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    First Nations Child and Family Caring Society

    What Happened

    Chronic underfunding of child and family services for Aboriginal children prompted the NGO called First Nations Child and Family Caring Society (the Society) to file a discrimination complaint against Indian and Northern Affairs Canada (INAC). The Society argued that Aboriginal children on-reserve receive 22 per cent fewer funds as compared to non-Aboriginal children. INAC argued that discriminatory funding is permissible because Aboriginal children are the only group funded by the federal government.

    The Society alleges that the federal government retaliated by excluding the Society's Executive Director Cindy Blackstock from meetings, resulting in a second complaint against INAC in relation to that alleged reprisal. Documents later obtained by Blackstock show that INAC officials have been subjecting her to systematic surveillance in her professional and personal life.


    In February 2007, the Society and the Assembly of First Nations (AFN) filed a discrimination complaint with the Canadian Human Rights Commission against Indian and Northern Affairs Canada (INAC)- now called Aboriginal Affairs and Northern Development Canada

    The Canadian Human Rights Commission (CHRC) is an independent government body that oversees the Canadian Human Rights Act. It investigates complaints about discriminatory practices arising under federal jurisdiction, which includes the services provided to First Nations people living on reserve.

    The complaint alleged that INAC funding for Aboriginal family services at the federal level is significantly less than funding for off-reserve children who receive the same or comparable services from provincial governments. The Society and the AFN argue that the underfunding of services for on-reserve Aboriginal children is discriminatory under the Canadian Human Rights Act.

    In October 2008, the Commission referred the case to the Canadian Human Rights Tribunal for a hearing. This step occurs when the Commission has determined that there is sufficient evidence to support the complaint.

    In 2009, the Harper government appointed a new Chair to the Tribunal, Shirish P. Chotalia, who took over the management of the case and introduced last-minute procedural changes that were strongly objected to by the parties. In December 2009, the government introduced a motion to dismiss the case on a preliminary basis, arguing that the CHRC had no jurisdiction to hear the case.  

    Exclusion

    The Society alleges that between 2008 and 2009 INAC retaliated by excluding the Society’s Executive Director, Cindy Blackstock, from meetings between INAC and other Aboriginal leaders. The Society believes that this exclusion occurred as a form of retaliation in response to its human rights complaint.

    For example, in December 2009, Blackstock was invited by the Chiefs of Ontario as a technical aid to attend a meeting at INAC regarding child welfare funding in Ontario.  Upon her arrival at the meeting, Blackstock alleges that an INAC official refused to meet with the Chiefs of Ontario if Blackstock was present.  She also alleges that the official stated that he was aware that she had some “issues” regarding child welfare, including a human rights complaint.  Blackstock was made to wait outside of the meeting.  Blackstock further alleges that another similar incident of exclusion occurred in 2008 and that this adverse treatment contrasts the working relationship she had with INAC prior to submitting the human rights complaint.     

    In December 2009, the Society asked the Tribunal for permission to amend its complaint to include its retaliation allegations. The Society argued that by excluding Blackstock from meetings, INAC had treated it in an adverse and prejudicial manner and that this treatment constituted an act of retaliation against the Society.  The Canadian Human Rights Act prohibits retaliation against human rights complainants.

    Delays

    In June 2010, Tribunal Chair Chotalia began hearing the case, but the case soon stalled. A year later, Chotalia had held no further hearings, issued no decision and refused to consider the Society’s motion to add the retaliation allegations.  Since the retaliation complaint had to be filed within a year, the Tribunal’s delay forced the Society to re-file its retaliation complaint with the Canadian Human Rights Commission in February 2011 in order to preserve its right to make the complaint.  The acting Chief of the Canadian Human Rights Commission publicly criticized the Tribunal for inordinate delay.

    Faced with the Tribunal’s lack of action, in February 2011, lawyers for the Society made the unprecedented decision to apply to the Federal Court of Canada and request that the Court force the Tribunal to hold hearings into the merits of the case.

    Tribunal decides case unfairly

    Less than a month later, Chair Chotalia dismissed the first complaint, finding that INAC was not responsible for discriminatory funding practices.  Chotalia did not hear the full case, but reasoned on a preliminary basis that, as a matter of human rights law, federal funding of services for on-reserve Aboriginal children could not be compared with the provincial funding of services for off-reserve children.

    In April 2011, the Canadian Human Rights Commission applied to the Federal Court of Canada for a judicial review of the Tribunal’s decision. The Commission alleged that the Tribunal had applied the law incorrectly, and further that it had erroneously failed to conduct a full inquiry into the merits of the complaint, thereby violating basic principles of procedural fairness. 

    Federal Court overturns Tribunal 

    In April 2012, the Federal Court ruled that the Canadian Human Rights Tribunal had decided the case unfairly. It had dismissed a complex case of critical importance without hearing the full case on the merits, basing its decision on extrinsic evidence that was not properly introduced. The matter was sent back to the Tribunal for a new hearing with a differently constituted panel.  

    In October 2012 the new panel granted the Society’s application, filed in December 2009, to amend the Society’s initial human rights complaint to include the retaliation complaint.  As a result, the Tribunal will now consider both complaints together at the same time.  The Tribunal has not made a final decision regarding either complaint.

     

    Relevant Dates:

    • February 2007: The Assembly of First Nations and the First Nations Child and Family Caring Society file a complaint with the Canadian Human Rights Commission, against Indian and Northern Affairs Canada.
    • October 2008: The Commission refers the case to the Canadian Human Rights Tribunal.
    • 2008-2009: The Society alleges that its Executive Director, Cindy Blackstock, was excluded from meetings between INAC and Aboriginal Chiefs.
    • January 2010: The Society amends its complaint to include the allegations of exclusion.
    • 2009-2011: After a successful Access to Information Request filed by Blackstock, she alleges that INAC has been systematically monitoring her private life.
    • 2010: The government-appointed Tribunal Chair, Shirish Chotalia, begins hearing the case. There would not be another hearing for almost a year: this delay was publicly criticized by the acting Chief of the Canadian Human Rights Commission.
    • February 2011: The Society applies to the Federal Court of Canada to force the Tribunal to hold hearings.
    • March 2011: Chair Chotalia dismisses the case on a preliminary basis, upholding separate but unequal services for on-reserve Aboriginal children.
    • April 2011: The Canadian Human Rights Commission applies to the Federal Court of Canada for a judicial review of the decision.
    • April 2012: The judicial review of the Tribunal's decision is successful. The Federal Court overturns the Tribunal, holding that its decision to dismiss was unfair. The complaint is sent back to the Tribunal.  

    Role or Position

    The First Nations Child and Family Caring Society (the Society) is a national, non-profit organization that provides services to First Nations child welfare organizations.

    Implications and Consequences

    • Equality: The impact of the federal government’s policy is that Aboriginal persons living on-reserve do not have the same right to essential public services as persons living off-reserve.  This creates a situation that has a significant and disproportionately negative impact on Aboriginal persons.
    • Fairness: The government's application for a preliminary dismissal of the Society’s complaint and to avoid a full hearing of the case lead to a decision by the Tribunal that the Federal Court of Canada later found to be unfair to the Society. Although the Federal Court overturned the Tribunal’s decision to uphold the government policy, it will continue until a final judicial decision is made and all rights of appeal are exhausted. 
    • Democracy:  That an entire group of vulnerable children should receive inferior services as a matter of federal government policy is contrary to any acceptable notion of the rule of law and democratic governance in a developed country.
    • Free Speech: INAC’s alleged targeted surveillance of Blackstock in her personal and professional life raises serious concerns about intimidation, breach of privacy and personal attacks on individuals who are critical of government policy.  This type of scrutiny can make individuals vulnerable to government retaliation simply on the basis of their political opinions.  It can also create a “chill effect” that causes other Canadians to fear to express opinions that are critical of government policies and decisions.

    Date updated: 1 November 2012


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    Aboriginal communities and environmental groups

    What Happened

    Since 2006, according to documents obtained through the Access to Information Act, Aboriginal communities and environmental groups have been under a special program of government surveillance, and the information was shared among security agencies, government departments and industry about groups that oppose resource development projects. 


    CSIS, the RCMP, the Department of Aboriginal Affairs and Northern Development Canada and the Department of Natural Resources Canada, along with other agencies and governmental departments, are alleged to have been engaging in surveillance of Aboriginal communities and environmental groups whom they believe are likely to engage in protests and acts of civil disobedience.

    Surveillance of Aboriginal Communities: INAC & the RCMP

    In 2010, journalists and academics obtained documents through Access to Information Requests. The former Department of Indian and Northern Affairs Canada (INAC) was shown to have been monitoring closely the activities and protests of certain First Nations groups. INAC produced weekly reports about dozens of communities that it referred to as “hot spots” and “sources of potential unrest.” INAC believed that “splinter groups” of “Aboriginal Extremists” were leading protest actions in these communities.

    The ‘hot spot’ communities included: Tobique First Nation, Tsartlip First Nation, the Algonquins of Barriere Lake, Teztan Biny (Fish Lake) First Nation, Six Nations, Grassy Narrows, Stz’uminous First Nation, the Likhts’amsiyu Clan of the Wet’suwet’en First Nation, Gitxaala First Nation, Wagmatcook First Nation, Innu of Labrador, Pikangikum First Nation.

    In a presentation in March 2007, INAC explained that a “Hotspot Reporting System” had been created in 2006 to undertake “continuous environmental monitoring,” and “continuous information dissemination.” Cases were summarized in a “Hotspot Binder.” A “Standing Information Sharing Forum” was also formed. Chaired by the RCMP, it consisted of “weekly conference calls” with, among others, INAC, CSIS, the Department of Fisheries and Oceans, Natural Resources Canada, and Transportation Canada.

    In response to these revelations, Gord Elliot of Tsartlip First Nation stated: "We are outraged to discover these same ministries [that we work with in trust and good faith] are spying on us. We were identified as a ‘hot spot’ because we had a roadblock demonstration to voice our concerns about the treaty process and non-acknowledgment of Section 35 [Aboriginal] Constitutional Rights and Title.”

    Journalists who filed Access to Information Requests also report that an RCMP  intelligence unit known as the Aboriginal Joint Intelligence Group (JIG) was in operation between 2007 and 2010 to survey First Nations groups engaging in protest. An RCMP spokesperson reportedly commented that while the Aboriginal JIG has been dismantled, “we cannot confirm that RCMP divisions are not performing Aboriginal JIG activities under another name or program.”

    According to a slideshow, dated March 2009, the Aboriginal JIG included members from the RCMP National Security Criminal Investigations branch, which investigates threats to national security and criminal extremism or terrorism. Its mandate was to “collect, analyze and disseminate intelligence on tensions and conflicts occurring within Aboriginal communities (...) as they may escalate to civil disobedience and unrest.” The mandate focused on “critical infrastructure,” blockades, and “demonstrations, protests or gatherings concerning energy sector development.”

    In promoting the activities of the Aboriginal JIG, the slideshow informed that the Aboriginal JIG had members in the field acting as the organization’s “eyes and ears,” as well as an “extensive network of contacts throughout Canada and internationally” able to “provide information on activist groups who are promoting Aboriginal issues within your area.”

    Sharing intelligence with the private sector: RCMP & Natural Resources Canada

    The Aboriginal JIG also appeared to be part of a practice of sharing intelligence information with the private sector. The 2009 Aboriginal JIG slideshow indicated that the intelligence unit provided weekly situation reports to about 450 recipients in “law enforcement, government, and energy/private sector” and “public safety special bulletin[s]” as needed. It also produced an “Annual Aboriginal communities of concern strategic intelligence report,” a version of which was sent to “industry partners.” In a 2011 interview, an RCMP spokesperson refused to name the private sector companies receiving these reports, however the spokesperson confirmed that private companies also supplied information to the unit about the "current criminal threat environment for their facilities."

    More details regarding the extent of information sharing between industry and federal agencies were revealed in 2012 by additional documents acquired through Access to Information Requests. According to journalists, these documents reveal that Natural Resources Canada (NRCan) provided reports to the energy sector containing “unclassified information and intelligence” to about 300 stakeholders several times a week. Further, in-person classified briefings have taken place between federal agencies and the private sector twice a year since 2005. The draft agenda for one such secret briefing indicates that it took place in November of 2010 at the CSIS Headquarters in Ottawa and was organized by NRCan with the help of the RCMP and CSIS.  

    In response to these revelations, a spokesperson for NRCan stated that these meetings enabled energy infrastructure stakeholders to “plan and develop measures to protect their facilities” and that meetings of this nature accord with the department’s mandate to “engage with partners and key stakeholders.” The spokesperson asserted that NRCan does not monitor environmentalist groups. 

    Treating Environmentalists as a National Security Threat

    Journalists also report that documents obtained through Access to Information Requests reveal that as early as 2010, the CSIS Integrated Terrorism Assessment Centre (ITAC) was engaging in intelligence gathering regarding environmental groups. The following year, the treatment of environmentalists as possible terrorist threats was made explicit by the federal government’s 2011 Counter-Terrorism Strategy policy document, where environmentalism, along with animal-rights and anti-capitalism are listed among the “extremist” causes that might lead “domestic issue-based groups” to engage in violence.

    This policy set the tone for public allegations made over the course of 2012 by Natural Resources Minister Joe Oliver against environmental groups. In an open letter dated January 2012, he declared that “environmentalists and other radical groups…threaten to hijack our regulatory system to achieve their radical ideological agenda” and that “they use funding from foreign special interest groups to undermine Canada’s national economic interest.”

    Following these statements, in June 2012, the RCMP expanded its Integrated National Security Enforcement Team (INSET) program to Alberta. This decision was based on Alberta’s “strong economy supported by the province’s natural resources and the need to protect critical infrastructure” from “criminal extremism and terrorism.” INSETs were originally created in Vancouver, Toronto, Ottawa and Montreal following the events of 9/11. Each INSET brings together employees of CSIS, provincial and municipal police services and border patrols.

    Gilles Michaud, Assistant Commissioner of the 32-member Alberta INSET, stated that it is tasked with gathering intelligence on groups “that pose a threat to critical infrastructure, to our economy, to our safety that is based on either religious, political or ideological goals.”  

    John Bennett, Director of the Sierra Club Canada, reacted negatively to the creation of the Alberta counter-terrorism unit. Recalling the federal government’s rhetoric around the environment and activists, he stated that the Alberta INSET is “part of their overall propaganda campaign to try to convince Canadians that environmentalists are somehow a threat.” Similarly, Bill Phipps from KAIROS described the Alberta counter-terrorism unit as an attempt at the “vilification and intimidation” of citizen groups.

    Also responding to these issues, Keith Stewart of Greenpeace stated: “The only threat we pose is the threat to change people’s minds, and changing public opinion—and I understand why oil companies might be worried about that. I understand why government might be worried about that, but I think that is a fundamental part of democracy and they just have to learn to live with free speech.” 

    Surveillance of opposition to the Northern Gateway pipeline: RCMP

    These reported practices of surveillance of Aboriginal groups and environmentalists appear to converge when it comes to intelligence gathering regarding opposition to the Northern Gateway pipeline. Journalists report that documents obtained in 2012 in response to Access to Information Requests reveal that the Yinka Dene Alliance, a coalition of northern B.C. First Nations who oppose Enbridge’s Northern Gateway pipeline, has been put under surveillance by the RCMP. Reportedly, the activities described in these documents include monitoring of websites, Facebook, and online photo accounts, as well as alleged surveillance of private meeting between First Nations communities and environmental groups. The impetus for this surveillance appears to be a concern for “acts of protest and civil disobedience.”

    The documents obtained include monthly RCMP intelligence reports. One such report reportedly states that Enbridge “will experience increasingly intense protest activity due to the environmental sensitivity of the Northern Gateway path, combined with the fact that the territory has never been ceded to the Crown by First Nations in B.C.”

    In response to the public revelation of these reports, Grand Chief Stewart Phillip, president of the Union of B.C. Indian Chiefs, stated that this surveillance is “consistent with the Harper government attack on First Nations and environmentalists.” In his view “…the Harper government and [Natural Resources] Minister Oliver are taking all measures to silence our voices” and are “moving toward a very totalitarian approach to Canadian values like freedom of speech.” 

    Resource Extraction: “A pattern of convergence among activist groups”

    The surveillance of groups opposed to the Northern Gateway pipeline demonstrates that one link between the federal government’s surveillance of First Nations and environmentalists is these groups’ common concerns raised by resource extraction projects.

    In its mandate, the RCMP’s Aboriginal JIG described the grievances that have caused Aboriginal groups to engage in civil disobedience in terms of “land claims, treaty dispute, environmental issues, economic and sovereignty disputes,” among others. Journalists report that in documents obtained through Access to Information Requests, the RCMP informed that the “vast majority” of the Aboriginal protests and actions that it monitors are “related to lands and resources,” and “most are incited by development activities on [Aboriginal] traditional territories.”

    A 2009 RCMP Aboriginal JIG report observes a “pattern of convergence among activists groups” where non-Aboriginal groups are focusing on issues of concern for Aboriginal groups. Researchers also report having obtained a 2008 assessment prepared by CSIS that advises that “multi-issue extremists and aboriginal extremists may pursue common causes, and both groups have demonstrated the intent and the capability to carry out attacks against critical infrastructure in Canada.” Finally, in a 2010 report drafted by the G20 Joint Intelligence Group (JIG), twenty-two “domestic groups of concern” included organizations such as Defenders of the Land, the Indigenous People Solidarity Movement Organization, Greenpeace, as well as Oxfam Canada and the Council of Canadians

    No Clear Justification for Surveillance of Activists

    The surveillance practices against Aboriginal and environmentalist groups, as documented through Access to Information Requests, raises serious questions about the justification for these practices. 

    On this point, the Assistant Commissioner of the Alberta INSET stated that “there has to be violence attached to [groups’] activities in order for us to pay attention to them,” but that “that being said, in our role of preventing these threats…it is important that intelligence is collected against the activities of groups before they become violent.”

