by DGR Colorado Plateau | Oct 12, 2015 | Strategy & Analysis
Book Review of Deep Green Resistance: A Strategy to Save the Planet
By Zoe Blunt
I first heard about Deep Green Resistance in the middle of a grassroots fight to stop a huge vacation-home subdivision at a wilderness park on Vancouver Island. Back then, it hadn’t really occurred to me that a book on environmental strategy was needed. Now I can tell you, it’s urgent.
Deep Green Resistance (DGR) made me a better strategist. If you’re an activist, then this book is for you. But be warned: at 520 pages (plus endnotes), it’s not light reading. Quite the opposite — DGR dares environmental groups to focus on decisive tactics rather than mindless lobbying and silly stunts.
“This book is about fighting back. And this book is about winning,” author Derrick Jensen declares in the preface to this three-way collaboration with Lierre Keith and Aric McBay.
Keith, author of The Vegetarian Myth, opens the discussion with an analysis of why “traditional” environmental action is self-defeating. For those who’ve read Jensen’s Endgame, or who have experienced the frustration of born-to-lose activism, Keith’s analysis hits the nerve.
The DGR philosophy was born from failure. In a recent interview, Jensen recounts a 2007 conversation with fellow activists who asked, “Why is it that we’re doing so much activism, and the world is being killed at an increasing rate?” “This suggests our work is a failure,” Jensen concludes. “The only measure of success is the health of the planet.”
If we keep to this course, as Keith points out, the outcome is extinction: the death of species, of people, and the planet itself. Environmental “solutions” are by now predictable, and totally out of scale with the threat we’re facing. Cloth bags, eco-branded travel mugs, hemp shirts, and recycled flip-flops won’t change the world. Wishful thinking aside, they can’t, because they don’t challenge the industrial machine. It just keeps grinding out tons of waste for every human on the earth, whether they are vegan hempsters who eat local or not. So these “solutions” amount to fiddling while the world burns.
Aric McBay, organic farmer and co-author of What We Leave Behind, says Deep Green Resistance “is about making the environmental movement effective.”
“Up to this point, you know, environmental movements have relied mostly on things like petitions, lobbying, and letter-writing,” McBay says. “That hasn’t worked. That hasn’t stopped the destruction of the planet, that hasn’t stopped the destruction of our future. So the point is if we want to be effective, we have to look at what other social movements, what other resistance movements have done in the past.”
Keith notes that a given tactic can be reformist or radical, depending on how it’s used. For example, we don’t often think of legal strategies as radical, but if it’s a mass campaign with an “or else” component that empowers people and brings a decisive outcome, then it creates fundamental change.
“Don’t be afraid to be radical,” Keith advises in a recent interview. “It’s emotional, yes; this is difficult for people, but we are going to have to name these power structures and fight them. The first step is naming them, then we’ve got to figure out what their weak points are, and then organize where they are weak and we are strong.”
Powerful words. But by then I was desperate for a blueprint, a guidebook, some signposts to help break the deadlock in our campaign to save the park. Two hundred pages into DGR, we get down to brass tacks, and find out what strategic resistance looks like.
I don’t know what I was expecting, but it wasn’t a guerrilla uprising.
To be clear, Deep Green Resistance is an aboveground, nonviolent movement, but with a twist: it calls for the creation of an underground, militant movement. The gift of this book is the revelation that strategies used by successful insurgencies can be used just as successfully by nonviolent campaigns.
McBay argues convincingly that it’s the combination of peaceful and militant action that wins. He emphasizes that people must choose between aboveground tactics and underground tactics, because trying to do both at once will get you caught.
“The cases of Dr. Martin Luther King Jr. and Malcolm X exemplify how a strong militant faction can enhance the effectiveness of less militant tactics,” McBay writes. “Some presume that Malcolm X’s ‘anger’ was ineffective compared to King’s more ‘reasonable’ and conciliatory position. That couldn’t be further from the truth. It was Malxolm X who made King’s demands seem eminently reasonable, by pushing the boundaries of what the status quo would consider extreme.”
What McBay calls “decisive ecological warfare” starts with guerrilla movements and the Art of War. Guerrilla fighting is all about asymmetric warfare. One side is well-armed, well-funded, and highly disciplined, and the other side is a much smaller group of irregulars. And yet sometimes the underdog wins. It’s not by accident, and it’s not because they are all nonviolent and pure of heart, but because they use their strengths effectively. They hit where it counts. The rebels win the hearts and minds and, crucially, the hands-on support of the civilian populace. That’s what turns the tide.
