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‘Rule of law’ racism, C-51 and the coming resistance wave

Roger’s note: “The times they are a changin’ … and a hard rain’s gonna fall.”  Prophetic words of Nobel laureate Bob Dylan written and sung over a half century ago.  The words of Matthew Berhrens, written with respect to Canada but applicable on a world-wide basis (and to the United States in spades), are prophetic for us today.  Like it or not, we live in an age where civil resistance is our only hope for the survival of the human race and the planet we inhibit.

January 19, 2017


Photo: Chris Yakimov/flickr

Chris Yakimov/flickr

It’s a sign of how utterly they are afraid of democracy when politicians and pundits start lecturing us about the “real” definition of civil disobedience. This usually happens during the sanitizing rituals of the January Martin Luther King Day holiday, when King’s revolutionary calls to justice are erased in favour of saccharine, self-congratulatory events wholly unconnected to the civil rights movement’s multiple, powerful legacies.

But public cautions around “acceptable” forms of dissent began hatching in late 2016 when the Trudeau government announced support for a slew of harmful pipelines that, along with other environmentally destructive projects like B.C.’s Site C and Muskrat Falls, will inspire increasing levels of direct action.

When Natural Resources Minister Jim Carr promised business leaders that the Canadian military would be called out to crush land and water protectors resisting the Kinder Morgan and Line 3 tar sands pipelines, the message was clear: “rule of law” must prevail. Trudeau reinforced the same message in December while visiting B.C., where he declared in response to promised actions to physically impede pipeline construction: “But we’re a country of rule of law. We’re a country where we have processes for consultations. We have regular elections. We have ways of protesting to make your feelings heard, and that is all par for the course and that will happen.”

In the style of the Trudeau listening tour, he dismisses people’s actions to stop the devastating impacts of climate change — actions underscored by extensive scientific documentation — by reducing it all to “feelings.” His insistence that “we have ways” of protesting is the tired old line promoting protest-by-permit that fails to threaten the status quo institutions that approve or deny said permits.

Meanwhile, scribes to power like Postmedia’s Andrew Coyne try to whitemansplain what Martin Luther King and other civilly disobedient resisters REALLY meant all those years ago when they were going to jail for justice. “It was one thing for Gandhi to have adopted this tactic against the British occupation, or Martin Luther King against the racial injustices of the Deep South. It is quite another to deploy it against a pipeline expansion, as duly authorized by the institutions of a democratic society,” he writes.

But what Coyne refuses to see, and Trudeau blithely dismisses, is the fact that pipelines and other energy megaprojects are very much rooted in the very structures that Gandhi and King, among millions of others, were also resisting: racism, settler-colonialism, capitalism and institutional processes that fail to meet the democracy test.

‘Innocent bystanders in great act of folly’

Just before the 2015 Paris summit, at which Canada’s Environment Minister Catherine McKenna spent $6,600 on photography, Fiji Prime Minister Frank Bainimarama noted, “We in the Pacific are innocent bystanders in the greatest act of folly of any age. Unless the world acts decisively in the coming weeks to begin addressing the greatest challenge of our age, the Pacific, as we know it, is doomed.” In remarks that could apply to McKenna, who now calls herself an economics minister as well, Bainimarama declared that: “The industrialized nations are putting the welfare of the entire planet at risk so that their economic growth is assured and their citizens can continue to enjoy lives of comparative ease. All at the expense of us in low-lying areas of the Pacific and the rest of the world.”

That call to responsibility was echoed in the Pope Francis encyclical Laudato Si (“On Care for Our Common Home”), which concluded:

“We are faced not with two separate crises, one environmental and the other social, but rather with one complex crisis which is both social and environmental. Strategies for a solution demand an integrated approach to combating poverty, restoring dignity to the excluded, and at the same time protecting nature…. The effects of the present imbalance can only be reduced by our decisive action, here and now. We need to reflect on our accountability before those who will have to endure the dire consequences.”

