Alberta’s anti-protestor bill suppresses democracy and violates treaties, say critics

Canada’s laws have long been used against Indigenous Peoples

Critics are warning that a bill introduced by the Alberta government to impose large fines and prison time on people participating in blockades or protests that interfere with “critical infrastructure” suppresses democracy and violates treaties.

Austin Mihkwâw, a Samson Cree activist from Treaty 6 territory, says many of the industrial megaprojects that have and would be targets for civil disobedience are already violations of legally binding treaties, which did not entail surrender of the land and only allowed for its use “to the depth of a plow,” for example.

Indigenous sovereignty and title underlie the recent surge in blockades and protests.

The bill, introduced by Jason Kenney’s United Conservative Party on Tuesday, stipulates that no one shall “enter on” or “interfere” with critical infrastructure “without lawful right, justification, or excuse.”

“What do you define as justification?” asks Mihkwâw. “Protecting the water? Protecting the children? Protecting the future?”

While actions like railway blockades are already illegal under federal law, the Alberta bill allows for arrest without warrant. It also adds additional penalties, such as fines of between $1,000 and $10,000 for a first offence, and up to $25,000 for each subsequent offence. On top of fines, individuals may face six months in jail.

Bill follows weeks of solidarity actions

The new legislation comes after weeks of solidarity actions with the Wet’suwet’en hereditary chiefs opposing the presence of pipeline company Coastal GasLink and the RCMP on their territory in northwestern B.C. People across the country have blockaded rail lines, ports, highways, and government buildings.

Premier Kenney blamed the recent decision of Teck Resources Ltd. to withdraw its application for the $20-billion Frontier oil sands mine on what he called a “general atmosphere of lawlessness” created by acts of civil disobedience — actions he also said are keeping Indigenous communities from moving from poverty to prosperity through resource development.

But Mihkwâw says the premier’s concern for Indigenous communities is not genuine.

“Jason Kenney has no right to act like he cares about the bands or Indigenous people,” he says.

The infringement on freedom of expression, freedom of assembly, and Indigenous title are all reasons the proposed law could be found unconstitutional.

Provincial and federal governments are only interested in Indigenous communities when they find it serves their purposes, and “the only time Indigenous sovereignty is acknowledged is through the colonial states they created,” he says, referring to the elected band council system imposed on First Nations through the Indian Act.

Indigenous sovereignty and title underlie the recent surge in blockades and protests. In the landmark 1997 Delgamuukw v. British Columbia decision, the Supreme Court of Canada affirmed the existing right of the Wet’suwet’en Nation to the “exclusive use and occupation” of their traditional lands, a right the hereditary chiefs are demanding be upheld through the removal of the RCMP and Coastal GasLink from their territories.

“You see these levels of civil disobedience because that’s a necessary way for them to advocate for their rights and themselves as well,” Mihkwâw says, adding that communities often fail to find justice through the Canadian legal system.

“The side of the law has never been on the side of Indigenous people,” he says, and throughout Canadian history are examples of profoundly unjust but legal measures such as the Indian Act and the residential school program.

Constitutional issues

The Alberta bill defines essential infrastructure broadly to include refineries, pipelines, mines, railways, highways, dams, waterways, communications systems, electric utilities, farms, and any land used in connection with said infrastructure. In addition to this extensive list, the bill allows for the provincial government to designate “buildings, structures, devices or other things as being essential infrastructure.”

This conflates public and private property, an important distinction when talking about Charter rights such as the freedom to peaceful assembly. Further, the bill could be used to clamp down on dissent by having the site of a protest declared to be “critical infrastructure.”

Though Kenney’s assertion that “urban green left militants” were responsible for Teck’s withdrawal doesn’t appear to be credible — the company cited regulatory uncertainty and economic concerns as the principal reasons — his rhetoric was no doubt successful in stirring up further animosity towards Alberta’s growing social and climate justice movements.

His government is relying on this divisive and antagonistic narrative that protesters are responsible for lost jobs to justify the need for sweeping penalties.

