R. v. Chief Dsta’hyl

2026 BCCA 176 R. v. Chief Dsta'hyl COURT OF APPEAL FOR BRITISH COLUMBIA Citation: R. v. Chief Dsta'hyl, 2026 BCCA 176 Date: 20260428 Docket: CA50029 Between: Rex Respondent And Chief Dsta'hyl, also known as Adam Bernard Gagnon Appellant Corrected Judgment: The text of the judgment was corrected at paras. 61 and 98 on May 6, 2026. Before: The Honourable Chief Justice Marchand The Honourable Justice Fleming The Honourable Justice Iyer On appeal from: An order of the Supreme Court of British Columbia, dated February 20, 2024 (Coastal Gaslink Pipeline Ltd. v. Huson, 2024 BCSC 509, Prince George Docket S1854871). Counsel for the Appellant: F. Mahon Counsel for the Respondent: L.A. Ruzicka, K.C. M. Richards M.W. Dull Place and Date of Hearing: Vancouver, British Columbia January 13, 2026 Place and Date of Judgment: Vancouver, British Columbia April 28, 2026 Written Reasons by: The Honourable Chief Justice Marchand Concurred in by: The Honourable Justice Fleming The Honourable Justice Iyer Summary: The appellant was convicted of criminal contempt after breaching an injunction. At trial, he argued the court should excuse the breach by recognizing a novel excusatory common law defence of acting in accordance with Indigenous law. The trial judge concluded the proposed defence was an impermissible collateral attack on the injunction order. On appeal, the appellant argues the judge erred by failing to recognize the proposed defence on the basis it was a collateral attack. He further argued the judge erred in failing to admit oral history evidence adduced at trial. Held: Appeal dismissed. The proposed defence fails in the present circumstances because disobeying the injunction was not a matter of last resort. There were other lawful and peaceful means available to the appellant to challenge the injunction. The judge did not err in concluding the proposed defence amounted to a collateral attack on the injunction order. No exception to collateral attack applies. In these circumstances, there is no reason to address the appellant's oral history ground of appeal. Reasons for Judgment of the Honourable Chief Justice Marchand: Introduction [1] Increasingly, the Courts of British Columbia are asked to adjudicate complex, sensitive, and sometimes divisive societal questions. While the legal issues here are narrow, this appeal is no exception. [2] The appellant, Chief Dsta'hyl (Adam Gagnon), is a wing chief of the Sa Yikh (Sun House) of the Likhts'amisyu (Fireweed) Clan of the Wet'suwet'en Nation. Between October 17 and 26, 2021, Chief Dsta'hyl knowingly and wilfully contravened what is commonly referred to as the Coastal GasLink ("CGL") Injunction (the "Injunction") by impeding work on the CGL pipeline project within traditional Wet'suwet'en territory. [3] On February 20, 2024, the trial judge found Chief Dsta'hyl guilty of criminal contempt for his actions: Coastal Gaslink Pipeline Ltd. v. Huson, 2024 BCSC 509. In doing so, the judge rejected Chief Dsta'hyl's assertion of a novel excusatory common law defence that he was acting in accordance with the Wet'suwet'en law of trespass. Principally, the judge held Chief Dsta'hyl's proposed defence amounted to a collateral attack on the Injunction. [4] Chief Dsta'hyl has never put his conduct in issue. He very publicly acted contrary to the Injunction. Nor does he challenge the trial judge's conclusion that the mens rea for criminal contempt was proven beyond a reasonable doubt. Rather, Chief Dsta'hyl submits the trial judge erred by: 1. rejecting the oral history evidence he tendered to support his argument he was acting in accordance with his chiefly duties and the Wet'suwet'en law of trespass; and 2. concluding the common law could not expand to recognize his novel excusatory defence. [5] While Canada is a multi-juridical country that has long recognized Indigenous law, for the reasons that follow, I would dismiss Chief Dsta'hyl's appeal. [6] In my respectful view, Chief Dsta'hyl's appeal fails for two reasons. First, if an excusatory defence could ever be recognized, it could only be raised as a last resort. That was not the case here. Second, the judge did not err in concluding Chief Dsta'hyl's proposed defence amounted to an impermissible collateral attack on the Injunction. [7] In these circumstances, there is no need to address Chief Dsta'hyl's oral history ground of appeal. Background [8] The background is not in serious dispute. [9] In 2021, CGL was constructing a natural gas pipeline between Dawson Creek and Kitimat. The pipeline passes through Wet'suwet'en traditional territory. [10] In response to blockades impeding the pipeline's construction, CGL obtained an interim injunction on December 14, 2018: Coastal GasLink Pipeline Ltd. v. Huson, 2018 BCSC 2343. Just over one year later, on December 31, 2019, Justice Church granted the interlocutory injunction at issue in this case: Coastal GasLink Pipeline Ltd. v. Huson, 2019 BCSC 2264 [Huson 2019]. The Injunction, among other things, prohibited individuals from physically interfering with the construction of the pipeline, including along the Shea Forest Service Road ("Shea FSR"), where the acts of contempt took place. [11] Before reviewing the events underlying the criminal contempt charge and conviction, I will provide some important context by summarizing parts of the evidence, including from Chief Dsta'hyl's testimony. [12] At trial, the judge heard from four defence witnesses: another Sun House wing chief, Chief Tse'besa (Lillian Wilson); a Gitxsan hereditary chief, Chief Hanamuxw (Don Ryan); the head chief of the Owl House of the Likhts'amisyu Clan, Chief Kloum Khun (Alphonse Gagnon); and Chief Dsta'hyl. [13] The defence witnesses