The science has long been in: expansion of the Alberta tar sands, and continuing to extract and burn fossil fuels, is a recipe for climate disaster whose first victims are Indigenous peoples. In many respects, new pipelines are the delivery vehicle by which whole peoples are placed at lethal risk. But Trudeau’s Liberals, who proclaim their love of science, nonetheless prefer to ignore the findings, including those contained in a secret briefing to Indigenous Affairs Minister Carolyn Bennett informing her that climate change catastrophic events continue to worsen and disproportionately affect Indigenous peoples.

As climate change activist Bill McKibben points out, every day, human-created greenhouse gases “trap the daily heat equivalent of 400,000 Hiroshima-size explosions. That’s enough extra heat that, in the space of a few decades, we have melted most of the summer sea ice in the Arctic.” McKibben notes that this is no secret to the biggest fossil fuel profiteers, like Exxon, which actually designed their ocean drilling rigs to accommodate the coming rise in sea levels that they have known about for decades but publicly denied.

While there was some optimism following the Paris climate conference of 2015, The Nation’s Mark Hertsgaard noted:

“Even if the largely voluntary provisions of the Paris agreement are fully implemented, literally tens of millions of people in poor and vulnerable regions such as Bangladesh, the Marshall Islands, and much of Africa and Asia are being doomed to homelessness, impoverishment and death, with children predicted to bear the brunt of the suffering. That such a heartless future is applauded as success in the Global North only reminds us how tragic, indeed criminal, it is that fossil-fuel interests and the politicians they buy have blocked serious climate action for the past two decades.”

The acceptance of such racial extermination via climate disaster is painfully rationalized by Global North arguments that jobs and the economy must be “balanced” with the needs of the planet. The Pope may well be addressing Trudeau and McKenna when he warns in Laudato Si of the:

“[r]ise of a false or superficial ecology which bolsters complacency and a cheerful recklessness….It is not enough to balance, in the medium term, the protection of nature with financial gain, or the preservation of the environment with progress. Halfway measures simply delay the inevitable disaster.”

Marketizing cancer

Measures such as “cap and trade” and carbon taxes — what Pope Francis calls “a ploy which permits maintaining the excessive consumption of some countries and sectors” — are nothing less than indignities committed upon a dying planet and all life forms struggling to survive on it. Substitute another word and the malignancy of the concept becomes apparent. To wit: gather those countries currently involved in committing acts of torture, give them torture credits, and when they have reached their annual quotas, they can buy and sell their credits on the international torture market or, instead, pay a tax-deductible fine (the cost of doing business) should they run over their torture quota.

The torture analogy is apropos given that tar sands, fracking and other extractive practices are torturing the earth, whose response is the fury of catastrophic climate change. Ontario’s cap-and-trade has been criticized by the provincial environment commissioner because it allows for the outflow of hundreds of millions of dollars from Canadian polluters who will buy cheap California pollution credits, all the while those pollutants will continue to despoil the air, land and water.

In this respect, the proposed solutions of “cap and trade” and carbon credits mask what is truly being constructed: a cancer market in which untold millions pay the ultimate price for the failure of governments to protect them against the carcinogenic policies of a few mega corporations. Last year, the tar sands were declared a leading source of air pollution in North America, while numerous reports have confirmed elevated cancer rates in the tar sands region, especially among Indigenous communities. They “found high concentrations of arsenic, cadmium and mercury in animals, and established that eating traditional foods and locally caught fish was a significant risk.”

And while cancer is the long-term result of our oil addiction, in 2015, a UN report noted that extreme weather events since 1995, no doubt linked to the growing instability of the climate, resulted in over 660,000 deaths and left 4.1 billion people injured, without homes, or in need of some other forms of aid.

