Wednesday, March 21, 2018

Throwback Thursday Memory: Canadian Military Faces SNAG; 10 Arrested at Land Forces Central Area Command Headquarters Trying to Stop Canadian Participation in War Crimes


   Base Forced to Go on Lockdown by Small Group of International Law Upholders

Originally printed: March 24, 2003 Toronto--It really doesn't take that much to interfere with business as usual when war crimes are being committed.

The Canadian Military's Central Canada Command HQ was on full lockdown Monday, March 24 because of a major snag, courtesy of the Spring Nuremberg Action Group (SNAG). About 30 people from Homes not Bombs, Toronto Catholic Worker Community and other groups (minus the two painfully obvious undercover officers who attended our planning meeting-sorry guys, didn't quite work!) converged at the site of Canadian Forces Base Downsview around 12 noon. There they were met by scores of police fanned out across the base's main entrance, with police planted on the building's rooftop and across the front lawn in an apparent move to protect two tanks stationed in front of the military facility near Sheppard and Allen.

By day's end, the Canadian Forces felt so threatened by an attempt to hold them accountable to the laws of the international community that 10 people had been arrested, charged criminally with obstruction of police, and ordered not to be within 250 metres of any Canadian military facility.


The demonstration was an attempt to enter the facility with an urgent plea: that members of the Canadian Forces, to avoid being complicit with ongoing war crimes, had to immediately return from the Persian Gulf, and that any member of the Forces not there had to withdraw from any alliance or organization currently involved in the commission of war crimes against the people of Iraq, else they could face criminal charges before a war crimes tribunal.

This was not based on some pie-in-the-sky lefty fantasy; it was based clearly on the rights and obligations of ALL individuals, civilian or military, under the Nuremberg Principles and the Canadian War Crimes Act. Indeed, the Canadian Government's own explanation of war crimes complicity is brutally clear.

According to the Canadian (in)Justice Dept.'s Crimes Against Humanity and War Crimes Program, "A person is considered complicit if, while aware of the commission of war crimes or crimes against humanity, the person contributes directly or indirectly to their occurrence. Membership in an organization responsible for committing the atrocities can be sufficient to establish complicity if the organization in question is one with a single brutal purpose, e.g. a death squad."




Indeed, the massed death squad currently invading and bombing Iraq is clearly involved in such crimes, and Canadians are participating in numerous ways: dozens of troops are "embedded" with U.S. and U.K. forces on the ground; dozens more remain at Central Command HQ in Doha, Qatar, where until very recently they were intimately involved in direct war planning; every time a cruise missile is launched from a U.S. warship, it is under the "protection" of three Canadian naval vessels with over 900 crew members aboard; Canadians are likely aboard the NATO equipment being used in the war, including the AWACS aerial command and control platforms from which many bombing runs (read acts of mass destruction) are coordinated; and money appears to have been set aside for sending CF-18 bombers to the region on short notice.

Given the serious consequences of such acts, we felt it our duty, in an act of solidarity with Canadian soldiers, to inform them of their rights and responsibilities, and to ensure that they disassociate themselves from any organization, including their employer, complicit in these crimes.

But an understanding of international and, often, Canadian law, is not something which is well known both to police and soldiers. Captain Daryl Caldwell of the military had been on standby to do a public relations wash over the group, which by this time had staged a die-in across the main entrance, chalking body outlines and anti-war slogans across the pavement, and tying peace symbols and slogans to the high barbed wire fence as police on rooftop took video and photographs. Caldwell explained his agreement that Canadians have a right to express "opinions," but we tried to explain that this was a matter of law, not opinion.



"I just have my orders to follow, and that's what I'm going to do," the friendly gentleman explained. We countered that this was exactly the response which was used by Germans during the post World War II Nuremberg Tribunal, where Principle IV of the eventual judgment clearly stated "the fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him."

Caldwell was an agreeable fellow, who painfully seemed to get what we were talking about. "In essence, what you guys are saying is that we should commit civil disobedience ourselves," he said at one point, to which we reminded him that such an act would not be disobeying, but an act of civil OBEDIENCE to a body of laws which exist to prevent war crimes.

Caldwell stated we could not meet with him on this day, especially inside the building, where we had no authorization. We showed copies of our authorization--the one from Nuremberg--but he would not budge.

After about 25 minutes of dialogue between SNAG members and the Captain, those with copies of the Nuremberg Principles continued to insist on entering the headquarters and addressing military personnel. We were told, again, that this was impossible, since the whole facility was on lockdown--no one in, no one out, a major snag for the military.


A group which included Raging Grannies, priests, and Dixie Chicks fans then approached one of two vehicular gates, where they were met with a line of squads cars and many police, who told us we were wasting our time, that our message had been heard, and that we must go home. We refused, because we had not gotten the military members to sign a Nuremberg Pledge not to engage in further acts or omissions which would make them culpable before the international legal community.

Feeling that the community of commuters which daily passes the major building on Sheppard perhaps also needed to see this message, we took out pieces of chalk and tried to walk to the front of the structure to begin writing out the Nuremberg Principles on the outer walls of 32 Brigade. We were again followed by a phalanx of police who also tried to be media consultants, explaining to us that we would lose media interest if we were arrested and that we would be hurt if we went any further.