“Bills like this are deliberately designed to suppress democratic participation in our communities, and I think it’s truly abhorrent that the government is passing laws like this,” says Robert Miller of Extinction Rebellion Edmonton.

The infringement on freedom of expression, freedom of assembly, and Indigenous title are all reasons the proposed law could be found unconstitutional. The constitutional merit of the law, however, likely cannot be challenged until someone is arrested and charged under it — a condition Miller says many people would be happy to bring about.

“I think that there is going to be an appetite in our community, and even myself personally, to try and embarrass the government by getting willfully arrested, just to be able to have the standing to challenge them in court and demonstrate from a legal backing that it is unconstitutional.”

Unist’ot’en camp next in line as RCMP injunction enforcement continues

(A parked RCMP vehicle in Smithers, B.C. Photo: APTN file)

The Unist’ot’en camp may be next as the RCMP enforces an injunction against Wet’suwet’en hereditary chiefs and their supporters on the Morice West Forest Service Road in British Columbia.

Twenty-one people have been arrested at the time of writing.

“6 persons were arrested on Thursday morning. These persons were arrested at the 39.5 km mark all have been released from custody, without charges or conditions. 4 more persons were arrested at the 44km mark on Friday, and 11 were arrested on Saturday after the exclusion zone had been pushed back to the 4km mark after blockades and items placed on the road damaging police vehicle tires,” Cpl. Chris Manseau, an RCMP communications officer, explained by email.

Federal police spent the last four days moving down the road arresting people and dismantling obstructions at the 27, 39, and 44 kilometre points on the road so Coastal GasLink (CGL) can build a $6.6-billion liquid natural gas pipeline through the territory.

The completed project would carry fracked natural gas to Kitimat on the coast, where it would be exported to markets in Asia.

Hereditary chiefs representing the five Wet’suwet’en clans oppose the project, but all elected Indian Act governments have signed agreements that express support.

The next site on the RCMP’s path is the Unist’ot’en camp at the 66 kilometre mark.

On his way to the four kilometre mark, Hereditary Chief Smogelgem, also known Warner Naziel, discussed the raids.

“There was a lot of violence that happened on our front lines, violence that came from the state. Our people have been peaceful the entire time,” he said.

On Sunday, the camp reported officers and industry approaching as well as a helicopter flying over at 11:00 am PST.

Unist’ot’en Camp@UnistotenCamp

We have reports of a large convoy of RCMP and industry working up the road from @Gidimten toward . 2 bulldozers, 1 plow, 2 large cats, 1 large white RV, 1 ambulance, 7 pickups.

Manseau said another press release was coming, but this was not received by publication time.

On Saturday, Unist’ot’en camp released a statement on Facebook calling for the RCMP not to evict people from the healing centre, which is a main component of the camp.

“Even under colonial law, the RCMP cannot enter or search our Healing Centre without a warrant,” the statement said.

“People living and receiving treatment there are not in violation of CGL’s injunction, nor is the Healing Centre itself in violation of the injunction. The Healing Centre exists to support the self-determination and healing of our people and is unrelated to CGL’s work and the injunction.”

In a Saturday update, police said officers arrived at Unist’ot’en by “alternative means of travel” because support beams on the Lamprey Creek Bridge “appear to have been cut.”

Police said they are launching a criminal investigation into the matter. APTN is unable to independently verify the damage to the bridge.

The RCMP said officers were at the camp to “facilitate conversation,” but left an hour later after this was unsuccessful.

Watch: those who were arrested speak out

Freedom of the press

Due to an exclusion zone established at the 27 kilometre mark, few media are present to document the enforcement. Harsh criticism ensued when reports emerged that police threatened to arrest journalists observing the raid.

Journalists were not arrested. They were detained, forced to relocate against their will, and prevented from documenting police conduct.

“Throughout the enforcement of CGL’s injunction, media and legal observers were illegally corralled and threatened with detention and arrest for doing their jobs,” said Unist’ot’en camp in the release.