Against this backdrop — one created by adherence to Trudeau’s and Carr’s racist “rule of law” — is it any wonder that thousands of people are prepared to put their bodies on the line because our lives are literally on the line? Surely, a defence of necessity is not out of the question for the many who will be facing court charges of mischief, obstruction or trespassing. Indeed, when someone invades a burning house to save an individual inside, that is not the act of a legal transgressor flagrantly flaunting the laws against trespass and break and enter; rather, it is the noblest expression of that higher law that compels us to honour life.

Criminalizing and terrorizing resistance

But those who wish to honour and preserve life on the planet are up against government and private sector players who view actions to protect the land, air and water as terrorist acts. The Harper-era C-51 Anti-Terrorism Act (which was supported by Trudeau while in opposition and which remains unchanged to this day) defines as terrorist anything that interferes with government operations, including “intelligence, defence, border operations, public safety, the administration of justice, diplomatic or consular relations, or the economic or financial stability of Canada.”

How far will Trudeau and his state security agencies go in defending the right of oil companies to tip the balance towards irreversible climate catastrophe? As his father said during the 1970 imposition of the War Measures Act, “Just watch me.”

In mid-November, 2016, Carleton University’s Infrastructure Resilience Research Group held a closed-door, two-day conference in Ottawa (registration cost $725): “The Challenges of Dealing with Natural Resource Development Projects and Activism!” The exclamation mark, rare in such staid titles, no doubt spoke to the anxiety facing corporate executives and their state sponsors when faced with the rising tide of democratic action in opposition to climate catastrophe.

The event was advertised as a training workshop “designed for prosecutors, lawyers, regulators, law enforcement, industry and industry association representatives who must deal with natural resource development projects and protests targeting critical infrastructure.” Of course, the question that immediately arises is: critical for whom? While it is critical for corporate bottom lines to get these pipelines built, it is far more critical to planetary survival that they be stopped.

The gathering also intended to address:

“[t]he threat environment, relevant legal provisions in the Anti-Terrorism Act and other pertinent elements of the Criminal Code, the prosecutorial experience in cases involving violent acts targeting critical national infrastructure, the adjudication record, and overall lessons learned. This will also include operational issues relevant to future prosecutions as well as identification of proactive measures relevant to critical infrastructure protection and prosecutions which may arise related thereto.”

It is significant, for those naysayers who claim C-51 will not be used against land and water protectors, to note that at this gathering of corporate security experts, cops and judicial system players, the Anti-Terrorism Act was openly, unashamedly referenced as a point of first resort in response to an undefined “threat” environment. In other words, protecting the planet is clearly being perceived as an act of terrorism by those who exercise the prosecutorial reins of the judicial system, as well as other conference speakers, described by organizers as “subject matter experts from academia, retired experienced prosecutors, legal specialists, law enforcement and industry and industry associations officials.” Included were a former RCMP Assistant Commissioner, head of security for the Site C Dam project, the Director of Corporate Security for Irving Oil Ltd., a Vice-President of the Canadian Energy Pipeline Association, and a director of the Canadian Gas Association.

One of the conference organizers, a longtime terrorism exaggerator and threat inflater by the name of Martin Rudner, explained the need for the conference when he complained of “domestic extremists” in the climate change movement and warned of the alleged hidden hand of foreign governments in the green movement, including Iran.

Perhaps most disturbing, the event was scheduled to end with a Dean’s Lecture featuring Simon Noel, an acting senior judge of the Federal Court of Canada (whose presence on the panel, addressing the “Administration of Justice for National Security In Democratic Societies” would appear very problematic given he might be hearing cases brought by conference attendees) and former Assistant Deputy Director of CSIS, Alan Jones.

Notably, when a group of students and community members came together on short notice to protest the Dean’s Lecture, the event was scuttled, and an embarrassed Carleton University scrubbed any reference to it on its website. Nevertheless, it was a signal moment that points to concerns long-expressed by C-51 critics: that as Trudeau and Notley desperately push their tar sands to the market, they will stop at nothing to get the job done (in much the same way that an elder Trudeau unleashed the weight of the security state on the peace movement during resistance to cruise missile production and testing in Canada, when those concerned about nuclear war were labeled Soviet dupes and terrorists).

