The arrest last week of 14 pipeline protesters raises serious issues about the role of courts and police in disputes over Indigenous land.

The protesters were participating in a blockade of an access road to the Coastal GasLink pipeline project near Houston, B.C. In December, Coastal obtained an interim injunction from the B.C. Supreme Court ordering the protesters to remove the blockades.

When the protesters refused and negotiations failed, the RCMP moved in and made the arrests for alleged violation of the injunction.

The access road and this section of the pipeline are on land that the Wet’suwet’en Nation claim as part of their traditional territory. After a decade in court, the Wet’suwet’en won a significant victory in 1997 in the Delgamuukw case. While not deciding the substantive issues, the Supreme Court of Canada ruled that Indigenous nations that can prove they were in exclusive possession of land at the time of Crown assertion of sovereignty have constitutionally protected Aboriginal title.

The Supreme Court applied the Delgamuukw decision in 2014 in the Tsilhqot’in Nation case. The court ruled that the Tsilhqot’in have Aboriginal title to the portion of their traditional territory in the Interior of B.C. where they had proven exclusive occupation.

Significantly, the trial judge and B.C. Court of Appeal decided that this title is vested in the Tsilhqot’in Nation as a whole, not in the bands that exercise powers delegated to them by the federal Indian Act. This ruling was accepted by the Supreme Court.

This means that decisions regarding the Tsilhqot’in’s Aboriginal title land need to be made by their traditional government that exercises inherent jurisdiction, not by individual band councils because they do not have authority to make decisions for the nation.

In the context of the current protests, the Wet’suwet’en have a claim to the land in question by virtue of the Delgamuukw and Tsilhqot’in decisions.

In opposition, the province claims the same land as Crown land. A dispute over title to land is a civil — not a criminal — matter. If not settled by agreement, the courts end up resolving these disputes. In this case, no such resolution has taken place.

Instead, the province has acted as though this were Crown land and has authorized use of it for a pipeline project that the traditional Wet’suwet’en government opposes.

Based on Tsilhqot’in Nation, decisions on land use outside of reserves have to be made by traditional governments, not band councils. So the fact that Wet’suwet’en band councils may have approved the project is irrelevant.

Courts can issue interim injunctions in land disputes, authorizing one side to act as though it owns the land until the matter is finally resolved. Courts grant these injunctions mainly on the basis of balance of convenience — which party will suffer the most if the injunction is or is not granted.

Pipelines are short-term development projects whose environmental consequences make them highly controversial. The Wet’suwet’en, on the other hand, have been governing their territory in environmentally respectful and sustainable ways for thousands of years. So how can the balance of convenience favour a resource exploitation company in these circumstances?

Projects like this on Indigenous territories should not take place without the free, prior, informed consent of the people concerned, as required by the United Nations Declaration on the Rights of Indigenous Peoples, which Canada has endorsed and the Trudeau government has promised to implement.

Nor should the police be placed in the awkward position, which many of them likely find uncomfortable, of having to arrest peaceful protesters involved in a civil, not criminal, matter.

The Supreme Court has said repeatedly that Indigenous claims need to be settled by respectful negotiations leading to reconciliation. The court injunction and recent arrests do just the opposite.

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The federal government’s anti-terrorism bill C-51 was the subject of heated parliamentary debate recently after revelations that the RCMP characterized pipeline opponents and First Nations as “violent anti-petroleum extremists” in a leaked internal intelligence report.

NDP environment critic Megan Leslie argued the leaked RCMP document, which labeled Canada’s environment movement as “a growing and violent threat to Canada’s security,” displays precisely how bill C-51 could be used to deploy anti-terrorism legislation against environmental activism deemed to be “unlawful.”

Because protests carried out without proper municipal permits can be deemed “unlawful” the proposed bill has serious implications for environmental and aboriginal groups, Leslie said.

“A lot hinges on that word ‘unlawful,’ ” she said during a recent question period in parliament.

“This is dangerous legislation, because if there is a wildcat strike or an occupy movement – an occupation of town property, such as the camps that we saw set up – that activity, under the eyes of CSIS or the current government, could potentially undermine the security of Canada without the right municipal permit, and it could all of a sudden be scooped up into this anti-terrorism legislation.”

