The next round of the National Energy Board’s (NEB) hearings for the Kinder Morgan Trans Mountain pipeline are scheduled to begin January 19 in Vancouver, B.C.

Climate advocates and critics of the National Energy Board are disappointed the review process will continue on under rules established by the previous federal government, especially since Prime Minister Justin Trudeau campaigned on a promise to make the process more credible and evidence-based.

The Liberal party platform promised to immediately review the process, restoring “robust oversight and thorough environmental assessments” as well as restoring “lost protections” eliminated during the former government’s sweeping changes to environmental law. 

At a campaign stop in August 2015, Trudeau told Kai Nagata, energy and democracy director at the Dogwood Initiative, that the NEB overhaul would apply to the Kinder Morgan Trans Mountain pipeline.

“Yes. Yes,” Trudeau said. “It applies to existing projects, existing pipelines as well.”

“Okay,” Nagata said. “So if they approve Kinder Morgan in January, you’re saying…”

“No, they’re not going to approve it in January. Because we’re going to change the government,” Trudeau responded. “And that process needs to be redone.”

Trudeau on Kinder Morgan

Justin Trudeau says if he's Prime Minister, Kinder Morgan will have to go back to the drawing board, saying "the process needs to be redone." Find out where candidates in your riding stand: http://votebc.ca/

Posted by Dogwood Initiative on Friday, August 21, 2015

However in November, Natural Resources Minister Jim Carr announced ongoing pipeline reviews will continue on while the federal government considers new rules.

“There will be a transition as we amend the ways in which the National Energy Board goes about the process of evaluating these projects,” Minister Carr said in November, “and we will announce those changes as soon as we can, but the process continues.”

Nagata said Trudeau’s promise is not being upheld.

“Clearly something has happened between the dying days of the election and today to give the government pause with regard to its promise to revamp the Kinder Morgan process,” he said.

“What’s difficult to stomach is everyone, including the Liberals, agrees there is a problem with the process.”

Nagata said this week’s decision by the B.C. Supreme Court that the province failed to uphold its duty to consult First Nations regarding the Enbridge Northern Gateway pipeline only adds to the feeling of frustration.

“The circumstances are exactly the same for Trans Mountain,” he said. “In this context we have these hearings going on that everyone agrees is a sham, but the First Nations, municipalities, and intervenors are expected to continue on, basically doffing their cap to the panel as they present their final evidence.”

“It’s humiliating for the province, for First Nations, intervenors and the taxpayers who supported the scientific work done in this review,” he said.

Clayton Thomas Muller, climate campaigner with 350.org, said the Trans Mountain hearings should not go ahead.

“By letting these reviews proceed the Prime Minister is breaking the promise he made on the campaign trail to stop reviewing pipelines using Stephen Harper’s rules,” he said.

“This government can’t meet its commitments on climate or Indigenous rights and push forward with pipeline reviews that ignore climate change, community voices and the duty to consult with Indigenous peoples,” Thomas Muller, Stop it at the Source Campaigner with 350.org, said.

Thomas Muller spent the morning in the office of Minister Jim Carr as part of a People’s Injunction action organized by 350.org. Campaigners said they were performing a “people’s search and seizure” for new pipeline review rules.

“If they don’t have a new process here today, they should cancel these projects before the Kinder Morgan hearings start on Monday,” Thomas Muller said.

“Without considering climate change or listening to community voices, especially First Nations, these reviews are still little more than a rubber stamp for unnecessary, dangerous fossil fuel projects.”

The climate advocacy organization is planning actions across Canada as part of the People’s Injunction to ask for a cancellation or suspension of pipeline reviews until new rules are put in place. 

Peter McCartney, climate campaigner with the Wilderness Committee said the organization is “very disappointed” the review will continue on under the current regime.

“There was a promise made to restore credibility to these hearings,” he said. “If these hearings aren't good enough for future projects, they're not good enough now.”

The Wilderness Committee publicly withdrew as an intervenor from the Trans Mountain review in August, criticising the process as unfair and biased with a predetermined outcome. The Canadian Parks and Wilderness Society as well as 33 other individuals also abandoned their position as intervenors in the process in August, following other high-profile withdrawals from for CEO of ICBC, Robyn Allan, and former CEO of BC Hydro, Marc Elisen.

“Canadians deserve an environmental review process they can trust, that takes into account climate impacts and properly consults with First Nations,” McCartney said.

“It looks like we made the right decision in pulling out of the hearings and taking our message straight to the Prime Minister.”

You can click here to read more about Prime Minister Justin Trudeau and climate change.

Image: Twitter

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Nine and a half years. That’s how long Stephen Harper was prime minister of Canada — a long haul for environmentalists, who were all but shut out of Ottawa and often antagonized by the federal government.

Now that Justin Trudeau and the Liberals have taken the helm, advocates have high hopes for a course correction on the environment and energy files. But after nearly a decade of working under hostile conditions, environmentalists need to make a course correction of their own if they want to effectively influence public policy, experts say.   

“If I was running a large ENGO and my file was climate, it’s a new day,” said Allan Northcott, vice-president of Max Bell Foundation, which runs the Public Policy Training Institute to train non-profit leaders in how to effectively advocate for policy changes.