This did not dim the goals of the group, who waded onto the soggy, muddy front area and continued trying to approach the building. Lines of police moved left and right trying to block the protesters, pushing them back, and forcing us to move further west along the site towards a long line of barricades, inexplicably placed halfway down the lawn.

It was an act of relentless persistence, of calmly but determinedly trying to breach the police line and approach the building with the urgent message of Nuremberg. With each effort blocked by police with outstretched arms and other officers grabbing us and shoving us back, we just continued seeking an opening.


By this point, some media were becoming hostile, some demanding to know why walking about in the muck had anything to do with the war against Iraq. "It is urgent that we as citizens ourselves not be complicit in war crimes; if we leave now, we will not have fulfilled our obligation to interfere with and stop the commission of war crimes," we explained.

Janis Dahl was the first arrested. She had tried to speak to an officer about his duties under the law but, hearing no response, moved to the next in line. By officer number three, she was simply grabbed and placed under arrest. Next in custody was Andrew Loucks, who hopped the barrier and sat down. He was then roughly laid out face down in the muck, a knee in his back and his right arm forced under his body by one officer while another officer demanded that Andrew place his right arm on his back.

The remainder of the group continued working to find an opening, and kept getting met by the roving line of police, who continued pushing us back. Eventually, though, the length of the property was too much for the police, and as police came in prepared to set up with dozens more medal barricades and reinforcements, we were able to breach the line. Subsequently arrested were Father Robert Holmes, Ron Panter and Maggie Panter, Matthew Behrens, Rob Shearer, Matthew Trowell, Donald Bonyer and Stephen Morris.



As the arrestees were driven off, the remainder of the group gathered at the main entrance and continued to keep the facility locked down, moving slowly, very slowly, to get their things and move into jail support mode.

All 10 were originally charged with trespassing, handcuffed and stuffed into a police wagon; by the time we were booked into 32 division, what could be known as the Fantino Effect came into play (Julian Fantino is the Toronto chief of police who last week called for a mandatory one-year prison sentence for ANYONE convicted of a demonstration-related offence, as well as for insurance deposits for any group holding a demo and the right of police to deny anyone a permit to hold a march or rally.)

The Fantino Effect is one more name for the criminalization of dissent. Indeed, what was in the end a simple matter of trespass got bumped into the criminal category as the hours in custody dragged on, and by the time of our release, some seven hours later, we were charged criminally, with "obstruction of a peace officer," an interesting charge considering who was obstructing the law on this day. Among the release conditions was an order not to attend within 250 metres of any war dept. facility across Canada, one which we will appeal in a bail review.

The condition was clearly aimed at us, given that we have frequently been at military facilities, both through the weekly Moss Park Armoury vigil and our recent mass sit-in at the Canadian War Dept. in Ottawa. While Homes not Bombs prepares for further direct action against war at the CANSEC weapons fair in Ottawa on April 10, its members are also now gearing up for a series of trials resulting from anti-war arrests, including three facing charges from a protest at military manufacturer Wescam (Burlington), to be tried on April 24, and 10 people facing charges from a protest at weaponsmaker Northrop Grumman (Toronto), to be tried on August 1. (Report from Matthew Behrens of Homes not Bombs)




Wednesday, February 21, 2018

Monday, May 7, Parliament Hill: Rally and Nonviolent Civil Resistance (aka civil disobedience)

(Please share far and wide, and contact tasc@web.ca to get involved as a participant)

https://www.facebook.com/events/284206568779316/

Parliament Hill Direct Action: Hear The Voices of Muskrat Falls

Monday, May 7, Parliament Hill: Rally and Nonviolent Civil Resistance (aka civil disobedience)


(Details on getting involved and how you can support at bottom of post)


"Help us stop an act of cultural genocide and prevent a potentially catastrophic dam break that could drown up to a thousand people downstream from Muskrat Falls in Labrador (traditional, unceded lands of the Innu and Inuit). This battle for our very lives can no longer be waged alone. Most of us in Labrador cannot go to Ottawa. We need your voices to help expose the major tragedy unfolding that there is still time to stop. Ensure the federal government sees our faces, hears our voices, and acts on our demands." – Labrador Land Protectors and Grand Riverkeeper Labrador, February 21, 2018 (full callout statement at http://homesnotbombs.blogspot.ca/2018/02/labrador-land-protectors-and-grand.html)

The Muskrat Falls Megadam in Labrador threatens Indigenous people and settlers alike with methylmercury poisoning and mass drowning via catastrophic dam break. Their lives and their lands and waters, as well as all life forms in the area, have been turned into a national sacrifice zone that the Trudeau government is backing to the tune of $9.2 billion.

