Editor’s note: Any movement, if effective in challenging the status quo, is bound to face persecution from the state. The persecution may come in many forms, from defamation, to legal action, to outright murder. The twenty year long COINTELPRO program was run by the FBI to destabilize many movements including African-American, Native Americans and communist movements across the United States. A variety of methods was used to achieve the goal.
The Green Scare is the set of tactics used by FBI in the early twenty-first century to discredit and persecute the radical environmental movement. The following article discusses the Green Scare, putting it in context of the recent demise of Dave Foreman, a found of Earth First! and an early target of Green Scare.
Dave Foreman, whose vision spawned a radical wave of the US environmental movement, passed away this week at the age of 74 in Albuquerque, New Mexico. He was controversial, he was stubborn, but he wasn’t one to compromise the fight to save wilderness and open space. The following piece on Foreman’s foray with federal law enforcement first appeared in our book, The Big Heat: Earth on the Brink. – Jeffrey St. Clair & Joshua Frank
Dave Foreman, co-founder of Earth First!, awoke at five in the morning on May 30, 1989, to the sound of three FBI agents shouting his name in his Tucson, Arizona home. Foreman’s wife Nancy answered the door frantically and was shoved aside by brawny FBI agents as they raced toward their master bedroom where her husband was sound asleep, naked under the sheets, with plugs jammed in his ears to drown out the noise of their neighbor’s barking Doberman pincher. By the time Foreman came to, the agents were surrounding his bed in bulletproof vests wielding .357 Magnums.
He immediately thought of the murder of Fred Hampton in Chicago, expecting to be shot in cold blood. But as Foreman put it, “Being a nice, middle-class honky male, they can’t get away with that stuff quite as easily as they could with Fred, or with all the Native people on the Pine Ridge Reservation back in the early 70s.”
So instead of firing off a few rounds, they jerked a dazed Foreman from his slumber, let him pull on a pair of shorts, and hauled him outside where they threw him in the back of an unmarked vehicle. It took over six hours before Foreman even knew why he had been accosted by Federal agents.
Foreman’s arrest was the culmination of three years and two million tax dollars spent in an attempt to frame a few Earth First! activists for conspiring to damage government and private property. The FBI infiltrated Earth First! groups in several states with informants and undercover agent-provocateurs. Over 500 hours of tape recordings of meetings, events, and casual conversations had been amassed. Phones had been tapped and homes were broken into. The FBI was doing its best to intimidate radical environmentalists across the country, marking them as a potential threat to national security.
It was the FBI’s first case of Green Scare.
The day before Foreman was yanked from bed and lugged into the warm Arizona morning, two so-called co-conspirators, biologist Marc Baker and antinuclear activist Mark Davis were arrested by some 50 agents on horseback and on foot, with a helicopter hovering above as they stood at the base of a power line tower in the middle of desert country in Wenden, Arizona, 200 miles northwest of Foreman’s home. The next day Peg Millet, a self-described “redneck woman for wilderness,” was arrested at a nearby Planned Parenthood where she worked. Millet earlier evaded the FBI’s dragnet.
Driven to the site by an undercover FBI agent, the entire episode, as Foreman put it, was the agent’s conception. Foreman, described by the bureau as the guru and financier of the operation, was also pegged for having thought up the whole elaborate scheme, despite the fact that their evidence was thin.
Back in the 1970s, the FBI issued a memo to their field offices stating that when attempting to break up dissident groups, the most effective route was to forget about hard intelligence or facts. Simply make a few arrests and hold a public press conference. Charges could later be dropped. It didn’t matter; by the time the news hit the airwaves and was printed up in the local newspapers, the damage had already been done.
It was the FBI’s assertion that the action stopped by the arrests under that Arizona power line in late May 1989, was to be a test run for a much grander plot involving Davis, Baker, Millet, and the group’s leader, Dave Foreman. The FBI charged the four with the intent to damage electrical transmission lines that lead to the Rocky Flats nuclear weapons facility in Colorado.
“The big lie that the FBI pushed at their press conference the day after the arrests were that we were a bunch of terrorists conspiring to cut the power lines into the Palo Verde and Diablo Canyon nuclear facilities in order to cause a nuclear meltdown and threaten public health and safety,” explained Foreman.