testified about the Wet'suwet'en system of governance. The Wet'suwet'en traditional governance structure includes a feast hall--or balhats--system where clan business is done and witnessed by the community. The witnessing provides a safeguard for the accuracy of Wet'suwet'en oral tradition. This system is distinct from the band and reserve system the Indian Act imposed on First Nations communities. [14] The Wet'suwet'en system of governance is matrilineal and divided along clan and house group lines. The Likhts'amisyu Clan is one of five clans in the Wet'suwet'en Nation and is divided into three houses. Each house group has a head chief and wing chiefs. As mentioned, Chief Dsta'hyl and Chief Tse'besa are Sun House wing chiefs, and the Sun House's head chief is Chief Smolgelgem (Warner Naziel). [15] Hereditary chief names belong to specific house groups. They are ancient chiefly names that are passed down as new leaders are selected and trained to take on the role. For example, Chief Dsta'hyl testified how chiefs of his house group recognized him as a potential chief at a very young age. His mother, who herself held a chiefly name, warned him not to accept the name Dsta'hyl too quickly, because it is "a big name". He testified his mother explained that from the moment he took on the name, he would no longer be his own person. He would belong to his people and could only act in their best interest for the rest of his life. Before being recognized as Chief Dsta'hyl in the balhats, he went through extensive preparation for this role. [16] Chief Dsta'hyl testified about how the hereditary chiefs are charged with looking after the territories that "go with that chief's name." The chiefs of each house group are responsible for part of the Wet'suwet'en traditional territory in the northwest of the province. [17] The trial judge heard evidence of how respect for the land--or yintah--is integral to the Wet'suwet'en worldview. The Wet'suwet'en belong to the territory; the territory does not belong to them. The Wet'suwet'en, including the hereditary chiefs, have a life-long responsibility to care for and nurture the land, to ensure something is left for future generations. [18] The trial judge also heard evidence about how the tradition of leaving something for future generations underpins the Wet'suwet'en law of trespass and was at the heart of the Wet'suwet'en hereditary chiefs' concern about the CGL pipeline project on Wet'suwet'en traditional territory. [19] Chief Dsta'hyl, Chief Tse'besa, Chief Hanamuxw and Chief Kloum Khun testified about the Wet'suwet'en law of trespass. The judge described their evidence in this way at para. 22 of his reasons for judgment: Each of the defence witnesses also described in detail the importance of the traditional Wet'suwet'en law of trespass, which requires permission of the house group to be on their territory beyond merely passing through it. Historically, a trespasser who took bounty from a territory was given one warning, then summarily shot and killed for a second transgression. In more recent times, the law of trespass has not been enforced in that manner, but retains great importance nonetheless. [20] Turning to the events at issue, in January 2020, after Church J. issued the Injunction, several Wet'suwet'en hereditary chiefs signed and delivered an eviction notice to CGL based on the Wet'suwet'en law of trespass. Chief Dsta'hyl was a signatory. [21] The letter informed CGL it was trespassing on unceded Wet'suwet'en territory and must vacate the territory immediately "as directed by the Wet'suwet'en Hereditary Chiefs with authority to protect these lands" and that opposition to the project was "confirmed in the Balhats by all five clans." CGL had "never received consent through [the] hereditary governance system, our Balhats, to proceed." The letter asserted CGL "is in violation of Wet'suwet'en law, and it is our responsibility now to uphold Wet'suwet'en law to maintain the integrity of our territories for future generations." [22] In late summer or early autumn of 2021, several hereditary chiefs took part in a meeting to discuss enforcing the eviction notice. At that meeting, the Sun House wing chiefs, Chief Dsta'hyl and Chief Tse'besa, were appointed as enforcement officers to attempt to get CGL's attention. The attendees thought seizing or disabling heavy equipment was a proportionate way to enforce the Wet'suwet'en law of trespass. [23] The trial judge heard little about what happened between the January 2020 eviction notice and the events of October 2021. However, Canada, British Columbia and the Wet'suwet'en signed a memorandum of understanding (the "MOU") on May 14, 2020. Nine of the 12 head chiefs of the Wet'suwet'en house groups are signatories, including Chief Smolgelgem, the head chief of the Sun House. [24] Chief Dsta'hyl participated in some of the negotiations leading to the MOU. The MOU sets out a framework for negotiations between the Wet'suwet'en and the federal and provincial governments. It also recognizes that Wet'suwet'en rights and title are held by Wet'suwet'en houses "under their system of governance." At trial, the judge heard no evidence about what, if any, negotiations happened under the MOU framework. [25] In October 2021, Chief Dsta'hyl began enforcing the eviction notice. On October 17, 2021, he helped decommission a CGL subcontractor's excavator by removing the battery. That day, Chief Dsta'hyl told CGL security contractors the Injunction was "bogus as hell." [26] On October 24, 2021, Chief Dsta'hyl and Chief Tse'besa were part of a group that wanted to travel part of the Shea FSR to visit the Clore River. The group wanted to assess possible construction-related