Introduction
On April 28, 2026, the BC Court of Appeal dismissed Chief Dsta’hyl’s appeal of his conviction for criminal contempt after breaching an injunction. 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. He had argued that he was not guilty of breaching the injunction because he was following Indigenous Law.
Background
This case arises from blockades of Coastal GasLink’s (“CGL”) construction of a pipeline through Wet’suwet’en Territory. In December of 2019, the BC Supreme Court granted CGL an interlocutory injunction which prohibited individuals from interfering with the construction of the pipeline.
In January of 2020, several Wet’suwet’en hereditary Chiefs, including Chief Dsta’hyl, signed and delivered an eviction notice to CGL based on the Wet’suwet’en law of trespass. This eviction notice informed CGL that it was trespassing on unceded Wet’suwet’en Territory and must vacate immediately as CGL had never received consent through the Hereditary governance system.
Chief Dsta’hyl was charged with breaching the injunction. At his trial, he provided evidence along with three other Chiefs: another Sun House wing chief, Chief Tse’besa (Lillian Wilson); a Gitxsan hereditary chief, Chief Hanamuxw (Don Ryan); and the head chief of the Owl House of the Likhts’amisyu Clan, Chief Kloum Khun (Alphonse Gagnon).
The Chiefs’ gave evidence about how Wet’suwet’en hereditary Chiefs are responsible for looking after the Territories that go with each Chief’s name; how respect for the land is integral to Wet’suwet’en worldview; and how Wet’suwet’en people belong to the Territory and have a lifelong responsibility to nurture the land and ensure something is left for future generations. This underpins Wet’suwet’en’s law of trespass.
Chief Dsta’hyl acknowledged he had breached the injunction but asked the court to recognise a new common law defence under the Criminal Code by declining to convict him on the basis that he was following Indigenous law when he did so. The trial judge rejected this defence, saying it amounted to a collateral attack on the injunction.1 Chief Dsta’hyl was found guilty of criminal contempt.
Analysis
The Court of Appeal upheld the decision of the trial court, finding that the defence being sought by Chief Dsta’hyl was not available and that the trial judge’s analysis about collateral attack was correct. The Court’s decision was written by Chief Justice Marchand, the first Indigenous person to hold the role of Chief Justice in BC.
The Court recognized that legal pluralism does exit in Canada, and that the Supreme Court has confirmed that Indigenous laws are presumed to continue as part of the law of Canada.2 Ultimately, however, the Court found that Chief Dsta’hyl’s appeal did not turn on the existence of Wet’suwet’en law. Instead, it turned on whether the trial judge had erred, and they found he had not.
The Court found that if a defence of acting pursuant to a coexisting Indigenous legal order were to be recognized, it could only be successfully invoked in situations of last resort. Chief Dsta’hyl’s conduct in this case was not of last resort, as he could have applied to vary, stay, or terminate the injunction. The Court also concluded that the trial judge’s collateral attack analysis was correct. With limited exceptions, court orders must be obeyed unless they are set aside in a proceeding taken for that purpose. Accordingly, the Court dismissed the appeal.
Comments
This decision offers a caution to those who might be considering direct action, such as blockades, against resource development in their Territories. Even if a person’s actions are support by Indigenous law, they could still be found guilty of breaching an injunction. The Court has been clear that remedies such as appeals or applications to vary remain the appropriate first step for challenging injunctions. However, defences based on following Indigenous Law have not been ruled out where raised as a last resort.
Footnotes
1 A collateral attack is a challenge to a court order that is made in a proceeding whose specific object is not the variation, suspension, or termination of the order.
2 Mitchell v. M.N.R., 2001 SCC 33 at para 10.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice.
See CanLII for the Reasons for Judgment.
