A Canadian court “quashed” approval of the Trans Mountain pipeline expansion on Thursday, a major setback for Prime Minister Justin Trudeau, whose government agreed to purchase the controversial project from Kinder Morgan for $4.5 billion Canadian dollars (U.S. $3.5 billion) in May.
It’s a stunning victory for Indigenous groups and environmentalists opposed to the project, which is designed to nearly triple the amount of tar sands transported from Alberta to the coast of British Columbia.
The Federal Court of Appeal ruled that the National Energy Board’s review—as explained by the Canadian Press—”was so flawed that the federal government could not rely on it as a basis for its decision to approve the expansion.”
The project has been at the center of widespread protests from environmental groups and First Nations ever since November 2016, when Trudeau approved a $7.4 billion expansion of the existing Trans Mountain pipeline that would increase the transport of Alberta tar sands oil from the current 300,000 barrels per day to 890,000 barrels per day and increase tanker traffic nearly seven-fold through the Burrard Inlet.
Specifically, the court said it was an “unjustifiable failure” that the National Energy Board did not consider the environmental impacts of the increased tanker traffic.
The court additionally concluded that the government “fell well short” with properly consulting with the Indigenous groups involved in the case, including the Tsleil-Waututh and Squamish on British Columbia’s south coast.
The ruling will force the National Energy Board to redo its review of the pipeline and the government to restart consultations with the Indigenous groups. It also means that the construction that has already began in central Alberta must cease.
In effect, the court has halted the 1,150-kilometer project indefinitely and it will remain in “legal limbo until the energy regulator and the government reassess their approvals to satisfy the court’s demands,” CBC wrote about today’s decision.
Notably, the decision was made the same day Kinder Morgan’s shareholders voted to approve the $4.5 billion sale to Canada, which means the country owns a proposed pipeline project that could be subject to years of further review, the publication pointed out.
The court’s judgment could be appealed a final time to the Supreme Court of Canada.
The Minister of Finance Bill Morneau said that the government has received the ruling and will review the decision.
At its best, the Supreme Court is meant to make the Constitution adaptable to the changing needs of society. In reality, it is the top tier of a capitalist, bureaucratic ladder that turns human need into semantic arguments for the sake of parceling out freedoms just enough to pacify the masses. It speaks clearly to the interests served by this system when an institution that asserted African Americans are not people (Dred Scott v. Sandford 1857), permitted compulsory sterilization of the intellectually disabled (Buck v Bell 1927), and condoned Japanese internment (Korematsu v. United States 1944) still has relevance and power today.
The Supreme Court has been using that power to further corporate personhood and weaken the power of the collective. With President Nixon’s nomination of Lewis Powell Jr. onto the Supreme Court in 1972 came the presence of the U.S. Chamber of Commerce’s special interests for decades to come. In a memo to the Chamber shortly before his appointment, Powell wrote of the U.S. economic system coming under attack by everyone from Communists to college students. He urged that businesses take a more active role in defending themselves from this siege, especially through direct involvement in politics. Since then, the Chamber has had increasing influence over the cases brought before the supreme court and their decisions. Their input can be found in the majority of cases concerning the proliferation of corporate rights.
Front row, left to right: Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., Associate Justice Clarence Thomas, Associate Justice Stephen G. Breyer. Back row: Associate Justice Elena Kagan, Associate Justice Samuel A. Alito, Jr., Associate Justice Sonia Sotomayor, Associate Justice Neil M. Gorsuch. Credit: Franz Jantzen, Collection of the Supreme Court of the United States
Cut to modern day. The Chamber has won 69% of the cases in which they have been involved in since John Roberts became Chief Justice in 2005. In Citizens United v. Federal Election Commission, the court found that political spending is a form of protected speech under the First Amendment and the government may not keep corporations from spending money to support or denounce individual candidates in elections. Horne v the Department of Agriculture, reported as “small-time farmer” Marvin D. Horne taking on the government, actually concerns “Raisin Valley Farms,” the largest raisin producer in the California valley where most of the world’s raisins come from. The supreme court’s defense of their monetary compensation on the basis of the fifth amendment right to compensation from government takings sets precedent that will stand to benefit large corporations and drag us deeper into a reality where a business can have all of the same rights as a person, but with enough money and power to structure the entire country to their benefit. In both of these cases, the Chamber of Commerce filed multiple briefs in order to influence the opinion of the court. Meanwhile, average Americans who do not spark the interest of massive lobbying groups are toiling away in the lower courts, being issued arrest warrants by judges in collusion with collections agencies, and being jailed in a return to debtor’s prisons thought to be a thing of the past.