degradation. Chief Tse'besa testified the specific area the group wished to visit is part of the yintah for which she is responsible. Chief Dsta'hyl made further comments to security contractors expressing his view that "the injunction doesn't exist", "the injunction is invalid" and "there is no injunction". He described the issuing judge as "injustice Marguerite Church" and "dishonourable Church" whose "piece of paper is completely invalid on our territory". [27] That day, Chief Dsta'hyl led a convoy of vehicles on the Shea FSR. Along the way they met a security contractor who told them they would not be able to travel past the 25-kilometre mark, which is where the Shea FSR turns off to the right-of-way for the pipeline. The group, however, chose to continue to that point. Once there, primarily under Chief Dsta'hyl's direction, the group set up a blockade that significantly impeded vehicular traffic. [28] On October 25, 2021, the blockade moved westward towards the CGL P2 Camp where several hundred workers were staying. For the next two days the blockade completely prevented vehicles from going in and out of the camp, although individuals could access the camp on foot. [29] On October 26, 2021, people working under Chief Dsta'hyl's direction cut electrical wires and removed batteries from several pieces of heavy machinery near the camp. [30] On October 27, 2021, Chief Dsta'hyl was arrested. [31] The trial judge had significant video evidence of these events. Security personnel, journalists and Chief Tse'besa all recorded Chief Dsta'hyl narrating his activities and intentions. Reasons for Judgment [32] The trial judge concluded the evidence established beyond a reasonable doubt that Chief Dsta'hyl had committed criminal contempt. The defence had conceded the actus reus--publicly disobeying a valid court order of which he had knowledge--which was clear on the evidence. The judge therefore only needed to determine if the Crown had proven the mens rea. He concluded it had, and that Chief Dsta'hyl's public acts of disobedience were calculated to depreciate the court's authority: at paras. 37-38, 41. [33] The judge accepted the sincerity of Chief Dsta'hyl's evidence he was trying to uphold Wet'suwet'en law and did not intend to generate disrespect for the rule of law. That evidence, however, did not address the central issue of whether he knew his actions would depreciate the court's authority. In the judge's view, Chief Dsta'hyl's description of the Injunction order as "invalid" and "bogus" and the issuing judge as "dishonourable" showed his personal disdain for the court and its order: at paras. 36, 38. [34] The judge then considered whether the Court should recognize a novel common law defence under s. 8(3) of the Criminal Code. Chief Dsta'hyl submitted the judge should excuse his conduct and decline to convict him of criminal contempt because he was acting pursuant to a coexisting Indigenous legal order: at para. 44. [35] The judge agreed with Chief Dsta'hyl that the Court may expand the common law to recognize and develop new defences that are not inconsistent with the Criminal Code: at para. 43. However, he found he could not recognize the proposed defence for the "fundamental reason" it was "a thinly disguised collateral attack" on the Injunction: at para. 46. [36] The judge relied on the well-established rule barring collateral attacks of court orders summarized in R. v. Bird, 2019 SCC 7 at para. 1: The general rule against collateral attacks on court orders is well-established: with limited exceptions, an order issued by a court must be obeyed unless it is set aside in a proceeding taken for that purpose. The rule has been consistently applied to prevent a person from attacking the validity of a court order when defending against a criminal charge stemming from its breach. [37] He noted the rule "is fundamental to preserving the rule of law and maintaining the authority of the court": at para. 48, citing Hayes Forest Services Limited v. Krawczyk, 2006 BCCA 156 at para. 69. He also referred to British Columbia Attorney General v. Mount Currie Indian Band, 54 B.C.L.R. (2d) 129, 1991 CanLII 892 (B.C.S.C.), cited by this Court in Hayes Forest. In Mount Currie, the judge characterized as a collateral attack Indigenous contemnors' claims that the court lacked jurisdiction over unceded Indigenous territory and held "there are no exceptions to the collateral attack doctrine insofar as contempt of court proceedings are concerned." [38] In the case before him, the judge found it was clear the hereditary chiefs' eviction notice in January 2020 was "a direct response to the Injunction". Chief Dsta'hyl was one of the signatories and was at the meeting that took place the day the eviction noticed was signed. At the meeting, Chief Kloum Khun directly referenced the fact the prior interim Injunction had, in effect, become permanent and "expressed an intention to have Wet'suwet'en laws respected and recognized": at para. 49. Then, about two months before the events at issue in the criminal contempt proceeding, various Likhts'amisyu Clan members decided to start enforcing the eviction notice and Chief Dsta'hyl became the main enforcement officer: at para. 50. [39] The judge noted Chief Smolgelgem, head chief of the Sun House, was one of the defendants in the proceedings before Church J. Chief Dsta'hyl swore an affidavit intended to be filed in those proceedings and he familiarized himself with Church J.'s reasons when she made the Injunction. In his testimony before the trial judge, Chief Dsta'hyl said Church J. either did not know about the Delgamuukw decision or chose to ignore it: at para. 51. This was in reference to Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, 