Trudeau’s cracked pipeline addiction

As the pipeline addicts seek a major fix with Kinder Morgan and Line 3, the “rule of law” phraseology will continue to dominate the government’s narrative. But which “rule of law” is at stake? In Trudeau’s case, it is the historic and ongoing racist rule of law that disproportionately targets, criminalizes and incarcerates Indigenous people. That racist rule of law has been enforced by the paramilitary RCMP and the Canadian military on countless occasions, most recently in places like Oka, Gustafsen Lake, Ipperwash and Elsipogtog, and upheld by the judiciary.

But there is another rule of law that Carr, Clark, Trudeau, Bennett, McKenna, Notley and the other oil industry cheerleaders are openly defying. There is the law of science, which clearly states that these pipelines and similar megaprojects will devastate the environment and metastasize climate change. There are the laws and traditions of Indigenous peoples who have not been properly consulted and whose free, prior and informed consent has not been received, even though Canada signed on “without qualification” to the United Nations Declaration on the Rights of Indigenous Peoples last May. And there is a growing body of international law on protection of the environment that is employed in a variety of unique settings, such as the teenager-led lawsuit suing the United States government and fossil fuel industry over their failure to halt climate change. In a November 2016 ruling that the case could proceed, Judge Ann Aikin noted: “Exercising my ‘reasoned judgment,’ I have no doubt that the right to a climate system capable of sustaining human life is fundamental to a free and ordered society.”

In this context, as thousands prepare to block with their bodies projects that would further desecrate the planet, it might be helpful to reframe the issue of whose law is being broken should they be arrested. In many ways, acts to protect the environment and preserve the future of life on Earth are acts of civil obedience — not disobedience — that dovetail with the global responsibilities incumbent upon all of us under those bodies of law.

While we are grown used to the term civil disobedience — the conscious breaking of an unjust law or resistance to an unjust decision — a more recent description is civil resistance, the acting out in concert with very clear tenets of both domestic and international law. Legal expert Francis Boyle discussed this at length in the 1980s with his landmark book, Defending Civil Resistance Under International Law.

During the 1980s (which has incorrectly been referenced as a conservative “me” decade), the world witnessed huge waves of resistance to the death squad wars being waged in El Salvador, Guatemala and Honduras, nuclear weapons, patriarchy, apartheid, failure to respond to the AIDS crisis, homelessness and countless other social ills. More people were arrested in acts of resistance during the ’80s than during the 1960s. Boyle, among others, celebrated such acts not so much as refusal to cooperate with the law but, rather, as campaigns that, in acting in concert with the Nuremberg principles and the various UN Covenants and treaties governing social, economic and political rights, were proactive movements trying to stop state and corporate criminality.

Civil resistance, not civil disobedience

As Boyle wrote:

“In post-Nuremberg settings, a government that flagrantly violates international law is engaged in criminal behaviour even on a domestic plane, and as far as internal laws are concerned, its policies are not entitled to respect. To disobey is no longer, as with Thoreau, to engage in ‘civil disobedience,’ an initiative designed to point up the discrepancy between ‘law’ and ‘morality,’ and the priority of the latter for a person of conscience. Such a tension no longer exists. To resist reasonably a violation of international law is a matter of legal right, possibly even of legal duty, if knowledge and a capacity for action exists.”

It is in this tradition that acts to protect the climate and honour Indigenous rights can also be viewed as civil resistance: they are not protests that seek to defy laws of trespassing or mischief, but rather efforts to force a government that is violating its own legal commitments to comply with the “rule of law,” such as the United Nations Declaration on the Rights of Indigenous Peoples or the various legal instruments related to protection of nature’s integrity.

