The trial of three Indigenous land defenders arrested at a pipeline construction site on unceded Wet’suwet’en First Nation land was adjourned until spring on Friday, as the court looks into potential abuses by Canadian police.
In the Supreme Court of British Columbia in Smithers, B.C., the trial is the latest development in the nearly 12-year fight against the Coastal GasLink natural gas pipeline in the Canadian province.
Land defenders Sleydo’ Molly Wickham, Shay Lynn Sampson and Corey Jocko were found guilty of criminal contempt earlier this month, with Justice Michael Tanmen ruling that they broke a court injunction forbidding them from blocking access to construction for the Coastal GasLink pipeline.
But immediately following the verdict, Tanmen began a week-long hearing to listen to the three individuals’ abuse of process applications, which allege that their Charter rights were violated during their arrests and detentions. During the hearing, the defense argued to stay the charges based on these applications, citing excessive force, aggressive behavior, offensive language and mocking by police.
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In Canada, the abuse of process doctrine allows courts to stay, or postpone, a proceeding on the grounds that some element of the process was unfair, and might undermine the legal system. In this case, the abuse of process application focused on treatment during and after arrests.
The trial began on Jan. 8 and consisted mainly of witness testimony and evidence gathered in November 2021, during one of four major police raids at the pipeline between 2019 and 2023. The evidence included videos from social media and other videos taken by officers from the Royal Canadian Mounted Police, Canada’s national police service.
The videos, and testimony from witnesses, including RCMP officers, detailed the police using dogs and firearms and wielding chainsaws to cut down the doors of a cabin where Sleydo’ and Sampson were arrested. Jocko was arrested in another small structure close by.
The activists allege police used excessive force to break down the doors and used offensive language, showing videos in which officers described arrestees as “orcs” and “ogres.” The abuse of process hearing will likely restart in June.
Chief Na’Moks, a Wet’suwet’en Hereditary Chief and prominent advocate against the pipeline, said that the trial may serve as a template for future legal battles across Canada, where several other pipeline projects are underway.
“This is going to affect everything else that happens, not only in British Columbia but in Canada,” Chief Na’Moks said last week. “This is the template that they want to use…and the harassment and constant abuse of human rights has to stop.”
Councils from five of six reserves on Wet’suwet’en territory in northern British Columbia are among those that signed agreements. But the Wet’suwet’en Hereditary Chiefs—who have never ceded their territory, and whose governance system has been recognized by the Canadian government—did not agree to the pipeline’s construction.
Chief Na’Moks said that he hopes the trial will bring attention to the injunctions like the ones Sleydo’, Sampson, and Jocko were accused of violating.
“We’re hoping for the judge to realize these injunctions should not exist,” he said. “They’re a waste of time, just to get us out of the way so industry can continue with what they do.”
Police activities at the Coastal GasLink pipeline have garnered widespread criticism since construction began in 2019. The United Nations Committee on the Elimination of Racial Discrimination has issued multiple rebukes to the governments of British Columbia and Canada, citing excessive force, surveillance and criminalization of land defenders at the pipeline by the RCMP and private security forces.
Special rapporteurs from the U.N. Human Rights Council have repeatedly raised similar concerns and recommended the suspension of Coastal Gaslink’s construction, stating that the free, prior and informed consent of Indigenous Peoples was not obtained. In December, Amnesty International released a report tracking what they called a “years-long campaign of criminalization, unlawful surveillance against Wet’suwet’en land defenders.” These allegations fit into a global trend of criminalization of Indigenous communities and draconian tactics in the suppression of protests.
“We are experiencing the utmost that Canada is putting towards us when it comes to human rights violations,” said Chief Na’Moks, a Wet’suwet’en Hereditary Chief, at a press conference in Vancouver for the release of Amnesty International’s report. “We need to let the world know that Canada can no longer operate in the shadows, and they must have the truth put into [the] light of day.”
In a written statement, TC Energy—the company behind Coastal GasLink—said that it followed British Columbia’s regulatory process and took “extraordinary measures to meaningfully engage with all Indigenous groups, including Wet’suwet’en community members and leadership.”
A History of Controversy
The 670-kilometer (416-mile) CGL pipeline, which includes 190 kilometers (118 miles) passing through Wet’suwet’en territory, has faced opposition since its inception in 2012. Construction on the pipeline—which is co-owned by private equity firm KKR and Alberta Investment Management Corp.—began in 2019. In recent years opposition has spread, sparking solidarity protests across Canada, including a railway barricade that shut down the national rail service in 2020. The pipeline’s construction continued and was completed in the fall of 2023.
As mandated by Canadian law, CGL underwent an environmental consultation process and conferred with representatives from First Nations along the pipeline’s route. CGL and the Province of B.C. both separately signed benefits agreements with 20 band councils, the post-colonial elected representation structure created by Canada’s Indian Act in 1876.