“The opportunity is different, so it’s going to require a different plan, a different strategy.”

Many of the tactics advocacy groups undertake aren’t effective, Northcott told DeSmog Canada. 

“It ends up just being noise. And there’s lots of noise,” he said. “Right now, everybody and their dog and cat has got an idea for what the federal government should do.”

Outside Game and Inside Game Must Work Together

Many environmental groups have spent a decade building up their “outside game,” doing things like gathering petitions and organizing protests. But now that government is willing to meet with environmentalists, the door is opened to influencing elected leaders and public servants directly, through an “inside game.”

This new context requires a shift in strategy. Essentially, the outside game needs to morph to complement the development of an effective inside game.

“Just don’t assume that you can use the same set of tools. It is a bit of a specialized tool set,” Northcott said.

That’s why Max Bell Foundation created the Public Policy Training Institute. Faculty members include Jim Dinning, who served as an Alberta PC MLA for nine years and as a cabinet minister. Today, Dinning serves as a director on the board of Canada’s Ecofiscal Commission.

“One of the things we teach in our class is that there are very few absolutes,” Dinning told DeSmog Canada. “Most elected people are willing — more than willing — to listen to a point of view that’s contrary to the one they hold. The ability to change your mind shows that you have one.”

'Protest is not a Dialogue. It's a Monologue'

The key to being heard is to start with a respectful, low-temperature, evidence-based conversation, Dinning said.

“A lot of people don’t think to do this, but the best place to start looking for a ‘yes’ is in the lowest levels of the public service that you can go to and get a ‘yes.’ The public service should play, and does play, a really important filtering and briefing role in advising ministers and deputy ministers and premiers and prime ministers,” he said.

Given that the chief of staff for Environment Minister Catherine McKenna is Marlo Raynolds, former executive director of environmental think tank the Pembina Institute, meeting with the public service should be a logical first step for many environmental groups.

However, skipping over the public service and going straight to a minister or Prime Minister is a common mistake.

“Public policy almost never happens in that way. If your first call is to the premier or the prime minister’s office, then it’s a bad call,” Dinning said.

As for protest, Dinning sees it as a tactic best reserved as a last resort if you’ve pursued dialogue with the government, but haven’t been able to make progress.

“It’s certainly not a first resort,” Dinning said. “A protest is not a dialogue. It’s a monologue.”

Environmentalists Eager to Keep Pressure On Elected Officials

Environmentalists, however, are chomping at the bit to hold the Liberals’ feet to the fire, especially with the UN climate negotiations coming up in Paris in December.

Clayton Thomas-Muller is the ‘Stop it at the Source’ campaigner with 350.org, the group that organized a protest called the ‘Climate Welcome,’ which involved four days of sit-ins outside Trudeau’s residence beginning on the first day he took office to demand a freeze on oilsands expansion.

Four days after organizing those protests, Thomas-Muller facilitated a United Nations climate event at the National Arts Centre, attended by the chief negotiator for Canada and the French ambassador.

“That’s the new landscape with a centrist party,” Thomas-Muller told DeSmog Canada. “Strategy and tactics have to reflect both pulling and pushing. It’s much more complex.”

Thomas-Muller said he’s full of hope based on the government’s first moves. “But we have to keep the bar where it is and raise it with intelligent multi-pronged approaches,” he said.

Politicians Must Balance Multiple Interests

It’s true that the early days of a new government are important.

“If you’re interested in federal policy change, right now — the first six or eight months in the mandate of a new government — is the best time to get in there and try to help inform what they’re going to do,” Northcott said.

But governments are faced with tough decisions about balancing multiple interests.

“Put yourself in the shoes of government, imagine where they’re at and what they’re trying to deal with at the moment,” Northcott said. “You’ve got to try to attach your issue to their agenda.”

With the public release of ministerial mandate letters, it’s easier than ever for groups to figure out what’s on the government’s agenda.

“You have to basically demonstrate that you have a pretty good knowledge of the issue. And not just the issue, but the issue in its context,” Northcott said.

“The presumption sometimes is that only ENGOs care about what happens in the enviro and energy space. And that’s just not real. That’s not politically real. You have to understand whose ox is going to get gored if your position becomes policy. You have to think about balancing out the different stakeholders in the policy ask.”

Dinning also stresses keeping in mind what any government minister has on their plate.

“Remember that a minister has 50 other files on their desk,” Dinning said. “And the file that you are talking to me about is one of 13 meetings I’m having this morning. Be mindful of that — especially with a new government.”

Great Expectations: Campaign Promises Vs. Reality

“You campaign in poetry and you govern in prose,” Dinning said. “The fact is, especially when you’re in opposition, you’re campaigning in a vacuum. You don’t know all the facts, there are a far greater number of layers of facts, of nuance: the world isn’t all black and white.”

That means sometimes after a government takes office, it learns new information that results in a campaign promise needing to be delayed or altered.

Further to that, Trudeau has promised to return to a “cabinet government” — in which policy decisions are made collectively, not just by the prime minister. If we want more of that open, collaborative approach to governing, we also need to be prepared to give politicians some leeway to change their minds.