    One report produced in 2009 by the Aboriginal JIG states that it “does not assess acts of lawful protest or legitimate dissent.” However, this same document acknowledged that “within the last 12 months, no violent acts associated with Aboriginal extremism were reported” and that "overall, occupations and protest in Canada associated to Aboriginal communities have experienced low levels of violence."

    In sum, documents obtained through Access to Information requests point toward widespread surveillance practices of environmentalists and Aboriginal groups, often carried out by national security and anti-terrorism units. These secret practices occur in the context of Minister Oliver’s public accusations against environmentalists. However, the groups being subjected to surveillance appear to present neither a credible threat of violence nor a threat to national security. This sends the message that the federal government views any opposition to its resource development agenda to be illegitimate and a possible target of surveillance. 

     

    Relevant Dates:

    • January 2012: In an open letter, Natural Resources Minister Joe Oliver declares that environmentalists are “radicals” who “threaten to hijack our regulatory system to achieve their radical ideological agenda.”
    • March 2012: Canada’s Counter-Terrorism Strategy lists environmentalists, along with animal-rights defenders and anti-capitalist groups, as “extremists” and “terrorist threats.”
    • May 2012: Documents obtained through Access to Information Requests reveal that the Yinka Dene Alliance, a coalition of First Nations in British Columbia who are opposed to the Northern Gateway pipeline, has been put under surveillance by the RCMP. 
    • June 2012: The RCMP announces the creation of an Integrated National Security Enforcement Team (INSET) in Alberta in order to protect its “critical infrastructure” from “criminal extremism and terrorism.”

    Role or Position

    Aboriginal communities and environmental groups that have been targeted by the government and placed under surveillance include: Tobique First Nation, Tsartlip First Nation, the Algonquins of Barriere Lake, Teztan Biny (Fish Lake) First Nation, Six Nations, Grassy Narrows, Stz’uminous First Nation, the Likhts’amsiyu Clan of the Wet’suwet’en First Nation, Gitxaala First Nation, Wagmatcook First Nation, Innu of Labrador, Pikangikum First Nation, and the Yinka Dene Alliance. Groups that are listed as “domestic groups of concern” include Defenders of the Land, the Indigenous People Solidarity Movement Organization, Greenpeace, as well as Oxfam Canada and the Council of Canadians

    Implications and Consequences

    • Democracy: The public demonization and secret surveillance of environmentalists and Aboriginal groups who do not present a credible threat to national security or a strong likelihood of committing violent acts is undemocratic because it may weaken or eliminate these groups’ capacity to express their viewpoints and opinions regarding resource extraction policies. The participation of diverse voices is essential to debating the public interest of resource development projects.
    • Freedom of speech and opinion: The federal government appears to be surveilling, defaming and criminalizing Aboriginal and environmentalist groups primarily based on their political opposition to certain resource extraction projects. Where there is no credible threat of criminal activity, selecting individuals or groups for surveillance simply on the basis on their opinion is a violation of their right to express themselves without fear that the government will act to inflict adverse consequences. This in turn generates a widespread chill on dissent and free expression.
    • Equality: By making a strong commitment to a certain model of resource extraction, the federal government's actions have an adverse impact on those Aboriginal communities and individuals who have a special relationship to the affected land and environment. For some of these communities and individuals, this relationship is rooted in the core of who they are and their identity as Aboriginal peoples. Thus, when the government criminalizes opposition to this model through surveillance practices, Aboriginal peoples are disproportionately and negatively affected.

    Date published: 4 March 2013

    Photo from Wayne Cuddington/Ottawa Citizen, Idle No More protest in Ottawa, January 2013

    Sources


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    Charities are an important part of civil society. They often have “in the field” expertise on social issues and give voice to concerns and policy ideas that often would not otherwise be considered. Diminishing their role in public discourse and dissent diminishes democracy.

    Democracy and free speech: Charities provide a public service by bringing problems and potential solutions into public discussion, building social consensus, and pressuring government and citizens to act. Democracy is enhanced by their actions. Obliging charities to spend more time and resources doing administrative tasks dictated by audits or the threat of audits means that democracy suffers. The advocacy chill means that charities are less outspoken and censor themselves, resulting in less frankness in public commentary. The diminution of frank comment and of dissent is a diminution of democracy.

    Transparency: There is no transparency as to how CRA selects the charities to be audited or to receive a reminder letter. The interpretation of what constitutes a “political activity” is unclear and confusing. Such lack of clarity increases the chilling effect of this audit activity, leaving charities perpetually off-balance about what is, and is not, acceptable, both before and during audits. The lack of transparency and clarity also deprives citizens, generally, of means to hold government to account for what it is doing.

     

    Published: Dec. 11, 2014
    Updated: May 1, 2015; February 2, 2016

    Image: The Canadian Press

    2 February 2016—On January 20 2016, Diane Lebouthillier, Minister of National Revenue, announced the winding down of the special review that had been set up by the Canada Revenue Agency (CRA) under the Harper government to audit registered charities’ political activities.

    These special political activity audits under the Harper government had overwhelmingly targeted progressive organizations, including environmental organizations, as well as international co-operation and human rights groups. The audits created a well-documented advocacy chill in the charitable sector, and the work involved in complying with CRA absorbed precious resources from charities that could ill afford the distraction and signficant time of a protracted audit.

    It is noteworthy that, to date, none of the audits conducted under the special or enhanced political activities reviews have resulted in a loss of charitable status as a result of political activities.  

    Voices-Voix welcomes the federal government's announcement and encourages the CRA to resolve the outstanding audits quickly and expeditiously.

    At the same time, and as others have argued, audits that were underway are not being abandoned. Moreover, while recognizing that the prohibition on partisan activities is entirely appropriate, the "political activities" category is outdated, restricts freedom of expression, and places an undue regulatory burden on charities. Other jurisdictions that have undergone reforms permit advocacy and lobbying without restriction provided that those activities are consistent with the charitable objects of the organization. It is also clear that after more than four centurues, the limited number of legitimate charitable objects permitted by law is in need of an update.   

    Voices-Voix will continue to monitor developments and provide updates. Have an update? Send it to us at communications[at]voices-voix.ca.

    In 2012, the Canada Revenue Canada (CRA) started a “blitz,” reviewing the registered status of charities that are critical of the federal government and promote policy ideas that differ from the government's agenda. This blitz of reviews has appeared to be focussed on environmental, human rights, progressive policy and international development organizations. The effect is an “advocacy chill” that has descended on charities that are critical of the federal government. It mutes their collective and individual voices, as well as the voices of those they represent, and diverts financial and human resources into anticipating, participating in, or complying with the auditing process and its results. Meanwhile, other charities that are in general agreement with the government's policy choices appear not to have been audited in a similar manner. Democracy is considerably damaged by the weakening of civil society.


    Background

    While there is a history of various strategies used to reduce the impact of civil society organizations between 1985 and 2005 (Phillips, 2012), using the CRA to diminish the effectiveness of charities critical of the government is a new approach.

    In March 2012, at a time of massive cutbacks to the CRA's overall budget, the Agency received $8 million for 2012-14 – later increased to $13.4 million stretching to 2017 – which in large part has been dedicated to investigating the activities and registered status of selected charities. The Canada Revenue Agency has built a team of 15 auditors specifically for this purpose. While efforts to crack down on Canada's charities continue apace, the CRA appears to be scaling down staff and resources aimed at tax evasion, including offshore tax evasion

    Currently, some 52 audits are underway or concluded, with eight more expected to be launched by 2016.

    The audits followed the introduction, in February 2012, of a new federal Counter-Terrorism Strategy, which identified “environmentalism” as a domestic terrorist concern in 2012. The Conservative government has also engaged in the massive surveillance of activist groups, investing more than $20 million dollars since 2012 in the monitoring of political opponents.

    How CRA audits work

    Reasons charities may be audited include ensuring that they are in line with their legal requirements under the Income Tax Act; the CRA deeming them non-compliant; or following up on complaints.

    Audits may examine:

    • whether charities spend more than the allowed 10% (or up to 20%, depending on the size of the organization) of their resources on political activities;
    • whether their activities align with their charitable purposes as previously approved by the government;
    • whether the organization's charitable purposes themselves are acceptable, even though they have previously been approved by the CRA;
    • and whether appropriate records are kept in one of the two official languages.

    The Canadian Revenue Agency states that an activity is political if it:

    • explicitly communicates a call to political action (that is, encourages the public to contact an elected representative or public official to urge him or her to retain, oppose, or change the law, policy, or decision of any level of government in Canada or a foreign country);
    • explicitly communicates to the public that the law, policy, or decision of any level of government in Canada or a foreign country should be retained, opposed, or changed;
    • explicitly indicates in any of its materials (internal or external) that the intention of any of its activities is to incite, or organize to put pressure on, an elected representative or public official to retain, oppose, or change the law, policy, or decision of any level of government in Canada or a foreign country; or
    • made a gift to another qualified donee to support the political activities of the recipient.

    Representations to members of parliament are not characterized as political activities un the CRA rules, but they are nonetheless required to meet stringent criteria.

    A politicized process

    While Minister of Revenue Kerry-Lynne Findlay maintains that “CRA audits occur at arm's length from the government and are conducted free of any political interference,” the CRA admits that it acts on media attention about charities, as well as on complaints received.

    Since the start of 2012, Ethical Oil, a not for profit organization with links to the Conservative Party of Canada, has filed formal complaints against at least six charities. While some charities' audits began before these complaints were filed, there is evidence that complaints can have an impact on the direction and tone of ongoing audits, as reported by Environmental Defence to the Huffington Post in December 2014.

    The groups which Ethical Oil filed complaints about include:

    • Environmental Defence (audit began in 2011; complaint filed by Ethical Oil in March 2012)
    • The David Suzuki Foundation (audit began in May 2013; complaint filed by Ethical Oil in April 2012)
    • Pembina Foundation (audit began in Dec. 2013; complaint filed by Ethical Oil in April 2013)
    • Sierra Club Canada (complaint filed by Ethical Oil in Dec. 2012; under audit as of May 2015)
    • Tides Canada Initiatives Society (audit began in 2011; complaint filed by Ethical Oil in Aug. 2012)
    • Tides Canada Foundation (audit began in 2011; complaint filed by Ethical Oil in Aug. 2012)

    All of these organizations have been critical of the development of the Alberta tar sands as well as the federal government’s approach to oil extraction and pipeline development. By contrast, Ethical Oil's mission is to promote efforts to develop Canada's tar sands.

    Ethical Oil's connections to the Conservative Party of Canada have been well-documented. As research from the website Deep Climate has shown, the organization was founded by Alykhan Velshi, who in 2011 left a job as communications director for then-federal Immigration Minister Jason Kenney. He worked with Ezra Levant, a Fraser Institute graduate, to set up the Ethical Oil Institute. Velshi then went back to work in the Prime Minister’s office. Velshi is only one of a number of people who held Conservative staff positions, then left government to work for Ethical Oil, only to later return to political jobs.

    While some audits of environmental charities began in 2011, the number increased the following year, when then-Natural Resources Minister Joe Oliver stated in January 2012 that“environmental and radical groups” funded by “foreign special interest groups” were working to undermine Canada's economy. The next month it was revealed that the Conservative government's new anti-terrorism strategy regarded “eco-extremists” as a major threat.

    While the federal government's public criticism was at first reserved for environmental organizations, revelations of other audits show that the CRA's investigation into the political activities of charities has a much broader reach, including human rights, international development, social welfare and research/education charities.

    Other organizations under audit include:

    Consequences of the audits for charities1

    The spate of audits of charities deemed to be critical of the federal government has had severe consequences.

    Overall, an “advocacy chill” has descended on charities. Charities have reported taking greater caution in their communications, and voluntarily reducing their public profiles for fear of being targeted for an audit. This is in contrast to their usual mission of vocally engaging in public discussions and debate in order to maximize the exposure of their public policy ideas and critiques.

    The audits have not only reduced charities' ability and willingness to speak out, but have also had an impact on their ability to carry out their central missions. Being audited means being significantly distracted from their core work, with staff tied up in attempts to satisfy bureaucratic requirements.

    "It's nerve-wracking," Leilani Farha, Executive Director of Canada Without Poverty (CWP), told the Canadian Press in 2014. CWP is a small charity based in Ottawa, under audit since 2011, that had to turn over internal emails and other documents to auditors examining the extent of their political activities.

    "We've been under audit for more than two years, and it just goes on and on, with no communication,” added Farha. “It's a huge drain on the resources of our organization."

    “The Harper government attack on non-profits is unprecedented. I essentially see it as a bullying tactic,” said Harvey McKinnon, a Vancouver-based fundraiser, in an interview with the Canadian Press.

    The audits also use precious financial resources for legal advice, according to researcher Gareth Kirkby. Environmental Defence has spent an estimated $100,000 on related legal bills as of July 2014, Executive Director Tim Gray told the Canadian Press.

    The impacts of the audits aren't solely seen on those charities actively under review either. Kirkby has also found that others in the charitable sector have both reduced their outspoken-ness and dedicated internal resources normally used for their charitable work to prepare for eventual audits, in the wake of the growing number of reviews.

    'Reminder letters' are issued to some groups to warn that CRA analysts have been watching their political activities, and may launch full audits.

    As of October 16, 2014, 23 of these letters had been issued, though the CRA won't say exactly which groups are on the list, citing the confidentiality provisions of the Income Tax Act.

    And in April 2015, the CBC reported that :

    As of March 31, the Canada Revenue Agency had completed 21 political-activity audits, with 28 still under way and 11 still to begin. So far, five charities have received notices of the agency's intention to revoke their charitable status.

    Push back

    In April 2014, Greenpeace Canada filed a complaint with Elections Canada asking them to look into possible collusion in the ties between Ethical Oil and the government. (Kirkby, 2014: 39)

    In the same month, the Canadian Council of Churches wrote directly to the Prime Minister about the "chilling effect of threats to revoke the charitable status of organizations that draw attention to policies that harm our world."

    Lawyers' Rights Watch Canada made a submission to the UN Human Rights Council in May 2014 about the "shrinking space for dissent in Canada" through the “selective targeting of organizations by Canadian revenue authorities to strip certain organizations of their charitable status.”

    In reaction to the auditing of the Canadian Centre for Policy Analysis (CCPA), a left-leaning think tank, 400 academics sent an open letter in September 2014 to the Minister of National Revenue, Kerry-Lynne D. Findlay and the Director General of the Charities Directorate, Canada Revenue Agency, Cathy Hawara. The letter states:

    … we feel that CRA fails to understand the nature of what academic research is all about. Research begins from a series of questions and observations, and, from there, it proceeds, following a set of guidelines, to infer possible answers.  In this sense, it contests. All research in fact is critical, by its very definition: it tests hypotheses, seeks answers, and must be allowed to find these answers wherever it can.

    But critical policy analysis does not equate with political activism, nor is it “biased” or “one-sided”, as CRA has claimed. Researchers explore specific questions of interest, and then present the results of their research. Reaching a conclusion is not the same as bias.

    After noting that right-leaning organizations were not audited, they state, “We are therefore left with the conclusion that the decision to audit the CCPA is politically motivated to intimidate and silence its criticism of your government’s policies.”

    This conclusion is supported by a study by the Broadbent Institute. Looking at published documents, it reviewed 10 right-leaning charities: The Atlantic Institute for Market Studies, Canadian Constitution Foundation, C.D. Howe Institute, Energy Probe Research Foundation, Fraser Institute, Focus on the Family, Frontier Centre for Public Policy, Institute for Canadian Values, Macdonald-Laurier Institute and Montreal Economic Institute. It presents examples of apparent political activities for each of the organizations, yet notes that none of them filed any political activity to CRA during 2011 and 2013. It concludes: “This report has provided evidence suggesting biased scrutiny by the CRA of charities that are critical of the government.”

    A group of 18 organizations, mostly charitable orgnaizations themselves, wrote an open letter to all political parties, including Minister of National Revenue Kerry-Lynne Findlay. In it, they asked the minister, the Conservative government and the opposition parties to: 

    "[Support a] new legal and policy direction that enhances and protects the ability of registered charities to participate in public policy debates. We also request that the process to define this new approach be developed in an open and transparent consultation process involving a broad range of charities and the public." 

    Relevant dates

    • 2011: the Ethical Oil Institute is founded by Alykhan Velshi and Ezra Levant.
    • January 2012: Then-federal Minister of Natural Resources Joe Oliver denounces “environmental and radical groups” funded by “foreign special interest groups” were working to undermine Canada's economy.
    • February 2012: The Conservative government's newly released anti-terrorism strategy regards “eco-extremists” as a major threat.
    • March 2012: The federal budget allocates $8 million to investigate the charitable status of select groups. This is later topped up to $13.4 million.
    • August 2012: Ethical Oil files a complaint against 6 environmental agencies, charging that they engage in political action.
    • April 2014: Greenpeace files a complaint with Elections Canada alleging Ethical Oil serves as an unregistered "front group" for Conservative policies, including shared talking points and a revolving door of staff.
    • September 2014: Over 400 academics send an open letter to the Minister of National Revenue, and the Director General of the Charities Division, Canada Revenue Agency, charging that the audit of the CCPA is politically motivated to intimidate and silence its criticism of your government’s policies.
    • October 16, 2014: As of this date, some 52 organizations have been chosen for audits under the new program, with at least another 8 on the way.
    • October 2014: The Broadbent Institute publishes a study of 10 right-leaning think tanks demonstrating that they engage in political activities according to the CRA criteria – none of them has been audited so far.
    • February 10, 2015: A group of 18 organizations write an open-letter to the federal government and the opposition parties, asking for a commitment to laws and policy that guarantee that charities can participate fully in public policy debates.

     

    1While this case study examines the impact of political activities audits, concerns around the current rules of what is considered acceptable activities and mandates for charities goes further. See, for example, the case of the United Nations Platform for Action Committee (UNPAC), which was told by a CRA agent that that it needed to remove all references to equality and inequality in its objects, in favor of saying that it seeks to promote “women-centred community economic development.” Other cases of charities having their status challenged covered by the Voices-Voix documentation project include IRFAN-Canada, Canadian Mennonite and Physicians for Global Survival.