One landmark U.S. civil resistance case from 1984, Jarka, found resisters charged for resisting Reagan administration nuclear polices and wars in Central America. Despite facing mob action charges from a peaceful blockade, they won their court case by arguing they were acting in concert with international law. So convincing was their defence that the judge instructed the jury thusly: “The use or threat of nuclear weapons is a war crime or an attempted war crime because such use would violate international law by causing unnecessary suffering, failing to distinguish between combatants and noncombatants and poisoning its targets by radiation.”

In that context, the jury recognized the necessity of the resistance action and acquitted all of the defendants. In a contemporary context, one can imagine similar arguments being made to prevent the indiscriminate suffering caused by catastrophic climate change.

Joyful resistance to save the future

A joyful embrace of the possibility that we can transform our present desperate circumstances (despite the threats of Anti-Terrorism Act repression) will likely underscore much of the civil resistance yet to come. Many will be seeing the innards of a police wagon or cell block for the first time (hopefully only after attending well-organized direct action trainings), and while this might be frightening, it can also be liberating if done in the context of a loving community collectively struggling to preserve our future.

While the spectrum of potential resistance activities is unlimited, others may be considering what might be termed “higher-risk” actions that also have a long and noble tradition. Such acts may well physically interfere with or disable the machinery and delivery vehicles of climate change. We’ve already seen a series of pipeline shutoffs like last October’s inspiring shutdown of five tar sands pipelines crossing the Canada-U.S. border, as well as the Line 9 shutdown in December, 2015 on Anishinaabe Territory just outside of Aamjiwnaang and Sarnia. (All three resisters in that case had serious charges of “endangering life” withdrawn last week).

Needless to say, there’s clearly not enough security in Canada to protect every shut-off valve for every pipeline currently in existence.

There are certainly precedents for such action. During the U.S. war against Vietnam, hundreds of thousands of draft files were destroyed in a series of raids that prevented the United States military from finding the names of potential soldiers who’d been required to register for the draft. While the best known of these raids is the Catonsville Nine (in which draft files were burned with homemade napalm), scores of others were part of a persistent campaign that seriously vexed FBI head J. Edgar Hoover and President Nixon. The excellent film Camden 28 documents one of the largest of the raids, which resulted in an eventual acquittal.

As one of those who took part in a Buffalo draft broad raid recently recalled:

“Destroying the paper that provided the human fodder for the war was our way of throwing some grit into the government’s murderous works, of maybe even saving some lives in the process. Every other federal judge who had ever tried a case like ours had given the defendants a stern lecture — not about the sanctity of human life but about the sanctity of the law.”

Corporate offices were also raided (especially those producing weapons), as was the FBI office in Media, Pennsylvania, where resisters found the first documented evidence of the FBI’s COINTELPRO campaign to disrupt and destroy progressive social movements. The excellent film 1971 documents their remarkable efforts.

Property and anti-property

Another such campaign that directly confronted the machinery of death began in 1980, the Plowshares Movement. Eight individuals entered a facility manufacturing warheads for nuclear weapons and, enacting the biblical call to beat swords into plowshares, hammered on and poured blood on the warheads and engineering designs. A recreation of the powerful trial featuring the defendants themselves, In The King of Prussia, included an address by Daniel Berrigan that spoke to the heart of an issue that will continually arise when it comes to interference with the “property” of tar sands producers and distributors.

In addressing the jury, Berrigan pointed to the damaged warheads that were trial exhibits and explained:

“Applying a word like property to [nuclear weapons] is a degradation and a disgrace. Because property certainly refers to whatever enhances, nourishes, cherishes, builds human life or human community. Now strangely in this courtroom you’re going to hear that noble word applied to those horrors [weapons]. I suggest to you, members of the jury, that those things have nothing to do with what is proper to human beings, that they are anti-property. And those — what shall I call them? You’ve heard about hammers and blood in this room. These are the hammers of hell, these are the hammers that will break the world to bits. These are the hammers that clang the end of the world…. They are murder.”