As Don Lenihan of Canada 2020, a progressive think tank, wrote in a recent op-ed:

Back in the 1960s, cabinet government succeeded because ministers weren’t just selling an idea. They were trying to develop one. Public input and feedback were needed to get the policy right and the process was there to help them.

As a result, everyone was more open to seeing ideas change and evolve as the process unfolded. Decision-making came at the end of the process, not the beginning.

Nowadays, Lenihan writes, ministers who change policy proposals are often accused of “backtracking” or “flip-flopping,” which makes it tricky for politicians to really consider the best evidence on the table.

Politicians Follow Public Opinion

Ultimately, politicians are looking to advance policies that are broadly acceptable to voters.

“The window of acceptability moves and changes over time. Squarely in the middle are the things that become policy,” Northcott said. “Most governments try to get right in the centre of the window because they’re serving all voters … In a way, that’s kind of what you would expect from a democracy.”

That leads us to the work environmental advocates can do to actually shift what’s inside the window of acceptability. In Northcott’s mind, that type of public engagement work is an entirely different kettle of fish than advocating directly for policy change.

Changing public opinion is absolutely vital to creating social change and requires a long-term strategy built around shared values. Doing that type of work requires a very specialized skill set all of its own.

“Advocates sometimes look to politicians to lead public opinion. In my experience, most of the time, politicians follow public opinion, rather than lead it,” said Brenda Eaton, who served as deputy minister to B.C. Premier Gordon Campbell.  “Sometimes you need the outside game to change public opinion.”

While there’s room for a variety of tactics to be used to advance environmental issues in Ottawa, it’s vital that environmental groups differentiate between those meant to alter public opinion and those meant to influence elected leaders directly — and put themselves in elected leaders’ shoes when trying to do the latter.

On that note, fewer than three weeks into their tenure, the Liberals deserve a bit of time to settle in, Dinning argued.

“They’re still looking for the cafeteria,” he said. “The big decisions need time.”

Image: Protestors during a 2009 President Obama visit to Ottawa. Photo by Mikey G Ottawa via Flickr.

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After years of refusal by the Conservative government, Canada is preparing to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) — a decision that could herald the beginning of a new era in relations between First Nations and the federal government.

In a mandate letter addressed to Minister of Indigenous and Northern Affairs Carolyn Bennett, Prime Minister Justin Trudeau requested the minister “renew the relationship between Canada and Indigenous Peoples.”

The first item on Bennett’s long list of to-dos is to implement the recommendations of the Truth and Reconciliation Commission, starting first with the implementation of the UN declaration.

Implementing the declaration is a big deal for Canada, one of only four countries to not only abstain from voting on the declaration, but to actually vote against it. (The other three are the U.S., which has signaled its intention to revise its position, and New Zealand and Australia, both of which reversed their positions in 2009.)

The declaration, first adopted by the UN in 2007 after 25 years of consultation and deliberation, is meant to “constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world.”

Collision of Resource Extraction and First Nations Rights and Title

The declaration, while signalling positive intention to work with First Nations, only lays out principles so it is unclear how it  will impact real decisions on the ground.

“It’s going to be interesting to see what the federal government chooses to move forward on the quickest,” Robert Janes, litigator and First Nations rights and title expert with JFK Law, told DeSmog Canada.

According to Janes, the declaration in an opportunity for the federal government to shift gears when it comes to engagement with First Nations.

“The UN declaration includes quite a bit of discussion around ensuring there are good self-government mechanisms in place — ensuring, for example, that First Nations are able to make internal decisions free from interference from other governments,” Janes said.

“But also that First Nations are given the necessary resources to implement self-government decisions and that they’re entitled to various social rights around services, education, health and general welfare.”

Addressing these concerns within First Nations communities is where the federal government could “make some very quick gains,” Janes said.

However there are some areas where federal involvement may conflict with provincial jurisdiction. Resource development is an obvious example, Janes added.

Janes, who is currently working with the Beaver Lake Cree in their fight against the cumulative impacts of the Alberta oilsands, said that case is a good example of the province’s influence over resources.

“Where it gets tricky…is with many contentious issues, for example, in resource development: respecting treaty rights within resource development, proper compensation for taking First Nations lands, trying to obtain free and informed consent before First Nations lands are developed and even identifying where First Nations lands are.”

Janes added that resource development is primarily a provincial issue and as such “it will be tricky for the federal government to move on those matters in a way that could possibly satisfy UNDRIP and at the same time deal with that division of power.”

“In any cases ongoing, including Beaver Lake, the federal government is as involved as the provinces in fighting the First Nations,” Janes said. “No doubt it has always offended First Nations that in every fight between the provinces and First Nations the Canadian government has shown up — not in a neutral position — but actively participating in defending the provincial government’s position.”

Implementing the UN declaration may give Ottawa the political cover to step back from these fights and occupy a more neutral position.

Janes added there is still a significant amount of room for the government to step into a more proactive role in defending First Nations rights and title.