The Canadian Association of Journalists (CAJ) issued a statement calling on media to “continue to document police interference and misuses of power, including noting names and badge numbers.”

“Yesterday the RCMP promised to respect media rights, but today they continue to abuse their powers and blatantly disregard the law in a way that is previously unheard of in Canada and unthinkable in a democratic country,” said president Karyn Pugliese in the Saturday release.

The B.C. Civil Liberties Association said it too was “alarmed.”

“We emphasize that even in areas where injunctions are being enforced, the courts have upheld the constitutionally-protected freedom of the press” the organization said in an open letter Thursday.

Unist’ot’en camp’s statement also criticized “use of excessive force by the RCMP, including the unnecessary use of heavily armed tactical teams deployed by helicopters to surround Gidimt’en camp at 44 km, use of snipers, and deployment of K9 units.”

RCMP’s account differs. Police said that, despite the large deployment of officers, “a minimal amount of force was required to support the arrests or removal of individuals from within the exclusion zone.”

APTN asked Manseau to comment on this discrepancy, but he did not respond.

‘Not a protest or demonstration’

On its website, Unist’ot’en camp says it’s “not a protest or demonstration,” but rather a reoccupation of traditional Wet’suwet’en territory.

It claims to be an assertion of “jurisdiction and our inherent right to both give and refuse consent” under precolonial governance systems.

These traditional systems are complex.

The Wet’suwet’en Nation consists of five clans and 13 house groups. There are six Indian Act bands, five of which have signed on to the pipeline.

The feast hall, or potlatch, is the primary institution of governance. It’s where decisions are made and the investiture of hereditary titles takes place.

Under the traditional system, certain hereditary titles confer exclusive territorial rights to the title holder, according to anthropologist Antonia Mills.

Mills was hired by Wet’suwet’en hereditary chiefs in the late nineties to study their traditions and offer expert testimony as part of the case commonly called Delgamuukw.

She argued that some titles are over 5,000 years old.

For instance, Goolaht is “among the world’s oldest recorded continuously held titles to confer exclusive property rights,” she wrote.

Read more:

RCMP move in on Wet’suwet’en territory in early morning raid

‘We’ve got a real divide in the community:’ Wet’suwet’en Nation in turmoil

The Delgamuukw case concerned the question of Aboriginal title.

However, B.C. Supreme Court rejected Mills’s evidence and the evidence of Wet’suwet’en and Gitxsan chiefs.

In 1991, Judge Allan McEachern ruled Aboriginal title had been extinguished.

The Supreme Court of Canada disagreed. The high court said that Aboriginal title is an ancestral right protected under Section 35(1) of the Constitution. However, a new trial was ordered. It never took place.

Wet’suwet’en have never signed a treaty or ceded their territory to the Crown.

The hereditary chiefs say, under Wet’suwet’en traditional law, the pipeline requires their permission, which they have no plans to grant.

This has created division within the Wet’suwet’en Nation, since five elected governments have signed benefit agreements supporting the project.

APTN has spoken with community members who support the project because of the economic benefits it promises, though the numbers for and against the pipeline are not altogether clear.

When Justice Marguerite Church granted the injunction, she said that even if Wet’suwet’en law did impact Canadian law, it wasn’t clear to her if Wet’suwet’en law had been followed or not.


Tsilhqot’in First Nation opens B.C.’s largest solar farm

The project, which will generate enough energy to power 135 homes and $175,000 in annual revenue, is being celebrated as an important milestone in the nation’s economic independence

Chief Russell Myers Ross

There were times over the last five years, when Chief Russell Myers Ross wondered whether his dream of creating a solar farm would ever become a reality.

There were studies and more studies, funding applications, community discussions and back and forth talks with BC Hydro and the provincial government. Then there were little hitches, such as deciding on the Riverwest Sawmill site, 80-kilometres west of Williams Lake, and then discovering that one parcel was partially owned by another company.

“We had to find a way to make it 100 per cent our ownership … It took $80,000 to sort of buy them out,” Myers Ross said.