     


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    CSIS sign

    Not applicable

    Democracy and Equality: Muslim communities in Canada feel that the new amendments are targeting them as purveyors of terrorism or terrorist ideas. The implementation of the amendments has tremendous potential for being disproportionately wielded against Muslims as implied by Harper’s statement on mosques in Canada as being linked to the promotion of terrorist ideas.

    Democracy and Dissent: Groups in Canada, including Indigenous organizations, environmental groups and activists engaged in political dissent will likely find themselves targeted, on watchlists, and the subject of national security surveillance and information sharing based on non-criminal peaceful activities. The use of such information may be subject to abuse, improper sharing, more invasive monitoring or active disruption activities not based upon any discernible threat to national security.

    Democratic Process: The government’s attempt to fast-track the bill at the committee stage by limiting days devoted to expert testimony compromises the capacity to engage in thorough parliamentary scrutiny and review. Given the scope and scale of the proposed reforms, public scrutiny is essential in order to strike a balance between civil liberties and national security.

    Freedom of Expression: The articulation of “propagation crimes” of terrorism in the context of an already vague and expansive definition of terrorism will criminalize certain forms of lawful expression opining on issues relating to terrorism. The impact of such provisions may have the effect of seriously chilling lawful speech and activity in Canada.

    Abuse of Power: The creation of virtually limitless powers of CSIS to conduct both domestic and foreign activities that may receive judicial authorization to violate the law places inordinate pressure on the Courts and CSIS to self-regulate. In such an environment, after the fact review cannot prevent abuse. The abuse, strikingly, may be mandated by judges. Indeed even historical scrutiny may be prevented by these provisions.

    Arbitrariness: The definition of propagation offenses and the scope of activities that CSIS may investigate as a basis for creating lists to prohibit activity expands the scope of surveillance and criminalization of otherwise lawful activity. How one is listed and how one becomes delisted is mired in the confusing and vague language of the new amendments.

    Procedural Fairness: The Minister may collect information and place individuals on lists for air transportation security without notice to the person. Delisting after the fact becomes very difficult if not impossible where the basis of the listing may also be shrouded in national security privilege.

    Procedural Fairness: CSIS’s right to seek judicial authorization for virtually any activity to disrupt activities that may “undermine” national security may be done without notice to the concerned person. The objects of surveillance of disruption may never become aware of CSIS’s role nor have the opportunity to challenge abuse of process of unlawful conduct of CSIS.

    Procedural Fairness: Allowing the Minister to circumvent Special Advocates in Security Certificate proceedings undermines the integrity of the entire regime, which is already highly contentious and criticized based on its pervasive use of evidence not disclosed to the concerned person.

    Rule of Law: By allowing CSIS and Federal Court judges to become the mechanism for authorizing and implementing activities that are without control, fetter or effective oversight directly undermines the entire Canadian legal system and the expectation of being treated in accordance with and under protection of the law.

    Democracy: The proposed amendments threaten the most fundamental civil liberties that are identified under the Charter, freedom of expression, security of the person, freedom from unlawful search and freedom from arbitrary arrest. Where such violations may be systemically authorized, particularly in a manner with differential and adverse impact on specific communities, democratic freedoms and minority protections will be eroded.


    Published: 5 March 2015
    Image:Canadian Press/Sean Kilpatrick

    05 October 2016

    Since its passage in June 2015, the Anti-Terrorism Act, 2015, has faced continued criticism from civil society groups, national security scholars and constitutional experts alike over its vague wording and the over-reaching powers it grants to law enforcement and national security agencies, including the Canadian Security Intelligence Service (CSIS). This criticism has included both a political campaign to repeal the legislation as well as a charter challenge.

    During the 2015 federal election, the Liberal Party of Canada promised to repeal the problematic aspects of the Act. The Liberal Party reiterated this after winning the election in their Dec. 2015 mandate letters. After several months in power, on September 8, 2016, the Liberal government announced a public consultations on national security, with specific focus on amending the changes brought about by Bill C-51, in order to ensure that the country’s overall national security legislation is appropriate, accountable, and effective.

    The consultations will run until December 1st 2016 and will include online consultation and in-person consultations with Members of Parliament across Canada. The government has also made two supporting documents available to the public: Our Security, Our Rights: National Security Green Paper, 2016 and A background document. The first document addresses the framework of the consultation, while the background document “details specific scenarios and precedents for the use of the legislation.”

    The findings of the consultation will be used to craft amendments to national security policy. The launch of the consultations has received mixed reviews: While groups welcome the opportunity for input, civil liberties groups and watchdogs have expressed concern that the consultation is heavily biased towards law enforcement, favouring police and national security agency concerns over public concerns. These concerns were reiterated in the Privacy Commissioner’s 2015-16 annual report, released on Sept. 27 2016, in which the commissioner stated:

    “I’m also troubled by the tone of the Government’s discussion paper – it focuses heavily on challenges for law enforcement and national security agencies, which doesn’t present the full picture. Canadians should also hear about the impact of certain surveillance measures on democratic rights and privacy. A more balanced and comprehensive national discussion is needed.”

    Since its implementation, concerns around the impacts of C-51 have continued to grow. Incredibly broad language around what constitutes “promotion of terrorism” as well as vague regulations on what constitutes a terrorist activity continue to impose a chill on free expression, political dissent and protest. The concerns do not end there, and extend into privacy concerns such as: communication interception; forcing people to reveal their phone passwords and other personal information; and coercing telecom companies to comply with the government to build tools for surveillance in their respective networks.

    Finally, the public has little to no knowledge of how the officials are using C-51 to reduce domestic security threats.  Apart from some disclosures, C-51 is still “shrouded in secrecy.” It lacks effective review and oversight of national security agencies. The lack of transparency to the inner workings of the bill is problematic, despite it achieving success in disrupting suspected terrorists. This means that the public – and even parliament – is generally left in the dark. While proposed legislation will create a new parliamentary oversight committee to ensure accountability, provisions of C-51 would still allow for CSIS and other agencies to operate in relative secrecy.

    Several groups including Voices, Open Media, Canadian Journalists for Free Expression, the International Civil Liberties Monitoring Group, and the BC Civil Liberties Association, are working to provide tools and information to encourage and facilitate participation in the consultation.

    Since the fall of 2014, the Harper government has introduced two significant bills to amend the Canadian Security Intelligence Service Act and other national security related legislation, identified as Bill C-51 and Bill C-44. At the time of writing, Bill C-44 has been passed by the House of Commons and is awaiting approval by the Senate while Bill C-51 (introduced in Parliament in January 2015) is entering its second reading in the House. The amendments proposed, especially through Bill C-51, represent the most sweeping changes to the powers of CSIS since its inception in 1984 and create far-reaching, vague and controversial changes to anti-terrorism legislation that potentially criminalize now lawful activity, create new vaguely defined speech crimes, and increase the scope for CSIS to engage in secret judicially-approved counter-terrorism actions in Canada as well as in foreign countries.


    Background

    In 1984, CSIS was created as a response to the McDonald Commission, which recommended a separation between national security policing and intelligence functions. National security intelligence would be limited to information gathering, and CSIS’ performance of its duties and functions would be subject to the review of the Security Intelligence Review Committee (SIRC). Unlawful disruption tactics, including barn burnings, property destruction, break-ins, thefts, and abusive investigation techniques by the RCMP were strongly condemned. In the aftermath of the McDonald Commission Report, the government created CSIS as a legally more constrained, domestic, civilian intelligence collection service. Indeed, later in that decade, an important reform removed the controversial area of “subversion” from the RCMP’s mandate.

    In November 2001, in the aftermath of the 9/11 attacks in the United States, Parliament amended the Criminal Code of Canada, by creating the offense of terrorism and criminalizing specific acts involved in the proliferation of terrorism. At the same time, legislators attempted to carve out a zone for lawful protest through the exclusion of activities such as “advocacy, protest, dissent or stoppage of work,” barring they do not cause serious bodily harm through the use of violence, they do not endanger a person’s life, nor do they put the health and safety of the public at serious risk.

    Two pivotal national security commissions of inquiry, the Air India Inquiry (2010) and the Arar Inquiry (2006), provided important recommendations which criticized national security investigations, as well as domestic and international information sharing by both the RCMP and CSIS. These inquiries revealed serious problems in intelligence collection and sharing, which had real and far reaching impact on the lives of Canadians, and called for much more robust oversight mechanisms for national security investigations. Similar cautions on the adverse impact of intelligence sharing were echoed by the Iacobucci inquiry regarding the deportation of three Canadian men who were subsequently tortured in Syria.

    Despite the concerns raised by the McDonald Commission and subsequent case-specific national security inquiries, on January 30, 2015, the Harper government proposed sweeping changes designed to broaden the scope both of CSIS' activity and the service's legal authorization to actively disrupt suspected terrorist activities. These changes are part of a larger and more vague definition of threats to the security of Canada.

    Summary of Bill C-51

    The Bill is divided into five parts:

    • Part one enacts the Security of Canada Information Sharing Act, authorizing the disclosure throughout and within the government of Canada of information regarding activities that “undermine” Canadian security;
    • Part two enacts the Secure Air Travel Act, which creates listing mechanisms and prohibitions for persons who may pose a threat to air transportation or who may travel abroad to commit terrorism offenses;
    • Part three amends the Criminal Code in significant ways including the creation of propagation crimes criminalizing the expression of ideas related to terrorism and its propaganda;
    • Part four broadens the mandate of CSIS to operate both inside and outside of Canada (also in conjunction with Bill C-44) and to this end to be authorized to seek judicial authorization on a number of matters that may otherwise violate Canadian law and the Constitution; and
    • Part five relates to amendments to immigration security certificate legislation allowing, in part, the government to withhold information from the specially appointed, national security approved Special Advocates retained to represent a detained person in confidential and closed national security hearings.

    Parliamentary Response to the Bill

    The federal Liberal Party leader, Justin Trudeau, has declared that his party will support Bill C-51, while subsequently advocating for greater oversight, but the Bill will be opposed by the NDP and the Green Party.

    Expert Response to the Bill

    Legal scholars Craig Forcese and Kent Roach have provided extensive, in-depth and comprehensive analysis of the implications of Bills C-44 and C-51 and have published their findings online. They describe the implications of the new amendments as “radical” and “extremely concerning” and outline a number of serious operational and administration of justice concerns raised by the proposed amendments.

    The Forcese-Roach analysis argues that the proposed amendments run counter to the rationale for CSIS’s formation and foster a more active, invasive and dangerous sphere of activity of CSIS that risks criminalizing lawful conduct, and justifying surveillance and disruption tactics towards Canadians for mere regulatory violations. In effect, these changes threaten a return to the very behaviours of the '70s that the McDonald Commission so thoroughly condemned.

    More than 100 Canadian professors of law and related disciplines have signed an open letter, which runs more than 4,000 words and is a detailed legal analysis that covers “some (and only some)” of the bill’s alleged defects, and calls for the government to scrap C-51 on the basis of “its potential impacts on the rule of law, on constitutionally and internationally protected rights, and on the health of Canada’s democracy.”

    Public Response to the Bill

    The public unveiling of Bill C-51 occurred at a press conference in late January at which Prime Minister Harper linked mosques to the radicalization of young Muslims. NDP leader Tom Mulcair charged that Harper had stepped over the line and that his comment was a form of Islamophobia. The National Council of Canadian Muslims (NCCM) and the Canadian Muslim Lawyers' Association (CMLA) said in a press release that they are "deeply troubled" that Harper "implicated Canadian mosques as venues where terrorism is advocated or promoted" and demanded an apology.

    In its briefing note, the CMLA takes the position that C-51 “grants the Government of Canada extraordinary, vague and unnecessary powers that pose a risk to the civil rights and privacy rights of Canadians,” which are “contrary to the recommendations of the Arar Inquiry, as echoed by the Privacy Commissioner’s 2014 report, especially with respect to information sharing, independent review and accountability.” The CMLA also goes on to point out that “while the extraordinary powers of Bill C-51 put the rights of all Canadians at risk, experience tells us that Canadian Muslims will be disproportionately affected.” The Canadian Association of Muslim Women in Law has further noted in a statement that “Bill C-51’s binaristic approach to 'mainstream' versus 'extremist' values reflects a fixation with, among other things, policing Muslims’ diverse and often divergent religious, cultural, and political practices.”

    While recent opinion polls suggest that a majority of Canadians support Bill C-51, a significant percentage (69%) believe that greater oversight is needed. Former Canadian Prime Ministers Chrétien, Martin, Clarke and Turner, as well as five former Supreme Court justices, seven former Liberal solicitors general and ministers of justice, three past members of SIRC, two former Privacy Commissioners, and a retired RCMP watchdog have urged for a stronger oversight role of security intelligence in Canada in view of current Parliamentary debate on Bill C-51. Despite the government’s assurances that SIRC plays a robust oversight role, SIRC reviews past activities and does not engage in oversight as it is not involved in operational or political decision-making. Up until the office was cut in 2012, the office of the inspector general of CSIS acted as a watchdog, actively overseeing the activities of CSIS. Critics also note that SIRC’s limited resources further compromise its capacity to act as a check on the spy agency. The government has also stressed the oversight role of judges who must approve CSIS’ disruptive activities. However, judicial “threat disruption” warrants are only needed in cases where CSIS’ activity would be illegal or unconstitutional. All other activities would fall under the review of SIRC.

    There has also been a relative dearth of any practical or expert opinion tendered by the government (or otherwise) that justifies the necessity or the effectiveness of the proposed measures of the Bill. Academics have raised questions as to whether the bill could be counter-productive to “effective policing, intelligence-gathering and prosecutorial activity,” and have instead called for evidence-based policy-making. In addition, critics have noted that the Code already prohibits direct incitements to terrorist acts, making the propagation provisions not just redundant, but over-broad.

    Impact on Dissent within Canada

    Serious concerns have also been raised about the impact of C-51 on Indigenous dissent, including land defenders and their allies, particularly given the Harper government's existing track record of labelling pipeline opponents as “extremists” who have a “radical ideological agenda,” of using CSIS to surveil the Idle No More movement and First Nations activists Pam Palmater, Clifton Nicholas, and Cindy Blackstock, and of monitoring people trying to voice their concerns about fossil fuel developments. The Assembly of First Nations has also expressed concern about the potential impact of C-51 on First Nations dissent, fearing it could lead to the “unjust labelling of First Nations activists as ‘terrorists.’” In addition, the Canadian Civil Liberties Association, the British Columbia Civil Liberties Association, the International Civil Liberties Monitoring Group, the Association des juristes progressistes, Amnesty International Canada, and Greenpeace are some of the concerned civil society organizations that have spoken out strongly against C-51.

    Key Changes Proposed by Bill C-51

    1. Information Sharing

    The bill provides authorization for the Canadian government to share broadly and internally information regarding activities that “undermine” national security. While the bill excludes “lawful advocacy, protest, dissent and artistic expression”, “terrorism” is only one of nine examples of activities that “[undermine] the security of Canada.” The vagueness of what may undermine national security, particularly with respect to “interference with critical infrastructure,” leaves open broad parameters for collecting information on people who have not committed criminal acts, who have committed regulatory or administrative offenses, who are viewed as politically subversive or whose activities may be construed as being connected to a cause that is lawful but politically contentious.

    2. Propagation and Other New Crimes

    One of the more controversial aspects of Bill C-51 is its enactment of “propagation crimes” which make it an offense to advocate and promote the commission of “terrorism offenses in general.” This new offence is broader in scope than existing terrorism offences in the Criminal Code in that the speaker’s purpose or intent does not matter, and unlike other propagation offences in the Code, one can be charged for communications made in private. Because the scope of terrorism offenses is already extremely broad (relating to 14 already delineated terrorism-related offences in the Code), the number of measures that may be construed as falling within the ambit of terrorism and the facilitation of terrorism – as well as crimes that may propagate a message that advocates terrorism – have serious and far reaching effects that would curtail legitimate free expression.

    The bill also lowers the Code’s threshold for preventative detention by allowing law enforcement to arrest and detain an individual if they suspect that a terrorist act “may be carried out.” The current standard in the Code is “will be carried out.” Evidentiary thresholds required to obtain terrorism peace bonds are similarly lowered from a standard of “will commit” an offence to “may commit” a terrorism offence.

    3. New Powers for CSIS

    The new amendments authorize an active role for CSIS, which experts have called “kinetic” as opposed to its previous role of more passive information collection and advising. The amendments will also now allow for foreign CSIS activities. While CSIS must abide by Canadian laws, it has the mandate to seek special authorization from the Court to engage in disruption tactics either at home or abroad, which may encompass limitless activities, which may never be publicly known. In the past, the Federal Court of Canada has also criticized CSIS for misrepresenting facts in obtaining a secret authorized warrant, which was used for unauthorized foreign spying. These provisions run the risk of, in effect, legalizing activities akin to the RCMP Security Service wrongdoings of the 1970s, which led to the demise of the Security Service and the creation of CSIS.

    In addition, the amendments authorize CSIS to take measures to reduce “threats to the security of Canada.” The threat disruption measures may violate Canadian law or the Canadian Charter of Rights and Freedoms if a Federal Court judge has approved the violations in advance in a warrant. As critics have noted, this is a dramatic departure in that judicial search warrants are normally issued to prevent Charter violations, other legal Charter rights are absolute, and rights that do have internal limitations are subject to close judicial scrutiny that balances the scope of the legislation against the nature of the protected right. While all Charter rights can be subject to the reasonable limits clause of the Charter, this legislation calls for a constitutional departure in that it pre-authorizes a violation of a right in the context of warrant proceedings that are done in secret.