On Monday, May 7, the Ontario-Muskrat Solidarity Coalition and Direct Action Muskrat (DAM) will hold a rally on Parliament Hill (traditional, unceded Algonquin territory) and an act of civil resistance (aka civil disobedience) from which individuals trained in nonviolence will nonviolently enter the Parliament building and place the names and faces and words of all those whose lives are at risk at Muskrat Falls on the desks of MPs in the House of Commons. These will be representative of the people from whom the government has failed to seek and obtain free, prior, and informed consent (as required by the UN Declaration on the Rights of Indigenous Peoples, UNDRIP). MPs who say they support UNDRIP must be confronted daily with the human face of an easily prevented act of cultural genocide that is sure to occur via methylmercury poisoning at the Muskrat Falls megadam.

The lines between the rally and those who may be at risk of arrest will be very clearly drawn. The action will, at the request of the Labrador Land Protectors, be rooted in a nonviolent approach described here: https://www.facebook.com/labradorlandprotectors/posts/384632645232387:0

Those attending the action are invited to take part in our Solidarity Connections Campaign, in which you will make the acquaintance via email and phone and learn first hand from a Labrador Land Protector what is happening on the ground in Labrador, so that this commitment is not just for one day, but an ongoing relationship that grows in strength as we get to know one another and move forward. To sign up for the Connections Campaign, please send an email to tasc@web.ca

ALSO, If you plan to be one of those who may be in a situation of facing potential arrest, please contact us as soon as possible at tasc@web.ca

This is an urgent act given that failure to stop this megadam comes with lethal consequences. It is also fitting because all other channels have been exhausted, from meetings with bureaucrats and Ministers to years of lobbying, petitioning, demonstrating, and civil disobedience in Labrador. After all this, the government still refuses to listen and act on the wishes of Labrador residents.

“People, law-abiding citizens, are being thrown in jail, incarcerated for no reason other than trying to protect our land, and the peoples, and the wildlife and the fish of the land."
– NunatuKavut Elder Eldred Davis, from his maximum security penitentiary cell, St. John's, NL, Summer, 2017

"They are trying to make criminals out of people who are trying to defend themselves from methylmercury poisoning of a thousands of year food supply that we’ve always relied on at a time when the rest of Canada is looking for food security. his government has decided that we don’t deserve that.” – NunatuKavut Elder James Learning, 79, from his maximum security penitentiary cell, St. John's, NL, Summer, 2017

"If one part of our culture is being threatened, and our lives are being threatened, how does one back down from that? I don’t know how we can. This fight has to stay ongoing. We have to encourage other land protectors now to step up to the plate, to start with their initial arrests... and just continue through this process – keep moving people through that court system, keep the light on this issue. That’s the only way we’re going to do it.” – Inuk Land Protector Marjorie Flowers, from her maximum security penitentiary cell, St. John's, NL, Summer, 2017



Getting Involved:

1. Attend the Ottawa rally. Let us know if you can make it and if you need a place to stay on the Sunday evening, May 6.

2. If you plan on being in a situation where you might be willing to risk arrest, please contact tasc@web.ca and let us know so we can discuss guidelines, training, etc.

3. Endorse this action by sending the name of your organization to tasc@web.ca

4. Join the Solidarity Connections Campaign and twin with a Labrador Land Protector.

5. Contribute to the costs of this action: Cheques can be made out to Homes not Bombs and mailed to PO Box 2121, 57 Foster Street, Perth, ON K7H 1R0, and etransfers at tasc@web.ca can be accepted

6. Organize something in your own community that links to what is going on at Muskrat Falls. TD Bank is one of the biggest financial players supporting the project, so an information picket at a local branch, or at a federal government building, would be perfect. We can help you with ideas, handouts, etc.

Labrador Land Protectors and Grand Riverkeeper Labrador’s Call to Nonviolent Direct Action regarding Muskrat Falls for May 7th, 2018, Parliament Hill

 


We call all supporters to a national day of nonviolent direct action organized by the Ontario-Muskrat Solidarity Coalition on Parliament Hill in Ottawa (traditional, unceded Algonquin territory), on May 7th, 2018. Help us stop an act of cultural genocide and prevent a potentially catastrophic dam break that could drown up to a thousand people downstream from Muskrat Falls in Labrador (traditional, unceded lands of the Innu and Inuit).

Since 2011, Indigenous people and settlers have been victims of an undemocratic process that has allowed the Muskrat Falls mega-dam to be forced on us regardless of our grave concerns about its well-documented lethal effects. This includes methylmercury poisoning of our traditional food web and the daily threat of dam collapse.


Our fears are real; some of us go to sleep at night with life preservers under our beds. We live the despair of knowing our way of life that has existed for generations is being threatened. Justin Trudeau recently apologized for a past act of Labrador cultural genocide, yet his government supports this impending act of cultural genocide with a $9.2 billion federal investment.

Much of the resistance to the Muskrat Falls dam has taken place outside the national spotlight. Dozens of land protectors and riverkeepers in Labrador have been criminalized (and some, including Elders, jailed in maximum security penitentiaries) for peaceful acts of resistance and sacred ceremonies on traditional lands.

All calls for accountability, transparency, and respect have been ignored as this megaproject proceeds full speed ahead, doubling in a cost (now $12.7 billion) that will be borne by our province's poorest residents and next generations.