McBay notes, for example, that land reclamation has proven to be a decisive strategy. He argues that “aboveground organizers [should] learn from groups like the Landless Workers’ Movement in Latin America.” This ongoing movement “has been highly successful at reclaiming ‘underutilized’ land, and political and legal frameworks in Brazil enable their strategy,” McBay adds.
Imagine two million people occupying the Tar Sands. Imagine blocking or disrupting crucial supply lines. Imagine profits nose-diving, investors bailing out, brokers panic-selling, and the whole top-heavy edifice crashing to a halt.
The Landless Workers’ Movement operates openly. Another group, the Underground Railroad, was completely secret. Members risked their lives to help slaves escape to Canada. A similar network could help future resisters flee state persecution. Those underground networks need to form now, McBay says, before the aboveground resistance gets serious, and before the inevitable crackdown comes.
DGR categorizes effective actions as either shaping, sustaining, or decisive. If a given tactic doesn’t fit one of those categories, it is not effective, McBay says. He emphasizes, however, that all good strategies must be adaptable.
To paraphrase a few nuggets of wisdom:
Stay mobile.
Get there first with the most.
Select targets carefully.
Strike and get away.
Use multiple attacks.
Don’t get pinned down.
Keep plans simple.
Seize opportunities.
Play your strengths to their weakness.
Set reachable goals.
Follow through.
Protect each other.
And never give up.
Guerrilla warfare is not a metaphor for what’s happening to the planet. The forests, the oceans, and the rivers are victims of bloody battles that start fresh every day. Here in North America, it’s low-intensity conflict. Tactics to keep the populace in line are usually limited to threats, intimidation, arrests, and so on.
But the “war in the woods” gets real here, too. I’ve been shot at by loggers. In 1999, they burned our forest camp to the ground and put three people in the hospital. In 2008, two dozen of us faced a hundred coked-up construction workers bent on beating our asses.
Elsewhere, it’s a shooting war. Canadian mining companies kill people as well as ecosystems. We are responsible for stopping them. We know what’s happening. Failing to take effective action is criminal collusion.
Wherever we are, whatever we do, they’re murdering us. They’re poisoning us. Enbridge, Deepwater Horizon, Exxon, Shell, Suncor and all their corporate buddies are poisoning the air, the water, and the land. We know it and they know it. Animals are dying and disappearing. There will be no end to the destruction as long as there is profit in it.
This work is scary as hell. That’s why we need to be really brave, really smart and really strategic.
We have strengths our opponents will never match. We’re smarter and more flexible than they are, and we’re compelled by an overwhelming motivation: to save the planet. We’re fighting for our survival and the survival of everyone we love. They just want more money, and the only power they know is force.
As Jensen says, ask a ten-year-old what we should do to stop environmental disasters that are caused in large part by the use of fossil fuels, and you’ll get a straightforward answer: stop using fossil fuels. But what if the companies don’t want to stop? Then make them stop.
Ask a North American climate-justice campaigner, and you’re likely to hear about media stunts, Facebook apps, or people stripping and smearing each other with molasses. Not to diss hard-working activists, but unless they are building strength and unity on the ground, these tactics won’t work. They’re not decisive. They’re just silly.
Of course, if the media stunts are the lead-in to mass, no-compromise, nonviolent action to shut down polluters, I’ll see you there. I’ll even do a striptease to celebrate.
© 2012 Zoe Blunt
by DGR Colorado Plateau | Jan 18, 2015 | Biodiversity & Habitat Destruction, Lobbying, Obstruction & Occupation, Strategy & Analysis
Featured image by Sierra Forests Legacy
By Michael Carter / Deep Green Resistance Colorado Plateau
Read Part 1 of this series here
Law enforcement has been so ineffective in preventing illegal ORV use that citizens are usually left to face the problem on their own. Stopping ORVs isn’t easy, but short of an end to gasoline—which we can’t wait for—impacts will continue to worsen if there’s no intervention. In remote areas like the Mojave Desert and Colorado Plateau, where would-be activists are scattered and overwhelmed and the police are essentially powerless and blasé, all strategies for stopping ORVs involve active and sustained effort. Here are a few:
Pressure law enforcement to do their jobs. Carry a camera with you always, and photograph illegal activity, if at all possible getting clear images of license plates. Document the time, place, and circumstances. Bring it to the attention of both the local and federal police, if on federal land. Be polite but persistent.
Physically close illegal trails. This can be surprisingly effective. Adopt an area and close off illegal trails with rocks, logs, whatever is handy and doesn’t further disturb the land. ORVers will keep trying to use the trail, but continued discouragement might eventually work.