“Every single word here matters,” Leslie said.

"Unlawful" Protest Potentially Deemed Terrorism in Bill C-51

In her argument, Leslie pointed to a recent analysis of the bill performed by Craig Forcese, national security expert and associate professor of law at the University of Ottawa.

In a recent piece Forcese agreed that even though the bill does not target democratic protest, there is room in the bill to pull participants of protest into the gambit of "security concerns."

“Under C-51,” he writes, ”the government will be able to share internally (and potentially externally) a lot more information about things that ‘undermine the security of Canada.’ That concept is defined extremely broadly – more broadly than any other national security concept in Canadian law. Yes, it can reach the subject matter of many democratic protest movements.”

Forcese also pointed to the fact that previous governments have avoided the dangers of limiting legitimate civil dissent to only "lawful" protest.

In fact, he writes, the very concerns raised in parliament now were on the table back in 2001 when the government first introduced a definition of “terrorist activity” in the original Antiterrorism Act.

The Act excluded “lawful” protest from the definition of terrorism but the term was eventually removed because of the undemocratic danger it posed to strikes and unpermitted protests.

“Given the experience in 2001 and the legal views expressed by the government of the day, we have to conclude that if the government continues to include the qualifier ‘lawful’ in its exceptions, it does so with its eyes wide open,” he writes.

Forcese warns that where protests deemed ‘unlawful’ overlap with other security concerns, such as critical infrastructure including pipelines, “democratic protest movements with tactics that do no square in every way with even municipal law may properly be the subject of CSIS investigation and possibly even disruption.”

He adds, “my point is this: when we craft national security law, we craft it to deter bad judgment. We do not craft it to be so sweeping and ambiguous that it must depend for its proper exercise in a democracy on perfect government judgment. Very few governments are perfect. And even if you think this one is, what about the next one?"

Anti-Terrorism Bill Targets More Than Just Terrorists

An editorial in the Globe and Mail also pointed to the danger of bill C-51, arguing the legislation does “much more than fight terrorism.”

The bill targets “activity that undermines the sovereignty, security or territorial integrity of Canada,” that includes “terrorism,” “interference with critical infrastructure” and “interference with the capability of the Government in relation to…the economic or financial stability of Canada.”

The authors of the editorial argue the new legislation creates another “class of security-underminer” that has implications for “environmental activists denounced as radicals.”

“If Bill C-51 passes, CSIS will be able to disrupt anything its political masters believe might be a threat,” they write.

Criminalizing Indigenous Dissent

NDP MP Niki Ashton said the bill is a clear attempt to “criminalize dissent.”

“As we know, indigenous peoples – First Nations, Métis, Inuit, or indigenous peoples in general – have often been at the forefront in fighting for what is important to them and, in many ways, what is important to all of us,” she said during question period.

“These activists, these leaders, these members of their communities are not terrorists and do not pose a danger to the lives of anyone.”

The problem with the legislation is clear, Ashton said, “it lumps legitimate dissent together with terrorism. Indigenous peoples have a right to seek environmental and social justice through protest, communication and activism. This bill would call that criminal. It would call that work terrorism.”

Ashton quoted Pam Palmater, a Mi’kmaq lawyer and activist with the Idle No More movement.

Palmater said Canadians and First Nations “as treaty and territorial allies” face a “threat to our collective future” with the breakdown in democracy and radical changes to Canada’s legislative landscape that have eliminated many of the nation’s environmental laws.

“Hundreds of thousands of people across Canada rose up against Bill C-45 – the large, unconstitutional omnibus bill pushed through Parliament without debate which threatened our lakes and rivers,” Palmater said.

“This time, the threat is personal – any one of us could go to jail for thinking or voicing our opinions. All of the rights, freedoms and liberties upon which Canadian democracy rests will be suspended with Bill C-51. This bill creates what has been described as Harper’s ‘Secret Police force’ with terrifying expanded powers.”