    4. Air Transportation Security

    Bill C-51 empowers the Minister of Public Safety to put Canadians who “may” cause a threat to air transportation or who “may” engage in terrorism abroad on a no-fly list. A standard based on suspicion and speculation raises concerns about mistaken identity, racial profiling, bias or unfounded associations that may lead to listing on a no-fly list. Similarly, delisting procedures are opaque and have been criticized as being procedurally unfair by virtue of the fact that listed persons may not be aware of their listing or, if so informed, they may not know the basis of their listing.

    5. Security Certificate Amendments

    Individuals named on a no-fly list can appeal the minister’s decision to a judge of the Federal Court, however the process borrows from the Immigration and Refugee Protection Act’s security certificate regime. At the request of the minister, the Court can hold part of the delisting hearing in secret, meaning that the individual challenging his/her designation and his/her lawyer can be excluded from the court and not be privy to the evidence presented against them.

    The bill also amends the Immigration and Refugee Protection Act, authorizing the government and CSIS to withhold information in cases where individuals are held on security certificates. In the context of security certificates, the Supreme Court of Canada has already deemed secret trials unconstitutional and to this end has upheld the implementation of a Special Advocate role for assisting the concerned detainee by advocating on his behalf in closed court sessions. Lawyers have criticized this regime as being unfair and one-sided. Despite such criticism and the delicate balance that the Court has recognized in the role of Special Advocates, the government is seeking to completely side-step Special Advocates upon a confidential request by the Minister to the Federal Court. Again this is a blatant attempt by the Harper Government to undermine the judicial critiques of earlier CSIS and Communications Security Establishment (CSE) actions.

    Important Dates

    • 1981: McDonald Commission publishes its final report and recommends that national security policing and intelligence functions be separated.
    • 1984: Parliament passes the Canadian Security Intelligence Service Act creating CSIS. The agency would be overseen by the CSIS inspector general’s office and reviewed by the newly created Security Intelligence Review Committee.
    • 2001: Parliament passes the Anti-Terrorism Act (2001).
    • 2012: Harper government shuts down the office of the CSIS inspector-general.
    • January 30, 2015: Bill C-51 is introduced in the House of Commons.
    • February 23, 2015: Bill C-51 passes second reading in the House of Commons with a vote of 176-87. The Bill is now in committee.

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  • 05/22/15--16:01: Quebec Native Women
  • Quebec Native Women logo

    For over 40 years, Quebec Native Women (QNW) has provided services and support for Indigenous women in Quebec, through the "promotion of non-violence, justice, health and equality." Following an important funding cut from the federal government, though, the organization may be forced to close.

    For the past 20 years, QNW received $175,000 in funding per year from Heritage Canada. In 2014, the federal government transfered the administration of the funds to the department of Aboriginal Affairs and Northern Development Canada (AANDC). AANDC then informed the QNW that they do not recognize them as an Aboriginal Representative Organization, and withdrew the funding. The budget cut is threatening the existence of the QNW, with it's president Viviane Michel saying that they are facing possible closure.

    While AANDC has said QNW can apply for Aboriginal Representative Organization status, the department could not provide any guidelines of information to QNW on how to qualify. AANDC also suggested QNW apply for funds under the name of another, recognized organization. Michel told APTN that they have done so, but are concerned by the fact it takes away their independence.

    The cuts come at a time when Native women are being vocal about the fight for justice for Missing and Murdered Indigenous Women. As Mary Hannaburg, the organization's Mohawk Nation director, told the CBC:

    "There is a problem. There are women that are disappearing, being murdered, violence has increased. We need to understand what is going on. We need to work in solidarity. We need our brothers and sisters and first nations organization to pay attention to this."

    This is a summary. A full case study on the QNW is coming soon.

    Published: 22 May 2015


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  • 06/23/15--16:06: Pamela Palmater
  • Image of Pamela Palmater

    Transparency: CSIS has refused to confirm or deny whether an investigational record on Palmater exists. The RCMP failed to respond to her in writing, although officers on the ground make it clear to her that she is under surveillance. The DND failed to respond to her ATIP in any form.

    Democracy: One of the units involved in surveillance is AANDC (formerly INAC). Their mandate is to improve the situation of First Nations, rather than to spy on them. AANDC resources should instead be used to fulfill their proper mandate. It poisons Indigenous peoples' relations with the one department that should be a defender of Indigenous rights rather than spying on them.

    Government Integrity: Spying on prominent Indigenous individuals, movements and organizations impedes rather than furthers the move towards “healing, reconciliation and resolution” to which the Prime Minister committed the Canadian government in his 2008 Statement of Apology.

    Rule of Law: Sharing the result of the surveillance with “industry partners” infringes seriously on the rights of those spied upon and privileges a corporate constituency whose motive is private profit rather than public good.

    Published: June 23, 2015

    Image: Rabble.ca

    Pamela Palmater is an Indigenous lawyer, university professor and activist. Following the news, in 2011, that other Indigenous activists were being surveilled by Canadian security agencies, she filed an Access to Information and Privacy request and learned that she herself is under surveillance.

    This surveillance grew as Palmater became prominent in the Idle No More movement, with RCMP and other law-enforcement officers identifying themselves to her during demonstrations.

    The scrutiny continues even when Palmater travels in other countries. Despite never having broken the law, engaged in a violent act, or incited anyone to violence, she has had her privacy breached multiple times. Nor is this an isolated phenomenon. Palmater's case is part of a pattern of government spying on Indigenous people and organizations.


    Background

    Pamela Palmater is a Mi’kmaw citizen and member of the Eel River Bar First Nation in northern New Brunswick. She is an Associate Professor and the Chair in Indigenous Governance in the Department of Politics and Public Administration at Ryerson University in Toronto. She has also been for several years an outspoken activist for Indigenous rights.

    Palmater learned that Cindy Blackstock, Executive Director of the First Nations Child and Family Caring Society of Canada, was under surveillance by federal authorities. At the end of 2011, Palmater filed an Access to Information and Privacy (ATIP) request to the Canadian Security Intelligence Service (CSIS), Indian and Northern Affairs Canada (INAC), the Royal Canadian Mounted Police (RCMP) and the Department of National Defense (DND) for any and all records, reports, security assessments, surveillance reports, etc., in relation to her and her work.

    The four ATIP requests resulted in two written replies from CSIS and INAC. CSIS confirmed in December 2011 that they had a Security/Assessments/Advice file on her. CSIS provided some records of assessments done when she worked at INAC and Justice Canada, but refused to disclose other material, stating:

    "Portions of the material have been exempted from disclosure by virtue of section 15(1) (as it relates to the efforts of Canada towards detecting, preventing or suppressing subversive or hostile activities) of the Act."

    With respect to CSIS Investigational records, they did not confirm or deny that such a file existed, but stated that even if such records did exist, they would not release them to her as part of their efforts in "detecting, preventing or suppressing subversive or hostile activities."

    While this is the agency's standard response, it leaves open the inference that Palmater was engaged in “subversive or hostile” activities and raised concerns about what it means for privacy and surveillance of peaceful activities.

    In January 2012, Palmater heard back from INAC (now known as Aboriginal Affairs and Northern Development Canada, AANDC). The department would not confirm monitoring, but did admit conducting an analysis of her and her activities. The analysis comprised 750 pages of documents that tracked her whereabouts, in what provinces she was travelling, and her speaking engagements. Some parts were heavily redacted. AANDC could not provide the security file, which it said had been destroyed.

    The RCMP did not reply in writing, but RCMP officers on the ground confirmed that they were monitoring her activities. DND did not reply at all.

    Palmater comments:

    “This, to me, is like being judged without knowing what I am accused of, and then being sentenced to ongoing spying on undisclosed activities for an undetermined amount of time so as to reduce the security risk to Canada in relation to my peaceful Indigenous advocacy activities.”

    Life Under Surveillance

    In her 2015 written and oral submissions to the Standing Committee on Public Safety and National Security regarding Bill C-51, Palmater describes life under surveillance (Palmater 2015). When Palmater attends rallies, protests, or public or private events, she stated that she is often unable to make cell phone calls, send texts, or access her social media or her bank or credit card accounts. The blackout imposed on her is selective, she says: she can text her children but not the First Nations Chief present at the same protest. She comments: “This causes me great concern for my safety. How am I supposed to help ensure the comfort and safety of the people at rallies and myself if I can’t communicate with anyone?”

    It is unclear whether the communications blackouts are the work of law enforcement and what technology is used, and these incidents have heightened Palmater's fear for her safety and her privacy.

    At rallies and teach-ins during the Idle No More movement (2012-2013), undercover-RCMP and/or provincial police would seek her out and impress upon her the need to ensure that “her” protest was peaceful. At other times, she herself would request to the crowd that agents identify themselves. “The usual suspects who introduce themselves to me are: INAC, Justice Canada, the RCMP and/or provincial police,” says Palmater.

    The monitoring of her activities continues even when she is lecturing abroad:

    “I have attended many other countries like Samoa, Peru, England…and Switzerland to bring attention to Canada’s treatment of Indigenous peoples. To my surprise, at several events, Canadian legal or diplomatic representatives have either identified themselves to me as attending events to report my activities, or were identified to me by local authorities.”

    Sometimes, the RCMP would call ahead to the university, school or First Nation where she was going to speak to determine what her “targets” may be or if she had planned a protest.

    “The most shocking and disturbing example is the level of surveillance when I am in Manitoba at events with Manitoba Chiefs. Aside from obvious police presence, the surveillance is sometimes done by third parties – corporations like those in the mining industry. In one instance, two large men followed myself and a Manitoba Chief around Winnipeg video-taping us and it was later confirmed that they were two retired RCMP officers working as private security for a large corporation.

    In another incident, I was attending a meeting with a Chief and several members of the community and we decided amongst ourselves to attend a law office to try to meet with corporate parties with whom we had an issue over Aboriginal rights. As we arrived at the public building the doors were locked and security told us they received “advance warning” that there were “angry and dangerous Indians” en route. Neither I nor this Chief had ever committed a violent act or crime and we did not that day either.”

    Context

    The surveillance of individual Indigenous activists such as Palmater, Blackstock, Clayton Thomas-Muller and many others must be seen and understood within the context of a long history of spying on First Nations and all Indigenous peoples that dates at least to the 19th Century.

    Shortly after coming into power, the Harper government gave AANDC the task of spying on First Nations. According to a 2011 press release, documents obtained by the First Nations Strategic Bulletin (FNSB) showed that the Conservative government had stepped up intelligence gathering on First Nations to anticipate and manage First Nations political action across Canada:

    “The goal was to identify the First Nation leaders, participants and outside supporters of First Nation occupations and protests, and to closely monitor their actions.

    To accomplish this task, INAC established a “Hot Spot Reporting System.” These weekly reports highlight all those communities across the country that engage in direct action to protect their lands and communities. They include Tsartlip First Nation, the Algonquins of Barriere Lake, Six Nations, Grassy Narrows, the Likhts’amsiyu Clan of the Wet’suwet’en First Nation, Tyendinaga Mohawk Territory, and many more.” (Voices-Voix has documented other such cases in our report on Aboriginal communitie and environmental groups.)

    This “reporting system” fundamentally contradicts AANDC's mandate, which is to:

    • improve social well-being and economic prosperity;
    • develop healthier, more self-sufficient communities; and
    • participate more fully in Canada's political, social and economic development — to the benefit of all Canadians.

    Instead, AANDC “rather appears to be a management office to control the costs of Native unrest, and they are willing to work closely with law enforcement to accomplish this task,” according to a 2011 report on the FNSB's findings. In addition, such activities divert precious resources away from the agency's mandated purpose of improving the well-being of First Nations people.

    In 2007, the RCMP established the Aboriginal Joint Intelligence Group (JIG), “to monitor protests by First Nations, including those that would attract national attention or target 'critical infrastructure' like highways, railways and pipelines, according to RCMP documents." The intelligence unit reported weekly to approximately 450 recipients in law enforcement, government, and unnamed 'industry partners' in the energy and private sector.

    The CBC reported that:

    “[The RCMP] made a series of presentations to private-sector corporations, including one to ‘energy sector stakeholders’ in November 2011. Other corporations that received intelligence from police included Canada’s major banks, telecom firms, airlines, downtown property companies and other businesses seen to be vulnerable to the effects of summit protests.”

    The JIG unit was dismantled in 2010, but a spokesperson said“the work done by the JIG is no longer performed at RCMP HQ Criminal Intelligence (CI). However, we cannot confirm that RCMP divisions are not performing Aboriginal JIG activities under another name of program."

    Relevant Dates

    1998-2009: Palmater works intermittently at INAC and Justice Canada, while finishing her degrees, including a doctorate in Aboriginal Law from Dalhousie University.

    2006: Shortly after coming into power, the Harper government gives the Department of Indian and Northern Affairs the task to spy on First Nations.

    2007: The RCMP establishes the Aboriginal Joint Intelligence Group (JIG), partnering with the private sector to spy on First Nations.

    2009: Palmater starts work as a Professor at Ryerson University

    2010: JIG is dismantled. It is not known how their work is continuing or if it is continuing.

    Nov. 2011: After discovering that other indigenous activists are under surveillance, Palmater files ATIP requests to CSIS and INAC

    Dec. 2011: Palmater files ATIPs to DND and RCMP

    Dec. 2011: She hears back from CSIS that they have one active file on her and that they will neither confirm nor deny that they may have an investigational record on her.

    Jan. 2012: INAC confirms they were surveilling Palmater. They provide her with 750 pages of documents, many redacted.

    2012: Palmater is the runner-up in the election for national chief in the Assembly of First Nations

    2012: Palmater wins the YWCA Women of Distinction Award in Social Justice

    2012-13: Palmater is active in the Idle No More movement. 


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    NWAC is the leading civil society organization for Indigenous women in Canada. It draws on Indigenous cultural practices and feminist insights into oppression to mount a significant challenge to long-standing colonial and patriarchal practices. State support of or threat to its well-being reveals the health of fundamental human rights. In 2015 Canada’s federal government has marked itself out as a determined opponent of NWAC’s efforts to win justice for Indigenous women.

    • Civil Society: NWAC has been a key civil society champion of Indigenous women and girls. Its determination has done much to educate Canadian opinion and to keep continuing threats to the rights of Indigenous women and girls on the public agenda.
    • Democracy and Equality: Even as governments have failed to protect Indigenous women and girls, NWAC has been their champion. Prospects for democracy and equality would be poorer without its interventions.
    • Transparency: In 2008 Prime Minister Harper apologized for the century and more of abuse perpetuated by the Indian Residential Schools. Despite this public apology with its implication of remedy and repentance, Ottawa has failed to support Indigenous representatives. Its reduction in support to NWAC demonstrates the gulf between the promise of justice and the reality of indifference.

    Published: 15 Sept. 2015

    26 December 2016—During the 2015 federal election campaign, the Liberals promised to improve the relationship between Canada and Indigenous Peoples, as well as to launch a national public inquiry into missing and murdered indigenous women.

    The Liberals coming to power brought about many positive changes including, the launch of the national inquiry in September 2016. However, as of December 2016, the Native Women’s Association of Canada still had many concerns with the progress made.

    The inquiry

    In February 2016, the Native Women's Association of Canada released a list of 22 recommendations to help guide the inquiry in missing and murdered indigenous women.

    These recommendations included, that indigenous women lead the inquiry, that the inquiry should focus on root causes and be free from funding or time restrictions. At the time, NWAC was relieved that their repeated calls for an inquiry had finally been heeded and looked forward to collaboration with the Liberal government.

    However, only a couple months later NWAC aired frustrations over their exclusion in the process. In March 2016, NWAC was troubled that they were not welcomed to the gathering of the Premiers with the Prime Minister and First Nations, Inuit, and Metis leaders that took place in Vancouver, British Columbia.

    This was rectified, in August, when the government appointed the new NWAC president, Michèle Audette, as one of five commissioners to lead the national inquiry. It further looked promising when the official inquiry was launched in September 2016.

    Nevertheless, a month later in October, NWAC released a statement expressing its disappointment, going so far as to say the inquiry had made “no visible progress” since its launch.

    Furthermore, as of December 2016, NWAC brought concerns about the transparency and disengagement of the process. They stated that the families of missing and murdered women and girls have been "left in the dark" for the last three months. Unfortunately, this will not be solved until the spring of 2017,when the commissioners will start hearing formal testimony from the families.  In the meantime, the commissioners have since started holding biweekly conference calls with Pauktuutit, NWAC and other Indigenous organizations to try to improve communication. 

    Legislation

    In October 2016, the federal government introduced a new Bill to senate, which represents Stage I of the recently launched two-staged approach to end sex discrimination in the Indian Act. NWAC commended the Government for introducing legislation with the goal of ending sex-based inequities and residual discrimination against Indigenous women.

    This approach is the Government’s response to the 2015 Superior Court of Quebec’s decision on the Descheneaux et al., v. Canada case. The court found that sections of the Indian Act violated section 15 of the Canadian Charter of Rights and Freedoms and gave the Government until February 2017 to make the necessary legislative amendments.

    NWAC stated that they look forward to collaboration with the government through “consultation with Indigenous leaders, organizations and communities in order to identify, address, and eliminate all forms of discrimination within the Indian Act.”

    As of December 2016, NWAC has not made any further statements on the legislation. However, Indigenous Affairs Minister Carolyn Bennett stated that she was personally embarrassed by the department's failure to directly engage with the plaintiffs while creating this legislation. In addition, the Assembly of First Nations criticized the legislation, saying that Bill S-3 will result in continued discrimination and federal control over First Nation identity.

    Therefore, NWAC’s previous hope for effective removal of sex-based inequities, as well as other misogynist laws has yet to be accomplished.

    Attacks on core and project funding for the Native Women’s Association of Canada (NWAC) began under the regime of Liberal prime minister Jean Chrétien but surged under that of Conservative Stephen Harper. By 2015 NWAC was hemorrhaging badly even as it remained the most significant civil society champion of Indigenous women. Its peril confirmed the endangered state of democracy in Harper’s Canada.