Physically close legal trails. Similar to the last category, people may choose to carry out underground actions that close legal routes. [1] There must be a strict firewall between aboveground and underground activists: people or groups choosing to use underground tactics should not engage in aboveground actions, and vice versa. [2]
Close and reclaim established, authorized routes through administrative and legal channels. It’s the open roads that draw ORVs deeper into land they can then illegally violate, so every closed road is particularly helpful. This, too, takes a long and sustained effort. One helpful organization is Wildlands CPR (Now Wild Earth Guardians), [3] but don’t expect any non-profit group to have the resources to do the job for you. If you love the land you live in, be prepared to fight for it—a simple solution of hard, dedicated effort. Organize with those who agree with you, and fight.
Coyote Canyon Revisited
Private landowners neighboring Coyote Canyon in southeast Utah fought the originally illegal ORV use of the canyon, and tried to stop the BLM from sanctioning it. They pleaded with the public via every venue they could think of to write letters to the BLM opposing the move, yet ORV interests grossly outnumbered the effort. Fewer than ten opponents to the trail even bothered writing letters, and when the decision to open the canyon to ORVs was made the BLM didn’t even bother notifying the respondents, a violation of the National Environmental Policy Act.
Otherwise, however, the agency had prepared its documents thoroughly and neighbors were advised that a legal challenge probably wouldn’t have been effective. Although the BLM offered a number of concessions—the trail is only open Friday and Saturday to registered users, from 9:00 a.m. until 5:00 p.m., among other restrictions—the agency legitimized crime, rewarding criminals with the sacrifice of another dwindling scrap of feral public land.
The Coyote Canyon example highlights several reasons why so few are willing to protect the land, and why they’re losing so badly. One is fear of reprisals from enemies (such as intentional trespass and vandalism of property, already an issue for neighbors of Coyote Canyon). Another is a reasonable assumption that their efforts will be ineffective—though of course making no effort will certainly be ineffective. Yet people tend to accept whatever situation they’re given. It’s uncommon to question an established arrangement, whatever it may be, and if one continues to question it life gets more uncomfortable. A resister will always face ridicule, accusations of poor mental, emotional and social adjustment, eventual ostracizing and occasionally murder. Yet social changes demand challenges to established practice.
When the BLM announced their decision to open Coyote Canyon to oil spills, noise, litter, piles of shit and soiled rags of toilet paper, almost everyone who was asked to help offered only a passing moment of sympathy. Not “what can I do,” not “what are our options,” but “that’s too bad.” It’s no wonder fights like this are frequently lost, when reactions are so feeble.
Industry and recreation groups, by contrast, are well organized and ready to rush to their own common cause. The right wing tends to be more accepting of orders; the boss says jump, they ask how high. They have something tangible they’re working for, a thing they like doing, a righteous maintenance of their privilege—such as driving anywhere they want. They stand to gain something where resistance stands only to prevent something—at least in situations like Coyote Canyon, where no comparable force opposes them.
Fighting Back
Resistance is tough. It means making one’s self unpopular, a hard thing to do among those who’ve been taught their whole lives that popularity is everything. Organizing can provide the possibility of overcoming our fear of reprisal, of ridicule, and of failure; it’s the only chance at effectively confronting injustices. Those who wish to prevent agency actions like the Coyote Canyon trail, or to promote re-localization of food production—any defensive or restorative action—can become an effective force if they work together, consistently and reliably supporting one another. Many progressives have been bled off by dogmas of non-confrontation, by intoxicating feel-good-ness, and by the idea that individualism is of primary importance. They’ve become lazy, fatalistic, and cynical; committed, organized struggle seems to be the sorry lot of desperately poor people in faraway places.
The examples that we have of committed resistance movements often are of desperately poor people, immediately threatened by the activities of rich and powerful enemies. The Movement for the Emancipation of the Niger Delta is one good example, and so are the more than 130 First Nations governments in western Canada that have gathered against the tar-sands Enbridge Northern Gateway Project and the Kinder Morgan pipeline and tanker projects. [4] We who are in a position to protect the land mostly lack the ability to respond, to turn our empathy for places like Coyote Canyon into action.
The situation at the frontiers of wild land is desperate, too. Wealth and privilege let us pretend it isn’t, because we get food from supermarket shelves and water from a tap. We see little or no connection between the health of the land and our own well-being. Public land use is an issue that can be influenced relatively easily—unlike, say, racism—because land managers so routinely ignore or violate laws and effective tactics usually have to do with citizen enforcement. But environmentalists continue to lose, partly because exploiters have miscast conflict as user-group obstruction—framing the terms of the debate to ridicule love of the wild world, separating its fate from human fate. By allowing this, would-be activists surrender the land and leave the future to sadists and imbeciles.