Ashton said she is “uncomfortable in principle and in practice with any one government body having this kind of unchecked control.” Ashton said under Bill C-51 CSIS will have the power to “surveil and target anyone they want.”

“Indigenous and environmental activists are afraid about what that could mean when they organize to protest a pipelines, when they communicate among themselves to reclaim territory that is theirs, and when they speak out in defence against the government in any way, which is their right to do.”

Indigenous rights and climate activist Clayton Thomas-Muller said the bill “is an abuse of democracy.”

“Our movements are about justice. To criminalize Indigenous dissent, then, is to repress Indigenous rights in Canada, and our responsibilities to protect the land.”

“We are transparent, open, base-driven movements that take a non-violent, peaceful direct action approach…The state is criminalizing Indigenous peoples who are acting within their right to exercise jurisdiction over their lands.”

“It is clearly about providing a right-of-way for the mining and energy sector,” he said.

Image Credit: Mark Klotz via Flickr

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Imperial Metals is experiencing troubled times.

After the catastrophic breach of a toxic tailings pond at its Mount Polley mine on August 4th, British Columbians across the province have called into question the safety of the company’s other mega mine projects.

The Red Chris mine, located in B.C.’s northwestern corner is now under intense scrutiny by protestors from the Tahltan Nation who are blocking access to the company’s site, saying they won’t leave until independent reviewers address mine safety concerns.

On August 8th, the Klabona Keepers, headed by a group of mostly women elders, set up two camps, blocking each of the two access roads to the mine. Trucks are parked across the roads and makeshift wooden barricades have been erected to keep company vehicles from entering.

Located on Toddagin Mountain, near the Tahltan village of Iskut, the Red Chris mine is scheduled to begin operations later this year.

Like Mount Polley, Red Chris is an open pit copper and gold mine. And, like Mount Polley, the Red Chris mine is expected to produce millions of tons of toxic tailings over its projected 28-year life span.

The company has set aside a pristine mountain lake called Black Lake as a tailings holding pond. Black Lake is located above lakes and creeks which drain into the salmon bearing Iskut and Stikine Rivers – the lifelines of the Tahltan people.

For the elders, the current blockade is not only a show of solidarity with those affected by the Mount Polley disaster, but an act of self-defense.

One of two roadblocks blocking access to the Red Chris Mine. Photo by Albrecht Berg.

During initial consultations between Imperial Metals and the Tahltan, the company allayed environmental concerns by pointing to their safe track record at Mount Polley. The Red Chris mine would share the same design, the company said.

Now, in the wake of the Mount Polley spill, locals fear the Red Chris mine poses a similar danger to the environment, fish and wildlife.

Following the Mount Polley spill Imperial Metals’ President Brian Kynoch said, “If you asked me two weeks ago if that could happen, I would have said it couldn’t happen.”

During a visit to the Red Chris blockade, one of the elders at the camp, who, like her peers, prefers to be identified simply as Klabona Keeper, told me: “When you live off the land, when the land is your kitchen, the consequences of the kind of thing that happened at Mount Polley, are unimaginable.”

Elders sit around the fire at one of two blockades. Photo by Albrecht Berg.

The main demand of the protestors is a reliable guarantee that the kind of catastrophe seen at Mount Polley will never happen at Red Chris.

“We want an independent review of the tailings pond system by a third party independent of both the government and Imperial Metals,” the elder said.

The current standoff has brought into focus a whole range of issues around the Red Chris project. Mistrust is growing around the promised benefits of the Red Chris project.

Author and anthropologist Wade Davis, who has called the area home for the last 40 years, said the Red Chris project is a massive threat to the local landscape.

Standing in front of his home on the shores of stunning Ealue Lake, which is part of the watershed threatened by the mine, he explained that Todaggin Mountain is home to the world’s largest population of enigmatic stone sheep.

Anthropologist Wade Davis at his home on Ealue Lake. Photo by Albrecht Berg.

“This project, a hundred years hence, will be seen as one of the greatest acts of folly in history of Canadian public policy,” Davis said.

Concerns over the future of the mine have also brought new emphasis to working conditions at the mine which one Tahltan employee described as problematic.