“If they actually implemented many of those things in [minister’s] mandate, which will be hard — they’re not easy, and not cheap — but if they really started to address those few things, there are many First Nations who would view that as a fundamental change with the federal government “

Long Way to Go to Repair Relationships with First Nations

While a step in the right direction, Canada will have to go much further to truly repair relations with First Nations, according to Clayton Thomas-Muller, campaigner with 350.org and member of the Mathias Colomb Cree Nation, also known as Pukatawagan, in northern Manitoba.

“I think I share in the cautious optimism regarding the Liberal government’s announcement to ratify UNDRIP. I think it’s a bold step in right direction that carries with it the same spirit of the other symbolic actions the government has taken since it swept into power,” Thomas-Muller said.

Signing the declaration is “the bare minimum standard nation states need to adopt to have strong domestic relations with local indigenous populations,” he added.

However, the Liberal government’s support for oilsands expansion and building of pipelines is concerning, Thomas Muller said, especially where development of the oilsands conflicts with First Nations rights and title and Canada’s international climate commitments.

“There’s also concern about how Trudeau will respect the veto right of First Nations while supporting the expansion of tar sands and the building of pipelines,” Thomas-Muller said, adding that, according to Canadian law, it only takes one First Nation to stop a development project.

“Just because 30 out of 40 First Nations say ‘yes’ to a project doesn’t in any way undermine or take away the sovereign right of the other 10 who oppose it.”

“That’s how collective rights work. Each sovereign First Nation has its own sovereign-to-sovereign relation with the Canadian government that Trudeau has to treat in the exact same way.”

Thomas-Muller said at this point the Liberal government has a lot of work to do “to clarify how they will keep their election promises.”

“Now we get to the hard work where the Liberal government needs to lay out their 10-point methodology for how they aim to repair some of the polarity that exists in the discussion around the Canadian economy and indigenous rights and certainly how this relates to the issue of climate change.”

Clayton Thomas-Muller with Eriel Deranger of the Athabasca Chipewyan First Nation (left) and Melina Laboucan-Massimo of the Lubicon Cree Nation (right). Photo by Zack Embree.

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Residential school survivors, their families, indigenous and non-indigenous Canadians alike packed the ballroom of the Delta Ottawa hotel on Tuesday for the release of the Truth and Reconciliation Commission's (TRC) monumental report on 130 years of ‘Indian’ residential schools in Canada. 

“The eyes of the world and the gaze of history is upon us. What we do now and in the years ahead matters a great deal,” the commission’s chair, Justice Murray Sinclair, said during the report’s launch.

Six years of research and thousands of survivor testimonies led Sinclair and fellow commissioners Dr. Marie Wilson and Chief Wilton Littlechild to conclude residential schools were central to a century-long Canadian government indigenous policy that “can best be described as 'cultural genocide.'”

Beginning in the 1880s, more than 150,000 First Nations, Metis and Inuit children were removed from their families and forced into state-run and church-run schools where physical, emotional and sexual abuse was rampant and indigenous languages and cultural practices banned. The last school closed in 1996.

“There are words, stories, medicines that have been lost forever. We don’t even know the extent of what we lost and we’ll likely never know,” indigenous lawyer Caleb Behn said. Behn is Eh Cho Dene and Dunne-Za/Cree from Treaty 8 territory in northern British Columbia.

The commission’s report documents the crimes perpetuated against the children of residential schools and provides recommendations on how Canada can deal with the legacy of a racist policy designed to “kill the Indian in the child.”

“What the TRC has done is brought out the stories of survivors and awoken something deep and profound in our elders and our young people,” indigenous rights and oilssands campaigner Clayton Thomas-Muller told DeSmog Canada. Muller is a member of the Missinipi Ethinewak  (Big River Cree) in Manitoba.

The commission’s recommendations, 94 in total, are broad in scope and are intended to close the gap between indigenous and non-indigenous Canadians. If implemented by the federal government, the recommendations would bring changes to key policy areas such as education, healthcare and justice.

The recommendations could also change business-as-usual in the energy sector.

“There can be no true reconciliation until the fight for land and resources is resolved,” said Crystal Lameman, treaty co-ordinator and tarsands communications manager for the Amisk Sakahikan Nehiyaw or Beaver Lake Cree Nation in Alberta.

“Until then, we will never have true reconciliation or a relationship with Canada based on peace, friendship and sharing as outlined in the treaties,” Lameman told DeSmog Canada.

Implement UN Declaration on Indigenous Rights: Commission's Recommendation

The commission’s report makes multiple references to the United Nations Declaration on the Rights of Indigenous Peoples and recommends the internationally recognized document be the “framework” for reconciliation in Canada:

“The Commission therefore believes that the United Nations Declaration on the Rights of Indigenous Peoples is the appropriate framework for reconciliation in twenty-first-century Canada. Studying the Declaration with a view to identifying its impacts on current government laws, policy, and behaviour would enable Canada to develop a holistic vision of reconciliation that embraces all aspects of the relationship between Aboriginal and non-Aboriginal Canadians, and to set the standard for international achievement in its circle of hesitating nations.” (pages 243 -244 of the executive summary)

Canada was one of four countries to vote against the declaration in 2007 at the United Nations. Prime Minister Stephen Harper’s government had and has concerns the founding concept in the declaration of ‘free, prior and informed consent’ (FPIC) will undermine Canada’s sovereignty and ability to extract resources. 

