By Leslie Hall-Pinder
I am in a helicopter flying above the Fraser River as it snakes through the rocky gorge of the canyon which the river itself is creating. In some places the rocks tower over 3,000 ft. above the water. This is the territory of the Nlaka’pamux people.
I’m in the helicopter because I’m part of a team of lawyers who represent the Nlaka’pamux, Sto:lo and the Sewepemc Nations who have formed the Alliance of Tribal Councils in order to take action to protect the river and their fishery. Their joint effort is to stop the Canadian National Railway (CNR) from doubling its tracks, creating a second road-bed for the rails by dumping riprap into the river. Each piece of rip-rap is larger than a volkswagon. CNR wants to side-cast the rock into the backeddies where the fish rest in their journey to their spawning grounds. These are the places where my clients fish. They rely on the fishery for their livelihood and their well-being; the fishery and the river are the foundation of the people’s culture. It is a relationship of dependency and obligation which has endured for thousands of years. The railway directly threatens all of that: the river, the fish, and the indigenous Nations. If CNR fulfils its plans, instead of an organic, meandering shape, the river would become a freeway.
The lawyer for the railway and two advisors are in the same helicopter as I. A second helicopter is behind us with other advisors from CNR. I can see them through the window. The federal government has appointed a mediator, and we are all going to meet with the First Nations to see if we can find a resolution to the dispute.
Stunned by the beauty of the place, I suddenly wake up to a fact: below me, moving on the tracks which follow the river’s course, is a train, a long train — hundreds of boxcars filled with rock. I can’t see its end.
Over the din of the rotating blades, I speak into the microphone attached to my headphones, “What is that train doing down there?”
CNR’s lawyer says, “I don’t know.”
“Those boxcars have rocks in them. Is CNR going to dump riprap into the river?”
“I’ll find out.”
Just then we hear a static exchange between a CNR official in the second helicopter and someone on the ground. “Proceed to Mile 57.” The railway marked off the mileage along the river route in this way. Mile 57 is in the heart of Nlaka’pamux territory, just below Chief Bob Pasco’s reserve.
“This isn’t good,” I tell CNR’s lawyer.
In the helicopters calls go back and forth between the lawyer and his clients. We land on the Chief’s front yard, the choppers making a cyclone of air and noise. We get out, and the pilots turn off the blurring, menacing sounds.
I inform Chief Pasco that it seems that CNR is moving its train into position to dump rock at Mile 57. The Chief points over fields dotted with cows, down to the river’s edge. “That’s right there.”
Phone calls rage between CNR’s lawyer and his clients. The Chief sets him up in his study, for privacy. And the Chief says to his 6 year old son, Matt, “You keep an eye on that train down there. If it moves, you come in and tell me.”
CNR’s lawyer enters the living room. “I don’t think this can be stopped,” he says.
At which point Matt blasts through the front door which bangs shut behind him. “Daddy, the train is moving.”
I look at the Chief; he looks at me. Without more, we run: out the door, into his truck, opening fences, over cattleguards, tearing across the land, whirling down to the river. We get out of the truck into a deadly calm broken only by the grinding sound of the train’s engine. Dust is rising above the rock which has tumbled down the bank and into the river. One car load has been side-cast.
A man has his hand on the lever ready to dump another load of rocks. Chief Pasco stands beside that next rail car. I stand beside him. If the man presses the lever, he’ll kill us.
The Chief is the present protector of the river and the fishery. He stands on the past and on the threshold to the future.
Gradually dozens of Chiefs and Band members arrive. Everyone stands together. No one speaks.
Eventually, CNR agrees to withdraw the train. We’ll talk.
There is a lot of talking. The railway keeps pressing for the Chiefs to agree to areas along the river where they could dump rip-rap. The Chiefs draw a line. No more. We’re going to court.
I was instructed by the leadership to ensure the Judge understood that the railway was making further incursions into the Nations’ territory. “First it was the CPR. Then CNR. The railways keep coming through, as though we are just a transportation corridor. Make sure the Judge thinks of this as we do — that it’s our front yard. We stopped this train.”
First Nations members came to court by the bus load. The courtroom was filled to capacity.
When CNR’s lawyer stood to argue his case, his first comment was that he wanted the Judge to understand that in the scheme of things, “There is God. And next to God is the railway.” There was an audible gasp in the courtroom.