All possible political channels have been exhausted, from meetings with bureaucrats and Ministers to years of lobbying, petitioning, demonstrating, and civil disobedience in Labrador. Still the federal and provincial governments refuse to seek and obtain the free, prior and informed consent of all of us affected downstream.

Encouraged by the support of those who have heard our stories, we ask for you to join in the peaceful rally and civil resistance actions on May 7. We ask that as you bring our shared message to the heart of government in Ottawa, you respect our nonviolence basis of unity. This battle for our very lives can no longer be waged alone. Most of us in Labrador cannot go to Ottawa. We need your voices to help expose the major tragedy unfolding that there is still time to stop. Ensure the federal government sees our faces, hears our voices, and acts on our demands.

If you cannot get to Ottawa, please consider organizing a nonviolent direct action event in your community. Link your land and water concerns to ours. Together, we are stronger than the forces of greed and destruction that megaprojects like Muskrat Falls represent. Together, we protect for the next generations. Thanking you in advance.

In Solidarity,
Labrador Land Protectors, Contact: Denise Cole coledenise1975@gmail.com  
Grand Riverkeeper Labrador, Contact: Roberta Frampton Benefiel rebnfl@gmail.com

For nonviolence training and more information, contact the Ontario-Muskrat Solidarity Coalition at tasc@web.ca

Wednesday, February 14, 2018

Submission to the Commission of Inquiry Respecting the Muskrat Falls Project and the interpretation of Terms of Reference


Ontario Muskrat Solidarity Coalition
PO Box 2121, 57 Foster Street
Perth, ON K7H 1R0
(613) 267-30998, tasc@web.ca

Submission to the Commission of Inquiry Respecting the Muskrat Falls Project and the interpretation of  Terms of Reference
                                                                                                                                                                  February 14, 2018

Commissioner Richard LeBlanc
5th Floor, Suite 502, Beothuk Building
20 Crosbie Place
St. John’s, NL  A1B 3Y8

Dear Commissioner LeBlanc,

The Ontario Muskrat Solidarity Coalition is a network of individuals and groups who, in working closely with the Labrador Land Protectors and the Grand Riverkeeper, engages in educational outreach and pubic advocacy regarding the major concerns that have been raised regarding the Muskrat Falls megaproject.

By way of introduction, our membership is composed of individuals who have developed close ties over many years with members of Nunatsiavut, Nunatukavut and the Innu Nation, as well as individuals who are members of those nations currently living outside of Labrador. While many Coalition members have long been involved in prioritizing Indigenous rights, newer members come to this work inspired by the Calls to Action of the Truth and Reconciliation Commission to seek right relations, as well as the legislative attempts to adopt and implement the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP (Private Member’s Bill C-262, currently before Parliament).

Framework of the Inquiry and Multi-Lens Approach: UNDRIP, the Democratic Deficit, Consideration of a Terms of Reference Re-Set, and Grass Roots Voices
We wish to state at the outset our disappointment at the extremely limited terms of reference for this Inquiry, which appear slanted towards largely financial and technical considerations. While important inasmuch as the impact of the Muskrat Falls megaproject will be borne most by the poorest residents of the province, the terms of reference as currently written fail to incorporate the very human concerns raised by members of Indigenous nations, from the disappearance of sacred sites and the very real potential for destruction of a traditional food web that has existed since time immemorial to the well-established risk of mass drowning via catastrophic dam break.

While non-Indigenous Labradorians share similar concerns as well, our focus here is to urge this Inquiry to view its mandate through an UNDRIP lens. As a result, we urge this Inquiry to determine at the outset that its terms of reference require a complete re-set given the failure to properly consult Indigenous peoples about the terms of reference in an open, transparent fashion whereby all Indigenous peoples affected by the project would have been consulted prior to the Inquiry’s announcement. It would serve this Inquiry well to consider a re-set of the terms of reference following a consultation with Indigenous peoples from the grass roots Labrador Land Protectors and traditional decisionmakers to elected leadership. Nothing less is acceptable when a commitment to truth and reconciliation is supposed to be the basis of respectful nation-to-nation relationships. Failure by the NL government to properly consult Indigenous peoples regarding the terms of reference does not absolve the Commissioner of the same responsibility. Indeed, engaging in this consultation would not only show good faith on the part of the Inquiry, but also build some much-needed trust (and possibly avoid the delay caused by litigation challenging a failure to consult).

We also believe that the Inquiry must take note of and be informed by another lens, the democratic deficit which led to its creation in the first place. Throughout the history of the Muskrat Falls megaproject, issues of accountability, transparency, democratic decisionmaking – where they exist at all – have only come about as a result of intensive grass roots actions that have been met with draconian measures, from the criminalization and jailing of Labrador Land Protectors to the ongoing enforcement of a broad injunction. Indeed, the Independent Expert Advisory Committee (IEAC) exploring the issue of methylmercury poisoning, for example, only arose out of a painful hunger strike and peaceful occupation of the work site, among many other public actions. This proposed Inquiry needs to address the issues that have been raised by bloggers, land defenders, and concerned residents through tireless advocacy efforts. In addition, it is only as a result of proactive truth-seeking by individuals and non-governmental organizations that some of the documents that should be considered by this Inquiry – especially the engineering analyses by Stig Bernander on North Spur instability and methylmercury poisoning by Harvard University – were commissioned to assist in filling in the information gaps that the project proponents (Nalcor, government of Newfoundland and Labrador)  refused to adequately address.