“When does FPIC matter? Consent is an absolute necessity in a free and just society. We are not asking for the world here,” Behn said.

The declaration requires its signatories to obtain the free and informed consent of indigenous peoples “prior to the approval of any project affecting their lands or territories.” This notion alone could throw a wrench into the Harper government’s plans on transforming Canada into an oil and gas “energy superpower.”

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources. (Article 32(2) of UNDRIP)

Canada eventually signed the declaration in 2010, but has not made free, prior and informed consent part of federal policy. A private member’s bill by the NDP for implementing the declaration was voted down last month in Parliament.

Resource Extraction: “You Can’t Address Abuse While Abusing”

“Residential schools violated our bodies and souls. Inappropriate resource development violates our land and culture,” Behn told DeSmog Canada. 

“You can’t address abuse while abusing. You cannot address injustice while perpetrating injustice.”

Behn’s home in northeastern British Columbia is at the centre of the gas fracking bonanza featured in the documentary Fractured Land.

If there is one glaring common dominator between the crimes committed against the children of residential schools and the growing number of legal challenges mounted by Canada’s indigenous people against pipelines, mines and oil and gas developments, it is the lack of consent.

“Part of the colonial conquest and Canada's Indian Act was an attempt to eradicate the family, the most powerful element of indigenous worldview and cosmology,” Muller explains.

“Breaking up families to get indigenous peoples off the land were all part of this exploitation, and is the fundamental foundation of the current Canadian economic model.”

“Every Single Molecule of Us is Connected to the Land”

The Beaver Lake Cree Nation of Treaty 6 is locked in a major lawsuit with the governments of Alberta and Canada concering 19,000 oilsands and other energy projects on their traditional territory northeast of Edmonton. 

“The ongoing violation of nature through unchecked resource extraction is a violation to us. Every single molecule of us is connected to the land,” Lameman of the Beaver Lake Cree told DeSmog Canada.

The Beaver Lake Cree argue in their case that the ongoing environmental degradation of their traditional land violates their treaty rights to hunt, fish and trap. Furthermore, they did not consent to this infringement of their constitutionally protected rights.  

“This Moment Needs to be Used to Push a Social Movement”

Many Canadians will be pessimistic about the current federal government embracing the commission’s recommendations. After all, hasn't Canada been down this road before with the Royal Commission on Aboriginal Peoples less than twenty years ago? Its recommendations were largely ignored.

But as Justice Sinclair was quick to point out yesterday, the report was not written solely for Canada’s government today. It was written for the future.

"We've described a mountain and shown you the path to the top. We're calling on you to do the climbing," Sinclair said in his closing remarks.

“Reconciliation is not an aboriginal problem, it is a Canadian one. It involves us all.”

“This moment needs to be used to push a social movement with the moral authority of TRC’s recommendations, like the Idle No More movement which exploded in Canada under Harper,” Muller said.

Canadian political philosopher John Ralston Saul argues in his latest book that Canada’s indigenous people are growing in strength and influence after hitting an abysmal low that is most heinously epitomized by the residential school system. He writes:

“And yes, non-Aboriginals have a choice. We can go on allowing our governments and power systems and corporations to slow or attempt to stop or deform this return of the founding peoples to their proper place. Or we can learn to listen and to understand what is happening. And then we can ensure that we do not continue to be the problem.” (The Comeback, p.68)

“We might not see reconciliation in the next ten years but I guarantee we will see dramatic changes,” Muller told DeSmog Canada.

Image Credit: Derek Leahy, Fractured Land, We Are the Land, Clayton Thomas Muller via Flickr

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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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This is a guest post by Shiri Pasternak.

Recent revelations that the RCMP spied on Indigenous environmental rights activist Clayton Thomas-Muller should not be dismissed as routine monitoring. They reveal a long-term, national energy strategy that is coming increasingly into conflict with Indigenous rights and assertions of Indigenous jurisdiction over lands and resources.

A “Critical Infrastructure Suspicious Incident” report was triggered by Thomas-Muller’s trip in 2010 to the Unist’ot’en camp of Wet’suwet’en land defenders, where a protect camp was being built on the coordinates of a proposed Pacific Trails pipeline.

The Unist’ot’en clan continues to hold their ground along these GPS coordinates today. Not coincidentally, they are members of a nation that took its assertions of jurisdiction to the Supreme Court of Canada in Delgamuukw v. British Columbia in 1997, establishing in Canadian case law the underlying proprietary interest of Indigenous peoples to their unceded lands.

This confluence of Indigenous proprietary interests with a multi-billion dollar energy sector has informed the development of new security apparatuses, mobilized to defend private sector investment and national energy market ambitions. As Public Safety Canada notes, disruptions to critical infrastructure could lead to “adverse economic effects.”

The RCMP National Security Criminal Investigations (NSCI) unit currently focuses on three “critical infrastructure” sectors, among which are energy and transportation. The NSCI houses the Critical Infrastructure Criminal Intelligence Unit (CICIU), which runs the Suspicious Incident Reporting (SIR) system that first identified Thomas-Muller’s travel plans as a potential risk.