In the late 1980s, the FBI launched operation THERMCON in response to an act of sabotage of the Arizona Snowbowl ski lift near Flagstaff, Arizona that occurred in October 1987, allegedly by Davis, Millet, and Baker. Acting under the quirky name, Evan Mecham Eco-Terrorist International Conspiracy (EMETIC) — the eco-saboteurs wrecked several of the company’s ski lifts, claiming that structures were cutting into areas of significant biological importance.
This was not the first act the group claimed responsibility for. A year prior EMETIC sent a letter declaring they inflicted damage at the Fairfield Snow Bowl near Flagstaff. The group’s letter also included a jovial threat to “chain the Fairfield CEO to a tree at the 10,000-foot level and feed him shrubs and roots until he understands the suicidal folly of treating the planet primarily as a tool for making money.”
The group used an acetylene torch to cut bolts from several of the lift’s support towers, making them inoperable. Upon receiving the letter, the Arizona ski resort was forced to shut down the lift in order to do repairs, which rang up to over $50,000.
But the big allegations heaved at these eco-saboteurs weren’t for dislodging a few bolts at a quaint ski resort in the heart of the Arizona mountains, or for inconveniencing a few ski bums from their daily excursions. No, the big charges were levied at the group for allegedly plotting to disrupt the functions of the Rocky Flats nuclear facility hundreds of miles away. Ironically, at the moment of their arrests, the FBI was simultaneously looking into public health concerns due to an illegal radioactive waste leak at the nuclear power site, which led Earth First! activist Mike Roselle to quip, “ [the FBI] would have discharged its duty better by assisting in a conspiracy to cut power to Rocky Flats, instead of trying to stop one.”
***
Gerry Spence climbed into his private jet in Jackson, Wyoming estate almost immediately upon hearing about the FBI arrest of Dave Foreman in Arizona. Spence had made a name for himself among environmental activists in the late-1970s for his case against energy company Kerr-McGee, when he provided legal services to the family of former employee Karen Silkwood, who died suspiciously after she charged the company with environmental abuses at one of their most productive nuclear facilities. Silkwood, who made plutonium pellets for nuclear reactors, had been assigned by her union to investigate health and safety concerns at a Kerr-McGee plant near Crescent, Oklahoma. In her monitoring of the facility, Silkwood found dozens of evident regulatory violations, including faulty respiratory equipment as well as many cases of workers being exposed to radioactive material.
Silkwood went public after her employer ignored her and her union’s concerns, even going as far as to testify to the Atomic Energy Commission (AEC) about the issues, claiming that regulations were sidestepped in an attempt to up the speed of production. She also claimed that workers had been mishandling nuclear fuel rods, but the company has covered up the incidences by falsifying inspection reports.
On the night of November 13, 1974, Silkwood left a union meeting in Crescent with documents in hand to drive to Oklahoma City where she was to meet and discuss Kerr-McGee’s alleged violations with a union official and two New York Times reporters. She never made it. Silkwood’s body was found the next day in the driver’s seat of her car on the side of the road, stuck in a culvert. She was pronounced dead on the scene and no documents were found in her vehicle.
An independent private investigation revealed that Silkwood was in full control of her car when it was struck from behind and forced off to the side of the road. According to the private investigators, the steering wheel of her car was bent in a manner that showed conclusively that Silkwood was prepared for the blow of the accident as it occurred. She had not been asleep at the wheel as investigators initially thought. The coroner concluded she had not died as a result of the accident, but possibly from suffocation.
No arrests or charges were ever made. Silkwood’s children and father filed a lawsuit against Kerr-McGee on behalf of her estate. Gerry Spence was their lead attorney. An autopsy of Silkwood’s body showed extremely high levels of plutonium contamination. Lawyers for Kerr-McGee argued first that the levels found were in the normal range. but after evidence was presented to the contrary, they were forced to argue that Silkwood had likely poisoned herself.
Spence had been victorious. Kerr-McGee’s defense was caught in a series of unavoidable contradictions. Silkwood’s body was laden with poison as a result of her work at the nuclear facility. In her death, Spence vindicated her well-documented claims. The initial jury verdict was for the company to pay $505,000 in damages and $10,000,000 in punitive damages. Kerr-McGee appealed and drastically reduced the jury’s verdict, but the initial ruling was later upheld by the Supreme Court. On the way to a retrial, the company agreed to pay $1.38 million to the Silkwood estate.
Gerry Spence was not cowed by the antics of the Kerr-McGee Corporation, and when he agreed to take on Dave Foreman’s case pro-bono, justice seemed to be on the horizon for Earth First! activists as well.
