An Indigenous land defender has been sentenced to 90 days in prison after performing a pipe ceremony along the Trans Mountain pipeline route in British Columbia, a source close to him told VICE World News, despite a new policy that urges prosecutors to avoid jail time for Indigenous peoples if it’s under two years.
On Tuesday, Stacy Gallagher, 58, appeared in court after being convicted last year with criminal contempt. Gallagher, along with Indigenous elder Jim Leyden, was charged after spending time along the Trans Mountain pipeline route on three separate occasions between November and December of 2019—at times performing ceremonies and always peaceful, two fellow land defenders said.
Gallagher is one of more than 200 people, many Indigenous, who have been arrested for mobilizing against the $12.6 billion pipeline. Since 2018, Trans Mountain has had an injunction that makes it illegal for people to obstruct construction along the pipeline’s route. It’s up to the company to report activities in breach of the injunction, and police to enforce it. Vancouver Mayor Kennedy Stewart and former federal Green Party Leader Elizabeth May have been arrested for protesting it as well.
According to Trans Mountain’s injunction, RCMP officers have to follow five steps when enforcing the injunction, including notifying people on site they are in breach of the law and giving them time to leave without arrest. But Gallagher and Leyden were charged weeks after they were on site.
“From what I understand...the arrest and charges were based solely on video evidence, meaning there was never a notice of warning given,” said Eugene Kung, a staff attorney with West Coast Environmental Law who is not part of Gallagher’s legal team. At no point while Gallagher was on site was he told by police he and others needed to leave using the five-step process, his partner and fellow land defender Rita Wong confirmed, adding officers participated in a pipe ceremony on December 2. White and other non-Indigenous people were also there, but only Gallagher and Leyden were criminally charged.
“There were other non-Indigenous folks there, also presumably caught on camera but now not caught up in the contempt proceedings. So, is there a degree of (anti-Indigenous) targeting happening? That, to me, is a fair question to ask,” Kung said.
In January, British Columbia introduced a new policy geared towards protecting Indigenous peoples from a biased justice system. It says that jail time should be considered a last resort for Indigenous defendants charged with crimes that typically result in sentences under two years. The directive applies to people who have already served prison time.
Yet Gallagher was sentenced to 90 days in jail—and his supporters don’t understand why. The justice who issued his sentence, Shelley Fitzpatrick, and B.C.’s attorney general did not reply to a request for comment.
Wong previously filed a formal complaint against Fitzpatrick to the Canadian Judicial Council, alleging the judge repeatedly disrespected and insulted Gallagher, Leyden, and another Indigenous colleague after they were first charged with criminal contempt in 2018.
“This judge’s statements and refusal to acknowledge that we are on unceded Coast Salish lands by deeming it ‘irrelevant’ undermined our, and many other people’s, confidence, in her impartiality,” the complaint says. “We contend that both her remarks and tone were harmful, demonstrating bias, lack of cultural competence, lack of understanding for equity and reconciliation, contemptuous disregard for certain aspects of law, and, we argue, frankly ignorant and offensive to a reasonable, fair-minded audience in 2020.
“We are also worried that both Jim Leyden and Stacy Gallagher face more imprisonment in 2021 when they are subjected to the same judge in the B.C. Supreme Court for sentencing.”
In an emailed response, seen by VICE World News, the Canadian Judicial Council said it doesn’t have jurisdiction over the complaints filed and “a disagreement with the judge’s view of the matter is not evidence of bias or of lack of respect.”
Both prisons that Gallagher could be sent to, North Fraser Pretrial Centre and Fraser Regional Correctional Centre, have been in the news for recent COVID outbreaks. It’s unknown yet what prison he is being sent to, but Wong said on Tuesday she plans to file for an appeal.
Kris Hermes, a fellow land defender who has offered legal support to land defenders against Trans Mountain since March 2018, said Gallagher and Leyden have also been ordered to stay 500 metres away from any Trans Mountain facility. “That hasn't been the case with any other defendant they've prosecuted,” Hermes said.
Prime Minister Justin Trudeau’s government purchased the Trans Mountain pipeline in May 2018, despite repeatedly showing support for the UN Declaration on the Rights of Indigenous Peoples, which requires “free, prior, and informed consent” from Indigenous communities ahead of development on their territories. Squamish Nation, Tsleil-Waututh Nation, and Coldwater Indian Band have opposed the pipeline in court. The B.C. government and several municipalities across its route are also against the project.
Several U.S. states and a Canadian province have banned protests near pipelines and mines, often using violent events to justify new laws that stifle protest. HuffPost reported that more states introduced penalties for protesting fossil fuels after the January 6 Capitol riot.
Land defenders are still on site at their “watchhouse,” at the southeast corner of the pipeline’s Burnaby Terminal and exempt from the injunction unless an emergency arises, Wong said. It’s one of many ongoing anti-pipeline demonstrations across North America, with Indigenous peoples on the front lines.
Wet’suwet’en hereditary chiefs and their supporters are still hoping to quash the Coastal GasLink pipeline that cuts through their lands, while Indigenous leaders in the U.S. are continuing to push for the cancellation of Line 3 and Dakota Access Pipeline. One long-standing fight ended after President Joe Biden revoked the permits for the Keystone XL pipeline during his first day in office—a move that Indigenous women say will keep them safer.
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Clarification, March 3, 2021: A previously version of this story said police didn’t ask Gallagher to leave the site in November and December 2019. The story now reflects that they didn’t ask him to leave using the injunction’s five-step process.