State surveillance of Thomas-Muller falls into a growing net of secret spying on Indigenous groups, leaders, and organizers who seek to uphold Indigenous peoples’ internationally recognized rights of free, prior, and informed consent on their territories.

One form of risk mitigation to keep energy sectors barrier-free and accessible to the flow of capital is to induce First Nations to cede jurisdiction over their lands through the land claims policy and other “non-treaty” agreements.

It is no coincidence that the Department of Aboriginal Affairs appointed Douglas Eyford in July 2014 as the Special Ministerial Representative to review the first update to the land claims policy in almost 30 years. Eyford was also appointed the Special Federal Representative commissioned to produce a report on facilitating agreement with First Nations regarding West Coast Energy Infrastructure in 2013.

But when Indigenous groups refuse to comply with such policies, pacification strategies like surveillance are put into effect to intimidate lawfully acting organizers and citizens. Keeping tabs on organizers like Thomas-Muller is one prong of a complex and powerful constellation of power between industry and government to ensure pipelines like Pacific Trails, and its nearby Enbridge Northern Gateway pipeline, will get built.

An Army of Complicity & Collaboration

As reported in The Guardian, information sharing between the Communications Security Establishment Canada (CSEC) and dozens of oil and gas sector companies shows an unprecedented degree of cooperation between parties. Corporations have been meeting bi-annually with federal government officials since 2005 to discuss security issues around critical infrastructure such as pipelines. At the request of the Ministry of Natural Resources Canada, companies like Enbridge have even footed some of the bill for these gatherings, receiving high security clearance in exchange.

In fact, as Dr. Tia Dafnos explains, the SIR system was established by NSCI to facilitate the exchange of information and intelligence among law enforcement, government agencies and private sector critical infrastructure owner-operators relating to threats to critical infrastructure.

Dafnos’ doctoral research in Sociology at York University examined the expansion of intelligence sharing relationships among police, government and owner-operators. The SIR is a web-based portal where critical infrastructure owners and operators, such as Enbridge, can access information through the system as well as contribute and report “suspicious incidents” relating to their infrastructure operations. As she explains, “The information provided by owner-operators is analyzed by the NSCI’s Critical Infrastructure Intelligence Team to produce intelligence for both law enforcement and owner operators to inform their operations.”

She notes that what is significant about the surveillance documents concerning Thomas-Muller is that the initial assessment by the intelligence analyst concluded that no “national security nexus” was found. What pressures existed for a senior officer at RCMP headquarters to override this assessment?

Dafnos states that this raises serious questions about how criminal investigations are triggered in Canada. It also raises critical questions about how groups and individuals become targeted as “extremist” threats. She said, “The implication of this designation is that, as these documents show, a group or individual can be targeted for more intensive investigation and surveillance.” Surveillance, then, can escalate into far more serious criminal targeting and defamation.

Indigenous Rights

The difference between other environmental activists and Indigenous peoples being monitored are the particular legal and historical rights associated with Indigenous relationships to the land.

When Indigenous assertions of jurisdiction over their lands are characterized as threats to critical infrastructure, the state is likely hazarding a claim over disputed lands. These sweeping state powers blatantly contradict recent Supreme Court of Canada decisions on Aboriginal rights and title.

As Thomas-Muller declares, “These movements, like the Unist’ot’en camp of Wet’suwet’en land defenders, are acting in defense of their jurisdiction. Since these are disputed territories, Canada is bringing in its intelligence agencies and army to clear us out. But the courts are delivering more clarity on these issues of territory, and our rights to unceded and treaty territories are much greater than the government lets on. They are still acting like cowboys, when those days should be long over.”

He finds particular issue with the hypocrisy of calling this surveillance necessary for national security. “Our movements are about justice,” he said. “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. This is an abuse of democracy. It is clearly about providing a right-of-way for the mining and energy sector.”

The new anti-terrorism legislation and Indigenous rights

Dr. Tia Dafnos, who has written extensively about the criminalization of Indigenous dissent, finds chilling the proposed anti-terrorism legislation, as wells as calls for further increases in police and intelligence powers in the wake of the shootings at Parliament Hill.

“This is significant in light of recent proposals to increase the investigative powers of the Canadian Security Intelligence Service (CSIS) as Indigenous activism has long been a matter of interest to the RCMP, CSIS and the Integrated Terrorism Assessment Centre. Although the recent proposal to increase CSIS powers has been couched in terms of addressing the ‘radicalization threat,’ investigative powers are not issue-specific once they are introduced.”

She notes that while the full extent of the bill has not been released, the designation of groups like the Indigenous Environmental Network (that Thomas-Muller worked for in 2010 at the time of the RCMP report) as “extremist” could make them susceptible to new investigative powers.

What should concern Canadians is how the concept of ‘national security’ is being hijacked to promote an energy agenda that promotes economic uncertainty, ecological risk, and the violation of Indigenous rights.

These are the wars at home and ordinary citizens have suddenly found themselves thrust onto the frontlines.