The destruction of the planet, however easy it is to ignore, will catch up with us all. The civilized economies that steal from the poor to give to the rich will eventually end. They need to consume limited resources to exist and those resources—fossil fuels, topsoil—will not last forever. When this happens, we will again depend upon the land to sustain us. If that land is stripped of its capacity to sustain life by industry, agriculture, and recreation, then there will be nowhere else to go, and nothing to do but wage war and starve.
Abuse of the land is now normalized by faith in nonexistent frontiers (of renewable energy and electric cars, for example) and by misguided tolerance. Naming abuse—the destruction of the land in the name of fun or individualistic pursuits and the destruction of our selves by abusive people and systems—is often portrayed as abusive in itself. This is outrageous and infuriating, but should be expected.
Though it is far less damaging than industry and agriculture, the evidence for ORV destruction is well documented and easy to come by. It’s not even really contested by ORVers themselves. Those of us determined to stop this behavior face the same problem law enforcement does: the damage is so widespread and difficult to regulate that there’s little anyone can do. But there’s also a serious lack of activists with effective tactics and a coherent strategy to follow through on. This doesn’t mean, though, that we should back down.
Identifying with the Real World
Once on Cedar Mesa, in Southeast Utah, I watched an ORV intentionally veer to crush a dozing snake. The reptile churned and writhed in the machine’s track, dead or near dead as its nerves popped and struggled and ran down. I went to it, to witness its pointless death. A thick and handsome bull snake, it spent its last moments bleeding out in the dust. Why? Why do this? What drives this sick, stupid behavior? Why does our culture hate every living thing?
I lifted the snake into the sage and blackbrush so it could at least die in its home. “If they can’t evolve to get out of the way,” someone once told me about road killed animals, “then that’s their problem.” Of course, not evolving to changing conditions is what causes extinction. There’s little doubt that our culture will not voluntarily evolve to halt the worsening conditions that industry and recreation are creating on the planet. So how does anyone fight activity like this? How do we stop deforestation, global warming, ocean acidification? And given those immense problems, is ORV land abuse something to focus limited energy and resources on?
In addition to the suggestions made in these articles, activists can develop tactics and strategies and their way forward will eventually become clear. With hard work and determination a chance of winning would almost certainly emerge. But in a world of Keystone XL pipelines and epidemic levels of fracking, is the effort worth it? If you caretake a few acres of land, blocking travel and pulling weeds, how much does it matter if you stop, or get distracted, or die? If those acres are again immediately vulnerable, is your effort a waste?
Few things anger me more that seeing wanton destruction for fun. I wonder, though, if this is an unhelpful distraction. It’s easy to get angry at something so obviously disrespecting of the land. In terms of permanent impacts, though, industry is much worse, and the scale of destruction is enormous. Of course what runs it is oil. Always this—the temporary, illusory power locked in a liquid hydrocarbon, driving ORVs, factory fishing trawlers, factory farms, and industrial agriculture. It’s warming the atmosphere and leading us to a horribly impoverished future, where most of us will be unable to afford the lifestyle we’ve been subjected and addicted to, let alone find enough to eat.
Remove the oil and the engines stop, and a besieged biosphere can begin to heal. This is part of the strategy that Deep Green Resistance has proposed. [5] But in the meanwhile…ORVs, just one part of the picture, continue to cut apart what little wild life remains, the last seed bank of evolution as we’ll ever know it. The momentum of established civilized practice is now enormous—seemingly unstoppable—and its terminal is in global destruction, the eradication of all complex life. Challenge to this system is so psychologically and practically difficult that most of us ignore it.
Fighting for the real, wild world can begin with the understanding that humans are not everything, and that the fate of the world is ultimately our fate. It is much different to fight for your own beloved family than for a rocky canyon you’ll never visit. We progressives like to talk about how hatred of “other” races cannot be tolerated (not that much is ever done about that). But we hardly ever extend this principle to the non-human world—constant victim of our culture’s violence—because we’ve been conditioned to believe that humans are all that matter. The loons, the snakes, the too-slow creatures smeared across the roads and ground under rubber tires into the dirt, they and the people yet to come who won’t be able to live as we have because the oil is gone—none of them will care about our abstract, self-indulgent moral wrestling. That is the wall that human supremacy has built around us; it must be torn down.
