Erin O’Toole vows to increase criminal punishment for people who disrupt pipelines and railways

Erin O’Toole’s Conservative Party is proposing to amend Canada’s Criminal Code to stop protests that disrupt key infrastructure such as pipelines or railways — a federal election proposal that many say will unfairly target Indigenous land defenders. 

The proposal is repeated twice in the party’s 160-page platform released Tuesday. It appears once in a section on energy and again in a section about public safety. The paragraph proposes passing the “Critical Infrastructure Protection Act to prevent people from blocking key infrastructure” by amending Canada’s Criminal Code to offer more severe punishment to demonstrators.

The proposal mentions the 2020 pipeline and railway demonstrations that occurred in opposition to the construction of the Coastal GasLink pipeline through the Wetʼsuwetʼen First Nation territory in British Columbia, land that is unceded. It notes these events “demonstrated the importance — and vulnerability — of the infrastructure that ties our country again.” Under the proposed Conservative law, protesters could be punished “by either summary conviction of indictment, depending upon the severity of the crime.”

“Peaceful protest is a fundamental right in Canada, but respect for the rule of law means that illegal blockades that shut down critical infrastructure, threaten access to vital supplies, or endanger lives cannot be tolerated,” the Conservative proposal reads.

The platform doesn’t provide any details about what would be included in a proposed law, how broad it would be or how the Criminal Code would be amended. The platform also fails to explain why a new law would be needed to stop what the party describes as an “illegal blockade” or how such a law could be effective. 

The Conservative Party declined The Narwhal’s request for more information. A spokesman said that the party would provide more details during one of its daily announcements on the campaign trail.

After this story was published, a reporter asked O’Toole about the promise at an Aug. 20 campaign stop in Winnipeg. The Conservative leader reiterated that the right to peacefully protest is “a fundamental part of our democracy” but that it “does not extend to blockading railroads, bridges, the things we need in the public good for people to get to work, for our economy, for our exporters to reach new markets.” 

“Critical pieces of infrastructure like rail and like bridges should not be illegally blockaded to make a political point,” O’Toole said. “In fact, when that happens it hurts Indigenous communities the most, many of whom are developing resources and for the first time in generations creating wealth and jobs for Indigenous communities.” 

“I think our plan is a common-sense approach to keep the economy moving,” he said in concluding his answer. 

O’Toole did not elaborate or provide detailed examples to explain how protests on key infrastructure sites might hurt Indigenous communities the most, or how his proposed solution would address this.

In light of the promise, some Indigenous leaders, lawyers and environmental groups told The Narwhal they were concerned, wondering if this is part of a rising trend of suppression of opposition against fossil fuel projects. 

“It seems like a wide-ranging, political posturing, when there are already remedies to get court injunctions and criminal charges against so-called disruptive behaviour,” said Cynthia Callison, founding partner of Callison & Hanna, a Vancouver law firm which represents Indigenous governments in legal matters. These remedies include what is already codified in Canadian criminal law: penalties and punishment for things like vandalism and trespassing. 

Alberta passed a similar law last year; it is now facing a constitutional challenge. Eighteen U.S. states have also passed similar laws since 2016. Indigenous land defenders and those standing in solidarity with them have been arrested during protests against the Trans Mountain pipeline expansion project and more. In one case in Washington state, a woman who disrupted a railway line is facing terror charges. 

There is a broad recognition that most protests around infrastructure development in Canada are rooted in solidarity with Indigenous Peoples, who don’t consent to some of these projects and aren’t properly consulted. 

Emmett Macfarlane, a political science professor at the University of Waterloo who specializes in constitutional law, questioned how this proposed law would work in tandem with Indigenous land rights and the state’s duty to consult on environmental projects. While the Canadian Charter of Rights and Freedoms guarantees the right to protest and peaceful assembly, there are already limits to it to ensure that right is carried out reasonably. 

“If the law is crafted properly, it would still allow some protest activity on these sorts of sites,” Macfarlane said. “I think it’s definitely motivated by concerns over our inability as a country to build more pipelines, which seems to be a big feature of the Conservative discourse. It’s certainly seeking to privilege those industries. That said, the train blockades and the like were highly disruptive and I think a lot of Canadians would support laws that limit protests like that.”

“I think we have to wait to see details because it’s certainly possible for laws like this to overreach.”

Some say that nothing can stop an increase in civil action for stronger climate policies in the wake of the latest report by the UN Intergovernmental Panel on Climate Change, which finds that the planet is hotter now than it has been at any moment in the last 125,000 years and some of the changes can only be slowed not reversed.

“The fact is, we’re going to see a heck of a lot more escalation on the part of people power movements that want to see change and transition on the issue of climate,” said Clayton Thomas-Müller, a senior campaign specialist with 350.org. “People are going to hit the streets regardless of the draconian measures these lawmakers place, because the gravity of the climate crisis is too great.” 

Chief Allan Adam of the Athabasca Chipewyan First Nation urged the Conservatives to reconsider its proposal because “the more the state tries to repress defenders and people supporting Indigenous people, the more pushback they’ll get.” 

“If you look around the world right now — at all of these climate catastrophes that are happening — people are becoming more and more aware and people are becoming more and more determined to save what we have left, because our lives depend on it,” Adam said. “And no amount of state repression is going to be able to stop that.”

The Narwhal also contacted several energy companies; only Trans Mountain — a company owned by the federal government — responded to say they have no comment on any political platform. “Trans Mountain respects the right to peaceful, lawful expressions of interest,” a company spokesperson said in an email.

The Canadian Association of Petroleum Producers also declined to comment. A spokesperson said “We are unable to comment this week. However, please check in with us again next week as we will likely be able to offer general commentary on our vision for our industry.”

Tony Maas, director of legislative affairs at Ecojustice, believes the counter approach to this proposal would be for the Conservatives to show their plan for engaging people in big decisions about the energy economy, climate change and more. Right now, there are legal routes for people to take — from courts to regulatory processes like the challenge of permits and land ownership — but for most Canadians, protesting is the easiest way to oppose such large-scale projects.

“The proposal really seems to be focused on trying to divide, when what we really need to be doing is putting in place laws and policies that inspire us and empower people to come together and confront the climate crisis,” he said. “We need to create tools and legal mechanisms that allow people to participate in decision-making but also hold governments and polluters accountable.”

“Right now, the Conservatives are pointing in the wrong direction.” 

Updated Aug. 20, 2021 at 11:49 a.m. PT to correct spelling of Tony Maas and to add new comments made in Winnipeg on Aug. 20, 2021 by Conservative Leader Erin O’Toole about his platform promise.