CHAD HIPOLITO/For The Globe and Mail
First Nations are working with prosecutors and the courts to deal with offenders from their communities with aboriginal laws and customs, writes Justine Hunter
The Ditidaht First Nation's proud claim is that its people never go hungry: Their traditional territory, covering a wide expanse of southern Vancouver Island, is rich with food for the taking – salmon and duck, mussels and berries, deer and elk.
Joseph William Thomas and Christopher John Brown, two aboriginal hunters from the urban Esquimalt First Nation – where hunting opportunities have long since disappeared – travelled to Ditidaht territory in 2013 with the intent of putting food on the table. Mr. Thomas has five children and, at that time, a total of nine people living under his roof.
Mr. Thomas believed he was exercising his treaty right to hunt on unoccupied Crown land, and the two men brought along youth from their community to take part in what they consider to be an important cultural practice.
"My own kids, they want to hunt. It is family time. Out there, you are alive again – it's a cultural thing," Mr. Thomas explained in a recent interview. "When I was hunting, I wasn't saving it for myself, I provided for my family. Every elder that eats their traditional food, they are so happy – like a child with candy – when you bring them meat."
But in the eyes of the law those hunting trips were illegal, and twice in the space of four months they were caught poaching by conservation officers.
That might have led to a lengthy trial and, likely, convictions for the pair. Instead, aboriginal leaders seized on it as an opportunity to use their traditional customs and laws alongside the criminal justice system. They hope this case will prove to be a model for meaningful redemption for First Nations offenders.
CHAD HIPOLITO/For The Globe and Mail
The pair's defiance about their treaty rights faded when they realized the legal battle was just one part of their troubles. Although they were arrested on Crown land, they had failed to seek the permission of the Ditidaht to hunt in their territory, and they had left meat to rot in one instance. On both those counts, they had brought shame and conflict to their Esquimalt Nation based on traditional conventions.
Compounding matters, the Ditidaht are stoutly in favour of conservation efforts to protect Roosevelt elk – in fact, they have joined with other Nuu-chah-nulth tribes in offering a reward for information that leads to the conviction of elk poachers.
Together Mr. Thomas and Mr. Brown faced a total of 17 charges that could have resulted in fines between $2,000 and $250,000 and up to three years in prison. The case was heard in one of the province's First Nations courts, presided over by provincial court Justice Marion Buller. Instead of jail or crippling fines, the court and Crown counsel agreed to an unusual settlement where traditional aboriginal justice was allowed to resolve the case.
All the charges have been dropped, and today Mr. Thomas and Mr. Brown are still working to earn redemption. Neither man will hunt this year – their guns have been locked up by the Esquimalt Nation's chief and council as part of the settlement imposed by the two nations.
Late in December, Mr. Thomas sat down for an interview at a picnic table on the Esquimalt reserve, taking a short break from carting firewood into the community's longhouse. He and Mr. Brown are required to spend at least two days each week performing cleaning and maintenance on the reserve for one year. It is not deemed to be punishment, but an opportunity to model good behaviour.
Kids in the neighbourhood sometimes pepper him with questions when they see him cleaning up. "I explain to the children, this is my way of saying, 'Sorry, I made a mistake,'" Mr. Thomas said.
Most people in his community already know the story: The pair were required to visit each home on the reserve to report their misconduct and to invite everyone to a ceremony last July, where they and the Esquimalt Nation's leadership would provide an apology and more than $10,000 worth of gifts to the Ditidaht chief and council.
"When an accident happens, we have to fix it in our longhouse," said Andy Thomas, the hereditary chief of the Esquimalt Nation. "We used one of our sacred ceremonies, we wrapped [the Ditidaht representatives] in blankets to warm them, to take some of the hurt away. The two hunters presented gifts, to take the shame off our face."
Chief Thomas said the ceremony addressed the wrong committed by his two members and restored his people's standing, but also created a legacy because the two aboriginal communities are now working on a hunting protocol that respects the Ditidaht's commitment to elk conservation. The resolution will take effort but will provide lasting benefits, he said. "We did it the Indian way."
The Nuu-chah-nulth traditions are different from the Coast Salish ways of the Esquimalt, and the longhouse ceremony was new to chief councillor Robert Joseph. "It's not my culture, the Salish customs – it was pretty impressive," he said in an interview. Satisfied with the reparation, he now sees this case as an opportunity to show how aboriginal law can be used in a contemporary context.