1997 CanLII 302 (SCC) (which I will refer to as "Delgamuukw/Gisday Wa" to recognize the names of both the lead Gitxsan and lead Wet'suwet'en hereditary chiefs who brought the action). [40] The judge explained, however, that Church J. did refer to Delgamuukw/Gisday Wa in her judgment and noted the Supreme Court of Canada's decision did not resolve the Wet'suwet'en Aboriginal title claims. Important for the judge was the fact Church J. considered some of the "very same claims" made in the criminal contempt proceedings "concerning trespass and Wet'suwet'en law": at para. 52. The judge further noted that before granting the Injunction, Church J.'s reasons dealt with the topics of "Indigenous Law as a Defence", "Indigenous Legal Perspective" and "Self-Help Remedies", concluding at para. 159 of her reasons, "The defendants have obstructed lawfully permitted activity and their recourse to self-help remedies is contrary to the rule of law. Their actions are an abuse of process and cannot be condoned by the court ". [41] The self-help remedies considered by Church J. were blockades "said to be preventing the plaintiffs from violating Wet'suwet'en law". The conduct before the trial judge was "blockades and seizure or decommissioning of equipment as part of what Chief Dsta'hyl says is enforcement action to uphold the Wet'suwet'en law of trespass": at para. 55. [42] The judge found there was "no legal distinction between the conduct considered by Justice Church and the stated rationale for it, and the actions of Chief Dsta'hyl and his stated motivation." In his view, if the Likhts'amisyu Clan and its hereditary chiefs were "unhappy with the decision of Church J. and believed it was wrongly decided, the potential recourse was an appeal or an application to vary. Further resort to self-help remedies was not a legally-viable option": at para. 55. [43] The judge concluded the "only way to properly characterize the novel excusatory defence advanced on behalf of Chief Dsta'hyl is as a collateral attack on the Injunction order of Church J. For that reason, the defence fails": at para. 56. [44] After reaching this conclusion, the judge made two final comments on Chief Dsta'hyl's claim that "permitting the novel excusatory defence would be an appropriate means of harmonizing Indigenous law and colonial law": at para. 57. [45] First, the judge found the proposal represented a "recognition of an imprecisely defined law of trespass to the exclusion of the Canadian law of contempt" and that "the two legal orders cannot comfortably co-exist in the circumstances". In his view, the proposed defence "advocates application of the Wet'suwet'en law of trespass to effectively render nugatory a valid order made by this Court": at para. 57(a). [46] Second, the judge agreed with the Crown's submission that, for the novel defence to be successfully advanced, it would likely need to be "as a form of exemption from criminal liability premised on s. 35 of the Constitution Act" and, to be successful, would likely need to be founded on a proven claim of Aboriginal title to the lands in question. Here, the defence maintained it was not invoking or relying on s. 35, and it had not complied with the statutory requirements for making a s. 35 claim: at para. 57(b). Standard of Review [47] The question of whether the common law should expand to recognize the novel excusatory defence advanced by Chief Dsta'hyl is a question of law subject to review on the correctness standard: Housen v. Nikolaisen, 2002 SCC 33 at para. 8. [48] The question of whether Chief Dsta'hyl's proposed defence amounted to a collateral attack on the Injunction is also a question of law reviewable on that same standard: Housen at para. 8; R. v. Irwin, 2020 ONCA 776 at para. 42; 864503 Alberta Inc v. Genco Place Properties Ltd, 2019 ABCA 80 at para. 21. Chief Dsta'hyl's Position [49] Chief Dsta'hyl's proposed excusatory defence is uncomplicated. He contends he should not be convicted of disobeying one law when he was compelled to do so by another law. [50] Chief Dsta'hyl argues the judge erred in law by (1) not recognizing a novel common law defence when an accused is acting pursuant to an Indigenous legal order, and by (2) holding that if such a defence could be recognized, it would have to be framed as an exemption from liability under s. 35(1) of the Constitution Act, 1982. [51] Chief Dsta'hyl is not asking the court to condone his conduct and accepts the Crown has proven criminal contempt beyond a reasonable doubt. Rather, he asks to be excused from liability based on the detailed evidence the judge heard about the Wet'suwet'en law of trespass, which he was enforcing. [52] Chief Dsta'hyl argues recourse to s. 35(1) is not necessary because the federal and provincial governments, under the MOU, have recognized that Wet'suwet'en rights and title are held by the Wet'suwet'en houses under their system of governance and that their Aboriginal rights and title exist throughout their territory. This, Chief Dsta'hyl says, is consistent with the growing recognition of the existence and validity of Indigenous laws and legal traditions and the Supreme Court of Canada's recognition that, subject to certain exceptions, Indigenous interests and customary laws are presumed to survive the Crown's assertion of sovereignty and to be absorbed into the common law as rights: Mitchell v. M.N.R., 2001 SCC 33 at para. 10. [53] Chief Dsta'hyl further argues enforcement of the Wet'suwet'en law of trespass is not a collateral attack on the Injunction. The proposed defence acknowledges it is wrong for an accused to breach a court order and does not seek to invalidate or ignore the order. It simply provides an excuse from