Imagine again that an occupying culture, whose every act is force and theft, was destroying the means of your survival. Imagine them extracting fuel to use the world as a playground. Of course, it is not enough to stop them from driving their toys in every possible place. To survive in the long term we must also stop the extraction, the root of the problem, and eliminate the fuel for destruction. We must reclaim our adult responsibilities and stand up to defend the land where we live, knowing that until oil extraction and consumption is ended, there will always be a new group of occupiers finding new ways to destroy the land.
Endnotes
[1] Foreman, Dave. Ecodefense: A Field Guide to Monkeywrenching. Tucson: Ned Ludd Books, 1987, 89-109.
[2] Security Culture: A Handbook for Activists (PDF)
[3] “Resources,” Wild Earth Guardians, accessed July 13, 2014, http://www.wildearthguardiansresources.org/
[4] Carrie Saxifrage, “How the Enbridge Pipeline Issue Unified Northern BC,” The Vancouver Observer, February 13, 2012, http://www.vancouverobserver.com/politics/2012/02/13/nation-building-how-enbridge-pipeline-issue-unified-northern-bc
“Interior First Nations Pipeline Ban,” Dogwood Initiative, You Tube, December 2, 2010, http://www.youtube.com/watch?v=4G5KtqPSW8Q
Carrie Saxifrage, “No Oil Pipeline Here: Enbridge Northern Gateway Joint Review Panel in Smithers finds 100% opposition,” The Vancouver Observer, January 17, 2012, http://www.vancouverobserver.com/sustainability/2012/01/17/enbridge-northern-gateway-joint-review-panel-smithers-finds-100-opposition
[5] “Decisive Ecological Warfare,” Deep Green Resistance, accessed August 28, 2014
by DGR News Service | Aug 4, 2014 | Colonialism & Conquest, Lobbying
By Will Falk / Deep Green Resistance San Diego
There’s a common joke I’ve heard many indigenous people tell. It goes like this: “What did indigenous peoples call this land before Europeans arrived? OURS.”
This joke – or truth – reflects many of the problems inhering to the Supreme Court of Canada’s recent ruling in Tsilhqot’in Nation v. British Columbia, 2014 SCC 44. From my radical view, the Tsilhqot’in decision leaves much to worry about. In this article, I examine the decision written by Chief Justice Beverly McLachlin to show why the decision is not as helpful it would seem and I anticipate how the government and corporations will bend the decision to their goals.
For me, the term “radical” denotes going to the roots of the problem. First Nations are suffering under the yoke of colonialism. Colonialism is the problem. To undermine colonialism, we must understand the processes making colonialism possible. One of the most powerful institutions perpetuating colonialism is the Canadian government and the Canadian court system as a branch of the Canadian government. It is my view that – for now – we must read the Tsilhqot’in decision not so much as a victory, but as another step down the long road of insidious colonialism.
First, there’s the general and underlying defeat that comes with the fact that colonialism has been so dominant in Canada that First Nations must submit to decisions made by Canadian courts. My second problem with the decision involves facing that there can be no true ownership of land when a dominated people must ask the courts of their conquerors for validation of their right to their own homelands. Placing the burden on First Nations to prove their land claims is another act of arbitrary power that works against cultural survival. Finally, I am deeply anxious about how clearly the Court spells out just what kind of governmental projects would be the type that the Court would sign off on. These projects include mining, forestry, agriculture, and the “general economic development of the interior of British Columbia.”
What Appealing to the Legal System Means
When celebrating what we view as a “good” decision by an imperial court it is easy to forget that the goal is to dismantle the power that gives the court its authority. We must not begin to view the so-called justice system as something like a benevolent paternal figure to appeal to when big-bad corporations come to destroy the land.
We must never forget that there will never be true justice in the courts of the oppressors because the courts of the oppressors are designed to protect the oppressors. Private property laws are the perfect example of this. What happens if you’re starving, walk into Walmart, take a loaf of bread, and are caught? You will be charged with transgressing property laws, dragged into court, and punished by the court for your transgression. Walmart’s right to a loaf of bread trumps your right to eat.
What does it mean, for example, that the Tsilhqot’in had to ask the courts to give them a right to land that they have lived on for thousands of years? Can a people ever truly own their land if they have to ask an occupying court to recognize their claims to land? The court protected the Tsilhqot’in after twenty-five years of deliberation, but what happens to the next aboriginal group that appeals to the courts and loses?
How is Aboriginal Title Established?
First, the Court lays out the process for establishing Aboriginal title. The burden falls on the Aboriginal group claiming title to prove its title. This means that a First Nation existing on its land for thousands of years must pay lawyers and subject its people to the stress of a legal proceeding – in courts established by settlers with access to First Nations land through centuries of genocide – to prove that the land is, in fact, theirs.
