By Jessica Proudfoot & Josh Boutin
The B.C. Court of Appeal (“BCCA”)’s recent decision in R. v. Chief Dsta’hyl, 2026 BCCA 176 is one that First Nations (and other Indigenous groups) should be aware of, especially those who:
- are opposed to a project in their territory and/or
- are considering direct action.
Case overview
In this case, a Wet’suwet’en chief, Chief Dsta’hyl (also known as Adam Bernard Gagnon) was convicted of criminal contempt after breaching an injunction that prohibited protesters from interfering with the construction of a pipeline through Wet’suwet’en territory (Coastal Gaslink Pipeline Ltd. v Huson, 2024 BCSC 509).
At trial, Chief Dsta’hyl argued his breach of the injunction should be excused because he was acting in accordance with Indigenous law. He called several witnesses who testified about the Wet’suwet’en clan system, their relationship with territory, and their laws regarding trespass including their enforcement thereof.
The trial judge concluded the proposed defence was an impermissible “collateral attack”[1] on the injunction order and convicted Chief Dsta’hyl of criminal contempt.
Chief Dsta’hyl appealed the conviction. On appeal, he argued the judge erred by:
- failing to recognize the proposed defence on the basis it was a collateral attack, and
- failing to admit oral history evidence adduced at trial.
The BCCA upheld his criminal contempt conviction, dismissing Chief Dsta’hyl’s “novel” argument that he was following Indigenous law when he violated a court order.[2]
The BCCA’s decision was written by Chief Justice Marchand, the first Indigenous person to hold the role of Chief Justice in BC. On behalf of a unanimous panel of three, he held that Chief Dsta’hyl’s defence failed because disobeying the injunction was not a matter of “last resort”.[3]
Marchand CJ specifically observed that there were other lawful and peaceful means available to the appellant to challenge the injunction:
“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.”[4]
Relatedly, the BCCA concluded that the trial judge did not err in finding the proposed defence amounted to a collateral attack on the injunction order.[5] Of note, the court found that raising Indigenous rights issues within criminal contempt proceedings may be “unfair, inefficient and sub-optimal “because:
- the affected rights-holding collectives are not parties to the proceedings;
- the issue of Indigenous rights and laws is not squarely before the court;
- a trial judge could make findings of fact on a limited evidentiary record that could be binding in future court proceeding; and
- it is not consistent with “preserving order and the rule of law”.[6]
In summary – this case reminds us of the difficulty that Indigenous groups regularly encounter trying to have their legal orders recognized by courts, especially when those Indigenous legal orders are inconsistent with Canadian legal norms and procedures.
What does this case mean for Indigenous peoples opposed to a project and/or engaged in direct action?
This decision is a clear warning to Indigenous groups: you will be held liable for contravening an injunction even if your action is supported by Indigenous legal order(s).
Fortunately, the BCCA does leave open the possibility that Indigenous groups could invoke Indigenous legal orders to challenge project approvals in other circumstances and forums. Marchand CJ writes:
Indigenous law has been denied, supressed, 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.
…
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…
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.[7]
If you are opposed to a project in your territory, consider contacting a lawyer to discuss your options as soon as possible. You may be under strict timelines to challenge the project approval (or other decision). This early challenge can include arguments about how the project interferes with Indigenous legal orders, if applicable.
If an injunction has already been granted, those participating in direct action should be aware of their potential liability. This case will make it very difficult for Indigenous groups to justify breach of an injunction order on the basis of competing Indigenous legal orders, especially if there were other procedural options that have not been exhausted (for example, an appeal, or an application to vary, stay or terminate the injunction).
If you have concerns about a project in your territory, or questions about how (and when) to oppose it, a Woodward and Company lawyer can help.
[1] A “collateral attack” is an attempt to challenge the validity of a court judgment or order indirectly through a different legal proceeding whose specific object is not the variation, suspension or termination of that order. See para. 85.
[2] At paras. 3, 6.
[3] At para. 84.
[4] At para. 101; see also para. 96.
[5] At para. 97.
[6] At para. 89, citing R. v. Cavanaugh, 2025 BCCA 252 at para. 26.
[7] At paras. 98, 100 and 101.