the 1858 Fraser Canyon War and the 1910 Memorial to Sir Wilfred Laurier.

“Anything I’ve done here, I followed in my own ancestors’ footsteps,” said Pierre. “I worked with people who my ancestors worked with their ancestors.”

‘Realize you too are connected to this land’

While acknowledging that she sometimes acts in the heat of the moment, Thomas said in her submissions that her actions follow what she believes is right, and is guided by the teachings of her Elders, her grandparents who raised her, and her ancestors.

“I don’t think you realize how much it hurts to see your land being destroyed and destructed right before your eyes,” she said.

She highlighted that the same waterways that she grew up swimming in and harvesting from, now give her kids infections when swimming in them, and that their water levels have been depleted down to almost nothing.

“Those things scare me. They scare me, for my kids and my grandkids and the next seven generations to come because seven generations ago, we had it all. Now, our people have nothing,” she said.

“We can’t even make a decision on our own territory without that being impeded by this court system.”

While considering Gladue factors and the belief systems held by Thomas and Pierre, Fitzpatrick, in her decision, said illegally breaching the injunction zone is one’s own personal choice.

“At its core, the contenders’ position in this hearing that their Indigenous beliefs for the land and water means they have a lesser moral culpability, is a conflation of their broad view and obligation to protect the lands and waters with their personal choice, that they interpret that belief or obligation as a requirement to oppose Trans Mountain’s pipeline, and to do so illegally,” said Fitzpatrick.

In her submissions, Thomas addressed Fitzpatrick and said that protecting the land, the water and the salmon is more than just putting bodies on the line. Protection, she continued, means ceremonies, songs, dancing, smudging and prayer.

“Everything we do and pray, we do it for all people,” said Thomas.

“I’ve even said many prayers for you, Judge FItzpatrick, that you find it in your heart and that you find your spirit, and realize that you too are connected to this land — we all are.”

Aaron Hemens, Local Journalism Initiative Reporter, The Discourse