While many Plowshares activists have spent years behind bars, some have won acquittals, especially in the U.K. Andrea Needham’s excellent book The Hammer Blow documents the journey she and nine other women took to disarm British fighter jets that were bound for use by the Indonesian military in the genocidal war against the people of East Timor. It was 20 years ago this month that the Seeds of Hope East Timor Ploughshares action disarmed a Hawk warplane, causing £2.4 million in damage. A Liverpool jury acquitted them following a courtroom process in which the defendants put the war industry on trial.

In 2010, a Brighton jury acquitted five people who caused £180,000 in damage at a U.K. weapons factory whose products, they argued, would have been used by the Israelis to commit war crimes in Gaza. In 2006, nine individuals entered the Northern Ireland offices of Raytheon, whose missiles were being used to pummel Lebanon, and proceeded to destroy computers, documents and the office mainframe. That group was also acquitted, with one of the resisters declaring, “The jury have accepted that we were reasonable in our belief that the Israeli Defence Forces were guilty of war crimes in Lebanon in the summer of 2006. The action we took was intended to have, and did have, the effect of hampering or delaying the commission of war crimes.”

That same year, the Pitstop Ploughshares were also acquitted for damaging a U.S. military supply plane that had stopped at Shannon airport on its way to the invasion of Iraq in 2003. They had argued they had lawful excuse to defend third parties (in this case, the hundreds of thousands of Iraqi civilians who would subsequently be killed in the invasion and occupation).

Indigenous-led resistance and 20 Standing Rocks

These examples are not to imply that any act of resistance will result in victory simply by using similar arguments. Careful planning, training and considered thought are certainly key parts of any action, and in reality, most acts of civil resistance do not involve property destruction and are unlikely to result in major punishment. The mass actions on Parliament Hill over the past couple of years have resulted in trespass notices and temporary ban and bar letters. Of course, upping the ante means the state will play harder as well. At Muskrat Falls, the government of Newfoundland and Labrador has been heavy-handed from the start, where 60 individuals face contempt of court proceedings for trying to stop the poisoning of their lands and prevent a catastrophic dam break. Among those served with contempt papers have been individuals aged 14 to 96.

Governments and corporations, as always, will rely on fear, threat, division and violence, but resisters have on our side an abundance of history, as well as lessons learned from prior and ongoing struggles.

The remarkable, ongoing, healing acts of land and water protection at Standing Rock, along with international campaigns of solidarity that include divesting from the institutions that are behind the Dakota Access Pipeline, provide countless lessons for those of us preparing for what’s next in the country called Canada. Indeed, as Kanesatake Grand Chief Serge Simon declared with respect to Kinder Morgan and Energy Minister Jim Carr’s assertion that he need not obtain consent from Indigenous peoples, “I don’t care what Jim Carr says that no consent is necessary … Consent, it’s what we are demanding and he will never get our consent, not for something like this … What if we gave Canada 20 Standing Rocks? I wonder if his position will change then?”

Trudeau, Notley, Clark and their state security teams (RCMP, CSIS, provincial police forces) will no doubt continue to invoke the spectre of heavy punishment for just about anything that goes beyond letters to the editor or petition signing (and even in these circumstances, individuals’ names will be noted for the massive databases keeping track of anyone who dares disagree).

But they cannot deny that the indiscriminate violence of climate change, like that of nuclear warfare, does present a clear and present danger. Individuals and communities taking part in direct actions which are designed to harm no one but with the clear intent to stop that danger are just as justified as those who would break into a burning house to save someone inside, as well as those who steal a hose to extinguish the flames.

Homes not Bombs, whose members have been engaging in nonviolent direct action for decades, are available to assist in training, provision of civil resistance resources, and more. Feel free to contact them at tasc[at]web.ca.

Matthew Behrens is a freelance writer and social justice advocate who co-ordinates the Homes not Bombs non-violent direct action network. He has worked closely with the targets of Canadian and U.S. ‘national security’ profiling for many years.





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