Aboriginal title is based on an Aboriginal group’s occupation of a certain tract of land prior to assertion of European sovereignty. A group claiming Aboriginal title must prove three characteristics about their occupation of a certain tract of land. First, they must prove their occupation is sufficient. Second, they must prove their occupation was continuous. Third, they must prove exclusive historic occupation. (¶ 50)
Proving Sufficient Occupation
To prove sufficiency of occupation, an Aboriginal group must demonstrate that they occupied the land in question from both an Aboriginal perspective and a common law perspective.
The Aboriginal perspective “focuses on law, practices, customs, and traditions of the group” claiming title. In considering this perspective for the purpose of Aboriginal title, the court “must take into account the group’s size, manner of life, material resources, and technological abilities, and the character of the lands claimed.” (¶ 35)
The common law perspective comes from the European tradition of property law and requires Aboriginal groups to prove they possessed and controlled the lands in question. As the Court explains, “At common law, possession extends beyond sites that are physically occupied, like a house, to surrounding lands that are used and over which effective control is exercised.” (¶ 36)
Simply put, proving sufficiency of occupation requires that the group claiming Aboriginal title were involved with the land in question more deeply than just using it in passing.
Proving Continuity of Occupation
Proving a continuity of occupation “simply means that for evidence of present occupation to establish an inference of pre-sovereignty occupation, the present occupation must be rooted in pre-sovereignty times.” So, the group claiming Aboriginal title must provide evidence that they were on the land in question in pre-sovereignty times. (¶ 46)
Exclusivity of Occupation
The last of the three general requirements for establishing Aboriginal title burdens a group with proving they have had the intention and capacity to retain exclusive control over the lands in question. As with sufficiency of occupation, the exclusivity element requires that the court view the evidence from both the Aboriginal and common law perspectives. According to the Court, “Exclusivity can be established by proof that others were excluded from the land, or by proof that others were only allowed access to the land with the permission of the claimant group. The fact that permission was requested and granted or refused, or that treaties were made with other groups, may show intention and capacity to control the land.” (¶ 48)
What Rights Does Aboriginal Title Confer?
This is one of the most important issues addressed by the Court in Tsilhqot’in – for what it says and what it does not say. The important thing to know here is that Aboriginal title does not provide Aboriginal groups with complete control of their own land. It may be common sense to assume that once an Aboriginal group gains Aboriginal title to their ancestral lands they are free to use their land how they see fit free of government interference. This simply is not true. And the Court is very clear to explain that this is not true.
According to the Court, “Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.” (¶73)
In the English common law, “fee simple” refers to the highest form of ownership of land. Traditional rights associated with “fee simple” are the ones mentioned in the quote above. As the Court explains, “Analogies to other forms of property ownership – for example, fee simple – may help us understand aspects of Aboriginal title. But they cannot dictate what it is and what it is not.” (¶72) The Court quotes Delgamuukw, “Aboriginal title is not equated with fee simple ownership; nor can it be described with reference to traditional property law concepts.”(¶72)
It is important to note, of course, that Aboriginal title does not actually give Aboriginal groups full ownership of their own land. Aboriginal title has some key restrictions.
The Court explains: Aboriginal title “is collective title held not only for the present generation but for all succeeding generations. This means it cannot be alienated except to the Crown or encumbered in ways that would prevent future generations of the group from using and enjoying it. Nor can the land be developed or misused in a way that would substantially deprive future generations of the benefit of the land. Some changes – even permanent changes – to the land may be possible. Whether a particular use is irreconcilable with the ability of succeeding generations from the land will be a matter to be determined when the issue arises.” (¶74)
So, once Aboriginal title is established, Aboriginal groups can only sell or give their land back to the Crown. On top of this, the Court creates open doors for future litigation with all the restrictions. Aboriginal groups will be subject to defending their decisions from accusations that they do not know how to manage their own lands for the benefit of future generations. Forcing Aboriginal groups to defend their actions in Canadian courts is a statement that the courts know how to manage Aboriginal lands better than Aboriginal peoples.
Finally, through Tsilhqot’in, Aboriginal title is subject to being over-ridden by governments and other groups on the basis of the broader public good – which often spells disaster for First Nations and natural communities.