"It's refreshing. The Crown recognized for the first time that we have equal weight to the regular court system," Mr. Joseph said.
Steven Kelliher, the lawyer representing the two poachers and the Esquimalt Nation, said the resolution of this case was a perfect act of reconciliation, between the Crown and First Nations, and between the two nations. "What took place here was the Canadian legal system working together with the First Nation legal systems to produce an absolutely marvellous result," he said. "The Crown and the courts simply stood aside and let the First Nations resolve this issue that bears on their culture so directly."
Although the Crown and the courts were satisfied with the process, B.C.'s Criminal Justice Branch is emphatic that no precedent was made in this case.
"It's not a situation in which Crown recognized the existence of a separate First Nation's legal system or laws," said Neil MacKenzie, spokesman for the B.C. Criminal Justice Branch.
Yet Mr. MacKenzie acknowledged that the outcome was better than anything the courts could impose. "The Crown's position is that in the particular circumstances of this case, the First Nations' wisdom and cultural traditions, applied by the First Nations themselves in the form of cultural discipline, would address the sentencing principles of specific deterrence and general deterrence more effectively than a conviction and conventional sentencing in provincial court."
Aboriginal people are overrepresented in B.C. prisons – they make up 27 per cent of the prison population but just 5 per cent of the general population. Despite the creation of the First Nations court nine years ago to try to provide alternative resolutions, that remains an intractable problem.
The head of the provincial courts, Chief Judge Thomas Crabtree, would not comment on the specifics of this case. But he said the First Nations Court system, currently in four B.C. communities, is meant to encourage aboriginal communities to contribute to rehabilitation and healing of offenders. "The First Nation Courts have been a successful example of taking a holistic, problem-solving approach to the unique circumstances of First Nations offenders within the framework of existing laws," he said in a statement in response to questions from The Globe and Mail.
Precedent or not, Mr. Thomas is grateful he was given the opportunity to redeem himself. After he was charged, "I felt kind of small," he said. "I knew I had done something wrong, something I shouldn't have." He emerged from the ceremony in July not shamed or branded a criminal, but enlightened about how to adhere to the law and to his culture.
"I felt I was standing again."
CHAD HIPOLITO/For The Globe and Mail
'Elk poaching hurts us all'
An alarming spike in poaching of Roosevelt elk on Vancouver Island led the Nuu-chah-nulth Tribal Council to post a $25,000 reward for information leading to the conviction of those responsible.
"We condemn the recent unlawful slaughter of Roosevelt elk within our traditional territories," the joint statement on behalf of the council's 14 hereditary chiefs declared in 2015. "We further condemn and call for the arrest of whoever is responsible for that slaughter of elk… We stand firm that those responsible for the illegal slaughter and waste of elk in Tseshaht territory be prosecuted to the full extent of the law, irrespective of who they are or what community they come from."
On Friday, one of the 14 hereditary chiefs was sentenced to community service for killing an elk.
Wilson Timothy Jack heads the Yuu-cluth-aht – often referred to as the Ucluelet First Nation – and is one of the 14 members of the tribal council.
When the charges against Mr. Jack were made public, the council responded by congratulating the conservation officers for their work and encouraging people to continue to report poachers.
The Ditidaht First Nation, which is part of the Nuu-chah-nulth, agreed last year to resolve a separate elk-poaching case outside the provincial court system. That incident involved two aboriginal hunters from the Esquimalt First Nation. But in the matter involving the Yuu-cluth-aht chief, the tribal council was firm in demanding a full prosecution.
It was a clear message from the tribal council that elk poaching is a serious offence – both under provincial law and the Nuu-chah-nulth's traditional laws.
The First Nations raised the alarm after learning of 23 illegal elk kills in the space of 18 months, most of them in 2013. In early 2015, one of the last known mature bull elks in the area was killed. Many were stripped of meat, but some were left whole.
"Elk poaching hurts us all," the tribal council's declaration states. "It takes food off community tables and endangers the health and survival of the herd. It violates Nuu-chah-nulth traditional laws that teach us to honour sacred animals, take only what we need, and use every part of the animal."