Once construction started, with apprentices from the six Tsilhqot’in communities learning the trade, the weather refused to cooperate, even though the Chilcotin is among B.C.’s top five solar hotspots. Instead of the expected sun, torrential rains brought monsoon conditions to the area in July as construction workers tried to lay cables in muddy trenches.

“You feel like it’s never going to be done,” said Myers Ross, vice-chair of Tsilhqot’in National Government and chief of Yunesit’in First Nation.

Tsilhqot’in Solar Farm

The Tsilhqot’in Solar Farm. Photo: EcoSmart

Project granted 25-year power purchase agreement with BC Hydro

Last month the 3,456 panel solar farm held its grand opening and is now waiting for BC Hydro to complete the hookup so power from the sun can flow into the grid.

The Tsilhqot’in company that oversaw the project, Dandzen Development Corporation, has a 25-year electricity purchase agreement with BC Hydro.

Susie Rieder, BC Hydro spokesperson said there is not yet a firm date for “completion of the interconnection process.”

The solar farm is one of five shovel-ready projects with “significant Indigenous Nations involvement” approved last year as part of a benefit agreement with BC Hydro. The program was suspended indefinitely when, following approval of the Site C dam on the Peace River, the province ordered BC Hydro to reconsider its power procurement policies.

Myers Ross is happy that the Tsilhqot’in project squeezed in under the wire and, even without the final connection and despite the construction challenges, he is breathing a sigh of relief.

“This is a really rewarding one for me personally,” he told The Narwhal.

Russell Myers Ross Tshilquot'in National Government

Chief Russell Myers Ross. Photo: Tsilhqot’in National Government / Facebook

“This is the first project to generate our own source of revenue for our Tsilhqot’in organization and the community, which is significant for our overall goal of self-sufficiency,” he said.

The solar farm, with panels lined in 216 sections on a two-hectare site, will provide 1.25 megawatts, creating 1,500 megawatt hours of power annually, which is enough to power about 135 homes.

The project is expected to generate about $175,000 a year in annual revenue.

“It’s not a big moneymaker. It is sort of modest, but it gets us on our way. It’s a big accomplishment and it is one of the first building blocks to getting revenue and being able to use the money where we want to allocate it, with no strings attached,” Myers Ross said.

Project entirely Indigenous owned and operated

The project is the largest solar farm of its kind in B.C. and the only one that is 100 per cent owned and operated by a First Nation.

The final result is “pretty impressive,” said Gabe Pukacz, a Yunesit’in councillor and construction manager for the project.

Specialists and companies familiar with solar installations, such as EcoSmart, were hired to help with technical aspects, but many of the skills were learned by the on-the-ground workers as the job progressed, Pukacz said.

“It was pretty good. The workers made life easy … All my labourers were Tsilhqot’in,” he said.

Now, everyone is waiting for the hookup. Pukacz said.

“It will be interesting to find out what the capabilities of producing power will be during the least efficient sunlight hours in November,” he said.

‘A huge economic win for our nation’

Chief Joe Alphonse, Tsilhqot’in National Government tribal chair, hopes the solar farm inspires other Indigenous communities — in Canada and around the world — to look at clean power opportunities.

“Energy and electricity has been lacking in the territory for a long time, despite one of the longest stretches of hydro in Canada, so we welcome the opportunity for business and to improve the well-being of our people,” Alphonse said in a news release.

Chief Joseph Alphonse

Chief Joe Alphonse of the Tl’etinqox Nation stands outside the band office in Anaham, B.C. Photo: Louis Bockner / The Narwhal

In B.C., Indigenous led solar projects include plans by the Upper Nicola Band for a huge solar farm on the Quilchena Reserve and the T’Souke First Nation on Vancouver Island that has been providing solar power to homes on the reserve for more than a decade.

Even with power expected to be generated by Site C, there is increasing evidence that more renewable energy sources will be needed as B.C. makes the transition to clean energy. A University of Victoria study, released this week, found that in order to electrify transportation, which produces one third of the province’s greenhouse gas emissions, the province will need to generate up to 60 per cent more electricity.