the sanction of a criminal conviction and sentence. Chief Dsta'hyl submits his actions were not meant to attack the validity of the Injunction or undermine the rule of law. He submits they were a reasoned and principled modern exercise of the Wet'suwet'en law of trespass. [54] Chief Dsta'hyl contends that while most contempt cases have viewed reliance on Indigenous law as a collateral attack on court orders, in those cases, reliance on Indigenous law was framed very generally, or was based on views that injunctions could never apply to Indigenous people on unceded land. Chief Dsta'hyl submits that is not the case here. Analysis Canada's Multi-juridical Tradition [55] Canada has a multi-juridical tradition that extends beyond the obvious example of the co-existence of the common law and civil law traditions. [56] Legal pluralism--the operation of two or more legal orders within the same geographical jurisdiction or social space--exists in Canada.[1] The Supreme Court of Canada has confirmed Indigenous laws are presumed to have survived Canadian sovereignty and continue as part of the law of Canada: Mitchell at para. 10. In British Columbia, unless incompatible with Crown sovereignty, surrendered voluntarily by treaty or extinguished by the government, this means Indigenous legal orders operate alongside the Canadian common law. [57] Courts and legislatures are increasingly recognizing Indigenous perspectives and Indigenous legal orders. For example, in 2024, the Supreme Court of Canada commented on legal pluralism in Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5. The legislation provides for Indigenous self-government in relation to child and family services while also setting national standards for the delivery of these services: An Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24. [58] The Supreme Court described how the legislation drew on three different types of legal norms: the legislative authority of Indigenous peoples, the legislative provisions of Parliament in setting national standards, and the international standards in the United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (the "Declaration"). Citing the work of Professor Gordon Christie, the Court commented on their interplay (at para. 7): The metaphor of "braiding" together these three types of norms has been helpfully proposed to explain how the Declaration should be implemented in Canada, so as to "work out how state law and Indigenous law could be interwoven, with guidance from international law, to form a single, strong rope". [59] The ideal is for state law and Indigenous law to apply symmetrically and in harmony. As we strive for this ideal, we live with the reality that, at times, perspectives, interests and/or rights diverge or collide, including within Indigenous communities. The circumstances underlying the present proceedings provide a good example in the sense that Indigenous communities were deeply divided over the construction of the CGL pipeline. Elected Wet'suwet'en Bands and many Wet'suwet'en individuals were in favour of the project while, it appears, many, if not all, Wet'suwet'en hereditary chiefs were strongly opposed: see Huson 2019. [60] In such instances, some perspectives, interests and/or rights will necessarily have to give way to others. The hope is that through independent, fair and respectful processes, including regulatory and court processes, all parties will peacefully abide by the outcome, even those who disagree with it. [61] Recognition and application of Indigenous law by Canadian courts dates back to Confederation. For example, in 1867, the Quebec Superior Court held that a Cree marriage conducted in accordance with Cree custom was legally valid: Connolly v. Woolrich (1867), 17 R.J.R.Q. 75, 1867 CanLII (Q.C.C.S.). For much of Canada's history, however, Indigenous laws have been denied, suppressed, or outlawed. For instance, in 1884 Parliament banned the potlatch system of government and law making, and this prohibition was in place until 1951.[2] As a result of the history of denial, suppression and prohibition, we are all at a fairly early stage of sorting out how state law and Indigenous law interact. [62] In the context of resource extraction projects, there are many examples of differing perspectives being reconciled through a process of consultation and accommodation. There are also examples where reconciliation of differing viewpoints has not been possible, for example, where a local Indigenous group is opposed as a matter of Indigenous law and/or principle to a project no matter the potential economic benefits and proposed accommodations. In some of these cases, projects have not been approved, for example the Ajax mine project proposed by KGHM Ajax Mining Inc.[3] In others, approvals have been granted and upheld, typically with conditions attached in an effort to address concerns raised through the process, for example, the Transmountain Pipeline Expansion Project.