In the above context, this Inquiry must prioritize those grass roots voices whose dedicated, persistent advocacy has made the Muskrat Falls megaproject the subject of an Inquiry in the first place: Indigenous Elders, Mud Lake flood victims, criminalized Land Protectors, concerned citizens fearful for their lives, and low-income individuals facing eviction in light of doubled or tripled hydro rates.

An Inquiry in a Vacuum
We are also disappointed that even though the language of some of the Terms of Reference clearly outlines some significant and urgent concerns raised by the Muskrat Falls megaproject, the Inquiry will be proceeding without a suspension of the project. We feel that the only way to build confidence in the Inquiry is to have construction halted pending the outcome of the Inquiry. While we understand it is beyond the Inquiry’s current mandate to call for a suspension of the project, we believe it is critical for the Inquiry to have as a core operating assumption that something is very wrong with a study whose recommendations will only likely be delivered at the completion of a project, despite the many risks still unaddressed by Nalcor and the provincial and federal governments. Those risks are real and pressing, from Indigenous people reliant on country food who are now fearful of being poisoned to Mud Lake residents fearful of another round of flash floods to anyone downstream who fails to comprehend how last week’s significant landslide can be dismissed by Nalcor as having no effect on or relation to the project.

How can this Inquiry proceed with confidence that its time is well-spent and its recommendations will be heeded if the project being studied continues to barrel ahead full steam, despite, among many, many unresolved issues, the uncontradicted findings of the Harvard methylmercury study, and the absence of a truly independent study on the instability of the North Spur?

To use an analogy that puts the Inquiry’s position into proper perspective: a train is racing down the track towards a cliff. Any objective observer can see the cliff, and the train’s driver is ignoring all the scientific evidence, engineering reports, and internal documents that predicted the train would run off the cliff if it were not stopped. One can either pull the brakes on the train to prevent the potential for catastrophe, or one can initiate a study on whether certain financial issues and decisionmaking that put the train in such peril in the first place was done without proper authorization or due diligence (as the train drives over the cliff).

The Muskrat Falls megadam is that train racing down the tracks. The human cost of this potential train wreck is beyond measure. The cloud of that uncertainty, that fear, that despair, hangs over this Inquiry as long as the project being studied does not apply the brakes pending your findings. The failure of the government of Newfoundland and Labrador to exercise the precautionary principle in this instance (applying the brakes) when the mounting evidence screams out for it, creates a metaphoric framework of futility for the Inquiry that could very much discourage participation from those who see no point in taking part when it would appear the outcome of the project is now a fait accompli and the work of this Inquiry mere window dressing that may be useful for future scholars of poor decisionmaking.

Critically, if the Terms of Reference are indeed subject to the much-needed re-set through an UNDRIP lens as stated above, part of that new mandate could very well consider the need for a suspension of operations based on compelling evidence and justified by the much-needed application of the precautionary principle.

In any event, another lens through which this Inquiry must interpret its terms in as broad and generous a fashion as possible is that of the precautionary principle, a touchstone of environmental law and a norm of customary international law, as recognized by the Supreme Court of Canada (114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), [2001] 2 SCR 241), in which it referenced the Bergen Ministerial Declaration on Sustainable Development (1990) and declared:
Scholars have documented the precautionary principle’s inclusion “in virtually every recently adopted treaty and policy document related to the protection and preservation of the environment” (D. Freestone and E. Hey, “Origins and Development of the Precautionary Principle”, in D. Freestone and E. Hey, eds., The Precautionary Principle and International Law (1996), at p. 41. As a result, there may be “currently sufficient state practice to allow a good argument that the precautionary principle is a principle of customary international law” (J. Cameron and J. Abouchar, “The Status of the Precautionary Principle in International Law”, in ibid., at p. 52). See also O. McIntyre and T. Mosedale, “The Precautionary Principle as a Norm of Customary International Law” (1997), 9 J. Env. L. 221, at p. 241 (“the precautionary principle has indeed crystallised into a norm of customary international law”).  

In order to achieve sustainable development, policies must be based on the precautionary principle. Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.” (emphasis added)
The threat of serious and/or irreversible damage is already well-documented with respect to methylmercury poisoning and North Spur instability, from the original joint provincial/federal panel through the Harvard and Bernander studies. The Inquiry cannot proceed without a serious recognition of this threat, which is why our call for a re-set for the Terms of Reference following proper consultation with all affected Indigenous peoples, and a subsequent suspension of operations at the Muskrat Falls megaproject pending a re-set Inquiry’s findings, would make the most sense, and dovetail with the need to respect the precautionary principle.
Lack of Proper, Ongoing Consultation
In addition, NL and Nalcor’s consultation with Indigenous peoples appears to have been based on an impoverished definition of “consult” ( see The Government of Newfoundland and Labrador’s Aboriginal Consultation Policy on Land and Resource Development Decisions, April, 2013) that fails the well-established test of the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in seeking free, prior, and informed consent, and in recognizing that consent is not a fait accompli, but rather part of a process of ongoing dialogue and negotiation that allows for change of circumstances, introduction of new information, and the ability of Indigenous people to withdraw consent.
The provincial government’s policy statement declares “NL desires a practical consultation process that helps to ensure that land and resource development decisions minimize or, where reasonably practicable, eliminate potentially adverse impacts on asserted rights. NL also aims to maintain, foster and improve effective working relationships among Aboriginal organizations, project proponents and NL.” The experiences of Indigenous-led groups such as the Labrador Land Protectors can attest to the fact that this policy statement has been consistently violated over the past half decade, whether through a persistent refusal to meet and meaningfully address concerns, the criminalization of peaceful acts of land protection, the judicial stifling of voices of opposition, and policies that fail to eliminate adverse impacts.