In a move in that direction, the provincial government announced this week that, as part of its CleanBC program, $16.5-million will be available to remote, diesel-dependent communities to help with capital costs of renewable electricity projects. Most of the communities eligible to apply for Renewable Energy for Remote Communities funds — which are available through Coast Funds and the Fraser Basin Council — are Indigenous and off-grid.

For the Tsilhqot’in and others living in the surrounding area, the solar farm will beef up the weak 250-kilometre power line that runs from Williams Lake to Tatla Lake, which has prevented some industries from locating to the area and has forced some businesses to partially rely on diesel generators.

Other projects may follow as the Tsilhqot’in Nation Government is currently creating a clean energy plan, looking at the territory and considering what might be available from micro-hydro, geothermal and biomass.

The push for economic independence comes in the wake of the 2014 landmark title case, when the Supreme Court of Canada ruled that the Tsilhqot’in hold Aboriginal title to about 1,750 square-kilometres of land.

Tsilhqot'in solar farm

The Tsilhqot’in solar farm on the former site of the Riverwest Sawmill, 80-kilometres west of Williams Lake. Photo: Kai Nagata

Other economic development projects under consideration include boosting tourism in Xeni Gwet’in, a mobile concrete batch plant to help with housing and infrastructure construction and a chip mill.

The need to look for new avenues of revenue that fit with Indigenous culture and traditions has been underlined by the Tsilhqot’in in light of crashing caribou populations, lack of salmon and hunting restrictions on moose following the 2017 wildfires that saw wildlife populations reduced or moving to other areas.

“The solar farm is a huge economic win for our nation,” Alphonse said. SOURCE

Trans Mountain and the Honour of the Crown: Indigenous legal challenges, round two

First Nations announce a new round of TMX legal challenges (Photo: Eugene Kung)

August 21, 2019

The federal cabinet’s re-approval of the Trans Mountain Pipeline and Tanker Expansion Project (“TMX” or “the Project”) on June 18, 2019 was hardly shocking news. After all, federal cabinet ministers have been saying for years that ‘the pipeline will be built.’ They even spent $4.5 billion of public money to bail out the project when pipeline company Kinder Morgan decided to abandon it.

The only surprises – sad ironies really – were the fact that the approval came just hours after the federal government declared a climate emergency, and the Prime Minister’s paradoxical definition of free, prior and informed consent as described in the press conference following the approval.

Predictably, the second round of approval faces a second round of legal challenges. According to the Federal Court of Appeal Registry, twelve parties have applied for leave to judicially review the cabinet approval, including eight First Nations, two environmental groups, the City of Vancouver, and a collective of youth climate strikers.

In the first round of lawsuits, six First Nations, environmental groups and municipal governments challenged the original 2016 approval at the Federal Court of Appeal (FCA), and won a decisive victory in August 2018 (the Tsleil-Waututh case). That decision quashed the approvals, and sent the Project back for a redo of the National Energy Board review and constitutionally-required consultation with impacted Indigenous peoples.

We have reviewed thousands of pages of legal documents to provide the following highlights from the applications to the court. In this post, we’ll start by reviewing the timeline of events since the Tsleil-Waututhdecision and provide an overview of the law on consultation. Next, we highlight some of the overlapping key arguments from the eight First Nations Applicants, followed by a few specific examples from each Nations’ pleadings, starting from the west and heading east.


Chiefs Announce National Day of Action Against Canada’s Termination Agenda

Canada continues to ignore First Nations’ land and inherent rights by pretending to have support for it’s 1969 white paper policy and pretending that the AFN speaks for First Nations’ peoples. As Canada shovels money and promises to the AFN while squeezing Indigenous communities, the Trudeau government’s policy of deception provokes a National Day of Action.

Image result for Okimaw Henry LewisChiefs, activists vow to fight what they call Trudeau’s ‘White Paper 2.0’ plan

Okimaw Henry Lewis stated, “Canada must STOP hidden agendas with First Nations.”