Councillor Jesse Stoeppler, an elected member of the Hagwilget Village Council, the only Wet’suwet’en village council that did not sign an agreement with CGL, told Inside Climate News that the elected band councils only have jurisdiction within the bounds of their reserves, not over the land where the pipeline was constructed.
“It’s important to us that we break the ice and say what nobody else wants to say, and that is the fact that elected leaders do not have any say or jurisdiction over something like land,” Stoeppler said.
Agreements between the Province of British Columbia and the band councils are public, and contain financial benefits in return for the councils’ support of the pipeline project. Some band council leaders have praised the pipeline for providing much-needed economic opportunity. But the agreements also contain provisions that the councils will not take certain legal actions against the pipeline or support any efforts to “frustrate, delay” or “impede” pipeline activities. The agreements between Coastal GasLink pipeline and the band councils reportedly contain similar provisions and a leaked draft agreement raised concerns that the terms might undermine First Nations’ rights and jurisdiction.
Stoeppler said that he has seen a few of the agreements between CGL and other band councils, and feels they effectively act as “gag orders.”
“They’re designed in a fashion that really doesn’t allow for anyone in that nation or that council to actually speak up,” Stoeppler said. “I quite honestly find them to be unconstitutional.”
Coastal GasLink has received numerous warnings and fines as recently as this month from British Columbia’s Environmental Assessment Office for failing to comply with environmental regulations, including not properly rehabilitating waterways from damage during pipeline construction, and for providing “false and misleading” information about environmental protection efforts to the agency. CGL said publicly that this reporting had been in error.
The Coastal GasLink Pipeline will transport natural gas to a liquified natural gas export facility in Kitimat, almost 900 miles north of Vancouver. CGL says that the route of the pipeline “was determined by considering Indigenous, landowner and stakeholder input, the environment, archaeological and cultural values, land use compatibility, safety, constructability and economics.”
The Wet’suwet’en Hereditary Chiefs have issued multiple formal eviction notices to CGL, informing the company that all staff and contractors were trespassing on unceded territory and warning that if CGL failed to comply, the roads around the construction site would be blockaded.
The Ministry of Indigenous Relations and Reconciliation in B.C. said in a written statement said that the issue of free, prior, and informed consent with regard to the pipeline is “an extremely complex issue, balancing provincial law with Wet’suwet’en law, and the unfinished business of reconciling those laws,” and said that “free, prior, and informed consent is about engaging with Indigenous Peoples on proposed activities in their territory right from the beginning.”
“The province is committed to implementing Wet’suwet’en title,” the statement read. “Any solutions must involve the Wet’suwet’en people, which includes Wet’suwet’en Hereditary and elected leaders.”
The Nov. 19, 2021 arrests of the three defendants in this week’s trial occurred after land defenders issued an evacuation order to CGL and subsequently blocked access to the worksite by barricading the forest roads.
The action resulted in a two-day police raid, with RCMP security using dogs and chainsaws and arresting dozens, including two journalists who were arrested and detained despite holding press credentials. According to a submission by Gidimt’en land defenders to the United Nations Human Rights’ Office of the High Commissioner, from Nov. 18-21, the RCMP deployed approximately 100 officers at the site of the pipeline.
In a written response regarding Amnesty International’s report and allegations of police violence, the British Columbia Ministry of Public Safety and Solicitor General stated that “individual investigations and enforcement decisions occur at arm’s length from government, and we cannot interfere with or direct police on such matters,” adding that “there are well established processes in place where people can take their concerns or complaints regarding allegations against the RCMP.”
The court injunctions acquired by CGL through the British Columbia Supreme Court—first an interim injunction in 2018 and then an interlocutory injunction in 2019—forbid land defenders from blockading or impeding construction activities or “creating a nuisance” through physical obstruction.
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But in 2019 the Yellowhead Institute, an Indigenous-led research group, found injunctions like the ones used to protect the CGL construction are unevenly imposed. In reviewing nearly 100 cases, it found that 76 percent of the injunctions filed against First Nations by corporations were granted, while the court denied 81 percent of injunctions First Nations filed against corporations and 82 percent of those they filed against the government.
“The state is criminalizing the land defenders for defending their territory,” said Mary Kapron, an Amnesty International researcher who worked on the report.
In a written statement, TC Energy questioned the validity of Amnesty International’s claims.
“Coastal GasLink has not been provided with the research that Amnesty International is relying upon or the chance to review the evidence behind Amnesty’s initial claims,” the statement continued. “We have so far encountered selective biases in the way they have handled information shared as well as in their decision to exclude important voices.”