Critically, among NL’s guiding principles, #10 states: This Policy and any form of Aboriginal consultation conducted by NL or its delegates, does not constitute acceptance or recognition of asserted rights. The process of consultation does not create any Aboriginal or treaty rights.”

The provincial government’s consultation is not meant to achieve consent and a harmonious working relationship; it is simply to take into consideration certain views without providing Indigenous people a say in the final outcome of the project. This Inquiry, in dealing with Indigenous issues, must employ the broader and more generous lens of consultation and consent as provided by UNDRIP.

Recommendations
Given the manner in which this Inquiry has been limited in terms of scope, as well as the questionable utility of its findings given that there has been no suspension of construction pending tour conclusions, we are calling upon you to interpret the terms of reference in as broad and generous a manner as possible to allow for the inclusion of voices that appear to have been excluded from the Terms of Reference. Toward that end, we are calling on you to re-set the Terms of Reference after engaging in a proper, UNDRIP-informed consultation with those Indigenous voices who have clearly not been heard, as evidenced by the limited consideration they are given under the current framework. As currently set out, the Terms of Reference appear to be flawed by an apparent apprehension of bias that favours and limits the potential liability of the government which called the Inquiry and set those terms absent proper consultation with all affected parties.

Recommendation 1: We believe the Commissioner must agree to a re-set of the terms of Reference, and should engage in a process of UNDRIP-informed deep consultations with Indigenous peoples at all levels (from elected leadership to grass roots land defenders, elders and traditional decisionmakers) to ensure that concerns specific to their lives (and the serious, multiple threats posed to their lives by the Muskrat Falls megaproject) are included in the Terms of Reference for this Inquiry. The lens of UNDRIP (as elucidated in part below) will be of assistance in this regard, as will current Canadian and international jurisprudence with respect to the duty to consult and to seek free, prior, and informed consent.

Recommendation 2: We believe the Commissioner should broadly and generously interpret Section 5 (“participation in the Inquiry by the established leadership of Indigenous people, whose settled or asserted Aboriginal or treaty rights to areas in Labrador may have been adversely affected by the Muskrat Falls Project”) to include any and all members of Indigenous nations affected by the project, and not simply those who hold elected positions. We also believe that this same principle of inclusion should be extended to the voices of non-Indigenous Labrador residents affected by this project. This recommendation may well inform the Commissioner’s response to Recommendation #1.

Such consideration must include a view of all aspects of the Muskrat Falls megaproject through an UNDRIP lens. This should include consulting experts on UNDRIP, as well as exploring the failure of the NL government, the federal government, and NALCOR to recognize the obvious trigger points for deep consultation not just with Indigenous government leaders, but with traditional decisionmakers as well as those voices of the Labrador Land Protectors whose views have not been properly represented by their governments. The Commissioner must question whether all Indigenous people affected were allowed an open, transparent process to achieve free, prior and informed consent not only at the project’s outset, but throughout its development as it continues to proceed through the life of the Inquiry.

The Commissioner must hear from the voices of Indigenous people who feel that their voices have not been properly consulted not only by the NL and NALCOR, but by their own leadership as well. It should also consider the very real possibility that the effects of the Muskrat Falls megaproject could result in an act of genocide, as defined by the Convention on the Prevention and Punishment of the Crime of Genocide (Article 2b, “Causing serious bodily or mental harm to members of the group”; 2c, “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”; 2d, “(d) Imposing measures intended to prevent births within the group”.) While the Genocide Convention speaks of deliberate action, an argument could well be made that willful blindness to the effects and consequences of one’s actions, especially in light of compelling evidence of impending harm, does not provide immunity from liability.

The Inquiry should also consider how the longstanding legacies of colonialism and settler-state divide-and-rule policies have been used to silence particular voices in communities that would otherwise be speaking out.

Where the potential infringement of asserted Indigenous rights is high and the risk of non-compensable damage is similarly significant, deep consultation aimed at finding a satisfactory interim solution is required. Consultation must be a meaningful dialogue. But neither should Indigenous people be obliged to participate in a process that does not allow for a good faith attempt for the parties to understand one another's concerns. Deep consultation includes the opportunity to make submissions, formal participation in the decision-making process and the provision of written reasons to show that Indigenous concerns were considered and the impact they had on the decision. Responsiveness is a key requirement of both consultation and accommodation.