    Background

    NWAC is Canada’s leading champion of Indigenous women’s rights on and off reserves. Indigenous and female rights-seekers have rarely found friends in Ottawa’s higher circles but NWAC has been especially vulnerable to the ascent of reactionary politics in the late 20th and early 21st centuries.

    Just over four decades old in 2015, NWAC has a distinguished record of challenging both sexism and racism in mainstream and Indigenous communities. Much of its agenda has focused on equality under the Indian Act and before the law generally and recognition for Indigenous women in negotiations with federal and provincial governments. Its determination to combat violence against Indigenous women and girls is the special focus of this case study. As the February 2015 Review of Reports and Recommendations on Violence against Indigenous Women in Canada by the Legal Strategy Coalition on Violence against Indigenous Women makes abundantly clear, such abuse has been widely and repeatedly documented.

    Ottawa’s Liberal and Conservative power-brokers have been deeply uncomfortable with the prospect of sharing power with Indigenous leaders. Their resistance has been especially visible when NWAC made claims for women at constitutional tables overwhelming dominated by Indigenous and settler men. NWAC’s feminist sympathies were similarly suspect when it connected violence against Indigenous women and girls firmly to pervasive racism, sexism, and poverty. Its demands for systemic change directly challenge neo-conservatives’ preference for privatization, criminalization, and austerity for the disadvantaged.

    NWAC’s Unique Position

    NWAC embodies the complex politics of identities in Canada. One scholar summed up this complexity: “Rights, then, functioned for Indian women in defining themselves within multiple historical contexts and identities—as racialized Indians, as tribal, as women, as women of color, as feminists, as international and civil rights activists” (Barker). From its founding in 1973-4 as an umbrella group of provincial and local Aboriginal women’s organizations, NWAC demanded “as women, to be part of the policy and legislative processes that are being set up to define, develop and interpret their forms of Aboriginal government” (McIvor 36). It looked forward to the day when Indigenous women would no longer be “citizens minus” (Jamieson).

    By the 1980s, NWAC “took the lead in protesting state actions that disadvantaged Aboriginal women,” challenging both Aboriginal men and mainstream politicians (Fiske, 2000: 14). Despite its protests to Canadian governments and the United Nations, it was excluded from constitutional discussions surrounding the Charlottetown Accord (1992).

    In its efforts to forge a distinctive politics that acknowledges the impact of both gender and race, NWAC has always walked a fine line. Some critics, especially the advocates of the early Indian brotherhood organizations, condemned the influence of western feminism and its criticism of Indigenous men. Relations with mainstream feminism, which struggled to escape its own history of racism in these years, were similarly bumpy. Nevertheless by 2015, NWAC was key to both the Assembly of First Nations and the Feminist Alliance for International Action Canada/l’Alliance feminist pour l’Action internationale Canada prioritizing an end to violence against Indigenous women and girls.

    Confronting Violence Against indigenous Women

    In the 21st century, violence against Aboriginal women and girls has increasingly taken centre stage even as a cascade of evidence, especially after the 1989 Montreal massacre, roused the mainstream women’s movement. Revelations associated with serial killers John Martin Crawford in Saskatchewan (convicted 1996; Goulding) and Robert Pickton in BC (convicted 2007; BC Missing Women Commission of Inquiry) underscored violence as a special issue for indigenous activists but many earlier murders, such as that of Cree twenty-year-old Helen Betty Osborne, in The Pas, Manitoba, in 1971, supplied ample proof of historic victimization.

    Although laughter greeted a feminist MP, NDPer Margaret Mitchell, in 1982 when she raised the question of violence in the House of Commons, Canadians increasingly condemned its prevalence. In 1991, Brian Mulroney’s Conservative government appointed the Canadian Panel on Violence against Women in a tactic widely regarded as an effort to seize an embarrassing issue from NWAC, the National Action Committee on the Status of Women and mainstream feminist critics of state inaction. “The glaring absence of specific communities of women” from Panel membership confirmed a rift between Ottawa and the organized women’s movements with their demands for action (Gotell 56). While women of colour, immigrant women and women with disabilities remained largely ignored, Aboriginal women secured “the addition of four 'Aboriginal Circle' members, chosen by and responsible to their organizations” (Gotell 57). Such last minute inclusion reflected emerging public recognition of the particular plight of Indigenous women.

    Ultimately, despite its boycott by many anti-violence activists, the Panel’s report “reflected feminist discourses and approaches” (Gotell 58), notably in its emphasis on violence as “shaped by complex and intersecting inequalities”(Gotell 60) and the necessity of broad social change. The Conservative government publicly “embraced” much of the report “but refused to commit any new budgetary resources to the battle against violence”(Gotell 68). In 1993, the federal victory of the Chrétien Liberals, with their own law and order agenda and emphasis on cutbacks to transfer payments, made little difference. Anti-violence work by NWAC, as with other groups, continued to depend on uncertain and conditional state funding. Even when the 2000 Report of the Royal Commission on Aboriginal Peoples and 2015 Report of the Truth and Reconciliation Commission presented incontrovertible evidence of historic violence, amounting in effect to cultural genocide, governments remained reluctant partners.

    The on-going revelation of Canada’s ‘missing and murdered’ Indigenous women nevertheless kept violence in the public spotlight. In 2003, NWAC president Terri Brown, of B.C.’s Tahitan Nation, built on decades of anti-violence work by Aboriginal women’s groups (see, for example, efforts of the Quebec Native Women’s Association http://www.faq-qnw.org/old/history.html and Breaking Free, a report from the Ontario Native Women’s Association, 1989), to publicly condemn the estimated “more than 500 Aboriginal women gone missing” over two decades. Calling for immediate action, she “underscored the limited investigation” into such tragedies (Sterritt). A year later NWAC launched its Sisters in Spirit (SIS) initiative, which included a campaign asking Ottawa for $10 million to fund research. In 2005, shortly before its defeat, Paul Martin’s Liberal government announced it would provide $5 million over five years.

    That funding, continued by the Harper minority government, allowed NWAC to initiate a long-needed database on the missing and murdered. In March 2010, SIS published What Their Stories Tell Us. This set out the critical knowledge gaps, including lack of attention to the ethnicity of victims and injurious stereotypes, as keys to the recurring failure to tackle systematically the abuse of girls and women (Crowder). The Harper government, which, equally revealingly of its attitude to data, abolished the long census in June 2010, at first seemed indifferent.

    Funding Directed Away from Aboriginal Organizations

    In October 2010, the Harper administration response to What Their Stories tell us was made abundantly clear: Rona Ambrose, the Conservative minister responsible for the status of women, redirected most funding away from SIS to a national police support centre for missing persons. Champions of Sisters in Spirit condemned the shift for its lack of focus on native women. The RCMP’s own highly-publicized problems with sexual harassment only further confirmed the difficulty of trusting its services (Macdonald and Gillis). SIS itself survived within NWAC, struggling to collect data and to support October 4th as the occasion of nation-wide vigils to “honour the lives of missing and murdered Aboriginal women and girls; and [to] support grieving families and provide opportunities for social change.”

    Reductions persisted even as April 2012 legislation removed “key licensing and registration provisions for non-restricted firearms.” As the submission of the Canadian Federation of University Women and the National Council of Women of Canada to the United Nations made abundantly clear, Conservative legislative preferences failed to take into “account women’s disproportionate vulnerability to intimate-partner violence and homicide.

    NWAC refused to take violence off the table. Once again tying data to the need for state action, it launched Evidence to Action (ETA). Status of Women Canada (SWC), whose modest budget had already been itself sharply cut by both Conservative and Liberal administrations, funded ETA for 2011-14 with $1.8 million. None of this ‘new’ money could be spent on maintaining the SIS database or on research and policy work (Barrera; Gergin). Such exclusions were in keeping with the Conservatives’ preference for funding services, however meagre, for which it could variously both take credit and find fault, rather than research to which it would be expected to respond.

    Despite SWC project funding, NWAC suffered, along with other Aboriginal organizations, cascading budget cuts. In April 2012 Health Canada eliminated funding to projects on the health of Aboriginal women, an issue directly pertinent to the better understanding of abuse. NWAC’s executive director understandably feared “that the government is reverting back to generating Aboriginal health policies without input from Aboriginal researchers” (Claudette Dumont Smith in Webster). In June 2013, another round of federal cutbacks threatened “up to 30 per cent” of its budget (Aanationtalk).

    NWAC was not alone in struggling for survival. In May 2015, Ottawa informed the Quebec Native Women’s Association that it was no longer considered an “aboriginal-representative organization”; it was to lose the $175,000 annual funding previously received from Heritage Canada. In August 2015 the website of Aboriginal Affairs and Northern Development Canada reported the reduction, from 2012 levels, in its core funding of all Aboriginal Representative organizations. Only three of the 46 funded groups–NWAC, the Pauktuutit Inuit Women’s Association, and Alberta’s Women of the Métis Nation–were women-identified.

    Diminished support occurred even as the RCMP’s Missing and Murdered Aboriginal Women: National Operational Review (2014) reaffirmed tragedy. In fact, its reliance on cases included in the Canadian Police Information Centre, a national police data-base, well-known for its omissions, meant that its figure of 1,017 murdered women was suspiciously low (Legal Strategy Coalition on Violence Against Indigenous Women, c June 2015).

    In 2015, NWAC once again rallied. This time, it launched Project PEACE“focusing on gathering more research on perceptions of safety experienced by Aboriginal women and girls and issues of violence experienced by Aboriginal women and girls and Aboriginal men and boys.” Its explicit inclusion of men and boys continued long-standing concerns but the 2015 update to the 2014 RCMP Operational Review offered the Conservative government opportunities to scapegoat Indigenous men. Its preoccupation with family violence appeared especially convenient for conservative politicians “at a time when government funding is being withdrawn from joint task forces investigating the deaths of women in urban settings, or along remote highways where stranger and acquaintance crime is likely to affect them” (Legal Strategy Coalition on Violence Against Indigenous Women, 7).

    The Conservative Status of Women minister Kellie Leitch cited the update in making Aboriginal men the problem (rather as if domestic violence in itself wasn’t sufficient cause for address) and once again denying the need for a national inquiry. Conspicuously ignored was the pervasive “poverty, discrimination and poor education that lead indigenous women into high risk lifestyles” (Galloway and Carlson). The message of systemic racism and sexism delivered by NWAC for more than 40 years was once again rejected.

    Relevant Dates

    • June 2015:Missing and Murdering Aboriginal Women: 2015 Update to the National Operational Review (Royal Canadian Mounted Police)
    • 2015:Report of the Truth and Reconciliation Commission of Canada
    • 2015: Report of the UN Committee on the Elimination of Discrimination Against Women, investigating the murder and disappearance of Aboriginal girls and women in Canada
    • May 2014:Missing and Murdered Aboriginal Women: A National Operational Overview (RCMP)
    • 2013: UN Commission on Human Rights, investigating the murder and disappearance of Aboriginal girls and women in Canada
    • 2010:‘Evidence to Action’ project launched by NWAC with SWC funding
    • 2010: Rona Ambrose, federal minister for the status of women, announced shift of most funding from creation of a SIS database to a national police support centre for missing persons
    • 2004: NWAC launched Sisters in Spirit campaign.
    • Oct. 2004: Amnesty International publishes Stolen Sisters: A Human Rights Response to Discrimination and Violence against Indigenous Women in Canada
    • 2000:Report of the Royal Commission on Aboriginal Peoples
    • 1993:Report of the Canadian Panel on Violence Against Women
    • June 1991: release of the House of Commons Sub-Committee on the Status of Women’s report The War Against Women, quickly rejected by the Standing Committee on Health, Welfare and Social Affairs
    • 1989: Massacre of women at the Université de Montréal
    • 1985: Bill-C-31 An Act to Amend the Indian Act ended practice of eliminating status for Indian women marrying non-Indians
    • 1982: Section 35(1), Constitution Act, recognizes inherent right to Aboriginal self-government
    • 1982: Section 35 (4), Constitution Act, affirms that Aboriginal and treaty rights guaranteed equally men and women
    • 1982: Sections 15 and 28 of the Constitution Act affirm gender equality.
    • 1980: Sandra Lovelace of the Tobique First Nation successfully appeals to the UN Human Rights Committee regarding discrimination against women in the Indian Act
    • 1979: Women from New Brunswick’s Tobique Reserve march from Oka (Kanesatake) to Ottawa to mark 110 years of Indian Act’s mistreatment of Native women
    • 1974: creation of NWAC and the Quebec Native Women’s Association
    • 1973: creation of the Indian Rights for Indian Women, national arm of the Equal Rights for Native Women, and the Ontario Native Women’s Association
    • 1973: in case brought by ten provincial Indian brotherhoods the Supreme Court of Canada reverses earlier decision and argues that the Indian Act takes precedence over the Canadian Charter of Human Rights
    • 1971: Janet Corbière-Lavell wins recognition from the federal tribunal that the Indian Act discriminated again Indian women marrying non-status men; Ontario Supreme Court makes the same ruling against the Six Nations Band Council, which wished to exclude Yvonne Bedard and her children as non-status.
    • 1971: Murder of Helen Betty Osborne in The Pas, Manitoba
    • 1970:Report of the Royal Commission on the Status of Women
    • 1968: Equal Rights for Native Women Association created in Quebec; headed by Mary Two-Axe Early, Mohawk of Kahnawake.
    • 1968: Alberta Native Women’s Voices founded by Bertha Clark-Jones, later NWAC’s first president, and others in Fort McMurray, Alberta

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  • 12/10/16--10:43: National Energy Board
  • The 2012 changes to the NEB Act should not have limited the scope of the project reviews and public participation opportunities. These changes, along with the NEB’s narrow implementation of them, effectively marginalized environmental and Indigenous peoples’ concerns with these projects and stifled debate in Canada about the country’s environmental  legacy and duty to Indigenous peoples’ constitutionally and internationally-recognized rights.

    As a result of these changes, the NEB review process was unfairly politicized and the pipeline approval processes have become less transparent. As a result, the NEB and NEB Act needs to be amended in order to better ensure the NEB’s accountability, transparency, and restore public faith in the regulator’s ability to promote a more diverse conception of the public interest.

    Freedom of expression

    Bill C-38 restricted public participation in the NEB decision-making processes and limited the scope for public debate about how energy projects should be regulated in the public interest. Government-imposed timelines and political pressure on the NEB also frustrated adequate consultation with potentially impacted First Nations communities. When environmentalists and Indigenous organizations spoke out against being silenced by the NEB process, they were vilified and their activities were monitored by NEB security and the RCMP. This was even after officials recognized there was no cause to suspect they would engage in any criminal activity. The NEB’s restrictions on public debate concerning large energy infrastructure projects effectively weakens Canadian democracy.

    Transparency

    The NEB decision-making process contains impediments to public participation, access to information and mechanisms to test evidence, and freedom of expression. These impediments in turn limit the transparency of the NEB’s decision-making process. Because amendments to the NEB Act were adopted by the government from recommendations made by the oil and gas industry, because environmental concerns are often ignored by the NEB or else treated superficially, it is reasonable to believe that private interests have a considerable and disproportionate influence on the NEB’s review of project applications.

     

    Published on: December 10, 2016

    A series of changes to the NEB Act in 2012 limited the scope of the National Energy Board’s project reviews and public participation opportunities. The Board also exercised its discretionary authority to apply these new provisions in ways that effectively silenced many environmental and Indigenous peoples’ voices in these proceedings. As a result of the 2012 changes and the Board’s implementation of them, project review processes have become increasingly politicized and less transparent.

    The federal government is currently in the process of initiating a thorough review of the NEB Act to try to ensure the NEB’s accountability and transparency, and restore public faith in the regulator’s neutrality and promote the public interest (including Indigenous peoples’ rights and the need for a healthy environment).

     

    Background

     

    Historical context of the NEB

    The National Energy Board (NEB) was created by the National Energy Board Act (NEB Act) in 1959. The Board’s establishment had been recommended by two Royal Commissions: the 1957 Royal Commission on Energy, and the 1955 Royal Commission on Canada’s Economic Prospects, both of which advocated for more centralized and developed processes for expanding the country’s oil and gas infrastructure.

    The NEB Act created a new regulatory scheme for the oil and gas industry. It put the NEB in charge of regulating pipeline projects, imports and exports of natural gas, crude oil, and other petroleum products, and oil and gas exploration and extraction activities. The NEB was established as an independent expert regulating body. It was meant to make evidence-based decisions that would ensure the oil and gas sector would develop in a way that would protect the public interest.

    The NEB Act, Board members, and NEB neutrality

    Under the NEB Act, the NEB is able to exercise a very significant amount of a discretion and authority in ultimately determining whether or not a pipeline application should be approved. The Board determines the necessary level of detail required for project applications (including the level of detail required for maps of pipeline routes). The Board’s Chairperson designs the hearing process for each application and determines who will sit on its decision-making panels. The Board is also responsible for hearing and making findings with regards to the concerns of local communities affected by pipeline proposals. (Sections 6(2), 15(3), 16, 32(1), 52, and 58)
    The NEB Act includes certain eligibility requirements for Board members’ appointment, including members’  residency and employment qualification. However, the document makes no reference to any requirements with regard to candidates’ professional background or experience. Historically, most of the Board’s members were involved in the public or private energy sectors before joining the NEB. Very few Board members have had professional backgrounds in the environmental sciences or with Indigenous communities or Indigenous traditional knowledge.
     
    The NEB Act strictly prohibits financial conflicts of interests for board members: they cannot be directly involved in any financial activity concerning the energy sector. (s 3(4))

    The Code of Conduct for National Energy Board Employees (Code of Conduct) also contains mandatory provisions to help ensure the Board’s independence. It applies to the Board’s CEO, Chair, Board Members and NEB staff. The Code of Conduct contains more detailed processes in order to prevent or disclose conflicts of interest. It also contains provisions that limit how Board Members and staff can interact with stakeholders during hearings in order to protect the impartiality of decision-makers.