What naturally follows the bestowing of human rights to corporations is the stripping of those rights from the rest of the population. In AT&T Mobility LLC v. Concepcion in 2011, corporations gained the power to force consumers to individually file lawsuits against a company, allowing them to protect themselves from class action lawsuits by consumers (Oh, is that a Chamber of Commerce amicus brief I see?). This legal protection was expanded this year to employee class action lawsuits in Epic Systems v. Lewis (wow Chamber we really can’t keep meeting like this). One month later in Janus v. American Federation of State, County, and Municipal Employees, the court ruled that government workers who choose not to join unions may not be required to help pay for collective bargaining, effectively crippling public sector unions. Corporations have successfully cultivated legal ground for exploitation of their workers and relieved themselves of the need to be accountable to their customers.
Brett Kavanaugh. AP photo/ Dennis Cook
That is where we have been and where we are now, but where are we headed? President Donald Trump, a blunt force for the fascist fraction of the capitalist class, has nominated his second supreme court justice. In Brett Kavanaugh, big business will find yet another bedfellow in the high courts (here is his endorsement from the Chamber of Commerce). He has consistently shown that his loyalties lie with the wealthy and not working Americans, a position that seems painfully redundant for today’s supreme court. Who stands to benefit from the appointment of a judge that the NRA has vowed to spend $1 million to get into office? The Judge has stood staunchly against unions in the majority of cases that have come before him. In Midwest Division-MMC, LLC v. NLRB, when nurses were denied union representation in peer-review meetings, Kavanaugh sided with the hospital and their need for confidentiality over the worker’s rights. In NLRB v. CNN, Kavanaugh sided with CNN in their removal of unionized workers and denied that they took part in unfair labor practices. He has expressedopinions that undocumented workers are not eligible to unionize and, furthermore, negate the power of the unions they participate in. His stance on net neutrality blatantly favors the interests of large telecommunications agencies. In 2016 he went after the Consumer Protections Bureau, stating that their structure is unconstitutional and the President should have the power to fire the director. People are understandably concerned about his standing on social issues, but more troubling is his love affair with big business and direct opposition to workers. Kavanaugh’s appointment not only threatens decisions like Roe v. Wade, but also intensifies the onslaught of Fascist consolidation.
We’ve been fed the belief that our system of government has built-in checks and balances against the absolute corruption of absolute power. Bourgeois democracy and its state apparatus do not serve our interests. Instead, state institutions and their representatives exist to divide, disorganize, and pacify us. Courts make rulings that throw piecemeal concessions toward our bourgeois democratic rights while simultaneously eroding our power to band together and fight back against the interests of the capitalist class. Laws and legislation are made deliberately confusing through legalese and opaque proceedings in order to keep us from exercising our true power – the power that lies in our direct, organized action. Justice comes from people organized as a social force, fighting for their interests.
Currently, the retraction of bourgeois democratic rights has the country crying Fascism, but its root is in the social, political, and economic arrangement – capitalism – that has reached a structural crisis, thanks to banking and finance. Violence based on toxic ideologies are meant to rally a base of support for policies that will only make the rich richer. In order to truly resist Fascism, we must recognize that capitalism is still the problem. We must be vigilant against the capitalist alternatives. We must recognize that the state apparatus and institutions like the Supreme Court fundamentally exist to protect the wealth of the few while screwing everybody else over. We must be aware of these interests on our streets, in our workplaces, and in our communities. We must resist them globally. We must resist them nationally. We must resist them locally.
LANSING, Mich. – The Menominee Indian Tribe of Wisconsin has filed a petition for a contested case hearing on the Michigan Department of Environmental Quality’s (MDEQ) issuance of a Wetland Permit for the Back Forty Mine.
The Wetland Permit, issued in June, is the final state permit necessary to develop the Back Forty Mine, a large open-pit mine and minerals-processing facility on the Menominee River, which forms the Michigan-Wisconsin border. The permit allows for construction of the Back Forty Mine on wetlands connected and adjacent to the Menominee River.
