Dinï ze' Dtsa'hyl Decision
Earlier this week Dinï ze’ Dtsa'hyl was sentenced to 60 days of imprisonment in his home on a Conditional Sentence Order, with no probation or community work hours. This comes after he was found guilty of criminal contempt earlier this year. The fact that Dinï ze’ Dtsa’hyl is being criminalized for upholding ‘anuk niwh it’en (Wet’suwet’en law) is egregious. For all the reasons considered in the sentencing decision he never should have been removed from the yintah in handcuffs or spent any time in a jail cell. And yet here we are, 150 years into colonization of Wet’suwet’en lands, many successful court cases later, governance and culture intact, local and global recognition and support, and yet two days in court were spent deciding how to punish Dtsa’hyl for doing the right thing. Dinï ze’ Dtsa’hyl will be appealing the original guilty verdict.
The crown was pushing for 60-90 days in prison and defence was asking for time served with 2 years probation and community work service. There were many things that were taken into consideration by Justice Tammen in the sentencing including the Gladue report, a summary of experiences that have affected an indigenous person before the court that need to be considered in sentencing, that was prepared. There was a lot of discussion back and forth about how Gladue reports should be used and what the outcomes could be as it applies to criminal contempt cases. It was very encouraging that Tammon was looking for a specific and different framework, which is the intention, than what was used during trial. There seemed to be a willingness at least on his part to consider that he was entering new territory and that the original intent of the Gladue decision to reduce overrepresentation of indigenous peoples in prison has not been met and in fact has gotten worse. Many of the things considered in his deliberation and read in his statement of decision were a step in the right direction in recognizing that indigenous law has a role in our actions and ‘‘moral blameworthiness”. As we have maintained, upholding ‘anuk niwh it’en has been our priority as is our responsibility given to us by our ancestors.
Justice Tammen repeatedly referred to ‘the yintah’ in his decision and in fact throughout the two days of proceedings. All throughout trial everyone in the court room referred to our relative appropriately as “Chief Dtsa’hyl” and occasionally by his english name also. While this at first impression seems a very respectful thing to do it is problematic and paying lip service if the people using that name given to him in our balhats (feast hall) do not also consider the role and responsibility that name holds. As mentioned in court Dtsa’hyl was groomed by his clan and matriarchs for his position and what his duties would be. All the teachings he received are embedded in his identity as Dtsa’hyl. Using that name is invoking all that he is and represents. Names in our balhats are not nicknames and should not be taken lightly. As all our language comes from the land and our ancestors it cannot be understated to use it respectfully. We have come a long way from our language and systems being illegal to reclaiming place names and we still have a long way to go in these colonial systems.
One thing we will mention here that did not apply in the final decision but potentially will apply in future cases for Wet’suwete’en people is that ‘remission’, the calculation used by corrections canada for time already served prior to sentencing such as at initial arrest, the practise of multiplying time spent by 1.5 usually rounded up to 2 times, is no longer available to anyone charged with criminal contempt. As of May 2024 corrections canada amended this policy because criminal contempt does not fall under the criminal code but is part of common law. The crown suggested that if jail time was given then the sentence should be reduced to consider the calculation that would have been available and use that number as the formal decision as corrections would have previously calculated it.
Some of the things that were considered as mitigating factors in Tammen’s decision were:
He is a 68 year old, first-time offender, with no prior or subsequent history
He had a difficult childhood, resulting in part from the intergenerational impact of colonial policies
The unique systemic background factors impacting Chief Dtsa'hyl and other Wet'suwet'en people played a part in why he felt compelled to engage in the conduct
He has significant support in the community
He has a pro social history, including employment, providing a stable environment for his family, has respect in society, devoting an enormous amount of time and energy to Wet'suwet'en governance and efforts to honor and protect his culture
He is motivated to rehabilitate himself and take accountability for the harm he caused his community through his conduct
In determining moral blameworthiness the court heard 5 days of testimony during trial about indigenous law motivating Dinï ze’ Dtsa’hyl’s offending actions- defined by Gladue as mitigating for sentencing Dtsa'hyl's reliance on ‘anuc niwh it'en (Wet'suwet'en law) was established in very specific terms over the course of five days of trial. Justice Tammen found that he demonstrated a direct connection between the relevant background factors and his conduct.
Tammen also named Delgamuukw being unresolved in his statement. The fact that the highest court declared very clearly that the HEREDITARY CHIEFS (as the plaintiffs) have NEVER had their rights and title extinguished is significant. Every court before this moment has disregarded the decision saying we need to go back and negotiate the specifics of our rights and title which has not happened. This is the first time I have heard a judge say, but wait a minute, this is a legal decision and it is not over. We appreciate this recognition in so far as it’s been over a quarter of a century since the 1997 Delgamuukw Supreme Court of Canada decision and nothing has changed for our people. It is likely true that nobody is interested in clearing this up because it would mean that government and industry would no longer have access to all our resources. It was discovered in 2020 by The Narwhal that “representatives of resource industries and government sought the ‘surrender’ of Indigenous land rights in the wake of the precedent-setting Delgamuukw decision, which affirmed Aboriginal title on unceded territory”. The article goes on to say that the day after the announcement of the Delgamuukw decision “B.C. government officials discussed tactics to fight land rights with legal challenges, to curb direct action or litigation by First Nations and to use federal money intended for the healing of residential school survivors to make treaty negotiations more attractive.” So we are well aware that they will never willingly give us our land back, despite us clearly being right.
Tammen also mentioned the Memorandum Of Understanding (MOU) signed by the provincial and federal Governments with our Wet’suwet’en Hereditary Chiefs. It states that “Canada and British Columbia (B.C.) recognize that Wet'suwet'en rights and title are held by Wet'suwet'en Houses under their system of governance.” There was also a commitment to complete the work and make our rights and title legal within three months. This has not happened. and Tammon recognized that no movement fuels understandable frustration. This is also a point that has not been recognized since its’ signing in 2020 and for the most part the majority of the public has forgotten that this was something the provincial and federal governments agreed to while canada was shut down in solidarity with our hereditary chiefs.
There is also the consideration of CGL’s failure to consult. They did not get Free Prior and Informed consent from the authority of the yintah and so breached UNDRIP//DRIPA which is law in British Columbia. Instead they made the consequential decision to make agreements with band councils, referencing them as an “artifact of colonialism” created by the Indian Act. This goes back to what we have always known that our traditional governance system as recognized by the Delgamuukw decision is the authority on our yintah.
Tammen also described Dinï ze’ Dtsa'hyl as having a "stellar" character and said that the collection of character reference letters was "as impressive a collection as I have seen in more than 35 years as a lawyer and judge."
Tabï misiyh everyone for your support during all the colonial court mayhem, everyone that showed up in person to support, those from afar, all the organizations that have taken actions, there is so much more to come. This is far from over. Stay tuned and get involved where you can!
Awetza, misiyh.