Despite the legal obligation for the Crown to consult with Indigenous peoples when contemplating or undertaking activities that may affect their rights, Nalcor, NL and the federal government  have specifically excluded certain groups of Indigenous people from any ongoing consultation, even though they are owed the duty to consult in good faith.

The Inquiry must hear directly from witnesses who can attest to the failure of the provincial government of NL, NALCOR, and the federal government to engage in deep, ongoing consultation.

As a means of helping answer some of these probing questions, the Inquiry needs to respect the underlying purposes of UNDRIP, including, but not limited to:
Recognizing the urgent need to respect and promote the inherent
rights of Indigenous peoples which derive from their political, economic
and social structures and from their cultures, spiritual traditions,
histories and philosophies, especially their rights to their lands,
territories and resources,

Convinced that control by Indigenous peoples over developments
affecting them and their lands, territories and resources will enable
them to maintain and strengthen their institutions, cultures and traditions,
and to promote their development in accordance with their
aspirations and needs.

The Commissioner also needs to hear from affected individuals to determine how the following, non-exhaustive articles of UNDRIP have been violated by NL, Nalcor (and, by extension, the federal government, the biggest financial player in Muskrat Falls). Should the Inquiry consider the use of an UNDRIP lens, further assistance can be provided with expert witnesses to explore issues of consent through Canadian and international jurisprudential contexts for which space considerations here do not presently allow.

Article 7: Indigenous individuals have the rights to life, physical and mental integrity, liberty and security of person.

Article 8: (1) Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. (2.) States shall provide effective mechanisms for prevention of, and redress for: (a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities.”

Article 11 (1.) Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.”

Article 18: Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decisionmaking institutions.

Article 25: Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

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

Recommendation 3
The whole of this Inquiry must ask why the precautionary principle did not seem to be applied as the project was approved and went forth, especially in light of the NL government and Nalcor’s collective failure to institute the findings and recommendations of the joint provincial panel, SNC-Lavalin’s own internal analysis, the Harvard and Bernander studies, and other assorted reports that were inevitably commissioned by citizens themselves when the proponent and its supporters failed to provide proper analysis and justification for key decisions. The Inquiry must determine whether this failure to apply the precautionary principle has unnecessarily placed Indigenous and non-Indigenous lives in jeopardy.


Conclusion
As noted above, the Inquiry must undertake a re-set of the Terms of Reference that includes a proper, UNDRIP-informed consultation with all Indigenous peoples affected by the Muskrat Falls megaproject.  As part of a re-set, this Inquiry must consider the need to press for a suspension of construction at the Muskrat Falls megaproject pending the outcome of the Inquiry’s findings, whose utility becomes questionable should constructed not be halted.

The Inquiry must approach all of the issues within its current (and hopefully re-set) mandate – and also provide a generous and broad interpretation of those terms – with a multi-lens approach that incorporates questions about compliance with UNDRIP principles and the failure to proceed with the precautionary principle as a foundational operating guide; that considers expanding as widely as possible to include the Indigenous and non-Indigenous grass roots voices who have been ignored and cast aside as a result of the NL government’s and NALCOR’s democratic deficit; and that considers seriously and, where possible, acts upon the political conundrum in which it finds itself studying a project that is likely to reach a completion stage that, absent a suspension of operations, will mean the Inquiry’s recommendations may have no beneficial effect or positive impact.
Submitted by

Matthew Behrens
Ontario Muskrat Solidarity Coalition

Tearful Justice of the Peace Storms out of Court after Defendants Read out Names of Homeless Dead


 Convicted for Occupation of Mayor's Office Calling for an Opening of the Armouries 
 
(Looking Back) February 19, 2000
It was another day in Court L, a place where people must go when they are charged with selling tobacco to a minor, letting their dogs do out without a leash, and similar offences. 

On this day, Justice of the Peace D. Europa was not particularly prepared when he faced a group of four protesters there to be tried for trespassing at Mayor Mel Lastman's office over the issue of homeless people freezing to death on the streets of Toronto.

From the beginning, Europa must have known it would not be an easy day. When asked how we would plead to the charges, all answered, "We plead for an end to poverty and homelessness." When asked whether we pleaded guilty or not guilty, the answer remained the same: "We plead for an end to poverty and homelessness." Following a third attempt, Europa finally entered pleas of not-guilty on our behalf.

Recognizing that we were representing ourselves, the JP at first took a very patronizing tone, concerned that we knew about how the law worked and the rights which were guaranteed to us. We assured him we knew how the game worked, and that we were hoping that justice, not just the letter of the law, would prevail in the day's trial.

Following the de reiguer testimony of the City Hall security officer about how we refused to leave when asked to do so, we cross-examined, asking if as a security officer he often came into contact homeless people while working. His reply was yes, they are often found sleeping underneath walkways and against the building.

At this point, the Crown prepared to call two police witnesses. A defendant rose to express concern about court time and money being wasted having officers testify in a case where the defendants were only too pleased to concede issues of identity and other relevant facts of the case.