“Picture a little guy out there hacking at a dead steel pole, an inanimate object, with a blowtorch. He’s considered a criminal,” said Spence, explaining how he planned to steer the narrative of Foreman’s pending trial. “Now see the image of a beautiful, living, 400-year-old-tree, with an inanimate object hacking away at it. This non-living thing is corporate America, but the corporate executives are not considered criminals at all.”
Like so many of the FBI charges brought against radical activists throughout the years, the case against Dave Foreman was less exciting than the investigation that led up to his arrest. The bureau had done its best to make Foreman and Earth First! out to be the most threatening activists in America.
Spence was not impressed and in fact argued as much, stating the scope of the FBI’s operation THERMCON was “very similar to the procedures the FBI used during the 1960s against dissident groups.” Spence was right. Similar to the movement disruption exemplified by COINTELPRO against Martin Luther King Jr., the Black Panthers, and the American Indian Movement, the FBI’s crackdown on Earth First! in the late 1980s had many alarming parallels to the agency of old.
“Essentially what we need to understand is that the Federal Bureau of Investigation, which was formed during the Palmer Raids in 1921, was set up from the very beginning to inhibit internal political dissent. They rarely go after criminals. They’re thought police,” said Foreman of the FBI’s motives for targeting environmentalists. “Let’s face it, that’s what the whole government is. Foreman’s first law of government reads that the purpose of the state, and all its constituent elements, is the defense of an entrenched economic elite and philosophical orthodoxy. Thankfully, there’s a corollary to that law—they aren’t always very smart and competent in carrying out their plans.”
The man who was paid to infiltrate Earth First! under the guise of THERMCON was anything but competent. Special agent Michael A. Fain, stationed in the FBI’s Phoenix office, befriended Peg Millet and began attending Earth First! meetings in the area. Fain, who went by the alias, Mike Tait, posed as a Vietnam vet who dabbled in construction and gave up booze after his military service. On more than one occasion, while wearing a wire, Fain had tried to entice members of Earth First! in different acts of vandalism. They repeatedly refused.
During pre-trial evidence discovery, the defense was allowed to listen to hours of Fain’s wire-tapings, when they found that the not-so-careful agent inadvertently forgot to turn off his recorder. Fain, while having a conversation with two other agents at a Burger King after a brief meeting with Foreman, spoke about the status of his investigation, exclaiming, “I don’t really look for them to be doing a lot of hurting people… [Dave Foreman] isn’t really the guy we need to pop — I mean in terms of an actual perpetrator. This is the guy we need to pop to send a message. And that’s all we’re really doing… Uh-oh! We don’t need that on tape! Hoo boy!”
Here the FBI was publicly vilifying these Earth First!ers, while privately admitting that they posed no real threat. “[The agency is acting] as if [its] dealing with the most dangerous, violent terrorists that the country’s ever known,” explained Spence at the time. “And what we are really dealing with is ordinary, decent human beings who are trying to call the attention of America to the fact that the Earth is dying.”
The FBI’s rationale for targeting Foreman was purely political as he was one of the most prominent and well-spoken radical environmentalists of the time. Despite their claims that they were not directly targeting Earth First! or Foreman, and were instead investigating threats of sabotage of power lines that led to a nuclear power plant — their public indictment painted quite a different story.
“Mr. Foreman is the worst of the group,” Assistant U.S. Attorney Roger Dokken announced to the court. “He sneaks around in the background … I don’t like to use the analogy of a Mafia boss, but they never do anything either. They just sent their munchkins out to do it.”
But agent Michael Fain’s on-tape gaffes were simply too much for the prosecution to manage, and the case against Foreman, having been deferred almost seven years, was finally reduced in 1996 to a single misdemeanor and a meager $250 in fines. The $2 million the FBI wasted tracking Earth First! over the latter part of the 1980s had only been nominally successful. Yet the alleged ringleader was still free. Unfortunately, the FBI may have gotten exactly what they wanted all along. Dave Foreman later stepped down as spokesman to Earth First! and inherited quite a different role in the environmental movement — one of invisibility and near silence.
Peg Millet, Mark Davis, and Marc Baker were all sentenced separately in 1991 for their involvement in their group EMETIC’s acts of ecotage against the expansion of Arizona Snowbowl. Davis got 6 years and $19,821 in restitution. Millet only 3 years, with the same fine, while Baker only received 6 months and a $5,000 fine.
