‘There’s no respect’: Judge’s comments shock KIRS survivor as land defenders given jail time

CONTENT WARNING: This story has content about the Kamloops Indian Residential School (KIRS). Please read with care.

The former Kamloops Indian Residential School (KIRS) is about a 10 minute drive from the courthouse where six water and land defenders — including a survivor — were sentenced this week for resisting Trans Mountain’s construction in Secwepemcúl’ecw.

The evidence indicating the presence of 215 children’s remains at KIRS — uncovered through an investigation led by Tkʼemlúps te Secwépemc in 2021 — is still a raw subject for the many affected families, some of whom were present in court.

But that didn’t stop Shelley Fitzpatrick, the judge who has been presiding over the land defenders’ case for two years, from making her opinion about the findings at KIRS known.

On Tuesday, she stated that “there are no bodies that have been unearthed” there and participated in a tense exchange with a lawyer that resulted in outrage from the room filled with Indigenous people.

For Secwépemc Hereditary Chief Saw-ses, who endured 10 years at KIRS, her comments — which appeared to be entirely out of pocket — were surprising and enraging.

“I was pretty mad,” said Saw-ses, who was not present in the courtroom at the time of the comments but heard about it afterwards.

Then, on Friday, Fitzpatrick sentenced Saw-ses to 28 days in jail.

Saw-ses was one of eight water and land defenders charged with criminal contempt for disrupting the development of the Trans Mountain pipeline expansion project (TMX) in his homelands. Six of them were given jail time this week, between 28 and 32 days.

Saw-ses and his defence lawyer, Benjamin Isitt, had submitted to the court that his decade at KIRS be considered during his sentencing.

“The overall sentence of 28 days jail for a survivor of the KIRS — and all of the time, the years of time, that Saw-ses already served for no crime at all — we do think that should’ve been applied as a credit against any sentence imposed for the contempt of court,” said Isitt.

Saw-ses was slated to self-represent himself in court — an approach that all the land defenders had been taking up until the sentencing portion — but he told IndigiNews that changed last minute following Fitzpatrick’s comments on the findings at KIRS.

Also on Friday, settler-ally Romilly Cavanaugh was sentenced to 32 days in jail. Both Saw-ses and Cavanaugh have already submitted notices to the B.C. Court of Appeal.

Fitzpatrick had sentenced Saw-ses’s daughter, Secwépemc Matriarch Miranda Dick — along with settler-allies Susan Bibbings and Laura Zadorozny — to 28 days in jail on Wednesday, while settler-ally Heather Lamoureux was given a 29-day sentence.

Dick appealed her sentence and was released on bail on Friday. The basis of Dick’s appeal, according to a press release issued by the land defenders, was to challenge what they described as Fitzpatrick’s “blatant bias against Indigenous communities and in favour of TMX.”

Fitzpatrick also sentenced a Tsleil-Waututh land defender last year for actions against TMX in his own homelands.

“Fitzpatrick has presided over TMX pipeline cases since 2019 and has incarcerated a long list of Indigenous Nation members and supporters on unceded territory since,” the release states, in part.

“The appeal will seek to not only challenge [Wednesday’s] sentencing decision but the unfair and unjust sentences that have been the bread and butter of Fitzpatrick’s long and storied career protecting corporate interests.”

In December 2022, Dick, Bibbings, Zadorozny and Lamoureux were found guilty of criminal contempt after holding ceremony in a buffer zone located within a TMX construction site on Oct. 17, 2020. Dick had much of her hair cut off by her sister, in grief over the destruction of her homelands and waters by TMX — now owned by “Canada.”

Two days prior to her arrest, Saw-ses was arrested alongside Secwépemc Matriarch April Thomas, Red Deer Billie Pierre of Nlaka’pamux Nation and Cavanaugh after holding a water ceremony at Sqeq’petsin (the Thompson River) before entering TMX’s injunction-protected construction area.

Saw-ses, Cavanaugh, Thomas and Pierre were all scheduled to be sentenced on Feb. 23 and 24, but Thomas and Pierre have had their sentencing adjourned to May, as the two await the completion of Gladue reports.