    Bill C-38 and Changes to the NEB Act

    In 2012, the federal government introduced Bill C-38, which was unprecedented in its length and legal breadth. The bill was over 450 pages, and contained sweeping changes to Canada’s environmental legislation, in many instances erasing decades worth of environmental law. The bill effectively cancelled almost 3,000 environmental project assessments, 700 of which concerned fossil-fuel related projects. Bill C-38 also contained several significant changes to the NEB Act that effectively eroded the authority of the Board, and politicized its decision-making functions.

    First, the scope of considerations to be taken into account by the NEB when determining whether to approve a pipeline was significantly constricted. The pre-2012 wording of the Act required the NEB, when determining whether to approve a project, to consider all issues that it found were related to the proposed project. Bill C-38 raised this threshold, requiring the Board to only consider factors that were “directly relevant” to making a determination. This change in language in the Act, was believed to be in response to participants in the Enbridge Northern Gateway pipeline who wanted the consideration of these factors to be included in the decision-making process for that project.

    Second, significant changes were made with regards to the NEB’s authority to approve or reject applications for new pipelines. The NEB Act before Bill C-38 had allowed the Governor in Council (GIC, ie. federal Cabinet) to veto pipeline applications that were approved by the Board, but required the GIC to accept the Board’s decision to reject a pipeline application. Bill C-38 still permitted the GIC to veto pipeline applications, but also extended its authority to effectively grant pipeline applications that had been denied by the Board. This change essentially gave the GIC the final word in all application decisions, eroding the independence and authority of the NEB. It also undermined the expertise of the Board and evidence-based nature of the initial decision-making process. While the NEB hears and considers oral and written submissions from the pipeline proponent, interveners, and third party experts during hearings in order to arrive at its decision, the GIC has to make a final decision without the benefit of having been present at the fact-finding stage of these decision-making process. (s52(2))

    Third, Bill C-38 narrowed opportunities for members of the public and public interest organizations to engage with NEB decision-making processes. While the previous version of the NEB Act called for general public engagement, the bill narrowed this requiring people to establish before the NEB how they would be “directly affected” by a project in order to be granted standing (i.e. be allowed to fully participate) in the process. (s55)

    Fourth, timelines were imposed on NEB pipeline decisions. Under the bill, as soon the Board finds an application to be complete, it only has 15 months to determine whether to recommend that it be approved or rejected by the GIC. This 15 month period also applies to their recommendations and their final report summarizing public input and evidence introduced during hearings and public consultations. (s52(4)) Then, once the report is completed and submitted by the Board to the GIC, the GIC has three months to determine whether to approve the NEB’s decision, reverse it, or send it back for reconsideration. There are processes to extend these timelines in certain situations, however, the imposition of these time periods erodes the independence of the Board to determine its own process on a case-by-case basis. It also de-emphasizes more in-depth (and potentially longer) decision-making processes, especially for major projects. These constrained timelines can also impair meaningful public involvement and consultation with Indigenous peoples during the project approval processes.

    Finally, the bill weakened in several ways the environmental considerations that could be taken into account in decision-making processes. Environmental provisions in the NEB Act were changed, along with corresponding changes in the Canadian Environmental Assessment Act that limited the scope of environmental reviews of pipeline applications. The bill delegated authority to the NEB to issue authorizations with regards to pipelines crossing navigable waters. The bill also dispensed with the mandatory requirement for the board to consult with the Ministry of Environment when determining whether to grant a permit to a project that would destroy critical habitat for species at risk.

    Critics at the time saw these changes as an attempt by the federal government to conflate the oil and gas industry’s interests with the broader public interest, as these changes appeared to be in the industry’s favour. These fears were later proven when two letters from industry representatives (one from the Energy Framework Initiative, which is made up of the Canadian Association of Petroleum Producers (CAPP), the Canadian Energy Pipeline Association, the Canadian Petroleum Products Institute and the Canadian Gas Association; and the other from CAPP separately) were obtained and showed that everything these industry stakeholders had requested from the federal government in terms of NEB approval processes had become law within that same year.

    At the same time, Bill C-38 was not solely responsible for changes in NEB decision-making processes that effectively marginalized environmental and Indigenous voices. The Board’s implementation of these changes also contributed significantly to this outcome.

    First, in determining which issues were “directly relevant” to the proceedings, the NEB found that upstream impacts of major pipelines on the rate of oil sands expansion and to Canada’s climate change targets, did not meet this threshold. As such, they were deemed “irrelevant” to project approval processes. This was despite the fact that the Board was still empowered in the legislation to consider general issues of public interest (provided these public interest concerns were “directly related” to the project). Thus, the NEB in implementing the changes in Bill C-38 chose to apply them narrowly.

    Second, in determining which members were “directly affected” by the pipelines, the NEB designed an 11-page form that needed to be filled out by anyone hoping to engage with the review process. This procedure applied to everyone regardless of whether they just wanted to submit a paragraph-long letter, or take on all the responsibilities of an intervenor. Further, after these applications were completed, there was no guarantee that applications would be accepted, and for those that were denied, no reasons had to be given. The forms also required personal information which would ultimately become public (as all applications are ultimately made available on the NEB webpage for the review project). Thus, in implementing the changes in Bill C-38, the NEB made the participation process more onerous and opaque.

    In several pipeline decisions since 2012, Bill C-38 and the NEB’s implementation of its new provisions, have been legally challenged by environmental groups, scientists, and First Nations. These challenges have been heard by the NEB, Federal Court of Appeal, and some of these challenges have progressed to the Supreme Court of Canada. These challenges have been argued on grounds of procedural fairness, Charter rights to freedom of expression, and Aboriginal law duties to consult and accommodate Indigenous peoples. Some of these decisions are discussed in more detail as part of specific post-2012 NEB pipeline decisions.

    Government spying on environmental groups critical of oil sands expansion
     
    The exclusion and marginalization of environmental and Indigenous voices before the NEB became more extreme in 2013 when the federal government began demonizing and intimidating environmental and Indigenous advocates who expressed concerns about the NEB’s pipeline review process. Via Freedom of Information requests, the press discovered that NEB security was instigating and coordinating efforts with CSIS and the RCMP to monitor the activity of several environmental and Indigenous organizations and grassroots groups critical of oil sands expansion. These groups included Idle No More, ForestEthics, Sierra Club, EcoSociety, LeadNow, Dogwood Initiative, Council of Canadians, and the People’s Summit.

    Hundreds of internal emails and memoranda were obtained that showed how the RCMP was collecting information on these groups in order to “protect” not only the Board members during public hearings, but industry stakeholders and pipeline project proponents. NEB security also emphasized the need to ensure a “strong uniformed presence” at NEB hearings as they believed "It is highly likely that the NEB may expect to receive threats to its hearings and its board members". Ultimately, many uniformed police and security guards were sent to public NEB hearings, despite the fact that these same NEB security officials later conceded that there was "no intelligence indicating a criminal threat to the NEB or its members".

    In response to these discoveries by the press, Elizabeth May, MP and leader of the federal Green Party, noted, "What is particularly chilling about the Harper administration's approach is the conversion of government agencies to private spy agencies for private sector corporations… What is unacceptable is the marginalization, demonizing, and threat of criminalization of healthy debate in a democracy."

    NEB decisions since Bill C-38

    There have been several large pipeline applications before the NEB since Bill C-38 was passed. The decision in each case illustrates the failures of the NEB to ensure accountable and transparent processes and hear diverse public opinion and expert evidence.

    The Line 9B Reversal

    The Line 9B Reversal application involved a plan to reverse the flow and increase the capacity of 639 km of a pipeline between Toronto and Montreal. The application also included a request to have the pipeline carry heavy crude (i.e. bitumen), rather than the light crude (i.e. conventional oil) it had been carrying up to that point. The application to participate in the NEB’s review process involved the NEB’s new 11-page online form. Early in the hearing process, the NEB also determined that upstream impacts of the project, including effects on oil sands production and Canada’s climate change targets, would be outside the scope of their project review. Ultimately, the project was approved the project on March 6, 2014, subject to 30 conditions.

    Forest Ethics subsequently initiated a judicial review of the NEB’s decisions with regard to how it limited the scope of review and structured the public participation application process. It argued that the NEB’s interpretation of “directly affected” people and “directly relevant” issues contravened the public’s Charter right to freedom of expression. However, the Court ultimately found that it was in the NEB’s authority to interpret its enabling legislation (i.e. the NEB Act) as it chose and that its determination with regards to scope and public participation were reasonable.

    The Chippewas of the Thames First Nation also launched a judicial review of the NEB’s Line 9B Reversal decision on the grounds that the NEB did not have the jurisdiction to determine whether to approve or deny the project before the First Nation was consulted by the Crown about its potential impacts on the First Nation’s rights. The Federal Court of Appeal ultimately found that these concerns were outside of the NEB’s authority or sphere of responsibility. This case has since been appealed to the Supreme Court of Canada.

    According to Canadian law, the federal government has a legal duty to consult with potentially impacted Indigenous peoples when considering an industrial project that could impact Aboriginal rights. The NEB is also responsible for ensuring a transparent and impartial review of the pipeline projects that may impair the exercise of these rights. These rights predate the establishment of Canada and are recognized in s.35 of the Canadian Constitution. These rights are also recognized internationally by the United Nations Declaration on the Rights of Indigenous Peoples that requires Indigenous peoples’ “free, prior and informed consultation and consent” to industrial projects on their traditional lands. Canada is a member of the Organization of American States (OAS) and the Inter-American Commission on Human Rights (IACHR) has recognized that “in relation to [Indigenous] peoples, States have a specific duty to consult, and ensure their participation in decisions on any measures affecting their territories....”.

    The Northern Gateway decision

    The Northern Gateway project, proposed by Enbridge in 2013, required the construction of two new pipelines, each 1,178 km long stretching from interior Alberta out to Kitimat on the BC Coast. A terminal was also proposed for Kitimat, from where tankers would take the transported crude oil to international refineries and markets. A Joint Review Panel (JRP) of the NEB and Canadian Environmental Assessment Agency (CEAA) ultimately approved the project, subject to 209 conditions, and the federal government affirmed the project approval with its conditions on June 17, 2014.

    During the decision-making process, the JRP was required to actively engage with several Indigenous  communities that would be impacted by the proposed project. While some degree of consultation did occur, several Indigenous individuals and representatives expressed deep disappointment with the process and its outcome, believing their interests were not adequately considered in the approval. (p 48). Discussing the unfairness of the decision, the Union of B.C. Indian Chiefs Grand Chief Stewart Phillip said the then federal Conservative government “completely demonized and vilified Indigenous peoples of this country and has declared all of these [energy] projects in the national interest.”

    Environmentalists were also frustrated with the decision-making process and outcome. Once the NEB’s report was provided to the GIC for its consideration, 300 scientists wrote an open letter urging then Prime Minister Harper to reject the NEB’s recommendation for approval on the grounds that the hearings were “flawed and unscientific”. They argued the JRP report failed to present a balanced and appropriate consideration of the project’s risks and benefits, failing to take into consideration the best available evidence, and failing to provide a “cogent rationale” for the JRP’s ultimate approval.

    Once the GIC approved the NEB’s recommendations, a series of legal challenges were launched in the Federal Court of Appeal. Amongst those challenging the decision (i.e. the applicants) were eight First Nations (Gitga’at Nation, Gitxaala Nation, Haida Nation, Haisla Nation, Helltsuk Nation, Kitasoo Xai’Xais Nation, Nadleh Whut’en Nation, and the Nak’azdli Nation), four non-profit organizations (the Federation of British Columbia Naturalists, ForestEthics Advocacy Association, Living Oceans Society, and the Raincoast Conservation Foundation), and a abour union (Unifor). The result was 18 separate court challenges that were consolidated so they would all be heard at the same time. The applicants argued that: the JRP contravened environmental law with regards to potentially impacted identified species at risk; that private industry interests were wrongly equated with public interests; that the scope of the JRP’s considerations failed to include upstream effects of the pipeline; that the JRP was more lenient with the pipeline proponent than public interveners during the hearing process; that the environmental assessment failed to adequately consider impacts of the project on First Nations and their physical and cultural heritage; that the JRP failed to adequately consider the project’s impacts on constitutional Aboriginal rights; that First Nations were not adequately consulted or accommodated with respect to the project; and that the JRP did not provide adequate reasons for its ultimate recommendation to approve the pipeline application.

    The  resulting Gitxaala Nation v. Canada decision, released on June 23, 2016, ultimately agreed with several of the First Nations’ arguments. The Court found that the imposed framework  for the consultation was too broad and that available funding for the consultation was insufficient. It also determined that the JRP was not a legitimate instrument to facilitate these consultations. (p 191). The Court agreed that the consultation processes should not be organized for the sole purpose of exchanging information between the stakeholders, but must involve constructive feedback, consideration of accommodation and of policy amendments (p 232). The Court concluded that the consultation process did not meet the minimum standard of the duty to consult established by the Court’s jurisprudence (p 244) and that it was “brief, hurried and inadequate”, leaving major issues affecting the rights of the First Nations ignored (p 325). The Court decided that before the project could proceed, the Canadian government had to either reconsider the concerns expressed by the First Nations or re-start the consultation process.

    Peter Lantin, President of the Council of Haida Nation said he was thrilled with the decision. He said it validated the concerns he and others had raised over the consultation process noting “it always felt like they were trying to get to a yes somehow, some way”.

    The federal government subsequently decided not to appeal the Court’s decision. The sunset clause on the JRP’s initial approval has passed, and the NEB has since suspended any hearing to determine whether it could still be extended. On November 29, the federal government formally rejected the Northern Gateway project.

    The Trans-mountain hearings

    On December 16, 2013, Trans Mountain Pipeline ULC (a wholly owned subsidiary of Kinder Morgan) submitted an application to the NEB to expand the existing Trans Mountain pipeline system between Edmonton, AB and Burnaby, BC. This would involve building 987 km of new pipeline, reactivating 193 km of existing pipeline, and installing other pipeline-related facilities including an expanded marine terminal on the west coast.

    From the start of its decision-making process, shortcomings in the NEB project’s hearing process sparked widespread public outcry. Much of this concern was a result of the limited public participation opportunities, especially the 11 page application process which felt cumbersome to many who were ultimately dissuaded from participating as a result. Further, the requirement for interveners to be  prove they were “directly affected” by the pipeline in order to get standing meant that several scientific experts were excluded from intervening in the hearings. When Lynne Quarmby a molecular biologist at Simon Fraser University was denied standing to participate in the hearing because she sought to speak about the connection between oil pipelines to the BC coast and climate change, she noted, “I think we have an important debate ahead of us and to shut the people of Canada out of that debate is wrong."

    In response to these limits on public participation, a group of eight scientists, civil liberty advocates, and environmentalists launched a legal challenge of these new NEB provisions and the ways they were implemented by the Board, arguing they suppressed public debate and infringed their Charter right to freedom of speech.

    Tzeporah Berman, a long-term environmental advocate and author, and also one of the litigants in this case explained, “[w]e have never seen a process that is this restrictive in terms of content and the ability of the public to participate”. The BC Civil Liberties Association’s executive director Josh Paterson explained, “[t]his is an issue of democracy, this is an issue of the people in Canada having a chance to have their say in critical decisions that affect their communities, their families and themselves as individuals.”

    The challenge was first brought to the NEB as a motion, and argued that the new NEB Act provisions determining the scope of project reviews and public participation rights (and the NEB’s interpretation of them) contravened the Charter right to free speech. The NEB found that its application of the new NEB provisions did not contravene the applications’ freedom of speech as the Board did not consider itself legally responsible for providing anything more than their interpretations of the new provisions required. Leave to challenge the Board’s finding at the Federal Court of Appeal and Supreme Court of Canada were denied.

    Additionally, a group of 27 climate experts also published an open letter expressing their concerns that the NEB would not consider climate change impacts of the Trans Mountain pipeline. They wrote, “Canadians are not served when public agencies reject pertinent scientific and expert advice. Nor is Canadian democracy served when our government attempts to evade responsibility for matters as fundamental as our international commitments and responsibility to future generations”.

    Marc Eliesen, the former BC Hydro CEO, withdrew and discontinued his intervention in the hearings calling them a “farce”. He released a letter in which he said "[c]ontinued involvement with this process is a waste of time and effort, and represents a disservice to the public interest because it endorses a fraudulent process." He argued the NEB was not holding Kinder Morgan accountable, letting them “get away without answering tough questions about their ability to respond to oil spills”.

    On June 30, 2016 the new Liberal government tried to address these gaps in the process. It established a second three-person panel to consult with the public about concerns related to climate change and Aboriginal rights, which were excluded from the initial hearing process. This additional panel held in-person roundtables and town-hall meetings with affected communities, it also had an online questionnaire in which any members of the public could express their opinions on the project. The panel is required to prepare a report summarizing the feedback they receive, and submit it to Minister Jim Carr for consideration. However, since the panel has no decision-making authority, and is unable to assess evidence or permit any cross-examination of Kinder Morgan’s project application, critics have called it a poor “band-aid” solution.

    The NEB has since released its final report, recommending that the project be approved by the GIC and that it be subject to 157 conditions. On November 1, the additional panel released its own report identifying six questions it urged the federal government to consider before reaching a decision on the pipeline. On November 29, 2016, the federal government approved the project.

    Energy East and Eastern Mainline hearings

    The Energy East and Eastern Mainline projects involve an approximately 4,500-km pipeline intended to transport crude oil from Alberta and Saskatchewan to Québec and New Brunswick and an approximately 245 km new natural gas pipeline between Markham and Iroquois, ON.

    The hearing process began in June 2016. However, by July, the online National Observer newspaper broke a story in which it had found evidence that a private meeting was instigated by members of the NEB’s decision-making panel and the Board’s CEO with Jean Charest about TransCanada’s application. The meeting took place while the Board Members had begun their review of the application, and while Mr. Charest was a paid agent of TransCanada. Once this meeting came to light, the NEB initially denied the story, only later conceding its truth. Once notes from the meeting were obtained, it appeared as though the meeting involved a discussion about how the NEB could get the pipeline approved without too much Quebec opposition. Montreal’s mayor Denis Coderre, and several other interveners requested the Board Members’ recusal and a suspension of the hearing process doubting their integrity and impartiality.