Little did these activists know that their capture and subsequent arraignments were only the beginning. THERMCON’s crackdown of Earth First! would prove to be a dry-run for the Federal Bureau of Investigations.
We’ve covered Vince Emanuele’s work before, and this piece is a useful call to realistic organizing. Effective resistance will not emerge because we wish it to be so. It will only emerge as the result of hard, disciplined work and political organizing to take us from where we are now (A) to where we need to be (Z) via a series of intermediate steps. Emanuele calls for us to learn the difference between organizing vs. mobilizing, and apply those lessons.
We must also note that this piece contains elements we disagree with. This includes a critique of anti-civilization politics. The point is well taken, but if the ecologically necessary is politically infeasible, we must change what is politically possible. The other way around is impossible. We also find Emanuele’s critique of Chris Hedges to be unnecessary; again, his point is well taken, but Hedges has done a great deal to raise awareness of and to support movements for change. This piece will be controversial in other ways as well, as it was meant to be, but it is worth reading. Diversity of thought will produce more effective outcomes than ideological conformity.
In 2006, I attended a sizeable antiwar protest in Washington D.C. Tens of thousands of activists filled the streets as far as the eye could see. Office buildings and monuments became our only reliable geographical coordinates. At the time, large protests were the norm: millions of Americans were in the streets opposing Bush’s illegal and immoral war in Iraq (but we couldn’t get many people to speak out about Afghanistan).
A couple of years later, I testified at the Winter Soldier Hearings in Silver Springs, Maryland, where dozens of veterans shared stories about war crimes committed in Iraq and Afghanistan. When I arrived at the venue, an older Vietnam veteran came up to me and said, “Vinny! We’re gonna end this war! Those fuckers in the White House will have to respond to us now. No way they [the media and politicians] can ignore the vets!” He believed in the power of narrative and symbolic protest, a victim of the post-1968 left political culture.
Unfortunately yet predictably, in hindsight, the powers that be did ignore the Winter Soldier Hearings — as did 99% of Americans who never even knew the event happened. Tens of thousands of dollars spent (perhaps hundreds of thousands). Leftwing media abound. The results? Some new donors and members. The strategy? There was none. The whole event was a performative and symbolic spectacle meant to “shift the narrative” — typical NGO babble.
Years later, Occupy kicked off, and the same dynamics played out. Tens of thousands of Americans took the streets and engaged in prefigurative politics. In those days, consensus decision-making and participatory everything was all the rage. Of course, we accomplished very little during Occupy’s heyday. We remained stuck in Mobilizing Mode, speaking only with like-minded people who already self-identified as progressives and radicals. We never expanded our base. Yes, the narrative shifted from austerity to inequality, but actual political power (the state, capital, the courts) moved to the right.
The Tea Party took the house in 2010. Republican governors across the U.S. passed anti-union ‘Right to Work’ legislation and stripped public unions of their ability to bargain collectively. The Supreme Court became dominated by right-wing conservatives. The same in the lower courts and state legislatures. Voter rights were turned back, with hundreds of thousands of black voters disenfranchised. Whistle-blowers were attacked and jailed. NSA surveillance programs expanded. ICE became more powerful, as did the CIA. The drone program expanded, as did the never-ending wars. Fracking, off-shore drilling, and tar sands became the norm. Republicans took back the U.S. Senate in 2014, and Donald Trump was elected POTUS in 2016 — hardly a good period for the left, though some leftists disagree.
Indeed, some of my friends argue that the post-9/11 era has seen a resurgent left. To some degree, that’s true: more organizations, movements, and leftwing electoral campaigns exist today than did in the 1980s or 1990s, and the Democratic Party is surely less neoliberal than it was ten years ago, but that’s a pretty low bar. Many of these efforts are hollow (lacking large numbers of ordinary people) and incapable of wielding substantial power. Unions are on the ropes. Black Lives Matter (BLM) remains amorphous, at best. And groups like DSA, OurRevolution, the Greens, the People’s Party, and various other progressive-left NGOs face the problem every self-selected political group, small or large, faces: namely, the question of how to build and employ power in a non-structure.
In this strategic and methodological vacuum, many leftists opt for a fictional approach to politics. Here, I’m thinking of the anarcho-syndicalists, anti-civilization activists, online leftists, and various others whose politics bear no resemblance to our political and social composition and material conditions. It’s as if people have spent so much time socially alienated that they’ve forgotten that we do, in fact, live in a society (contrary to Margaret Thatcher’s absurd sentiments), one that’s shaped by existing systems and institutions, networks, and relationships.