Allegations of Excessive Force
During large-scale raids from 2019 to 2023 the Royal Mounted Canadian Police have made more than 75 arrests, including of land defenders, journalists and lawyers present to monitor law enforcement, according to the report. In November, one pipeline opponent, Sabina Dennis, was tried and found not guilty, with Justice Tanmen ruling that she was a peaceful protector.
The RCMP’s arrests at Coastal GasLink have been widely criticized for being excessive and forceful and leading to mistreatment in custody. In 2019, the Guardian reported that RCMP officers had argued for “lethal overwatch,” or the authorization of lethal force, and had instructions to “use as much violence toward the gate as you want” and to arrest without exception in the injunction area. The RCMP has held land defenders at gunpoint and used chainsaws and sledgehammers to break down the doors of small wooden cabins that were set up as part of Wet’suwet’en reclamation of the territory.
Land defenders have detailed being transported in metal dog cages, brought into court in their undergarments and denied medicine, food and water while in custody for four to five days prior to bail hearings.
“I don’t know how many of you have been arrested and put in dog cages to be brought to jail, then put in front of judges in your underclothes,” said Chief Na’Moks at the Amnesty press conference. “That’s not what Canada is. It’s not the Canada that I look forward to.”
In the Amnesty report, multiple land defenders said that Indigenous arrestees were singled out for harsher, more degrading treatment.
“They ankle shackled me…I was still in my long johns,” Layla Staats said in the report. “It was hard to deal with because you felt that hint of racism…I kind of felt degraded as a woman. There was a very distinctive singling out of the Indigenous land defenders.”
The pipeline opponents have maintained that their blockades are peaceful and are meant to uphold their sovereignty. In videos shown at the trial, land defenders continued to voice their sovereign authority over the land, asking CGL to leave the premises. Meanwhile, RCMP and private security continued to invoke the injunction and make arrests.
In a written response, RCMP spokesperson Sergeant Kris Clark noted that the police are required by law to uphold court injunctions, and said that blockades at the site of the pipeline have been “neither peaceful…nor lawful,” citing incidents of property damage and escalation in 2022, the perpetrators of which are unconfirmed and were not endorsed by local land defenders.
“The RCMP uses a carefully measured response to civil disobedience and unlawful acts. We will use only the level of force necessary to ensure the safety of all citizens, enforce laws and to maintain peace, order and security,” wrote Sergeant Clark. “The actions of the individual or crowds will dictate the actions of police. Arrests and enforcement actions are only undertaken once all other avenues to resolve the conflict have been exhausted and enforcement action becomes necessary to prevent the continuation of any unlawful protest.”
Sergeant Clark said that he was unable to comment on specific allegations against the police, but said that “the RCMP does not target any individual or group based solely on their racial, ethnic or religious background, and focuses on observed or suspected criminality and behaviours.”
TC Energy also cited the same 2022 incidents, and said, “we have had to take the steps necessary to protect the safety of the women and men who worked hard on the project to provide for their families and communities. There have been significant acts of violence that have put people, property, and the environment at risk.”
Police and security presence in the area is not confined to the CGL construction sites or land defender encampments: since pipeline construction began the RCMP’s Critical Response Unit and Forsythe Security, the private company hired by CGL, have had a constant presence throughout the territory.
On the Morice Forest Service Road, Indigenous residents report being subject to frequent traffic stops for minor infractions such as dirty license plates, or for what they have described as completely arbitrary “safety checks.” Many members of the Wet’suwet’en Nation have also reported being photographed or recorded without their consent, and noted that even children have been filmed by private security officers.
“This is a warning call to all other Indigenous people, to all other citizens of so-called Canada, that this is going to be a police state,” said Sleydo’, in the December press conference. “If we allow industry and private security and police to treat anyone, especially Indigenous people, this way on our own lands, then they will have complete control. They are setting a precedent right now that is very dangerous.”
Amnesty International’s report included accounts from land defenders who reported feeling unsafe during near daily encounters with security and law enforcement. Female land defenders also described gender-based intimidation, rape threats and harrasment from CGL workers and RCMP officers.
Chief Na’Moks and Stoeppler, who have been attending the court proceedings in Smithers, said that they and other Indigenous supporters have observed themselves being followed around town by private security and the RCMP. Kapron said that members of Amnesty International were also followed and surveilled during their scoping mission to the territory.
The RCMP said it conducts regular patrols within the boundaries of the injunction to ensure roadways remain clear and make sure individuals released by the courts don’t violate the conditions of their release in the area.
Stoeppler said he’s been to many trials like this one, and learned not to feel optimistic about lasting change coming.
“We have the law on our side, but we can’t enforce it,” he said, explaining that despite international recognition of the injustices at Coastal GasLink, he hasn’t seen real progress in Canada. “Our government continues what they’re doing and there’s no way to really hold them accountable other than in the public eye.”