Infringing on Aboriginal Title
Government and other groups may infringe on Aboriginal title – or use Aboriginal lands against the wishes of aboriginal peoples – on the basis of the broader public good if it “shows (1) that it discharged its duty to consult and accommodate, (2) that its actions were backed by a compelling and substantial objective, and (3) that the governmental action is consistent with the Crown’s fiduciary obligation to the group.” (¶ 77)
The Duty to Consult
The Court predicates the duty to consult on what it calls the “honour of the Crown” and says that the “reason d’etre” of the duty to consult is the “process of reconciling Aboriginal interests with the broader interests of society as a whole.” (¶77 and 82)
It sets up a sliding scale for adjudicating just how hard the government or other groups must try to consult Aboriginal groups. The duty to consult is strongest where Aboriginal title is proven and weaker where the title is unproven. The Court quotes the Haida decision, “In general, the level of consultation and accommodation required is proportionate to the strength of the claim and the seriousness of the adverse impact the contemplated governmental action would have on the claimed right. The required level of consultation and accommodation is greatest where title has been established.” (¶ 79)
Nowhere does the Court say that a government or other group must literally accommodate the wishes of Aboriginal groups. Yes, the government has a duty to consult. But, the government is not charged with an absolute duty to respect the wishes of an Aboriginal group with title to land the government wants. No never actually means no when the government is concerned.
Compelling and Substantial Objectives
The Court is very careful to articulate that there are compelling and substantial objectives that would justify infringement on Aboriginal title. Just like we saw with the duty to consult, the Court will view what objectives will justify infringement through a desire to reconcile Aboriginal interests with the broader interests of society as a whole.
On its surface, this sounds great, but then the Court quotes the Delgamuukw decision to illustrate just exactly what kinds of activities might qualify as a compelling and substantial objectives (when reading this list, keep in mind the kinds of projects we are fighting against right now): “The development of agriculture, forestry, mining, and hydroelectric power, the general economic development of the interior of British Columbia, protection of the environment or endangered species, the building infrastructure and the settlement of foreign populations to support those aims, are the kinds of objectives that are consistent with this purpose and, in principle, can justify the infringement of aboriginal title.” (¶ 83)
We have to recognize how dangerous this language is. Enbridge has long anticipated the language. You could pick any number of prominent quotes from Enbridge’s Northern Gateway website www.gatewayfacts.ca to see how Enbridge is already spinning rhetoric to match the Court’s Tsilhqot’in ruling.
Take this one, for example, under the heading, “A boost for our economy,” “Northern Gateway will bring significant and long-lasting fiscal and economic benefits. Economically, the project represents more than $300 billion in additional GDP over 30 years, to the benefit of Canadians from every province.”
Or this one under the heading “Building communities with well-paying jobs,” “The pipeline sector creates thousands of jobs across the country. In B.C. alone, Northern Gateway will help create 3,000 new construction jobs and 560 new long-term jobs. The $32 million per year earned in salaries will directly benefit the families and economies of these communities.”
This is exactly the type of governmental objective that the Court in Tsilhqot’in suggests is compelling and substantive enough to pass constitutional muster.
It is important to understand how easy it is to be misled by our desire for good news in the fight to defend the land and First Nations communities. While there are helpful aspects of the Tsilhqot’in ruling on Aboriginal title, the Court is a long way from giving First Nations total control over their own lands. It may be safer for land defenders to assume that nothing really has changed. Yes, Aboriginal title has been defined, but how meaningful is that title if governments and corporations can override title by pointing to the “general economic development of the interior of British Columbia”?
The Crown’s Fiduciary Duty
The final hurdle a government or other group must clear in infringing on Aboriginal title is proving that the proposed action is consistent with the Crown’s fiduciary duty to the Aboriginal group. This fiduciary duty supposedly requires the Crown to act solely in Aboriginal groups best interests. The problem, of course, is that it is the courts that decide what is in an Aboriginal groups best interest.
The Court explains that the Crown’s fiduciary duty impacts the infringement justification process in two ways. “First, the Crown’s fiduciary duty means that the government must act in a way that respects the fact that Aboriginal title is a group interest that inheres in present and future generations…This means that incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.” (¶ 86)
The second way it impacts the infringement process is by imposing an obligation of proportionality into the justification process where the government’s proposed infringement must be rationally connected to the government’s stated goal, where the government’s proposed action must minimally impair Aboriginal title, and where the benefits the government expects to accrue from the proposed action are not outweighed by adverse effects on Aboriginal communities. (¶ 87)
Another glimpse at the Enbridge’s Northern Gateway website (http://www.gatewayfacts.ca/benefits/economic-benefits/) demonstrates how Enbridge anticipates the Court’s ruling. Under a heading titled “Aboriginal inclusion” the website reads, “First Nations and Metis communities were offered to become equity partners providing them a 10% stake in the project. With the $300 million in estimated employment and contracts, it adds up to $1 billion in total long-term benefits for Aboriginal communities.”