Both Saw-ses and Cavanugh were represented by Isitt, who also represented Dick, Lamoureux, Bibbings, and Zadorozny during their sentencing.

On Tuesday, Isitt was providing Bibbings’s submissions to the court. The lawyer made note of Bibbing’s tree-planting efforts that she had completed throughout the years with Sequoia Solution, an organization that she founded.

He highlighted that Bibbings had helped plant 215 trees to honour the evidence of unmarked children’s graves of former “students” at KIRS, saying “their bodies had been unearthed.”

“There are no bodies that have been unearthed,” Fitzpatrick interjected, which prompted a quick correction from Isitt, who said that “remains had been unearthed.”

“They have been?” she asked him. Again, Isitt provided a clarification, this time saying that remains had been identified through ground penetrating radar.

“Potentially,” she replied, which immediately prompted outrage from a courtroom packed with Indigenous people.

“They have been identified,” one person shouted. “How dare you say that?” said another.

“There’s no respect,” someone said as they got up and left the courtroom.

Thomas shouted “Racist!” from the courtroom gallery, which led to a courtroom sheriff asking her to leave.

“Well it was racist. Shame on you!” she said to Fitzpatrick as she exited the room.

Prior to the first day of sentencing Tuesday morning, a ceremony was held outside of the courthouse. Drums were played and people sang, “Canada has no jurisdiction, RCMP has no jurisdiction and Canada is on Indian land.”

Before Dick’s uncle, Secwépemc Elder Mike Arnouse, said a prayer, she spoke before the crowd and invited them to come into the courtroom to “see the acts of genocide that Canada is doing to our people.”

“(Fitzpatrick) has really been very hard on us,” Dick said. “The fact that we self-represented ourselves all the way up to this point has set precedent that the people can say what they need to say, and not be governed by Crown portions.”

As she has done on countless occasions, Dick reiterated the threat that the pipeline poses to Secwépemc waterways, the salmon and the land.

“Everything we do is for our people and for future generations,” she said.

“We stand on the Shuswap-Okanagan confederacy, which states that we cannot sign, sell, cede or surrender our territory. That’s what we’re standing on today.”

Leading up to the sentencing, several of the land defenders expressed to IndigiNews what they described as a condescending attitude towards them by Fitzpatrick.

Tsleil-Waututh and Secwépemc lands were never surrendered to “Canada” but violently colonized, resulting in colonial justice systems such as the B.C. Supreme Court and RCMP — which differ greatly from Indigenous laws.

During the land defenders’ case, they have described feeling frustrated at having to operate within a colonial courtroom and have upheld ancient Secwépemc laws which prioritize the land, water and all relations.

During her sentencing statement on Tuesday, Dick addressed Fitzpatrick, where she said that despite spending the past two years explaining Secwépemc law to her, as well as sharing her upbringing and the crucial role that she plays for her family and community, she feels she has not been heard.

“You have not taken into consideration the outcome of clean water. The outcome of remediation work,” said Dick.

“And the fact that the conflict of interest that Canada has on the impacts of Indigenous people affected by this pipeline. And I feel like you still have not heard me.”

She said that throughout the case, Fitzpatrick has given no consideration to the impact that residential “school” has had on her family, the systemic issues of violence against Indigenous women and the impacts that colonial structures such as the justice system have on Indigenous people.

“All throughout – even right up to leading to now – I still haven’t heard you say the name of our nation …and still, you’re in our territory,” she said.

“Not even a land acknowledgement.”

When the first day of sentencing concluded, the land defenders and supporters gathered outside of the courtroom for a closing ceremony, where Dick told them not to take any of the day’s events in hardship.

“(Fitzpatrick’s) words, as hurtful as they are, are not for us to take,” she said.

She urged people to lay down tobacco and say some prayers when they got home, reminding them that “we’re all here in our human form to be good human beings.”

“Let’s show the world what it means to take up our responsibilities for climate, our Mother Earth,” she said.

Editor’s note: This story was updated to expand a quote from Shelley Fitzpatrick. The quote was originally reported only as “there are no bodies,” however the full quote as per a court transcript was in fact “there are no bodies that have been unearthed.” We apologize for the omission.

Aaron Hemens, Local Journalism Initiative Reporter, The Discourse