    On September 9, 2016, the three Members sitting on the National Energy Board’s (NEB) decision-making review panel for the Energy East and Eastern Mainline projects stepped down. At the same time, the Chair and Vice Chair of the NEB also recused themselves from any involvement with the review of these projects. The hearings were subsequently indefinitely suspended.

    A promised NEB overhaul

    In the Liberal party’s 2015 campaign platform, they pledged to make changes to the composition of the NEB, ensuring that it was comprised of Members who had more diverse professional and academic backgrounds in fields including environmental science, community development, and Indigenous traditional knowledge. They also promised to make changes so that future project assessments would take into account the upstream impacts as well as greenhouse gas implications of proposed projects. Finally, they promised a full review of laws, policies, and operational practices would be undertaken to ensure that future project reviews and assessments would involve fulsome consultation with First Nations, Inuit, and Metis communities to fulfil domestic and international law including Aboriginal and Treaty rights as well as the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration).

    Shortly after the Liberals were elected, Prime Minister Trudeau wrote a mandate letter to the then newly appointed Minister of Natural Resources Jim Carr, requiring him to “modernize” the NEB. The Prime Minister specified that this should be one of the Ministry’s top priorities.

    Between June 20 and July 20, 2016 the federal government held a comment period in which it collected input from members of the public about what the NEB review panel’s terms of reference should be.

    On August 26, the federal government released the panel’s Draft Terms of Reference. It specified the panel would have to:

    • Ensure information about the review is made publicly available online;
    • Ensure the engagement and input of stakeholders (e.g. industry , environmental) and the general public with the review process;
    • Ensure the engagement of national and regional Indigenous Organizations, groups, and communities throughout the process; and
    • Provide a final report of the review panel’s findings, its recommendations, and a summary of the concerns it receives from stakeholders, the general public, and Indigenous peoples.

    The scope of the NEB review will take into account six major areas in need of modernization including the Board’s governance structure, its mandate, Board member’s decision-making roles, legislative tools for lifecycle regulation, Indigenous peoples’ engagement in NEB processes, and more general public participation issues.

    While panelists for this review have not yet been appointed, the federal government has explained it will be comprised of three individuals with expertise in environmental science, community development, and Indigenous traditional knowledge. The review panel will have to ensure robust public engagement occurs so that public input is considered during the review process. The panel will be required to directly engage with Indigenous organizations, groups, and individuals throughout its review. The review panel may also retain the services of third-party independent and non-governmental experts to advise the panel on aspects within its mandate.

    The terms of reference specified that the consultations must commence in September 2016 and end by December 2016, with the panel’s final report due by January 31, 2017. However as of early November, no consultation had yet been initiated. Because of the Energy East and TransCanada controversies arising since the review was announced members of the public were especially concerned by the review delays. Then on November 8, 2016 the panelists for the review were announced, and the report deadline was moved back to March 31, 2017.

    Relevant Dates

    • 1959: NEB established.
    • 2012: Bill C-38 introduces massive changes to the NEB eroding its independence and limiting opportunities for public participation in its decision-making processes.
    • January 2012: Northern Gateway hearings begin.
    • December 19, 2013: Final report by the JRP released recommending approval of the Northern Gateway pipeline.
    • April 2014: Trans Mountain pipeline hearings begin.
    • June 23, 2016: Federal Court of Appeal stops the Northern Gateway pipeline from proceeding due to inadequate consultation with Indigenous peoples potentially affected by the project.
    • June 30, 2016: Second panel established to consult with members of the public and Indigenous communities about the Trans Mountain pipeline.
    • June 2016: Energy East and Eastern Mainline hearings begin.
    • September 9, 2016: Energy East decision-making panel members recuse themselves and hearing is suspended.
    • November 8, 2016: Expert panel announced to modernize the NEB.
    • November 29, 2016: Federal government rejects the Northern Gateway pipeline and approves the TransMountain pipeline.

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    Canadian Museum for Human Rights
    The Canadian Museum for Human Rights is the first national museum outside the Ottawa National Capital Region and the first to be dedicated to human rights. CMHR aims to be a national hub for human rights learning and discovery, and human rights leadership. The museum is a national and international destination—a centre of learning where Canadians and people from around the world can engage in discussion and commit to taking action against hate and oppression. At the time of writing, the museum had won more than 30 local, national, and international awards for design and construction, planning, exhibits, new media and communications, and education.

    Censorship and freedom of speech: The CMHR was subject to political pressure during the Harper regime to select “positive” stories and downplay the treatment of issues that were inconsistent with the Harper government’s position. Some exhibits were removed entirely or the content was altered. The Museum should have the right to inform Canadian citizens of notable cases involving controversial topics.

    Abuse of Power: The Harper government appears to have interfered directly or indirectly in the curatorial independence of the museum, seeking to align exhibitions and content with its political interests. The decision not to renew Stuart Murray’s contract as President and CEO shortly after his alleged refusal to change content close to inauguration raises concerns about abuse of power and the further politicization of human rights. 

     
    Published: May 31, 2017
    Photo: humanrights.ca
     

    From the moment of Israel (“Izzy”) Asper’s personal initiative to create a Canadian museum dedicated to the Holocaust, to the inauguration of the Canadian Museum for Human Rights (CMHR) in 2014, the CMHR has been the focus of debate, dispute and dissent. This case study focuses on the controversy surrounding allegations of interference with curatorial independence of the CMHR by the Harper government between 2008 and 2014, and on the unique vulnerability of ‘ideas museums’ and human rights to instrumentalization by state interests.

    At the core of the debate are disputes about what counts as a human right and who gets to make this decision, and about Canada’s role in the rights revolution.

    Background

    The CMHR as a human rights museum offers a transactional space that transcends national and political interests. (Carter, 2015).

    Although other public cultural institutions are dedicated to aspects of human rights, the CMHR is unique and singular in its scope and aspiration. For example, institutions in Washington, Jerusalem, Kigali, Liverpool and Senegal focus on specific events and human rights atrocities, namely the Holocaust, the Rwandan genocide, and slavery. On the other hand, museums in Mexico City and Los Angeles focus on modern and rational approaches to institutions that promote progress and tolerance, but do not focus on particular historical events. The CMHR attempts to integrate historical events, incidents, and ideas into a broad, engaged narrative that tracks the evolution of human rights both at the international level and more principally in the Canadian context.

    In 2008, the federal government announced that the CMHR would become a national museum and that the government would assume responsibility for certain operating costs.

    In early 2009, the new Content Advisory Committee (CAC), an independent group of human rights scholars, specialists and leaders was created and began to plan a public engagement process. The CAC’s final report was delivered in May 2010 and reflected the “conversational exercise” that occurred between the CAC and Canadians who participated in that process, mainly through national consultations and dialogues (Norman, 2015).

    Shortly afterwards, the President and CEO of the museum, Stuart Murray, created a human rights advisory committee that would continue to provide independent and expert advice directly to Murray as the museum’s CEO. This committee would provide a sounding board for museum content and ensure expertise for peer review.

    By 2012, the Harper government was actively re-imagining Canada and its contributions to the world, with a very different approach to human rights and its history than had been previously taken. The CMHR became a tool for the Conservatives to realign human rights and history to a world view more consistent with their own.

    The Harper push to positivity 

    The first public indication of the forthcoming reorientation appeared in a 2012 video interview with the WFP News Café by James Moore, the Minister of Canadian Heritage. Moore said he had “repeatedly” cautioned Stuart Murray and the board of directors that the museum should not become “a source of division for this country.” Further, he stated that taxpayers are not going to “pump in $21 million per year… If it’s seen as a perpetual source of division… that will not be tolerated."

    Observers saw Moore’s comments as a signal of the Harper government’s approach in developing a positive and sanitized version of human rights (Norman, 2015).

    Next, Tory insider and Harper fundraiser, Eric Hughes, was appointed as Chairman to the CMHR in 2012. He went on record with his views that the museum had “overachieved, sometimes, the critical stories” and that more balance and positivity was required (CBC News, 2012). CMHR’s exhibits on Northern Ireland, Darfur, and the slums of India were replaced by “didactic-light” stories on bullying, Armenian orphans, and Francophone and Sikh rights in Canada (Fallding, 2015).

    Two traditional Conservative issues, assisted suicide and abortion, were also the target of attempts to change the museum’s content. The Conservative government had taken a strong position before the Supreme Court of Canada Carter case that the Criminal Code should not be amended to permit physician-assisted suicide. Two cases that were referenced in the 2013 gallery -- Rodriguez (the first Canadian assisted suicide decision that predated Carter) and Morgentaler (the Supreme Court of Canada case on abortion) -- were both removed from the a part of the gallery called the Debate Table and the content itself was changed before inauguration (Busby, 2015).

    Further, CMHR commissioned a short blog by Veronica Strong-Boag, a noted Canadian historian, for International Women’s Day. The article was approved and posted on March 4, 2014. It was subsequently yanked because of a one-line comment that was critical of the Conservative government (Strong-Boag, 2014). 

    The push to positivity was further evidenced in the treatment of issues involving Canada’s Indigenous peoples. Questions were raised about whether Canada’s treatment of Indigenous peoples should be treated as genocide and specifically whether the museum was the right institution to make that determination.

    The title of a 2013 gallery on missing and murdered Indigenous women, originally entitled ‘Stolen Sisters: Missing and Murdered Aboriginal Women’, was changed in the inaugural exhibit to ‘From Sorrow to Strength: Aboriginal Women and the Right to Security and Justice’. The first title’s use of the words ‘stolen sisters’ was inspired by an influential 2004 Amnesty International report that helped to change the conversation in Canada about missing and murdered indigenous women. In the second version, that reference was removed. The first title had explicitly asserted the connection between violence against indigenous women and interconnected, long-standing patterns of discrimination and impoverishment. In contrast, the inaugural text removed the assertion that there is enduring patterns of discrimination, impoverishment, and police inaction (Busby, 2015).

    The push back

    There were growing concerns over tensions between the Harper government and the Asper family, who continued to have a significant role in the development of the museum, and who were working closely with the Friends of the Museum (Norman, 36). These tensions would later escalate in the period leading up to the museum’s inauguration. Despite the fact that the previously noted changes had been made to the exhibits, anonymous sources within the museum stated that there were additional efforts to change content leading up to inauguration, but that they were successfully resisted by Murray and/or members of the CMHR team. Murray’s was not renewed in November 2014 and commentators have noted that Murray’s removal and Harper’s last minute refusal to attend the inauguration were signals of the Harper regime’s political dissatisfaction with the museum (Eliadis and Norman, 2014; Lett, 2014).

    A new approach?

    The 2015 general election offered an opportunity to the Liberal Party of Canada to offer a new vision. On the issue of independence, in a response to a questionnaire from the Canadian Museums Association, the Liberal government stated that:

    With a Liberal government, Canadians will no longer be subject to the Harper government’s confrontational and authoritarian approach. We will fulfill our responsibilities as decision‐makers, but only after carefully listening to knowledgeable experts and professionals such as you. One of our guiding principles will be to restore a healthy arm’s‐length relationship between the federal administration and cultural institutions.  

    The Liberals promised to improve financial support for Canada’s national cultural institutions. In 2016 they announced new injections of $33.5 million for 2016, and a further $72.4 million in the following four years for operational and capital costs of Canada’s six national museums.

    The funding is critically important for Canada’s cultural institutions, especially for the government’s relationship with Canada’s newest national museum. There have been no reports of interference in the CMHR’s independence since 2015, but it will be important to maintain vigilance over governments in the future and over the temptation to interfere in the CMHR which serves as a valuable platform and civic space for the many “difficult conversations” that human rights encourages us to engage in as part of our shared debate and discourse about social justice.

    Chronology

    2003      Death of Israel Asper. Asper family continues the work of bringing the museum to life in partnership with Friends of the Museum.

    2008      The federal government announces that the CMHR will become a national museum through amendments to the Museums Act. Groundbreaking ceremony takes place.   

    2009      New Content Advisory Committee (CAC) struck.

    2010      CAC delivers its final report. Amendments to the Museum Act come into force on August 10, officially making the CMHR a national museum.

    2011      Construction begins. A human rights advisory committee is created who report directly to the President and CEO.

    2012      Minister James Moore underscores the importance of “positive stories”—stories creating divisions “will not be tolerated”                   

                  Eric Hughes, a Harper fundraiser, is appointed as the CMHR Chair. Hughes states that the museum’s content that was under development may be overly critical and not sufficiently positive or balanced.  

    2013     Content that had been developed on indigenous issues, abortion, and physician-assisted death is significantly changed or removed. 

    2014    In the months leading to inauguration, museum staff are out under renewed pressure to change more content. Murray reportedly refuses. Inauguration takes place in September and Murray discovers his contract will not be renewed in November.  

    2015     Liberals promise to restore a healthy arm’s‐length relationship between the federal administration and cultural institutions.  

    2016      Liberals announce new injections of $33.5 million for 2016 and a further $72.4 million in the following four years for operational and capital costs of Canada’s six national museums. 


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    Indigenous communities that have been targeted by the government and placed under surveillance include: Tobique First Nation, Tsartlip First Nation, the Algonquins of Barriere LakeTeztan Biny (Fish Lake) First NationSix NationsGrassy NarrowsStz’uminous First Nation, the Likhts’amsiyu Clan of the Wet’suwet’en First NationGitxaala First NationWagmatcook First NationInnu of Labrador, Pikangikum First Nation, and the Yinka Dene Alliance.

    Indigenous protests with respect to the following issues have been monitored: Idle No More, the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Trans Mountain Expansion Project, the Northern Gateway Pipeline, the Energy East and Eastern Mainline Projects, and the Lower Churchill Hydroelectric Generation Project.

    Individual Indigenous leaders and activists that have been monitored include Pamela Palmater and Cindy Blackstock.

    • Democracy: The secret surveillance of Indigenous groups that do not present a credible threat to national security or a strong likelihood of committing violent acts threatens legitimate protest regarding government policies. The participation of diverse voices is essential to democratic debate about the public interest of long-term resource development.
    • Democracy & Freedom of Speech: The Trudeau government has failed to explain the distinction between surveillance and “maintaining awareness”. Government monitoring of publically available information raises concerns as to who and what they are monitoring and may create a chilling effect for the expression rights of targeted groups. Evidence that Public Safety Canada, a government agency that works with the RCMP and CSIS, has monitored the peaceful vigils and protests related to Indigenous missing and murdered women, raises serious questions about whether or not the Harper government’s surveillance and criminalization polices have continued with the Trudeau government. These questions, which demand a clear and transparent response from the Trudeau government, are particularly pressing given the broad surveillance powers granted to security agencies under the Anti-Terrorism Act, 2015 (Bill C-51).
    • Freedom of Speech and opinion: The federal government appears to be targeting Indigenous groups based on their political opposition to certain resource extraction projects and other policies. Where there is no credible threat of criminal activity, selecting individuals or groups for surveillance simply on the basis of their opinion violates the constitutional right to free expression and generates a widespread chill on dissent and free expression.
    • Equality: By making a commitment to a certain model of resource extraction, designed to favour corporate interests, Ottawa's actions threaten Indigenous communities that have a special relationship to the affected land and environment. This adherence to a single resource model disproportionately injures Indigenous peoples.

    Published: August 1, 2017

    (This is a fully updated version of the study originally titled: Indigenous communities, and was posted under the url: voices-voix.ca/en/facts/profile/indigenous-communities, which was first published as part of: Aboriginal communities and environmental groups on March 4, 2013 and was updated on October 6, 2015)
    Photo: www.desmog.ca

     

    In January 2017, Public Safety Canada (PS) disclosed that the Government Operations Centre (GOC) gathers information on Indigenous rallies for the purpose of “maintaining awareness” of events that may impact the safety and security of Canadians and events effecting the national interest. According to PS, the information gathered consisted generally of the date, location and purpose of the protests and rallies, including in relation to missing and murdered Indigenous women. Natural Resources Canada also reported that they monitor publicly available information such as Twitter, Facebook and media reports regarding protest activities that may impact the department, its employees or facilities.

    "Monitoring" under Trudeau

    Canadians and especially Indigenous Canadians are concerned to know whether or not the Trudeau government has continued with the Harper-era surveillance of Indigenous communities, especially following the passage of Bill C-51.  As of yet, there are no reports on this issue based on documents obtained through access to information requests.  However, on November 21, 2016, NDP Member of Parliament Charlie Angus submitted a question to the House of Commons requesting information with respect to the Trudeau government’s policing and surveillance activities related to journalists and Indigenous activists since coming into power in November 2015.

    Angus’ submission included a large number of specific and general questions. For example, he asked which security agencies or other governmental bodies have been involved in tracking Indigenous protest activities relating to Idle No More, the National Inquiry into Missing and Murdered Indigenous Women and Girls, the Trans Mountain Expansion Project, and a number of other controversial industrial or resource development projects. He also asked how many Indigenous individuals had been identified as potential threats to public safety or security.

    Among the government departments that responded to Angus’ questions, Public Safety Canada (PS) explained that its Government Operations Centre (GOC) leads and supports the “coordination of the federal response to events affecting the national interest.” PS also reported that the GOC “maintains knowledge and awareness” of many issues that could be potentially threatening to the safety and security of Canadians. However, PS denied that the GOC’s activities rise to the level of surveillance operations or intelligence gathering.

    According to PS, the GOC “maintains awareness” of the protest activities of the following groups: Idle No More, the National Inquiry Into Missing and Murdered Indigenous Women and Girls, the Trans Mountain Expansion Project, the Northern Gateway Pipeline, the Energy East and Eastern Mainline Projects, the Lower Churchill Hydroelectric Generation Project, and other industrial or resource development projects.