Treaty No. 6, 7 and 8, MASKWACIS, AB, May 6, 2019 /CNW/ – The Chiefs of Sovereign and Treaty Nations have consistently told Canada, “Nations don’t make laws for other Nations”.  Despite numerous attempts to work with the Federal Government, Canada continues to unilaterally develop laws and policies without our right to free, prior and informed consent.  “As sovereign Nations, treaty and title holders, I refuse to allow Canada to continue on with its genocidal laws and polices that are deliberately created to destroy our Nations and peoples.  No outside government will tell me how to exercise my Nations international right to self-determination in our sovereign treaty territory,” stated Alexander First Nation, Chief Kurt Burnstick.

Although Minister Bennett announced last week that Canada would not proceed with replacing the land and inherent rights policies that threaten our rights, the Chiefs of Sovereign and Treaty Nations are announcing the launch of a National Day of Action in the coming weeks to stop Canada’songoing termination agenda.  “Canada has never stopped trying to implement their 1969 white paper policy which is meant to domesticate our international Treaties, turn us into municipalities and remove us from our lands.  We must stand in unity as Chiefs and peoples to fight off this agenda for our children and future generations,” stated Onion Lake Cree Nation Okimaw Henry Lewis.     MORE


Image result for two-row wampumIn our canoe we have all our laws, culture, and beliefs and in your vessel you shall have all your laws, culture, and beliefs, traveling side by side through life as equals never enforcing or interfering in each others affairs as long as the sun shall shine the grass shall grow and the rivers shall flow this will be everlasting.

…It is beyond dispute that at the time of contact Indigenous Nations were politically independent and governing themselves under there own laws. When sovereignty’s synonyms are considered, words such as jurisdiction, power, authority and control are found. I would argue that, since the Supreme Court of Canada has required a First Nation claiming Title to show ‘exclusive possession” which is jurisdiction and control, then that First Nation would also prove their Sovereignty.

Finally, International Law requires that Nation States must not interfere with the internal affairs of other Nation States. To do so would be a violation of recognized sovereignty.

The concept of sovereign non-interference is not exclusive to modern International Law. This concept has been foundational to the initial relationship between European newcomers and Indigenous Nations. Treaties were forged on this concept, most notably the Two-Row Wampum covenant that makes clear the principle of non-interference and mutual respect are the foundation of every Treaty. The principle of ‘non-interference’ is a necessary component of the International legal understanding of Sovereignty.

Why Exert Sovereignty?

The need to exert sovereignty by Indigenous Nations flows from the Colonizer’s assertion that the Crown became sovereign over all the lands and peoples living upon Turtle Island at “Discovery”. The Doctrine of Discovery and the concept of terra nullius meaning – ’empty land’ are the legal foundations upon which European Crowns made pompous claims of sovereignty over Indigenous lands and populations. The Courts have used these doctrines and principles and upheld them to find in favour of the Settler State. MORE

Glavin: Pipeline protests – how politicians got it all wrong

Alex Spence, centre, who is originally from Haida Gwaii, beats a drum and sings during a march in support of pipeline protesters in northwestern British Columbia, in Vancouver, on Tuesday. DARRYL DYCK / THE CANADIAN PRESS

There may be no right way to do fossil-fuel megaprojects at all anymore if we’re going to have a hope in hell of meeting our 2015 Paris Climate Accord commitments, but as far as the massive LNG Canada Kitimat plant and pipeline project goes – with the showdown this week on a remote British Columbia backroad that immediately escalated into protests and marches and sit-ins across the country – the politics, promises and planning seem to have gotten just about everything wrong.

It’s the aboriginal rights and title of the Wet’suewet’en people that are at stake here, and that’s the subject that the federal Liberal government, and B.C.’s NDP government, are trying to avoid.

You could start with the way Prime Minister Justin Trudeau cheered LNG Canada’s announcement last October that the green light LNG got from B.C’s NDP government meant full steam ahead for its long-planned $40 billion project, which is to include a new pipeline from Dawson Creek in the Peace River country to a liquifaction plant and export facility at Kitimat on the B.C. coast. MORE