Many leftists treat politics no different than a role-playing game (RPG). In RPGs, players control a fictional character who navigates a fantasy world defined by specific regulations, settings, norms, and rules. As Andrew Rollings and Ernest Adams write in their book, On Game Design, “The [RPG] game world is often a speculative fiction (i.e., fantasy or science fiction) one, which allows players to do things they cannot do in real life.”
Leftists who advocate for revolution, insurrection, or massive uprisings (all common suggestions from left commentators who have virtually no experience organizing actual working-class people) are not only irresponsible and unserious, engaging in a political form of RPG— they’re dangerous and counter-productive.
At its core, politics is about power. And power is wielded through force, coercion, or social control. Since the existing left can’t implement any of those approaches, it makes little sense to suggest that working-class Americans “take to the streets.” Again, calls for people to engage in “mass resistance” usually come from commentators who have little connection to actual working-class political organizations. For example, in a recent article, Chris Hedges writes:
Yet, to fail to act, and this means carrying out mass, sustained acts of nonviolent civil disobedience in an attempt to smash the megamachine, is spiritual death . . . The capacity to exercise moral autonomy, to refuse to cooperate, to wreck the megamachine, offers us the only possibility left to personal freedom and a life of meaning. Rebellion is its own justification. It erodes, however imperceptibly, the structures of oppression. It sustains the embers of empathy and compassion, as well as justice. These embers are not insignificant. They keep alive the capacity to be human. They keep alive the possibility, however dim, that the forces that are orchestrating our social murder can be stopped. Rebellion must be embraced, finally, not only for what it will achieve, but for what it will allow us to become. In that becoming we find hope.
Engaging in “mass, sustained acts of nonviolent disobedience” is a tactic, not a strategy. And “smashing the megamachine” isn’t a vision. Such appeals might invoke the spirit of resistance and sound nice on paper, but they mean very little without a clear vision of the society we hope to build, the strategy needed to successfully achieve our vision, or the organizations and structures required to carry out such a strategy. This, again, is the problem with commentators making suggestions about how people should respond to our cascading and multi-layered crises. Punditry is not the same as organizing. Commentating is not the same as strategizing.
Likewise, the religious left’s over-moralizing provides no path forward. What, exactly, does it mean to have the “capacity to exercise moral autonomy?” Yes, we should encourage strikes, or what Hedges calls “refusing cooperation,” but those acts require highly disciplined and organized bases of supporters (ask the CTU), ordinary people, who are engaged, empowered, and sophisticated enough to develop a collective identity. That doesn’t simply happen through people “taking to the streets.” Millions of Americans took to the streets in 2020. The results? Joe Biden barely won the White House; Democrats took a beating in down-ballot races; right-wing protesters attempted a coup; and there’s no evidence to suggest that long-lasting political organizations with a clear, serious, and sophisticated vision have developed as a result of the George Floyd uprisings.
Americans have long been obsessed with the concepts of “personal freedom” and “meaning.” We need a serious discussion about what “personal freedom” looks like in the 21st century. In the context of a rapidly growing global population and runaway climate change and ecological devastation, it’s not entirely clear. In addition, I’m skeptical of any pursuit of “meaning” and agree with Avital Ronnel: the pursuit of meaning has many fascist undertones. Here, the religious left and the fascist right share a common ideological orientation — whereas some of us can function perfectly well operating under the assumption that our existence, our life, our being, carries no inherent meaning, others relentlessly pursue a life of meaning, often accompanied by a dogmatic sense of moral righteousness. “It’s our duty to do the right thing!” No, it’s not. Human beings have no inherent “moral duty,” and surely no collectively decided upon “moral duty” (unless I missed the meeting).
If all the left can offer ordinary working-class people is a set of lofty moral sentiments, vague and non-strategic calls for rebellion, and silly calls for hope, it makes more sense for ordinary people to remain on the sidelines and enjoy themselves until the whole damn system collapses. Without a serious plan, that’s the only rational response to the system we endure and the context in which we live. Rebellion is not its own justification, unless, of course, one believes human beings have a purpose on this planet. I don’t. Rebellion without a serious, viable, and strategic plan is an act of political suicide or fantastical role-playing. Extinction Rebellion is a perfect example of this sort of childish and non-strategic approach to political activism/mobilizing.