[4] [63] In cases of apparently irreconcilable interests, complex issues may arise. Who represents the collective interest of the local Indigenous people? What if there is no general consensus within the Indigenous or non-Indigenous community? Whose interests prevail--and why? [64] At this stage it may not appear symmetrical or harmonious from an Indigenous perspective, but Canadian courts play the challenging role of final arbiters, applying established and evolving legal principles to discharge that difficult task. [65] However, this appeal does not require a discussion of the legal principles applicable to reconciling state and Indigenous legal orders. That is because Chief Dsta'hyl's appeal does not turn on and is not being dismissed due to any lack of recognition of the existence of Wet'suwet'en law. His appeal turns on whether the trial judge erred in not recognizing his proposed excusatory defence. [66] Although not necessary to resolve the appeal, I do not share Chief Dsta'hyl's view that the judge characterized the Wet'suwet'en law of trespass as "imprecisely defined" based on not admitting oral history evidence regarding that law. In fact, as outlined above, he did admit the evidence. Rather, it appears the judge's comment about imprecision was largely driven by inconsistencies in the evidence on topics including who the Wet'suwet'en law of trespass applies to, how permission is requested or received to be on a house group's land and how the Wet'suwet'en enforce their trespass law today. The Proposed Excusatory Defence is Not Available [67] I agree with Chief Dsta'hyl, and the trial judge, that it is open to the court to expand the common law to develop and recognize new defences that are not inconsistent with the Criminal Code: see e.g., Amato v. The Queen, [1982] 2 S.C.R. 418, 1982 CanLII 31 (S.C.C.). [68] However, for reasons I develop below, the proposed defence fails in the present circumstances for the basic reason that disobeying the Injunction was not a matter of last resort for Chief Dsta'hyl. There were other lawful and peaceful means available to him to challenge the Injunction. [69] Despite its flaws, the Canadian justice system aims to support the maintenance of a safe, stable and peaceful society where everyone has room to thrive. As pointed out by Justice Fenlon in R. v. Cavanaugh, 2025 BCCA 252, leave to appeal to SCC ref'd, 42027 (2 April 2026), the availability of court orders to resolve disputes and protect rights, including Indigenous rights, is essential: para. 47. Of course, to realize the justice system's benefits, court orders must be enforceable. As Justice Fenlon put it in Cavanaugh: [47] If the superior courts of this province are not available to resolve such disputes and to enforce court orders through the contempt power, we are left with the prospect of differences being resolved through force. It is no exaggeration to say that down that path lies anarchy, the end of the rule of law, and any hope of a peaceful and democratic society. [70] The courts distinguish civil and criminal contempt. Both, however, rest on the court's power "to uphold its dignity and process": United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at 931, 1992 CanLII 99 (SCC). The rule of law is fundamental to peace, order and good government. It depends directly on the ability of courts to "enforce their process and maintain their dignity and respect": United Nurses at 931. Essentially, the rule of law depends on the court's ability to enforce its orders. [71] Civil contempt requires an intentional act or omission that is in fact a breach of a clear order of which the individual has notice: Carey v. Laiken, 2015 SCC 17 at paras. 32-35, 38. This must be established beyond a reasonable doubt: Carey at para. 32, 38. [72] Criminal contempt is distinguished by an element of public defiance. In United Nurses, Justice McLachlin (as she then was) explained that the "gravamen of the offence" is the "open, continuous and flagrant violation of a court order without regard for the effect that may have on the respect accorded to edicts of the court": at 932. [73] The actus reus of criminal contempt is the defiance or disobedience of a court order in a public way. The mens rea, requires intent, knowledge or recklessness as to the fact the public defiance or disobedience will tend to depreciate the court's authority: United Nurses 933. [74] This Court has clarified that "standing alone, proof that an accused knew of the terms of a court order and intentionally committed an act in public that factually contravenes the order is not sufficient to establish the mens rea for criminal contempt": Trans Mountain Pipeline ULC v. Mivasair, 2023 BCCA 299 at para. 61 [Mivasair 2023]. "The Crown must also show the public contravention was 'calculated to lessen societal respect for the courts': Mivasair 2023 at para. 61, emphasis in original, citing United Nurses at 931. The Crown must prove both elements of criminal contempt beyond a reasonable doubt: United Nurses 933. [75] Individuals accused of criminal contempt may challenge the allegation of contempt by arguing the Crown has failed to prove one or both elements of the offence beyond a reasonable doubt. For instance, they may contest the clarity of the order's terms: see R. v. Dhillon, 2019 BCCA 373 at paras. 21-23. This could prevent the Crown from proving the actus reus. They may argue the mens rea for criminal contempt has not been proved because the accused's public defiance was not "calculated to lessen societal respect for the courts": see Mivasair 2023. A colour of right defence may also be raised to negate the mens rea for criminal contempt: Cavanaugh at paras. 