The Tribe opposes the mine, not only for its potential to contaminate the Menominee River and destroy surrounding wetlands, but also because the area has cultural significance to the Tribe. The Tribe has burial grounds, agricultural sites and ceremonial sites that have been in the area for centuries.
Represented by Tribal attorneys and the environmental law firm Earthjustice, the Tribe contends the permit was granted to the mine developer (Toronto-based Aquila Resources, Inc.) contrary to the requirements of state law for wetland protections – and over the written objections of MDEQ’s own Water Resources Division.
“This permit was issued despite every indication that it would have a negative impact on the Menominee River and destroy its surrounding wetlands,” said attorney Stephanie Tsosie of the Earthjustice legal team. “The permit application left out critical information on the river and wetlands system, and is based on promises that the developer would provide information down the road. So, MDEQ issued this permit without a full picture of how extensive the mine damage could be, and without public input.”
“This permit ignores that the Menominee River and its surrounding wetlands are interconnected,” added Menominee Tribe Chairman Douglas Cox. “This relationship is something the Menominee people have known for thousands of years. We have deep ties to the River, as the Tribe originated there and has lived in the area since time immemorial. Not only has MDEQ ignored the Menominee Tribe’s interests and assertions – it has also ignored the objections of its own Michigan Tribes and other public comments.”
The petition for a contested case hearing was filed on Friday, August 3. The contested case proceeding will be heard by an administrative law judge in Michigan.
The Menominee Tribe of Wisconsin is already the plaintiff in a federal lawsuit against the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency. The Tribe contends these agencies violated the Clean Water Act by allowing the State of Michigan to oversee what should be a federal permitting process.
This contested case is another avenue the Tribe is taking to protect cultural, historic and spiritual sites from damage and destruction.
Last June, an Ecuadorean court ordered the suspension of all mining activities by a Chinese corporation in the highlands of Rio Blanco, in the Molleturo area of the Cajas Nature Reserve. It was a local court in Cuenca that gave the historic sentence: a court shut down an active mine for the first time in the history of Ecuador. Judge Paúl Serrano determined that the Chinese private corporation Junefield/Ecuagoldmining South America had failed to consult with the communities as required by Ecuador’s Constitution and by the UN Declaration on the Rights of Indigenous Peoples (UNDRIP).
Judge Serrano deemed the mining activity illegal and ordered the corporation to immediately suspend all its activities. Within two weeks, local communities accompanied police forces and local government officials in monitoring that the court order was respected.
Police and Molleturo communities discuss procedures to monitor the suspension of mining activities. Photo: Manuela Picq
The company appealed, and pressure was on the rise for the following hearing. The Chinese corporation privately offered $18 million to community leaders. Ecuador’s President, the Minister of Mines and the Minister of the Environment visited the province to pressure the local courts and indigenous communities to accept the mining activity. They defended “sustainable” mining as a form of development.
Affected communities consolidated their resistance, monitoring the access to the mine to impede mine workers to enter their territories, building support from neighboring communities, and informing the international community of the legal stakes.
Photo: Manuela Picq
On July 23, 2018, the court met again to either ratify or revert the decision to suspend mining activities in Rio Blanco. The court listened to all sides along with some expert testimonies; but there were discrepancies among the judges who postponed their verdict for another week.
Molleturo’s lasting vigilance for their waters
The Rio Blanco mine is located in the Molleturo-Mollepongo region, above ten thousand feet in the Andes. The mining license encompasses approximately six thousand hectares of paramos, lakes, and primary forests that nourish eight important rivers. This area replenishes the water system of the Cajas National Park, one of the largest and most complex water systems of Ecuador, which covers over a million hectares and holds immense water reserves.
The area is recognized as a natural biosphere reserve by UNESCO. These mountains have long been the home of Kañari-Kichwa indigenous communities. There are 12 archeological sites in the Molleturo area alone: the most famous one is the Paredones archeological site, located right by the mine.
Photo: Manuela Picq
The area is also a vital supply of water. These paramos provide water to 72 communities in Molleturo, freshwater to towns in the southern coast of Ecuador and to the city of Cuenca, the country’s third largest city which praises the quality of its drinking water.
