On July 25, the B.C. Court of Appeal ruled on a historic case that has been winding through the court system for more than three years. It concluded, as observers knew from the beginning, that significant errors were made by B.C. Supreme Court Justice Shelley Fitzpatrick. Among the errors, she was found to have convicted an Indigenous elder, who was performing a pipe ceremony, without proper consideration of the facts.
This case has inspired a play opening at the Vancouver Fringe Festival in September, “The Judge’s Daughter,” which invites audiences to consider the actions of the Canadian judiciary in the treatment of Indigenous land defenders and climate protectors.
The conduct of this judge relates to the injunction for the Trans Mountain pipeline expansion project (TMX) — a globally criticized megaproject on the lands of many Indigenous Peoples who oppose this toxic incursion.
The ruling comes as legal, ethical and environmental regulatory violations by TMX have been drawing vast criticism across the planet. United Nations agencies have called for an immediate halt to further TMX construction.
In a time when TMX's negative ecological impacts are no longer deniable, and when the ever-growing price of the project is costing taxpayers billions more than previously promised, reasons for opposing TMX have been multiplying. But it is Indigenous people — from the Tsleil-Waututh Nation, the Secwépemc Nation and others — who have been most severely impacted by how the injunction has been used.
Past public writings about Fitzpatrick's conduct argue the judge has been turning courtrooms into caustic weapons against Indigenous people, disrespecting Indigenous cultures and aggressively criminalizing and misrepresenting ceremony.
Observers and defendants have raised concerns that have ranged from the judge displaying a profound ignorance and disrespect towards Indigenous people and their lawyers to actually disallowing Jim Leyden (Stem-may-kochx-kanim), a 70-year-old Indigenous elder and survivor of the ’60s Scoop, from simply being at a ceremonial place known as a Watch House. He had been expressly asked by Tsleil-Waututh and Squamish elders to act as Watchman and Elder of the Kwekwecnewtxw Watch House, an important spiritual place and site for witnessing TMX activities.
In February, Fitzpatrick made shocking statements in a Kamloops courthouse in the TMX injunction saga. A defence lawyer was noting the good character of someone on trial, who planted trees to commemorate hundreds of Indigenous children who were victims of the genocidal residential school policy and whose remains had just been found.
The judge stunned the courtroom with a sequence of interruptions — including “there are no bodies that have been unearthed.” After the defence lawyer pointed out the widely recognized ground-penetrating radar evidence of Indigenous children’s remains at such schools across the country, the judge interjected with “potential” — appearing to cast doubt about the existence of the children’s remains.
Those in the courtroom, largely Indigenous people from the area, reported being outraged, and an Indigenous news outlet, IndigiNews, ran a piece detailing some of the concerns and another calling on the judge to release full transcripts.
Although the appeals court's July 25 ruling was restricted in scope, it ruled in the case of Jim Leyden that Fitzpatrick applied an incorrect test and wrongly concluded this Indigenous elder was in contempt of court because he was on a crosswalk for approximately 25 minutes to lead a pipe ceremony with others. Leyden had joined hands with a group of people in a circle that included police. Fitzpatrick heard the evidence and chose to convict Leyden anyhow.
During the appeal, Leyden’s lawyer, Michelle Silongan, noted it was unfathomable to think that Leyden's ceremony would have been a violation of law, explaining that a pipe ceremony (Chanunpa ceremony) is part of a cultural tradition of keeping peace and ensuring people — police, protesters and others — act in a good way.
Leyden had on many occasions conducted the pipe ceremony in the presence of police and TMX security officers. As Leyden later stated: “This case is important not only because it draws attention to the insanity of continuing to pump dirty oil as it destroys our Earth, but also because it highlights our right to practise Indigenous ceremonies and protect our lands without colonialist interference. Authentic reconciliation must recognize the right to protect our unceded and unsurrendered lands, something we’ve been doing for millennia.”
The normalization of oppression against Indigenous people is, of course, not a new development in Canada. The criminalization of Indigenous ceremonies, explicit attempts to destroy Indigenous culture and policies to deny Indigenous people access to lawyers under the Indian Act are all incontrovertible and disturbing realities that have shaped Canada.
But while patterns of systemic anti-Indigenous racism are vast, the number of complaints made about this judge in particular is noteworthy. Prior to this year, complaints were filed to the Canadian Judicial Council; in 2023, new complaints by others were launched. Additional appeals court cases are pending involving this same judge.
This case, initiated at the explicit behest of TMX, clearly never should have been prosecuted in the first place — and has highlighted multiple moral and ethical concerns about TMX tactics. Indeed, one observer of many TMX injunction trials noted: “There is no doubt that this trial is not only racist and preposterous, but strategically motivated to try to shut down the Watchman of the Watch House. Jim Leyden’s documentation of illegal and/or dangerous TMX activities has on three occasions merited outside authorities intervening and behaviours on the mountain changing.”
It is time for Canada to put an end to the biased injunction culture that has so routinely and cavalierly disrespected Indigenous laws and communities.
The errors made by both the judge and the Crown in this case, some alluded to by the appeals court, are just the tip of the iceberg. As public funds are being used, a public inquiry into prosecutorial and judicial conduct is warranted. This would be in addition to wider calls now being made for a public inquiry into Canada’s broader contentious plans for fossil fuel production.
Companies providing insurance for TMX should take note: The public is not going to stop opposing TMX. Champions of Canada’s ever-expanding fossil fuel industry keep recklessly using public money while making “errors,” breaching laws and crossing ethical lines.
History will not judge this conduct well.
Sam Spiegel grew up in Winnipeg on the territories of the Anishinaabeg, Cree, Dakota, Dene, Métis and Oji-Cree nations. He holds a PhD in geography from the University of Cambridge and teaches at the University of Edinburgh on displacement, colonialism and climate justice.
Comments
Just to be clear, although there's plenty racism involved, the prime mover here is capitalism. The point is, they'll do anything for their profits, and that's more comfortable if you find excuses to dehumanize anyone who disagrees. Where there are white defenders of the land, they find epithets to call them, ways to dehumanize them too--hippies, socialists, terrorists, blah de blah. The basis behind the mobilization of institutional racism has always been profit, whether it's about land theft or establishing a poor underclass to exploit.
To me, the Indigenous rights were trampled by the company that wilfully consulted the leaders of the wrong "power" structure. At that, they had to buy them off, and rely on "X" marks from people who couldn't read what they were signing.
Governments turned a blind eye. So did the courts.
Courts are supposed to be able to rely on precedent, and on prior rulings.
The environmental regulators are supposed to regulate, but they don't.
And that happens because over and over they get away with it ... and with ignoring transgressions of the conditions they do set.
It sounds to me like Justice Fitzpatrick made personal comments, unrelated to the question raised or her decision ... that would have been seen as improper, back in the day. I see that things have changed, and not for the better.
The real irony, though, is that there she was, telling people they could have "done nothing" ... apparently without realizing that she, too, had that option open to her.
I wonder, as well, when zip ties became illegal, and when refusing to walk amounted to resisting arrest.
Something's gone way out of bounds, and it's not people trying to do something about the harm our country is causing the entire world, when governments, law enforcement, and the Courts do nothing.