The inability to articulate a vision that has a serious connection to material reality or the forces that currently dominate and comprise our political, economic, cultural, and social institutions is a problem the anarcho and religious left has faced for at least as long as I’ve been engaged in political activism and organizing (fifteen years), if not for decades. Appeals to “erode structures of oppression,” which sound pretty on paper, mean utterly nothing to organizers and working-class people who are strategizing on the ground. Further, calls to “erode structures of power” fall into the same failed category of “anti-politics” that the anarcho-left has peddled for years: constantly calling for “dismantling” this, or “abolishing” that, or “resisting,” but never articulating a viable vision for the 7.8 billion people who live on this planet, never building, never winning — always on the defensive; hence, always focused on destruction.
The only way to “keep alive the possibility” that capitalists/bosses and right-wing zealots/fascists (we should name our enemies and targets) can be stopped is by actually stopping them. And the only way to stop them is by engaging in deep-organizing. The left’s current approach to politics isn’t working. Simply repeating the cycle will only engender more apathy and cynicism. Moralizing won’t cut it. And left-wing virtue-signaling is embarrassing. Leftists with a platform have a responsibility to change course.
Hedges should know better. He’s not intellectually lazy. Does he not speak with organizers? Does he not understand the difference between Mobilizing and Organizing? Does he not believe that vision and strategy are essential components to victory? Does he not think about what victory would look like? Does he enjoy writing the same essay over and over again? Wolin. Camus. Conrad. Freud. Arendt. Horrors of society; Nazi reference, followed by small glimmers of hope and vague calls for resistance. Rinse. Repeat.
It feels like I’ve been reading the same Chris Hedges essay for ten fucking years. When I was 25 years old, reading Hedges was provocative, challenging, and interesting. Today, it’s boring, predictable, and unproductive.
I also find it very interesting that a guy who supposedly loathes electoral politics decided to run for U.S. Congress as a member of the Green Party. Why not help develop a serious independent left media entity? You know, instead of a bunch of assholes on YouTube operating as individuals, pushing their individual brands. Why not organize with working-class people with the aim of conducting “massive acts of civil-disobedience?” Turns out, that work is difficult. Turns out, Hedges’ ideology and assumptions about the working-class would quickly evaporate if he had to actually put them to the test.
Talking about politics is easy. Actually doing politics is difficult. Instead of participating in the hard part, Hedges regurgitates decade-old lines about resistance and throws his hat in the ring for elected office, yet has the audacity to talk shit about groups (DSA) and politicians (Sanders) who actually win reforms in the real world. That garbage might impress someone sitting at home, but it doesn’t impress those of us who are actually organizing.
In the end, I don’t believe in hope or moral duty. And I’m very skeptical of the concept of justice, which I think lends itself to a form of punitive politics, often aimed at the wrong people. I believe in the power of ordinary people and their ability to wield it at their workplaces, in their communities, and through the state. I believe in using state power. I believe in material results in the material world. I don’t care about spirituality. I believe in plans, discipline, and individual and collective accountability. I believe in winning. I believe in living.
Everything else, for me, is leftwing Pokémon and I don’t have time for it, nor do any of the organizers I know who spend their days and nights strategizing as opposed to moralizing and sloganeering. We’re in a life or death battle and we need all hands on deck. That means fewer cartographers of the apocalypse and more strategists for the revolution.
The New Zealand Supreme Court recently blocked consent for a seabed mining operation that would annually extract 50 million tons of iron ore from the seabed off the coast of South Taranaki.
Environmentalists see this decision as a clear victory, but the mining company has stated its intention to reapply for mining permission.
But experts say it’s unlikely the company, Trans-Tasman Resources Limited (TTR), will be able to regain consent due to fundamental issues with its application, such as the distinct lack of baseline studies on resident marine life and the potential impacts of mining.
Conservationists say seabed mining in this part of New Zealand would cause irreversible damage to the ecosystem and threaten many rare and endangered species.
Conservationists have expressed hope that a New Zealand company whose bid to mine the seabed was blocked by the country’s highest court last month has little chance of winning approval.
The Supreme Court of New Zealand ruled unanimously on Sept. 30 to block consent for the mining operation that would extract millions of tons of iron ore from the seabed off the coast of South Taranaki on the nation’s North Island. Experts say that the decision was primarily based on the finding that mining company Trans-Tasman Resources Limited (TTR) could not illustrate that its activities would not cause “material harm” to the environment.