Shiri Pasternak is a writer and researcher based in Toronto and a Post Doctoral Fellow at Columbia University. She is an organizer with the Defenders of the Land network and the Anti-Colonial Committee of the Law Union of Ontario. Find more of her writing at ShiriPasternak.com.

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.

Organizers of the Tar Sands Healing Walk, a 14-kilometre spiritual walk through lands impacted by oilsands (also called tar sands) extraction in northern Alberta, have announced this year’s Healing Walk on June 28th will be the last.

“It was a difficult decision to make,” admits Jesse Cardinal, co-organizer of the Healing Walk. “We felt the original goals of the healing walk of letting local communities know that they had support for the issues of mass industry in the territory and gaining further attention of the issues of tar sands development in a way that was non-aggressive were achieved.”

“Our work will continue in the territory, with the people and communities, but, will look different, so I wouldn’t really call it an end, as a new beginning,” Cardinal told DeSmog Canada. Cardinal is a member of the Kikino Metis Settlement in northeastern Alberta.

The Healing Walk is the only grassroots event to bring people face to face with Canada’s oilsands, one of the largest oil reserves and industrial projects in the world. Participants in the annual event walk through the industrialized landscape, passing by active oilsands facilities releasing toxins into the air, chemical tailings ponds the size of lakes and a barren land in an otherwise lush and green region of Alberta's boreal forest.

But all this is secondary to the Healing Walk’s core theme: hope that the land, water and people drastically impacted by two decades of rapid oilsands extraction will one day heal.

Healing Walk is Not a Protest or a Rally

“We're not going out there for yet another protest, yet another rally. We're out there to be together, to heal, and those two things are very appealing in a context of seemingly endless struggle,” says Chelsea Flook, a Healing Walk organizer since 2010.

“[For participants] the focus on the space being primarily a healing space is a very strong draw,” Flook told DeSmog. Flook is originally from Ontario, but she is currently based in Edmonton and works for the Mother Earth Action Cooperative.

Organizers have been clear from the beginning that the Healing Walk is not a protest. No one shouts out political chants during the walk that takes place just north of Canada’s famous oil town, Fort McMurray. The only banner present is the one leading the procession with the words “Stop the Destruction. Start the Healing” painted on it.

Healing Walk procession in 2013. Photo by Zack Embree.

Instead, participants are led by First Nations elders along the so-called ‘Syncrude Loop’ (oilsands company Syncrude has an operation nearby) as they pray and make offerings in the four directions: north, south, east and west. To complete the loop on foot takes about six hours.

“Making prayers to the four directions woke up the spirit of the land, the water and the people. It has awoken a creative force within the people that will suffocate the destructive force that is the tar sands. That is a pretty powerful warrior to deal with,” says Clayton Thomas-Muller, MC of this year’s Healing Walk and Idle No More campaigner.

Clayton Thomas-Muller with Eriel Deranger of the Athabasca Chipewyan First Nation (left) and Melina Laboucan-Massimo of the Lubicon Cree Nation (right). Photo by Zack Embree.

The Healing Walk is a 3-Day Gathering: Workshops, Communal Meals, Camping

The two days prior to the actual walk have the outward appearance of festival. Tents cluster together (camping is free for participants) in a field on the shores of Lake Gregoire, also called Willow Lake. Communal meals and workshops covering a wide range of oilsands-related issues, from First Nations treaty rights to pipelines, take place at the campsite — an hour’s drive from the starting point of the Healing Walk at Crane Lake Park.

“You come as an individual but you leave as part of the whole which is part of the beauty of the Healing Walk,” says Thomas-Mueller, who is a member of the Missinipi Ethinewak or Big River Cree in Manitoba.

A participant of last year's Healing Walk. Photo by Zack Embree.

“This year, we are focusing mainly on local voices. Some of the people we have speaking, have never been heard of before, but are concerned about what is happening in the Fort McMurray indigenous territory. So more going back to being a grassroots event,” Cardinal says.

Local indigenous voices will include Matthew Whitehead, a traditional knowledge carrier from Fort Chipewyan, Annette Campre and a resident of Fort McKay, who will lead workshops on education and spirituality. The physician who first noticed and researched high rates of cancer among Athabasca Chipewyan First Nation members – Dr. John O’Connor –will speak as part of a health panel.

Last year’s Healing Walk attracted well over 500 people, the largest turnout thus far. Internationally known speakers such as 350.org founder Bill McKibben and author Naomi Klein were among them.

Naomi Klein speaking at last year's Healing Walk event. Photo by Zack Embree.

“At last year’s walk, I saw a fundamental shift in energy that let me know we have already won,” Thomas-Muller told DeSmog Canada.

Will the land ever heal? Organizers are optimistic

For many a ‘win’ for First Nations as well as non-indigenous Canadians over the oilsands industry is hard to see. Despite a few pipeline project delays – notably Keystone XL in the U.S. and Northern Gateway in B.C. – the oilsands industry has expanded rapidly and relatively unimpeded under the current federal government.

And yet Healing Walk organizers believe one day the land they have guided hundreds of people through over the last four years will heal.