“They can fire us without prior notice, while we have to hand a two-week notice in order to quit,” he said.

Complaints of racism against Tahltan workers have also surfaced. According to Imperial metals, 18 per cent of workers at the site are Tahltan.

“Why not 50 per cent?” one of the elders at the blockade responded when questioned on the issue.

“After all, this is Tahltan country,” she said.

Many of the locals view the Red Chris project as a showcase for how the extractive sector functions in the province.

A Red Chris Mine sign with blockaders in the background. Photo by Albrecht Berg.

B.C. subsidized the construction of a 300 kilometre-long power line to Iskut for the mine, using $750 million taxpayers dollars.

The official rationale for the North West Transmission Line was to break the reliance of 300 Iskut residents on diesel-generated power. Yet critics see the project as nothing more than a gift to Imperial Metals.

Provincial support for the Red Chris project is also seen in a new light, after significant campaign contributions for the B.C. Liberals from Imperial Metals came to light. Murray Edwards, the largest stakeholder of Imperial Metals and Calgary Flames owner, hosted a private fundraising dinner for Christy Clark’s campaign in Calgary ahead of B.C.’s May election. 

Since the events at Mount Polley, Imperial Metals and the B.C. government have engaged in significant damage control, with Minister of Mines Bill Bennett likened the spill to an avalanche.

Edwards pledged $100 million to the Mount Polley cleanup to keep a reeling Imperial Metals from going bankrupt.

Company President Brian Kynoch and Minister Bennett paid a joint visit to the Red Chris blockade on Wednesday. Both promised to halt construction until concerns were met.

But so far, the elders remain skeptical. Until they see written commitments to safety standards set by the Tahltan, they are determined to stay.

The mood at the camp is cheerful, yet forceful. Campfire conversation drifts from hunting stories and cookie recipes to political tactic.

One elder joked, “We can always go Mohawk style.” The others chuckled, but agreed they prefer to avoid unnecessary escalation.

The Tahltan have a long history of blockading.

In 2005, during a standoff between Fortune Minerals and Tahltan elders over a proposed open pit coalmine, 15 Klabona Keepers were arrested for defying an injunction to clear the very same access road now blocked by many of the same veteran blockaders.

While the battle over Fortune’s coalmine continues, the Klabona Keepers succeeded in stopping Royal Dutch Shell from going ahead with plans to extract coalbed methane in the same region. Shell withdrew from the region in 2012.

When asked how long they were willing to keep up the current blockade, all the elders answered simply, “For as long as it takes.”

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The RCMP responded to a First Nation’s protest against shale gas fracking in New Brunswick with arrests and pepper spray this morning. Reports from the clash show images of a highly-militarized police response to the blockade along Route 134 near Rexton, N.B. in front of a compound belonging to SWN Resources, a Houston-based company that recently performed seismic testing, a precursor to fracking, in the area.

The Elsipogtog Mi’kmaq First Nation has been protesting the development of the region’s shale gas resources for months. In June, the RCMP responded to the lighting of a sacred fire with arrests. Today, a reported 75 officers responded to the peaceful blockade to enforce an injunction, sending 10 officers in military fatigues with sniper rifles. Watch a video of the morning's events on this feed.

Elsipogtog councilor Robert Levi reported that “dozens” of people have been targeted with pepper spray. “The chief was manhandled a little bit and all hell broke loose,” he said.

Chief Arren Sock, pictured below, was apparently in custody, but according to Postmedia News, RCMP Const. Julie Rogers-Marsh could not confirm if any arrests have been made. *Update: Postmedia News is reporting that at least 40 arrests have been made.

#Elsipogtog Chief & council getting arrested along with protesters #cdnpoli #IdleNoMore pic.twitter.com/NOOXyWbMrw

— Lionel Levi (@lionelwade1980) October 17, 2013

In this video below, numerous heavily armed officers appear on the scene and a woman behind the camera asks a man in fatigues not to point his gun at her mother.

It appears numerous police vehicles were set on fire, with twitter reports claiming up to 14 cars are burning.