The Rio Blanco mine is expected to be active for seven years, removing about 800 tons of rock per day and using cyanide to extract gold and silver. This entails an estimate of one thousand liters of water per hour that would be contaminated with deadly toxic waste, including arsenic, before being thrown back into rivers and soil.
Local indigenous communities were never consulted prior to the development of the project that would benefit from a recent Ecuadorean law incentivizing foreign investment. Nor did they give their consent to the licensing of their territories to the Junefield corporation. They reject the mine because it would contaminate their waters.
Photo: Manuela Picq
Women are at the forefront of the resistance that began almost two decades ago, when the mining license was first issued. Molleturo communities have been arguing in defense of water more or less actively over the last decade and a half but stepped it up when the mine started its activity in May 2018. Protests exploded, and a group burned out the miner’s living quarters.
Nobody was hurt in the explosion, but the police intervened, heavily armed, to militarize the area. The next day, protesters called in the president of Ecuador’s Confederation of Kichwa People Peoples for help, Yaku Perez Guartambel, but workers from the mine kidnapped him for eight hours, threatening to kill him. Tensions boiled to new heights.
Prior consultation as a fundamental indigenous human right
The Judge ordered the suspension on the mine–invoking constitutional and international indigenous rights to prior consultation.
Rosa, a delegate from the Andean Network of Indigenous Organizations (CAOI), discusses the territorial dimension of self-determination to community members gathered in the páramos of the Cajas mountain range. Photo: Manuela Picq
Since 1989, Art. 6 of the International Labor Organization Convention 169 safeguards indigenous rights to prior consultation on projects taking place on indigenous territories. Art. 18 of UNDRIP establishes indigenous rights to participate in decision making relating to their territories, and Art. 19 establishes that states must consult “in good faith” to obtain indigenous “prior, free, and informed consent: about legislative of administrative measures impacting their communities. In 2016, Art. 25 of the American Declaration on the Rights of Indigenous Peoples reiterated these principles in the context of the Organization of American States.
Prior consultation is not a simple law; it constitutes a fundamental human right of indigenous peoples because their existence is intimately tied to their territories. Their culture, lifeways, and community structures are woven into territorial autonomy.
An Amicus Curiae from a Chinese environmental lawyer
About half a dozen amicus curiaes were presented to Cuenca’s court supporting the communities right to prior consultation, from a range of organizations including the Environmental Defense Law Center, Ecuador’s Ecumenic Commission of Human Rights (CEDHU) and the Ecuadorian group Critical Geographies. Amicus were presented by scholars from Ecuadorean and American universities, including Universidad Internacional del Ecuador, Universidad de Cuenca, Universidad San Francisco de Quito, American University, and Coastal Carolina University.
Environmental lawyer Jingjing Zhang, from Beijing, submitted an amicus in which she provided an overview of relevant Chinese laws and regulations. She testified to the court on July 23, 2018, explaining that China ratified the UN Declaration on the Rights of Indigenous Peoples in 2007, thus supporting prior consultation and consent for any project on their territories. She reminded the words of the Chinese delegate at the 13th Session of the UN Permanent forum on Indigenous Issues (2014): “ the international community is duty bound to fully meet the legitimate requests of indigenous peoples, to promote and protect their basic human rights and freedoms, to safeguard the natural environment and resources on which their survival depends” and China “firmly supports the promotion and protection of the basic human rights and fundamental freedoms of all indigenous peoples around the world. ”
Jingjing testifies to the court in Cuenca, July 23 2018, with an interpreter. Photo: Manuela Picq
She explained to the court that China has regulations establishing that enterprises may not violate international treaties ratified by the Chinese government and that they are bound by the laws and environmental regulations of the host country. She stated that The Communist Party of China (CPC), State Council, and various government agencies have issued policy guidelines that encourage Chinese companies to focus on ecological environmental protection in their foreign investments. In her view, the Chinese government has deep concerns on the law-abiding and environmental performance of Chinese companies operating overseas.
Her amicus concluded that China’s Environmental Protection Law, Environmental Impact Assessment Law, and the Government Information Disclosure Regulation have strict provisions on the public participation rights of citizens. These regulations are based on the same principles and contain similar provisions to the Ecuadorian norms on the rights of indigenous peoples to prior consultation.