“I do believe so, but not in my lifetime," Cardinal says. "The destruction is too big. But way down the road when our existence here is different, and more people have demanded an energy future that isn't destructive to the land, air, water and all living beings will we achieve harmony." Cardinal is a coordinator with the Keepers of the Athabasca, the main organizing group behind the Healing Walk.

A sign designates an industrial area under restoration. Photo by Zack Embree.

“It will take a couple of lifetimes for the land to recover, but a metamorphosis will take place and create new life. Indigenous people will be a part of this and those who do not follow their lead will be left behind. The circle of life will continue,” Thomas-Muller says.

Healing Walk organizer Chelsea Flook, who is not indigenous, believes the only way to get there and avoid the catastrophic effects of runaway climate change at the same time is to follow the lead of indigenous peoples.

“We need to take direction from indigenous communities, to honour their ways of knowing and being. It might mean some awkward dancing between worldviews, it might entail some moments of discomfort,” she says.

“But by supporting Indigenous communities' struggle to protect the land [in the oilsands], we can also fight back against the 'business as usual' plans of industry that entail a six-degree climate warming scenario,” Flook said.

Image Credit: All photos by Zack Embree.

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Hundreds, perhaps thousands of people from across Canada and the US will walk into the heart of tar sands country to be part of a spiritual gathering called the Tar Sands Healing Walk on July 5th-6th.

They will come face-to-face with the environmental destruction caused by the tar sands industry. Open pit mines, tailings ponds, industrial facilities and more dominate the landscape of the walk near Fort McMurray, Alberta.

The fourteen-kilometre Healing Walk is neither a rally or a protest. Organizers describe the event as a spiritual gathering focused on healing the land, air, water and all living things harmed by the relentless expansion of the tar sands industry.

“Protests, rallies, marches are all good and necessary, but we felt like people needed something more spiritual. Something to create or strengthen a connection to the land,” says Jesse Cardinal, co-organizer of the Healing Walk.

As the international movement to stop the tar sands has grown, the Healing Walk has also grown since its birth four years ago. In its inaugural year the Healing Walk was a one-day event with one hundred participants. Hundreds and very possibly thousands will come to this year's two-day event that includes workshops, ceremonies, internationally-renowned guest speakers and the walk.

Organizers anticipate the 4th Tar Sands Healing Walk to be the largest event yet.

“First-time participants of the Healing Walk need to prepare themselves for an emotional journey,” Cardinal told DeSmog Canada.

This year's Healing Walk is attracting big name speakers such as 350.org founder Bill McKibben, author Naomi Klein, and co-founder of Idle No More Sylvia McAdam.

Invitations have been extended to Alberta premier Allison Redford and federal Natural Resources Minister Joe Oliver to attend. Thus far neither have accepted the invitation.

“We want people to have an understanding of the scale and size of the tar sands industry, but we also want people to leave with a sense of hope for renewal,” says Cardinal.

Cardinal is also the coordinator of the Keepers of the Athabasca, an alliance of First Nations, Inuit, Metis, environmental groups and other concerned citizens advocating effective stewardship of the Athabasca River and Athabasca Lake Watershed. The Keepers of the Athabasca have been the main organizer of the Healing Walk from the beginning.

The Healing Walk will begin with a pipe ceremony at Crane Lake, north of Fort McMurray. First Nations elders and ceremony people will lead participants on the 14-kilometre journey through existing tar sands operations, and tailings ponds. The Athabasca River is less than ten kilometres from these industrial sites that spew toxins into its waters. Prayers for the land will be made along the way.

First Nations tar sands campaigner Clayton Thomas Muller in a recent article recalled being struck by scenes of vast deserts of wet and dry tailings ponds and industrial facilities that could have been straight out of a science fiction novel on his first Healing Walk.

A campsite is available for participants planning on staying over night and some catering will be provided by the organizers. Meet and greets as well as workshops on pipelines, First Nations cultures and tar sands impacts will take place the day before the Healing Walk. A feast and closing ceremony will conclude the event.

The Significance of the Fourth Healing Walk

Four is a significant number in many indigenous cultures. There are four seasons. Four directions. Four parts to life (mental, spiritual, emotional and physical).

“The fourth Healing Walk is significant because it indicates the ending of one cycle and the beginning of another,” explains Cardinal, who is Metis and a member of the Kikino Metis Settlement in northeastern Alberta.

Coincidentally, four organized cross-country treks will arrive in Fort McMurray to participate in the Healing Walk. Two groups are travelling from the US. A third group is coming from British Columbia.

The fourth and longest trek will be made by Dion Tootoosis who left traditional Mi'kmaq lands in Nova Scotia on June 12th and will bicycle over 5000 kilometres to reach Fort McMurray in time for the Healing Walk.

Tootoosis, from the Poundmaker Cree Nation of Saskatchewan, says he wants his journey to inspire conversations about natural resource extraction in Canada, particularly the tar sands, and stimulate discussions about solutions.

“I believe that the answer to the Alberta tar sands, and other locations across Canada where natural resources are being exploited, lies within the people of this country. Only a people know what is best for their community,” says Tootoosis in a statement.

Image Credit: Kris Krug via flickr

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