I leaned over to my law partner and said, “We may have just won the case.” That was not the “scheme of things” according to my clients’ beliefs; it was not the scheme of creation.
We had spent months preparing a 20 foot long map of the river with each of the fishing sites marked on it, and the places where the railway wanted to build up the trackbed in the river. When it was our turn to make submissions, the map was on the wall. I took the Judge down the Fraser River and, virtually, we visited every site.
Part of the evidence we called from the First Nations related to 1914 when CNR dynamited the canyon to build its first track. It caused a blockage of the Fraser River, and nearly the destruction of the fishery for all time. Indigenous people from Nations in the interior went to where thousands of salmon were prevented from going upstream. They put salmon in baskets and carried them around the rocks, placing them back in the river so they could continue to the spawning grounds.
The First Nations’ actions against CNR in 1985 were directly connected to what they had done in 1914 to protect the fish.
After a week long hearing in front of Mr. Justice Macdonald, the Judge granted the Nations an injunction against the railway until a full trial of the action. The railway went to the Court of Appeal.
It presented its case before three judges; then it was our turn.
There was a strange atmosphere in the court. For some reason, our case wasn’t going well. After we adjourned for the day, our team of lawyers met. We couldn’t figure out what was wrong, but there was something wrong.
When we arrived at court the next day to continue presenting our argument, one of the Chiefs said to me, “Where’s the map?”
“What do you mean?”
“Everything you’re saying is so — ungrounded. It’s just legal principles. We need our territory and the river to be here for the Judges to see and understand.”
The map had been an exhibit at the trial, but not at the appeal. We asked the clerk to retrieve the exhibit. When the Judges returned to court, on the wall behind the jury box was the river. Once again, I took the Judges down the Fraser River, and stopped at each fishing site, giving the names of the families who fished there. It changed everything. The people in the courtroom were restored to the river, their traditions, their history. The injunction against CNR was upheld. Leave to appeal to the Supreme Court of Canada was refused.
Now, after 31 years, the injunction against CNR is still in place.
That time is vivid in my mind. It’s vivid in the minds of the Nlaka’pamux who were there. The story has been told and re-told, although, as ever, the details become somewhat frayed. When I remember Chief Pasco saying to his son “You keep an eye on that train down there. If it moves, you come in and tell me” — the gentle and confident placing of this responsibility on the shoulders of his son seems to be part of the past as well as the present. It was part of the caretaking which Chief Pasco had as his upbringing, and which Matt then received and accepted.
Elder Ruby Dunstan carries this story forward. “When we stood up to CNR, we were implementing our laws; we were passing on our history. It made me dance. All the communities coming together.”
The river has maintained its meandering shape, and its bounty because of their initiative.
So much has changed in the Canadian law since the double tracking case of 1985. We struggled, then, with how to fit aboriginal rights into a rigid legal system. We used the tools we had, as blunt as they were. We sought to graft on to Canadian Law an idea of First Nations’ title to the land in an acceptable way. We didn’t try to introduce Indigenous laws directly, although, even if I didn’t know it then, the entire case was imbued with these laws and customs. The development of the law in Canada concerning indigenous peoples had to be gradual. And it was. And it is.
The twin tracking case is about the enduring laws and customs which drive the Nlaka’pamux people, and other First Nations, to this day. We prevailed because of their tenacity and commitment.
And we prevailed because of the map. The map was the material and symbolic proof of the Nations’ presence on the river, for all time.
There were so many things I didn’t know back then. Shortly before the twin tracking case, I had left a prestigious law firm to join the Union of B.C. Indian Chiefs. Mary Lou Andrew, an elder from Seabird Island, guided the lawyers, Louise Mandell, Clo Ostrove and myself.
Mary Lou Andrew taught me how to adapt the legal skills we had in order to use them more effectively for First Nations. She taught me humility. She taught me to listen. She allowed the space for not knowing.
I talk to my sister about Testify. She is interested in First Nations issues; she is sympathetic. She gets her information from media reports and from me. She wants to understand what indigenous laws are, and she wants to help in the project to find a reconciliation between First Nations Peoples and Canada — and herself. She says, “I’m willing but I’m baffled. What can I do to help?”
If you are a non-indigenous person reading or listening to this, she is probably a lot like you.
She says to me: “What are the Nlaka’pamux indigenous laws? How do they hold the promise for a better future which Testify hopes for?”