34-35. However, this Court has recently stated that "a colour of right defence based on an honest belief in a contradictory law is not available in a criminal contempt proceeding": Cavanaugh at para. 43. [76] Although there are a variety of ways in which an accused may argue the elements of criminal contempt have not been met, once the elements are met, opportunities for raising a successful defence are narrow. This makes sense given the important role the contempt power plays in maintaining the authority of the court and the rule of law. [77] One such defence is necessity. This Court considered the defence of necessity in the context of criminal contempt for the breach of an injunction related to the expansion of the Trans Mountain pipeline: Trans Mountain Pipeline ULC v. Mivasair, 2020 BCCA 255 [Mivasair 2020]. [78] Necessity excuses criminal conduct on the principle that "morally involuntary conduct should not be penalized": Mivasair 2020 at para. 3, citing R. v. Nwanebu, 2014 BCCA 387 at para. 55. The defence has three elements: (1) a clear and imminent peril; (2) no reasonable legal alternative to disobeying the law; and (3) proportionality between the harm inflicted and the harm avoided: Nwanebu at para. 56, citing R. v. Latimer, 2001 SCC 1 at para. 28 and Perka v. The Queen, [1984] 2 S.C.R. 232, 1984 CanLII 23 (SCC). [79] In Mivasair 2020, this Court upheld the trial judge's conclusion there was no air of reality to the defence of necessity for acts of contempt where protesters blocked worksites. The protesters argued increased emissions through an expanded pipeline was a "clear and imminent peril" and impeding the pipeline's construction was the only reasonable alternative available to them to respond to the peril: at paras. 4-5. [80] In upholding the trial judge's ruling that there was no air of reality to the necessity defence, Madam Justice DeWitt-Van Oosten canvassed cases where this Court previously considered the necessity defence in the context of criminal contempt arising from protest activity. In her view, the cases show "the necessity defence presents unique and potentially insurmountable challenges where the wrongful conduct is rooted in purposeful defiance of a court order and a public display of disagreement with the lawfulness of the impeded activity, or dissatisfaction with government's policy choices in authorizing that activity": at para. 78. [81] A significant barrier to applying the necessity defence in the context of planned protest activity "is the deliberate nature of the conduct that grounds the offence". "Theoretically, and factually" it is hard to reconcile this activity with "the fundamental premise" underlying necessity, which is that it excuses wrongful conduct only for those who acted in a morally involuntary way: at para. 81. In this Court's view, "planned public defiance of a court order to stop lawfully authorized activity in furtherance of an individual or societal goal, no matter how altruistic or serious that goal may be, is much more akin to a 'choice' than to morally involuntary behaviour": at para. 84. Cases of "true involuntariness" are "rare": at para. 84, citing R. v. English, 2010 BCCA 564. [82] Necessity is "strictly controlled and limited" to cases where the wrongful conduct "was the only effective choice open to the accused": Mivasair 2020 at para. 99, citing R. v. C.A.V., 2003 CanLII 3548 (ON CA) at para. 13. If there is an alternative to breaking the law, the defence fails: Mivasair 2020 at para. 99, citing Latimer at para. 30. [83] The Court in Mivasair 2020 concluded the defence could not succeed, as there were lawful alternatives to breaching the injunction: at paras. 107-113. It was not necessary to consider the imminent peril element of the defence: at para. 114. [84] In my view, if an excusatory defence of acting pursuant to a coexisting Indigenous legal order were to be recognized, it could only be successfully invoked in limited circumstances, similar to necessity. At minimum, it would have to be grounded in conduct of last resort, with no lawfully available alternatives to breaching the court order. In this case, Chief Dsta'hyl's conduct was not conduct of last resort. For example, he could have applied to vary, stay or terminate the Injunction. The Judge's Collateral Attack Analysis Was Correct [85] The law on collateral attack is well established. Court orders are valid until they are set aside, varied or expire on their own terms: Cavanaugh at para 24. Court orders may be challenged in various ways, for instance appeals, or applications to vary, suspend or terminate them. A collateral attack, however, 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: Bird at para. 21, citing Wilson v. The Queen, [1983] 2 S.C.R. 594 at 599, 1983 CanLII 35 (SCC); Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62 at para. 60. [86] The Supreme Court of Canada has established a general rule against collateral attacks on court orders. With limited exceptions, court orders must be obeyed unless they are set aside in a proceeding taken for that purpose: Bird at para. 21, citing R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706 at paras. 2-3, 1998 CanLII 821 (SCC); R. v. Litchfield, [1993] 4 S.C.R. 333 at 349, 1993 CanLII 44 (SCC); Garland v. Consumers' Gas Co., 2004 SCC 25 at para. 71. [87] The policy justification for the general rule against collateral attacks is strong. As Justice Fenlon explained in Cavanaugh: [24] The rule barring collateral attacks on court orders is fundamental to preserving the rule of law and maintaining the authority of the court. The citizen's safeguard against an unlawful order is to seek to set it aside or to vary it through a legal process that squarely addresses the validity of the order--it does not lie in disobeying the order and then challenging its validity in criminal proceedings [citations omitted]. [88] Consequently, courts cannot and do not permit "self-help" measures, including intentional breaches of injunction orders. Doing so would undermine the rule of law and bring the administration of justice into disrepute: Cavanaugh at para. 25; Behn v. Moulton Contracting Ltd., 2013 SCC 26 at para. 42; R. v. Nelson, 2024 BCCA 72 at para. 53, leave to appeal to SCC ref'd, 41261 (29 August 2024); R. v. Manuel, 2008 BCCA 143 at para. 62, leave to appeal to SCC ref'd, 32668 (25 September 2008). [89] Further, beyond preserving order and the rule of law, raising Indigenous rights issues within criminal contempt proceedings may be unfair, inefficient and sub-optimal because: 1. the affected rights-holding collectives 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. Cavanaugh at para. 26. [90] Parties who disagree with court orders are free to voice their disagreement and engage in lawful protest, but they must respect court orders and cannot interfere with the rights of others. Otherwise, as noted above, disputes will be resolved by force, putting the rule of law, and any hope of a peaceful and democratic society in jeopardy: Cavanaugh at paras. 