I do not think it is a stretch to expect that Canadian courts will rule that Aboriginal groups denying projects like the Northern Gateway are working contrary to their own best interests. But, this isn’t even really the point. The point is, for all the progressiveness we want the Tsilhqot’in decision to stand for, it still allows the courts to decide what the best interest of First Nations is and not First Nations themselves. The longer this system remains intact, the longer First Nations communities will be in danger.
by Deep Green Resistance News Service | Jun 1, 2013 | Lobbying, Toxification
By Jonathan Fowlie, Scott Simpson and Jeff Lee / Vancouver Sun
The B.C. Liberal government has strongly rejected the proposed Enbridge Northern Gateway pipeline, stating in a formal submission to a National Energy Board review panel that the company has not properly addressed the province’s environmental concerns.
The province did not outright kill the proposed $6-billion oil pipeline from Alberta to the West Coast at Kitimat, but said Enbridge has left unanswered too many questions about its ability to protect marine or freshwater ecosystems in the event of a spill.
The proponents have “presented little evidence about how it will respond in the event of a spill,” the province wrote in its submission to the Northern Gateway Pipeline Joint Review Panel.
“It is not clear from the evidence that (Northern Gateway) will in fact be able to respond effectively to spills either from the pipeline itself, or from tankers transporting diluted bitumen from the proposed Kitimat terminal.”
B.C. said Enbridge failed to explain how it would respond to a catastrophic spill.
“The project before (the Joint Review Panel) is not a typical pipeline. For example: the behaviour in water of the material to be transported is incompletely understood; the terrain the pipeline would cross is not only remote, it is in many places extremely difficult to access; the impact of spills into pristine river environments would be profound,” the province wrote.
“In these particular and unique circumstances, (Northern Gateway) should not be granted a certificate on the basis of a promise to do more study and planning once the certificate is granted. The standard in this particular case must be higher,” it added.
“‘Trust me’ is not good enough in this case.”
The rejection is a major hurdle for the multi-billion dollar pipeline project, and especially for its ability to gain approval from the Joint Review Panel.
“It simply is insufficient for us to think it should go forward,” provincial Environment Minister Terry Lake said in an interview on Friday.
“The company was unable to give us adequate detail about how they would respond to a spill in some of these (freshwater) locations,” he continued.
“There’s a lot of questions about the behaviour of this product in cold marine environments, and a recognition that more research needs to be done on whether this material would float or whether it would sink, because obviously that makes a difference in terms of any potential spill and how it would be dealt with.”
Lake said the province’s submission is not a death knell for the project, but does set a “high bar” for it to proceed.
“Until the National Energy Board is able to process all this and deliver a final verdict, we don’t want to conclude that this is absolutely a no,” he said. “But we’re just saying from what we’ve seen to date, it doesn’t meet the test.”
by Deep Green Resistance News Service | Nov 21, 2012 | Obstruction & Occupation
By The Canadian Press
Members of a First Nation in northern B.C. have evicted surveyors working on a natural gas pipeline project from their territory and set up a roadblock against all pipeline activity.
A group identifying itself as the Unis’tot’en clan of the Wet’suwet’en Nation said surveyors for Apache Canada’s Pacific Trails Pipeline were trespassing.
“The Unis’tot’en clan has been dead-set against all pipelines slated to cross through their territories, which include PTP [Pacific Trails Pipeline], Enbridge’s Northern Gateway and many others,” Freda Huson, a spokesperson for the group, said in a statement.
“As a result of the unsanctioned PTP work in the Unis’tot’en yintah, the road leading into the territory has been closed to all industry activities until further notice.”
Huson was not available for comment.
It’s unclear what road is blocked, or where. The group said its territory is along the Clore River, located west of the Williams Creek Ecological Reserve about 30 kilometres southeast of Terrace.
Company spokesman Paul Wyke confirmed Wednesday that surveyors were asked to leave the area.
“We had some surveyors in the area last evening and they were asked to leave traditional territory by a small group of members from the Unis’tot’en, and they complied,” Wyke said.
“We understand that there are some members of the Unis’tot’en that have expressed some concerns with the proposed PTP project, and we continue to consult with First Nations along the entire proposed pipeline right-of-way.”
Wyke said the company will continue ongoing consultations with aboriginal groups. The project has the support of 15 of 16 aboriginal groups along the route, he said.
The blockading group said the province does not have the right to approve development on their traditional lands, which lie northwest of Kitimat, the future home of an Apache Canada liquefied natural gas plant and the tanker port for the proposed Northern Gateway pipeline.
From the CBC: http://www.cbc.ca/news/canada/british-columbia/story/2012/11/21/bc-pipeline-surveyors-evicted.html