I say, “I don’t really know. Although I have a hunch that their entire legal system is based on their relationship to their land.”
She is astonished. “You’re part of this project. As a lawyer, you spent more than 28 years of intense involvement in all your clients’ concerns, their heartbreaks, their struggles. You, and the other lawyers working for the Union of Chiefs, were in a privileged position — something that I, or most people, will ever have. And if I am willing but baffled, and you can’t help me, what am I to do? I feel helpless. What is anyone to do? Are non-natives lawyers still being trained in the way you were?”
“Not so much. Often they like the legal work but don’t really want to know the people. But there are many more First Nations lawyers.”
And then I realize that what I have to offer is the story of a willing but baffled young lawyer in the1980’s being urged by First Nations leaders to grapple with something which was difficult for me to understand then, and now. It is a story of my blindness to the profound forces at work in what the people told me to do.
Mary Lou Andrew said to me, “You must be patient and listen.” “Even if I don’t know what I am listening for?” “Yes, listen. Even if you don’t understand what you hear. Clear the space for something to happen. You’re not in control.”
My sister says. “I want to do that.”
“Learn, carefully, how your concepts are blinkered.”
“Notice the assumptions which underlie how you see things. First Nations assumptions may be different than yours. And probably your assumptions will be fuelled by your intentions and aspirations.”
“What do you mean?” she asked.
I tell her about the trial of the Gitskan-Wet’suwet’en case heard by Chief Justice McEachern. The Judge flew over the traditional territory of the First Nations. He said in his judgment:
“The total  territory is a vast, almost empty area . . . .” (Judgement, p. 11) “The most striking thing that one notices in the territory away from the Skeena-Bulkley corridor is its emptiness. I generally accept the evidence of [non- Indian] witnesses . . . that very few Indians are to be seen anywhere except in the large river corridors. As I have mentioned, the territory is, indeed, a vast emptiness.” (Judgement, p. 12)
For the Gitskan-Wet’suwet’en, their territory is teaming with meaning and history, and the presence of its people; it is not empty. However, that’s what the Judge saw.
I ask my sister: “And what is your idea of home?”
I am reminded of what Simon Fraser wrote in his journal in 1808 as he made his tortuous way down the same river (which now bears his name) which the Nations were protecting on that day in 1985. Simon Fraser was bent on finding a navigable river to to the Pacific. As he passed from one territory to another, he was guided by each of the Nations along the way; the guides handed his care and protection off to the next people. When he reached the territory of the Nlaka’pamux, he gave its name in his journal in 1808 as Hell’s Gate: “a place where no human should venture, for surely these are the gates of Hell.”
To give such an appellation to this place reveals a portal to his own mind. Such awe-inspiring, heart-stopping, breath-taking beauty of the river near Chief Pasco’s reserve was, for Simon Fraser, wrapped in unremitting terror and apprehension. His desire, as an explorer, to find a navigation route to the Pacific Ocean, shaped his sight.
In 2016, I was driving along the highway which follows the Fraser River with Jade Baxter, a young Nlaka’pamux filmaker, and my partner in the Testify project. Jade’s grandfather, Chief John MacIntyre, of the Skuppah community of the Nlaka’pamux Nation, was one of the Chiefs who stood on the line in 1985 to prevent the rip-rapping of the Fraser River.
Jade said “When I come home, along this route, I feel this place as though I am being swaddled again.”
“For Simon Fraser, this was the Gates of Hell. For you, it’s your heaven.”
There’s a long pause. “No, that’s too idealistic. It’s my home, as troubled as it sometimes is.”
She also said, “I grew up hearing the sound of trains. We’re in meetings and everyone stops talking until a train goes by. Because otherwise we can’t hear one another. And also, there’s a certain sound, and then we know that someone has been killed on the tracks.”
I tell my sister: “Mary Lou Andrew was my teacher. She is the teacher for all of us. Back then, I was being called upon to help. We are all now being called upon to help. There are many teachers for us, for you. Read the indigenous poets, playwrights and thinkers. Read the report of the Truth and Reconciliation Commission. As the Chiefs said in the 1910 Petition to Sir Wilfred Laurier, even though we, as settlers, are not to blame for the injustice against First Nations — we have paid for our land — it is our duty to see our governments do right by First Nations and give them a square deal. A large part in that is enabling First Nations laws and customs to be recognized and respected.” //