"In fact, we are proud of not leaving, so there is no need to have the officers say that we refused to leave," one of them explained.

"You do not understand," the JP replied. "A case is like a house, built brick by brick, and the Crown is simply trying to build his case."

At the conclusion of a morning recess, Sandra Lang refused to stand while at the defendants' table, despite the protestations of the Crown, who acted as if Lang's failure to stand was the beginning of the end of civil society. Defendant Matthew Behrens also refused to stand, but he was conferring with a witness further back and was not noticed.

The first police witness went through the facts and, when the crown was through, pointed out on his own that the defendants had been nonviolent and respectful, almost as if he were a defence witness. He was asked by the defendants if he saw a lot of homeless people in the course of his duties, to which he also replied yes.

The second officer was asked how long he had been an officer. 25 years.

"So you must have begun in 1975," a defendant stated. "This was, for the record, the era of disco. Pardon me if I bring back bad memories of bad music and bad pants." Both the Crown and JP were too stunned by the comment to interceded, allowing the defence to ask whether, from the officer's perspective, homelessness had increased significantly from the days when he started out. He responded, affirming that he was seeing things on the streets he never saw when he first started policing.

The defence case was simple. Expert witness Kira Heineck of the Toronto Disaster Relief Committee, the group which had brought the issue of declaring homelessness a national disaster to the public light, spoke first. She eloquently described the nature of the crisis, the difficulties of working with bureaucrats and politicians, and how many people -- upwards of 150 -- died on the streets of Toronto each year. When the JP interceded that he had heard enough about homelessness, a defendant noted, "We are trying to build a case, and it must be built like a house, brick by brick." Heineck pointed out that following the sit-in, things seemed to move faster in terms of action on opening shelters at the municipal level.

When it appeared that the JP would no longer listen to further testimony, Heineck added the names of a dozen people who had died homeless into the record, despite the protestations of the JP and Crown.
The testimony which followed was a typical effort of attempting to overcome the frustration caused by constant interruption from the bench and the crown. Behrens testified about the necessity for action, the obligations of citizens to take action when people's lives are at risk. 

"But you refused to leave, did you not?" The Crown demanded.

"Just as Rosa Parks did not move from the bus seat to protest the evil of racism, we refused to move to protest the evil of poverty," Behrens responded. "Today we name highways and libraries after Parks and Martin Luther King, Jr., but in their time, they were tried in courts just like this one."


Behrens then attempted to read the names of 20 homeless individuals who had died on the streets, with each name read out bringing on a strong objection from the Crown and the JP, although the defendants and supporters rose in silence to honour their memory. At one point  in a discussion on the 1% solution to homelessness, Behrens offered a 1% button to the JP and the Crown, the latter treating it as if it were infected with botulism or some horrid communicable disease. Copies of the Declaration of Homelessness as a National disaster were also provided.

Defendant Brent Patterson spoke to the desperation of the situation, recalling the death of a homeless man on a heating grate outside of Queen's Park, the death which sparked a strong call for opening the armouries to the homeless.

Lang spoke movingly of knowing people who had died on the streets, of having been homeless herself when she first arrived in Toronto. Don Johnston also addressed homelessness in his own life, and spoke of the need for a radical change in the country's priorities

During cross examination, the Crown attacked Lang for not standing when the JP walked into the room. Lang explained she meant no disrespect to Europa as a person, that she was trying to make a statement about the violence of a system which regularly warehouses the poor behind bars. When this explanation did not suffice for the Crown, he continued to attack her , at which point Behrens rose and objected that if the Crown, as he had insisted before, really believed that the crime here was trespassing, then he should stick to his case and stop harassing Lang. Besides, Behrens pointed out, he had not stood either, and wanted the court record to reflect that point.

In wrapping up, the crown, by this point quite peeved, said these individuals had no respect for the crown, the court, the queen, the police, or anyone for that matter, and that we just thought we could do whatever we wanted to do.

In defence summation, numerous precedents were read into the record which justified the sit-in, but the JP became increasingly upset. Knowing that the defendants were right but not having the courage himself to engage in what he deemed "judicial activism," Europa scolded the defendants, whom it was clear he was prepared to acquit on technical grounds given the sloppy Crown case, "but you just had to say that you refused to move, and then that you were proud of this!" he thundered. Tears in his eyes, he rambled on about the rule of law versus the rule of man, and gave all a suspended sentence upon pronouncement of guilt, running from the room the long way around to his quarters.

The police came up, almost apologetic, explaining their situation--hey, we realize there's got to be something done, etc. The court clerk congratulated the defendants and thanked them for using the civil rights movement as an inspiration, while the court reporter asked that we give her the list of names of the homeless so she could get their correct spelling--she wanted this to appear correctly in the court record, a tribute to the fact that she got what the trial was about.

Courts are an odd place, a theatrical forum which places value on obedience over truth, compromise over justice, and ritual over reason. They represent a particular form of violence which is easily covered up by nice officers or a liberal JP, but nonetheless the violence is there. The question for us as activists is how we can continue to break down the tremendous power these courts have over our daily lives and, especially, the daily lives of those without the power and privilege we have when we go into these hallowed halls.