Police cars on fire at NB blockade #Elsipogtog #FrackingProtest #mikmaqblockade #occupy #ows pic.twitter.com/WKVtKRJhK7

— Occupy The Earth (@djjohnthomas) October 17, 2013

Rexton protest #nb pic.twitter.com/zeTxxdeuzo

— Jen Hudson (@hudson_jen) October 17, 2013

The Halifax Media Co-op is reporting that one of their writers, Miles Howe, may have been arrested.

SNIPERS Pointed guns at camp with elders children & women first thing this am. #Elsipogtog #AntiFracking pic.twitter.com/1ThhuJlcbX

— Rhonda Doxtator (@kawisaha99) October 17, 2013

Tensions flare as the police line advances. Police tear gassing the crowd. pic.twitter.com/3WrjsdA2EA

— Ossie Michelin (@Osmich) October 17, 2013

Police car on fire as police lose control of anti #fracking blockade. pic.twitter.com/MTmkY5arSF

— Ossie Michelin (@Osmich) October 17, 2013

2 more RCMP cars on fire #mikmaqblockade pic.twitter.com/5N7IHUIRhf

— stimulator (@stimulator) October 17, 2013

#mikmaqblockade pic.twitter.com/3qQRcyRaYZ

— stimulator (@stimulator) October 17, 2013

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.

Concerned citizens blocked a highway in Ontario on May 6th to raise the alarm about Enbridge's controversial plans to ship tar sands bitumen through the 37-year old Line 9 pipeline.

The “90-for-90” blockade caused a temporary traffic delay where Line 9 intersects Highway 6 between Guelph and Hamilton. Forty people held the space for ninety minutes to represent the “ninety significant spills” Enbridge pipelines had in both 2009 and 2010.

Participants gave out homemade muffins to drivers held up by the blockade to apologize for the inconvenience.

“The blockade was a necessary step because the Canadian government has gone to extreme lengths to ensure that there is no public debate on Line 9,” says Elysia Petrone, media liaison and participant of the 90-for-90 blockade.

The federal government drew scorn last month for limiting public participation in Line 9 and future decisions about oil and gas pipelines. This includes restricting what Canadians are allowed to say about these projects at public hearings.

“When people feel the federal government is not listening to their legitimate concerns about a pipeline project they will find other avenues to be heard, ” says Mark Calzavara, Ontario organizer for the Council of Canadians.

Last year's federal omnibus bill C-37 drastically changed key pieces of legislation such as the National Energy Board Act to speed up decisions on pipeline projects by putting them under less regulatory scrutiny. 

“As more Ontarians wake up to the risks associated with Line 9 we will see more actions like the 90-for-90 blockade.” Calzavara told DeSmog Canada. Another Line 9 protest is planned for May 21st in Ontario's oil refining capital – Sarnia.

“Enbridge is gambling with our water. We have everything to lose.”

Line 9 cuts across all waterways leading to Lake Ontario and comes within ten kilometres of the lake itself as it makes its way from Sarnia to Montreal. Millions of Canadians rely on Lake Ontario for their drinking water.

Enbridge's Line 9 will help move tar sands oil closer to the coast near export facilities. Map by Natural Resources Defense Council.

The 90-for-90 blockade held a mock oil spill on Highway 6 with stuffed animals painted black and seventy feet of black fabric to demonstrate the dangers of transporting bitumen through Line 9.

Enrbidge's is still cleaning up its 2010 pipeline spill in Michigan. That pipeline – Line 6B – was of a similar age and design to Line 9 and was transporting bitumen when it burst. Contamination of local waterways spread as far as fifty kilometres downstream.

“We got mixed reactions from drivers. Quite a few were supportive. We even got a few thumbs up,” says Petrone.

The blockade was also in solidarity with indigenous peoples in western Canada who are disproportionately effected by tar sands development. Indigenous peoples are inspiring Canadians to oppose the tar sands industry as well says the blockaders.

Recently the UK's Guardian referred to Canada's indigenous peoples as “the best defence against Canada's resource rush.”

 “Tar sands industry's desperate attempts to ship toxic tar sands north, south, east and west is uniting all sorts of movements across Canada and the US.” Petrone told DeSmog Canada.

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