45-47. [91] Despite the strong policy rationale precluding collateral attacks on court orders, there are narrow exceptions. On my reading of the authorities, these exceptions are limited to situations where there is no other effective means to challenge the court order: Bird at para. 23. [92] In the present case, Chief Dsta'hyl concedes his enforcement actions were the kind of "self-help" remedies the law in Canada does not condone. He admits having committed the essential elements of criminal contempt but seeks to be excused because he was acting in accordance with Wet'suwet'en law. [93] I have already outlined why Chief Dsta'hyl's proposed excusatory defence is not available in the circumstances. In addition, Chief Dsta'hyl has not demonstrated how the trial judge erred in concluding his proposed defence amounted to an impermissible collateral attack on the Injunction. [94] While Chief Dsta'hyl argues he is not challenging the validity of the Injunction, and therefore, his proposed defence is not a collateral attack, I disagree. The trial judge found the hereditary chiefs' eviction notice to CGL was "a direct response to the Injunction" and his defence raised many of the same issues addressed by Church J. [95] Chief Dsta'hyl was essentially inviting the trial judge to consider the same issues but reach a different conclusion than Church J., a conclusion that would have allowed Chief Dsta'hyl to avoid the legal effect of the Injunction. As I read the trial judge's reasons for judgment, this is why he described Chief Dsta'hyl's proposed excusatory defence as a "thinly veiled collateral attack" on the Injunction. In my view, he was correct in doing so. [96] Further, although not addressed by the trial judge, Chief Dsta'hyl's collateral attack on the Injunction does not fit within the narrow exceptions to the general rule against collateral attacks on court orders. As outlined above, other effective means were available to Chief Dsta'hyl to challenge the court order. In particular, he could have challenged the Injunction in a proceeding undertaken specifically for that purpose. Based on the MOU, it was open to him to argue there had been a material change in circumstances. [97] Absent variation, stay or termination, the Injunction remained in force and enforceable. And Chief Dsta'hyl's proposed excusatory defence amounted to an impermissible collateral attack. Conclusion and Disposition [98] 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. But that work does not include allowing parties, Indigenous or non-Indigenous, to breach court orders. [99] Reconciling diverse interests within and between Indigenous and non-Indigenous communities about resource development projects can be difficult. For the justice system to play its vital role in maintaining societal harmony in this challenging context, all parties, not just successful ones, must abide by court orders. [100] The first and best place to raise issues with a proposed resource development project is generally at the application/approval stage (with any approval being subject to judicial review). Once an approval is granted, acts to impede the approved project will often result in injunctions being issued. And once injunctions are issued, objecting parties can expect them to be enforced. [101] In cases where a project has been approved and an injunction issued, the proper way to address concerns about the injunction order is through an appeal or an application to vary, stay or terminate the injunction. [102] Here, Chief Dsta'hyl's proposed excusatory defence was not available to him and the judge did not err in finding the proposed defence amounted to an impermissible collateral attack on the Injunction. [103] For all of these reasons, I would dismiss the appeal. "The Honourable Chief Justice Marchand" I AGREE: "The Honourable Justice Fleming" I AGREE: "The Honourable Justice Iyer" [1] BCLI, "Legal Pluralism in Canada", online: British Columbia Law Institute, <https://www.bcli.org/wp-content/uploads/PRIMER-3-Legal-Pluralism-in-Canada.pdf> (March 17, 2026). [2] See An Act further to amend "the Indian Act,1880", (1884) Canada 46-47 Victoria, 22nd Parliament, United Kingdom, 4th Session; 47 Victoria, 5th Parliament, 2nd Session, 1884, 107; Truth and Reconciliation Commission of Canada, Canada's Residential Schools: The History, Part 1 Origins to 1939 (Montreal & Kingston: McGill-Queen's University Press, 2015) at 635-642. [3] British Columbia, Minister's Reasons for Decision, Ajax Mine Project Proposed by KGHM Ajax Mining Inc. (December 13, 2017), online: <https://projects.eao.gov.bc.ca/p/58851197aaecd9001b8227cc/project-details>; Government of Canada, Ajax Mine Project Decision Statement, online: <https://ceaa-acee.gc.ca/050/evaluations/document/123178?culture=en-CA%20> (March 20, 2026). [4] Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34, leave to appeal to SCC ref'd, 39111 (2 July 2020); Canada Energy Regulator, Trans Mountain Pipeline ULC - Trans Mountain Expansion Project Conditions, online: <https://www.cer-rec.gc.ca/en/applications-hearings/view-applications-projects/trans-mountain-expansion/project-conditions.html> (March 20, 2026).