One step forward or two sets back?
The court sentence to suspend the mine marked a milestone of hope to Indigenous peoples and nature defenders. Yet the old tactics of legal warfare are still in use. Within a week of the court sentence, over 20 nature defenders were criminalized, eight of them charged with the crime of sabotage.
The private corporation Junefield/Ecuagoldmining South America did not have to do engage in public debate, Ecuador’s government is taking the lead. It was the Ministry of the Interior who accused indigenous peoples to defend the interests of the Chinese corporation. “The state proves that it is the best lawyer of mining companies,” says Yaku Perez Guartambel.
Will the criminalization of nature defenders continue? For now, judges are holding off a final verdict, and as the clock ticks political and economic pressures thicken. Molleturo leader Fausto Castro says that communities want their right to life back, and that they seek a peaceful solution to this mining conflict. It is indeed an achievement that serious confrontations were avoided, but this may not last forever. Yesterday, when the Judge staved off sentence as hundreds of nature defenders awaited outside the courtroom, many expressed their fears: “if the court reverts its sentence to benefit the State, it is a declaration of war.”
Standing Rock protesters faced below-freezing conditions, water cannons, sponge rounds, bean bag rounds, stinger rounds, teargas grenades, pepper spray, Mace, Tasers, and even a sound weapon. Officers carried weapons openly and threatened protesters constantly, by many accounts. Hundreds of protesters were injured, and more than two dozen were hospitalized.
As of November 2016, 76 local, county, and state agencies had deployed officers to Standing Rock. Between August 2016 and February 2017, authorities made 761 arrests. One protester was arrested and slammed to the ground during a prayer ceremony; another described being put in “actual dog kennels” with “photos of the types of dogs on the walls and piss stains on the floor” in lieu of jail. She wasn’t told she was under arrest; she wasn’t read her rights. Once detained, protesters were strip searched and denied medical care. Belongings and money were confiscated, the latter never returned.
Law enforcement officers razed the camp in February 2017. The protest may have ended, but aggression against protesters did not. Law enforcement and prosecutors’ efforts to charge protesters with as serious a crime as possible have become battles to convict them and obtain the maximum sentence possible.
During a Oct. 27, 2016, roadblock protest of the Dakota Access Pipeline at Standing Rock, several fires were set. By whom, no one knew. Prosecutors charged Little Feather of the Chumash Nation, also known as Michael Giron, and Rattler of the Oglala Lakota, Michael Markus, with “use of fire to commit a felony” as well as civil disorder, anyway. The charging documents cite knowledge of “several fires … set by unidentified protesters.”
Police tactics on Oct. 27, by the way, included the use of pepper spray and armored vehicles. Law enforcement and prosecutors only became more aggressive after President Trump assumed office, at his direction.
Both Little Feather and Rattler opted to plead guilty, not because there was adequate evidence against them but because the mandatory minimum sentence would be 10 years if they were convicted at trial. That was a risk not worth taking: The Guardian has reported that surveys found 84 to 94 percent of the jury pool has prejudged Standing Rock protesters. Little Feather was sentenced to three years in prison. Rattler is expected to receive the same or a similar sentence.
A third protester, Red Fawn Fallis, pleaded guilty to charges of civil disorder and illegal possession of a firearm by a convicted felon. She was accused of firing a gun during the protest, though she said she doesn’t remember doing so. The gun in question was owned by an informant who allegedly seduced Fallis. Despite these obvious flaws, she and her attorneys opted not to risk trial, citing both anti-protester sentiment and lacking disclosure by the prosecution. She received a 57-month sentence.
The ongoing experiences of Standing Rock protesters are all the more horrifying in contrast with the recent pardon of Dwight and Steven Hammond. Trump pardoned the pair, who’ve long “clashed” with the federal government, at the behest of a “tycoon” friend of Vice President Mike Pence. Both had been convicted of setting fires on federal land for a 2001 fire, while only Steven was convicted of a 2006 fire. When the mandatory minimum sentence for the pair—who originally benefited from pro-rancher bias—was imposed on appeal, it sparked an armed standoff led by another famous family of anti-government extremists, the Bundys.