    NRCan responded as well indicating that it monitors publicly available information such as Twitter, Facebook and media reports regarding protest activities that may impact the department, its employees or facilities. However, it asserted that the department does not produce reports related to protest activities or share information on protest activities with private sector companies.

    The Royal Canadian Mounted Police (RCMP) responded to Angus’ question by stating that it fulfils its mandate by collecting and analyzing information related to criminal activity to inform RCMP management of potential threats. The RCMP asserted that it does not collect information related to the question brought forth by Angus. However, it disclosed that RCMP officials in British Columbia and Alberta have met with Kinder Morgan Trans Mountain Expansion Project officials on nine occasions. 

    Although it is unclear whether the RCMP is currently engaged in the surveillance of Indigenous activists, in mid November 2016 an ATI request revealed that as of 2014 the RCMP had compiled profiles of 89 Indigenous activists who potentially posed a “criminal threat to Aboriginal public order events.”  The information was compiled as part of Project SITKA based on monitoring of Indigenous protest events and involved the identification of many Indigenous organizations and their allies.  Through SITKA, 313 activists were deemed “individual threats” of which 89 were individually named and profiled.  Although the RCMP states that it decided against defining Indigenous protest as terrorism, it did not explain why databases of information relating to Indigenous protestors were required  and what their purpose would be in the future.

    In December 2016, in a meeting with representatives of the oil and gas industry, Natural Resources Minister Jim Carr stated that the federal government was prepared to respond with military and police forces if pipeline opponents engage in civil disobedience.  When a delegation of Indigenous leaders threatened to walk out of high-level meetings with Prime Minister Trudeau over the comments, Carr later apologized, saying that he regretted his words and that “civil disobedience and peaceful protest is very much a part of [Canadian] history”.  However, for Indigenous activists these comments served as a stark reminder of a history of government policies and actions that have criminalized Indigenous and environment activists.  They also underscore the importance of Angus’ question about the extent to which the surveillance of these groups continues.

    Advocates express concerns

    Pamela Palmater, an indigenous lawyer, university professor and activist who has been under surveillance by the government of Canada, argued that there is no justification for the government to monitor peaceful rallies and vigils calling for an Inquiry into Murdered and Missing Indigenous Women (MMIW). She stated, “I'm pretty shocked … that they were following all of the rallies and events around murdered and missing Indigenous women, because all of them to date have really been about raising awareness, demanding a national inquiry. You didn't see anybody doing anything violent. There were no threats to do anything violent.”

    According to documents obtained through Access to Information requests in 2010 and 2014, soon after the election of a Conservative government in 2006, several state agencies initiated new and/or intensified methods of surveillance of Indigenous communities and their leaders. The former Department of Indian and Northern Affairs Canada (INAC) was given the lead role in monitoring Indigenous communities and leaders. It shared the results among government departments and with private actors in the oil industry in an effort to undermine communities that oppose resource development projects, such as the Northern Gateway pipeline.


    Background
     
    Requests filed by journalists and advocacy groups under the Access to Information Act reveal that soon after the election of a Conservative government in 2006, several state agencies initiated new and/or intensified methods of surveillance of Indigenous communities and their leaders. The documents obtained under the Act reveal that the information collected was disseminated throughout government departments, as well as to private sector actors. Evidence suggests that this monitoring has included the surveillance of individual activists.
     
    Recent reports in 2017 from Public Safety Canada (PS) confirmed that it continues to gather information about Indigenous protests, while Natural Resources Canada reported that it monitors protest activities more generally.
     
    INAC and the “Hotspot Reporting System”
     
    In May 2006, shortly after Stephen Harper took office as Prime Minister, he issued a directive to the Department of Indian and Northern Affairs Canada (INAC) to spy on Indigenous communities (this includes First Nations, Innu and Métis). The goal was to identify the leaders, participants, and outside supporters of Indigenous organizations and to closely monitor their actions. Specifically, the intention was to monitor political action, notably but not only protests over land claims and resource development.
     
    To do this, INAC established a “Hotspot Reporting System.” The term “hotspot” denoted Indigenous communities that the deputy ministers of Public Safety and Emergency Preparedness Canada (PSEPC) and INAC considered “sources of potential unrest” and made them the object of weekly reports on “militant” or “extremist” political activity. These reports were in turn summarized in a “Hotspot binder” that highlighted community demographics, as well as issues and events that might lead to direct action protests or occupations. The high-level of surveillance of Indigenous peoples evidenced by these hotspot reports suggests a closely monitored Indigenous population, whose internal organization and political activities were treated with suspicion and hostility by Ottawa.
     
    In order to disseminate the information gleaned from this surveillance, INAC also created a “Standing Information Sharing Forum.” Chaired by the RCMP, it consisted of weekly conference calls involving several government departments and agencies, including INAC, CSIS, the Department of Fisheries and Oceans, Natural Resources Canada, and Transportation Canada. These departments subsequently used the information to undermine and prevent protests, a policy depoliticized by INAC in internal ‘state-speak’ as “mitigating.”
     
    One document obtained through the Access to Information requests was a report from March 2007, in which INAC reflected on the first year of surveillance and intelligence gathering. According to their statistics, the majority of hotspot “unrest” (66 per cent) related to lands and resources, and was incited by development activities on traditional territories. Further, the report discusses the role of “splinter groups” in leading protests and speculates on the presence of “multiple competing power groups” and so-called “illicit agendas.” Such terminology, together with phrases like “splinter groups” and “extremists” operates to delegitimize protest.
     
    Indigenous communities named as “hotspots”
     
    These Access to Information documents covering a period between 2007 and 2010 demonstrate the deep concern of federal officials over growing Indigenous activism.  The use of terminology such as “militancy” and “extremism” to describe this activism has the undeniable effect of criminalizing Indigenous protestors and dissent.  A particular issue for Ottawa was the so-called “unpredictability” of community agitation and leadership by so-called “splinter groups” of Indigenous “extremists.” The following protests were labelled as “unpredictable protests...led by splinter groups” in a 2007 INAC Report:
    • Caledonia, Ontario: (Douglas Creek Estates occupation)
    • Belleville, Ontario: (Montreal/Toronto Rail Blockade in sympathy to Caledonia)
    • Brantford, Ontario: (Grand River Conservation Authority Lands)
    • Desoronto, Ontario: (Occupation of Quarry)
    • Grassy Narrows: (Blockade of Trans Canada Hwy by environmentalists)
    • Maniwaki, Quebec: (Blockade of Route 117)
     
    Communities under surveillance have included bands from the coast of Vancouver Island to the shores of the Atlantic Ocean, such as: Tobique First Nation, Tsartlip First Nation, the Algonquins of Barriere Lake, Teztan Biny (Fish Lake) First Nation, Six Nations, Grassy Narrows, Stz’uminous First Nation, the Likhts’amsiyu Clan of the Wet’suwet’en First Nation, Gitxaala First Nation, Wagmatcook First Nation, Innu of Labrador, Pikangikum First Nation.
     
    As many have noted, it is telling that the INAC statement identifies such protests as “outside of negotiation processes” with elected First Nations councils. The protests threaten the status quo, which is that the Crown will negotiate self-determination only with Indian Act bands, and refuses to recognize First Nations leaders who have not accepted the power dynamics of the Indian Act system.
     
    RCMP and the "Aboriginal Joint Intelligence Group" (JIG)
     
    In addition to the hotspot reports and information-sharing forums, the Access to Information requests also revealed that between 2007 and 2010 the RCMP intelligence unit known as the “Aboriginal Joint Intelligence Group” (JIG) investigated Indigenous groups engaging in lawful protest. The JIG billed itself as a “central repository” of information about First Nations protest activities, boasting an undisclosed number of field operatives acting as its “eyes and ears,” as well as an “extensive network of contacts throughout Canada and internationally” able to “provide information on activist groups who are promoting Aboriginal issues within your area.”
     
    The JIG had a similar mandate to INAC’s hotspot reporting – it kept tabs on certain Indigenous groups and reported on specific activities. Its mandate was to “collect, analyze and disseminate intelligence on tensions and conflicts occurring within Aboriginal communities (...) as they may escalate to civil disobedience and unrest.” It focused on “critical infrastructure,” blockades, and “demonstrations, protests or gatherings concerning energy sector development.” As explained in a June 2009 JIG report, the JIG was to “identify current trends, groups and individuals of concern, and geographic areas where conflict and issues are anticipated…and assist with priority-setting and decision-making for provincial and national events.”
     
    According to a slideshow, dated March 2009, the Aboriginal JIG included members from the RCMP National Security Criminal Investigations branch, which investigates threats to national security and criminal extremism or terrorism. Like INAC, the JIG circulated weekly summary reports to various agencies, including law enforcement, government, and private industry. Information was gathered through JIG surveillance was circulated to approximately 450 recipients, including several oil companies with financial stakes in the development of the oil sands.
     
    CSIS and Idle No More
     
    In 2014, a different Access to Information request showed that Canadian Security Intelligence Service (CSIS) was involved in preparing an all-government approach to dealing with First Nations protests during the Idle No More movement (INM). 
     
    The National Post reported that CSIS began monitoring INM protests in 2012 in preparation to suppress “subversive or hostile activities” within the movement.  Professor Jeffry Monaghan at Carelton University described the intensity of CSIS monitory of INM, saying that “as far as I know, [INM] was the most completely surveilled social movement in Canadian history”. 
     
    This monitoring occurred despite CSIS being barred by law at the time from spying on civilians without a specific justification (it is worth noting that, under Bill C-51, CSIS’ monitoring powers have been significantly expanded to enable this type of activity). Indeed, CSIS had previously denied any role in monitoring INM, with an agency spokesperson saying in no uncertain terms“ITAC [Integrated Terrorism Assessment Centre]  does not monitor Idle No More, as they do not meet the definition of terrorism from the Criminal Code of Canada.”
     
    RCMP and the Northern Gateway Pipeline
     
    Government surveillance of Indigenous communities has not been limited to Idle No More; it has also encompassed opposition to the economic development of the oil sands. In 2012, newspapers began reporting surveillance of vocal Indigenous opponents of Enbridge’s proposed Northern Gateway pipeline. According to the Toronto Star, documents suggest that the RCMP gathered intelligence from unspecified “industry reports,” newspapers and websites, as well as Facebook and Flickr. The paper also reported RCMP monitoring private meetings between First Nations and allied groups.
     
    In 2014, British newspaper The Guardian reported that the Ministry of Aboriginal Affairs and Northern Development (INAC’s successor) had a ‘risk-management program’, operational since 2008, to respond to “significant risks” to the then Conservative government’s agenda. These “risks” include the assertion of Treaty rights, as well as the emergence of new legal precedents at odds with the government’s policies of private sector land and resource development. One INAC report stated that “there is a risk that the legal landscape can undermine the ability of the department to move forward in its policy agenda” – namely, attracting several billions of dollars in foreign investment to mining, forestry, gas, and oil projects. Such so-called ‘risk management’ initiatives aim to delegitimize Indigenous land claims and circumvent potential legal barriers to lucrative development ventures. Treating Indigenous rights claims as “risks” is inconsistent with the government’s duty to conduct itself honorably with respect to these rights, which are protected by the Canadian Constitution.
     
    Also in 2014, Indigenous groups opposed to the proposed Northern Gateway pipeline reported that federal law enforcement agencies had been spying on them in an effort to intimidate and undermine their advocacy efforts. In February 2014, the B.C. Civil Liberties Association (BCCLA) filed complaints against the RCMP and Canadian Security Intelligence Service (CSIS) to their respective oversight bodies, the RCMP Commission for Public Complaints and the Security Intelligence Review Committee. BCCLA alleged that the two government agencies were sending covert agents to monitor meetings and other activities of pipeline opponents, and sharing findings with the National Energy Board and private actors in the oil industry. According to Josh Paterson, the executive director of the BCCLA, the documents suggest that covert means were being used to obtain data on Indigenous groups.  CSIS contends that information sharing with government partners relating to threat assessments is typical; however, the BCCLA argues that such sharing is unlawful.  More than three and a half years after the BCCLA complaints were filed, lawyers described the process as “bogged down” and ridiculously slow, unresponsive and obviously lacking in transparency with no end in sight.
     
    Activists and academics under surveillance
     
    Several Indigenous activists have personally found themselves under surveillance as a result of their opposition to government policies. For instance, Pamela Palmater, an Indigenous lawyer, university professor, and activist learned that she was being monitored following Access to Information requests filed on behalf of another activist in 2011. The surveillance increased after she became more prominent in the Idle No More movement. Similarly, Cindy Blackstock, the head of the First Nations Child and Family Caring Society, had her personal and professional life monitored by the Department of Justice (DOJ) and Aboriginal Affairs and Northern Development Canada (AADC) after her organization filed a discrimination complaint against them. In 2013, the Privacy Commissioner found that the government’s surveillance of Dr. Blackstock violated the Privacy Act. In 2015, the Canadian Human Rights Tribunal found that a government official retaliated against her for filing a human rights complaint against the government.
     
    Indigenous leaders express outrage
     
    The intimate relationship between the RCMP and the INAC under the Harper government was particularly troubling. In response to these revelations, Gord Elliot of Tsartlip First Nation stated:
    Obviously trust and good faith are expected when working with INAC, the RCMP and other agencies of the government. We are outraged to discover these same ministries are spying on us. We were identified as a ‘hot spot’ because we had a roadblock demonstration to voice our concerns about the treaty process and non-acknowledgment of Section 35 Constitutional Rights and Title. We felt we had no choice [than to demonstrate] because the Canadian government won't acknowledge our constitutionally protected Aboriginal Rights and Title.
    The Truth and Reconciliation Commission: unfulfilled promises
     
    It is important to note that the surveillance described above between 2006 and 2014 occurred while the federal government was pledging to improve collaboration and cooperation with Indigenous communities. In June 2008, then Prime Minister Harper issued an apology on behalf of Canadians for the Indian Residential Schools system. Part of the Settlement Agreement with survivors of the schools was the establishment of the Indian Residential Schools Truth and Reconciliation Commission. In his apology, the prime minister made the following promise [URL not active]:
    This Commission presents a unique opportunity to educate all Canadians on the Indian Residential Schools system.  It will be a positive step in forging a new relationship between Aboriginal peoples and other Canadians, a relationship based on the knowledge of our shared history, a respect for each other and a desire to move forward together with a renewed understanding that strong families, strong communities and vibrant cultures and traditions will contribute to a stronger Canada for all of us.
    In June 2015, the Truth and Reconciliation Commission (TRC) released their final report, documenting six years of hearings and testimony from over 6,000 survivors. Based on their testimony, the TRC concluded that the residential school system amounted to a program of “cultural genocide” spanning over seven generations. The report included 94 calls to action for the Government of Canada in the areas of child welfare, education, culture, commemoration, development, outreach, and more. Following its release, the provincial and territorial premieres met with Indigenous leaders, pledging action and support in implementing the recommendations.
     
    The federal government initially failed to endorse any of the TRC’s recommendations. Indeed, as one newspaper reported, silence was largely the Harper government’s official response to the Commission’s recommendations. Rather than fulfilling his promise of a new relationship built on “respect for each other and a desire to move forward together,” during his years in power former Prime Minister Harper instead treated Indigenous people as suspects requiring sustained surveillance and suspicion.
     
    When Trudeau’s Liberal government came to power in November 2015 it promised to implement all of the 94 calls to action that fall within federal jurisdiction, and its first budget proposed investments of $8.4 billion over five years to improve the socio-economic conditions of Indigenous peoples.  In a March 2017 interview with The Globe and Mail Senator Murray Sinclair, the former head of the TRC, acknowledge that there have been some concrete advances in 20 months since the release of the TRC report. Some examples include: municipal governments renamed streets and erected monuments to honour victims, courts have cited TRC recommendations that led to the change or striking down of laws, and corporations have implemented reconciliation strategies in the workplace. However, Sinclair stated that “there hasn’t been a lot of progress on the federal end of things…It’s very hard to change an insitution the size of the federal government because there are so many built-in protocols.” 
     
    Relevant Dates
    • 2006: INAC received a directive from the new Conservative government to spy on First Nations groups and begins weekly “hotspot” reports documenting politically active Indigenous communities.
    • 2007: RCMP JIG is formed to monitor Indigenous communities. It remains operational until 2010.
    • 2007: The former Conservative government votes against the UN Declaration on the Rights of Indigenous People.
    • 2008: Former Prime Minister Stephen Harper issues a formal apology on behalf of Canadians for the Residential Schools system.
    • 2008: Ministry of Aboriginal Affairs begins a “risk management” program to prepare for threats to the Conservative government’s policy agenda, specifically as it pertains to economic development of the oil sands.
    • 2012: Idle No More, a grassroots protest movement starts in reaction to legislative abuses of Indigenous treaty rights by the Conservative government.
    • 2012: In conjunction with other government agencies, CSIS begins close monitoring the Idle No More movement.
    • 2012: The RCMP begins close surveillance of Indigenous opponents of the Enbridge Northern Gateway pipeline.
    • 2013: The Privacy Commissioner of Canada finds that government monitoring violated Indigenous Cindy Blackstock’s privacy rights.
    • 2014: INAC confirms that they are surveilling Indigenous leader Pamela Palmater.
    • 2014: BCCLA files a complaint against the RCMP and CSIS for covertly monitoring anti-pipeline activities.
    • 2015: The TRC releases final report of the six-year inquiry into the residential school system, calling Canada’s treatment of Indigenous peoples “cultural genocide.”
    • 2016: NDP Member of Parliament Charlie Angus makes a submission to the House of Commons asking for information about government surveillance of journalists and Indigenous activists since October 31st, 2015.
    • 2017: Various governmental departments respond to Angus’ submission.  Public Safety Canada admits that the Government Operations Centre maintains awareness of numerous Indigenous and natural resources related protest activities. Natural Resources reports that it monitors publicly available information such as Twitter, Facebook and media reports regarding protest activities that may impact the department, its employees or facilities.