Contempt or Consent? The Collateral Attack Doctrine and Indigenous Legal Orders in R v Chief Dsta’hyl, 2026 BCCA 176.
- reconciliactionyeg
- 13 minutes ago
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By Author(s): Caitlin “Gros-Louis” Grolway - Research Assistant, Wendat Matriarch, JD 27’ Candidate
Today on the blog, we discuss the British Columbia Court of Appeal (“BCCA”) decision in R v Chief Dsta’hyl, 2026 BCCA 176 [Chief Dsta’hyl] (“Adam Gagnon”), and its engagement with Wet’suwet’en law. Legal pluralism is at the heart of this case. Specifically, can compliance with a co-existing Indigenous legal order serve as a novel common-law defence to criminal contempt?
In this case, the BCCA’s answer is no. The BCCA recognized Indigenous legal systems but found that they cannot be used to circumvent the authority of Canadian courts, specifically, an interlocutory injunction. This decision highlights the tension and limits in "braiding" legal orders into a "single, strong rope" as endorsed by the Supreme Court of Canada (“SCC”) in the Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5 [para 7].
The Path to Prosecution For Yintah
This appeal stems from litigation concerning a Coastal GasLink (“CGL”) pipeline through Yintah (inherited territory, lands, and waters of the Wet'suwet'en Nation) [Chief Dsta’hyl paras 2, 13–17, 25, 29]. CGL obtained an interim injunction in 2018 [Coastal GasLink Pipeline Ltd. v Huson, 2018 BCSC 2343] and the interlocutory injunction (the “Injunction”) in 2019, which prohibited interference with or obstruction of access to project sites within unceded Wet'suwet'en territory [Chief Dsta’hyl paras 2, 10, 71; see also: Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264].
In January 2020, some Wet’suwet’en hereditary chiefs issued an Eviction Notice (the “Eviction”) to CGL pursuant to Wet’suwet’en law of trespass, asserting CGL lacked Hereditary authorization and consent to remain on Yintah [Chief Dsta’hyl para 20]. The next month, a Memorandum of Understanding (“MOU”) was signed with the Provincial and Federal governments recognizing Wet’suwet’en’s rights and title throughout Yintah [Chief Dsta’hyl para 24]. Chief Dsta'hyl’s Sun House and 9 out of 12 Hereditary chiefs of the Wet’su’wet’en houses were signatories. Despite this MOU, the pipeline continued.
In autumn 2021, Chief Dsta’hyl, with the support of the signatories, undertook to enforce the Eviction notice by blocking passage and decommissioning construction equipment [Chief Dsta’hyl para 29], an action he asserted was in accordance with the matrilineal governance system of Chief Dsta'hyl’s Nation which sees Chiefs as a living embodiment of their House and Territory protecting Yintah [Chief Dsta’hyl para 15].
The Charge and Conviction
Upon breaching the Injunction, Chief Dsta'hyl was charged, convicted, and sentenced to 60 days of house arrest for criminal contempt under the Criminal Code, RSC 1985, c C-46 [Criminal Code], prompting Amnesty International to designate him as its first-ever prisoner of conscience in Canada.
His trial defence was that compliance with Wet’su’wet’en law of trespass should constitute a novel common-law defence under s 8(3) of the Criminal Code [Coastal Gaslink Pipeline Ltd. v Huson, 2024 BCSC 509, [Huson]] or, more simply, that his actions should be excused because he was enforcing the Eviction in accordance with Wet’su’wet’en law [Chief Dsta'hyl paras 32-35]. The Court rejected this defence, holding that where a party is unhappy with an injunction, the proper recourse is an appeal or an application to vary [Huson para 55]. Using self-help remedies is not a legally viable means of harmonizing Indigenous and State law [Huson para 56].
Sincerity Is Not Enough To Appeal a Conviction
The appeal in 2026 was heard on the basis that the trial judge erred by: 1) refusing to recognize a novel common law defence based on coexisting Indigenous legal orders on unceded territory, and 2) requiring any such defence to proceed under section 35(1) of the Constitution Act, 1982. The thrust of his appeal was that he had a duty to protect Yintah as Wet’su’wet’en title and rights were established by the MOU and in Delgamuukw v British Columbia [1997] 3 SCR 1010, 1997 CanLII 302.
The Court accepted his sincerity in upholding Wet’suwet’en law and noted, “Indigenous law has been denied, suppressed, 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” [para 98]. Still, the Court held that subjective obedience to an Indigenous legal order cannot excuse the objective intent to defy a Canadian one [para 99]. Public defiance of a court order to stop lawful activity in furtherance of an individual or societal goal, no matter how altruistic or serious that goal may be, is akin to a choice rather than morally excusable [para 81]. The judgment noted exceptions to court-ordered injunctions are rare and occur only in cases lacking judicial jurisdiction or serious procedural errors, such as fraud or denial of a hearing. Courts apply exceptions narrowly, emphasizing respect for court authority and finality (see R v Bird, 2019 SCC 7, paras 1, 21-22).
The BCCA held that raising Indigenous rights issues within criminal contempt proceedings may also be unfair, inefficient and sub-optimal because:
1) The affected rights-holding collectives (members of the Nation) are not parties to the proceedings;
2) The issue of Indigenous rights and laws is not squarely before the court, and
3) A trial judge could make findings of fact on a limited evidentiary record that could be binding in future court proceedings [Chief Dsta’hyl para 89].
Braided in Theory Bound by Practice
Ultimately, the court found that while section 8(3) of the Criminal Code allows courts to identify and develop common-law defences, any proposed defence must align with core legal tenets, namely respect for the judiciary and the rule of law [Chief Dsta’hyl paras 3, 30, 65-68]. While highlighting the tension between jurisdiction and reconciliation when Indigenous legal orders and State law are applied, the BCCA did leave the door open to future applications of Indigenous law both within and beyond Canadian courts, including in the criminal context. As Indigenous laws and Canadian laws are meant to be braided, with distinct strands woven into a single living cord of strength, memory, and shared goals for future generations, we are interested to see how the weaving will continue in court, given the availability of alternatives.