While TTR seems confident that it will be able to reapply for mining consent, conservationists who have spent years campaigning against seabed mining in New Zealand say the company will not find an easy path due to fundamental issues in its application. For instance, they point out that TTR’s most recent application lacked studies about resident marine life and the impacts of mining on species and the overall ecosystem.
“The company hadn’t done its homework,” Cindy Baxter, chair of Kiwis Against Seabed Mining (KASM), one group that opposed the mining application, told Mongabay in an interview. “It didn’t even have baseline data for where it wanted to mine, so no one can even measure what the [impacts] would be if it went ahead.”
Duncan Currie, an international environmental lawyer who acted as counsel to KASM and Greenpeace Aotearoa, said it would be “extremely difficult” for TTR to get its application reapproved due to this lack of baseline data. He added that researching to obtain this data would be like “throwing the money away” since it would still be unlikely for TTR to prove that mining would not cause material harm to marine life.
TTR’s application proposed to extract 50 million tons of iron-rich sand from a 66 -square -kilometer (23-square-mile) area of the seabed each year over a period of 35 years. But it would take just take 5 million tons of iron-ore each year and dump the remaining 45 million tons of sand back into the ocean.
Conservationists say the mining would have caused irreversible damage to the environment by smothering sensitive rocky coral reef systems with sediment plumes. Mining residue and noise pollution could also threaten the survival of many species, including New Zealand’s little blue penguins (Eudyptula minor) and critically endangered Māui dolphin (Cephalorhynchus hectori maui), experts say. The region has also recently been recognized as a foraging ground for a newly identified population of pygmy blue whales (Balaenoptera musculus brevicauda).
In the lead-up to the Supreme Court decision, there were weeks of hearings and submissions by conservation groups such as KASM and Greenpeace Aotearoa, iwi (Maori tribes), independent scientists and even the fishing industry.
“I’ve campaigned on bottom trawling, and there we were hand in hand with the fishing industry,” Baxter said. “But the fishing industry can see the potential impact to their business … and I think we won really in the process because our environmental arguments were so strong.”
In 2017, New Zealand’s Environmental Protection Agency granted TTR consent on its application to mine the seabed off the coast of South Taranaki. But in 2018, New Zealand’s high court reversed the EPA’s decision. TTR then made an appeal to New Zealand’s court of appeals, but the company was not successful.
“What was interesting there is that the [decision-making] committee specifically said in the recommendation [for the first application] that the applicant should go back and do some of these studies because basically, they hadn’t done [them],” Duncan said. TTR’s latest application still lacked these baseline studies, but did include “new plume modeling,” according to Duncan.
The new plume modeling suggested that the sediment would not cause as much harm to the marine environment as previously thought. Yet Phil McCabe, the Pacific liaison for the Deep Sea Conservation Coalition, told Mongabay that the modeling was “questionable.”
TTR did not respond to Mongabay’s request for comment. But in a statement published shortly after the Supreme Court’s decision, Alan J. Eggers, executive chairman of TTR, said the company was “satisfied” with the court’s decision since it would have the opportunity to reapply.
If TTR does resubmit an application for mining, Baxter said, it will face the same opposition from environmental groups, scientists, iwi and the fishing industry.
“We’re not going to go away,” she said. “We’re not going to suddenly give up and not bother to oppose any application. We’re going to be there every single step of the way.”
McCabe said a way to ensure that deep-sea mining will not occur in the future is for New Zealand to enact a total ban on the activity.
“The world views us as a country that has a pretty strong moral compass for the environment,” McCabe said. “So I think it’s appropriate for us to stand in place of caution on this issue.
Only a few other nations have pursued plans to allow seabed mining within their territorial waters, although none of these ventures have been allowed to proceed due to environmental concerns. For instance, in 2018, the Mexican government rejected a permit for Exploraciones Oceanicas, a subsidiary of U.S.-based Odyssey Marine Exploration, to start mining for phosphate in the seabed of Mexico’s exclusive economic zone, due to the damage it could cause to habitat for loggerhead turtles, gray whales and humpback whales, as well as local fishing grounds. And in Namibia, the high court recently found the company Namibian Marine Phosphate in breach of its license when it conducted trial mining, which put a halt to its activities.
In 2019, the now-defunct company Nautilus received the first ever license to begin seabed mining in Papua New Guinea (PNG) and started exploratory drilling near a network of hydrothermal vents. But before Nautilus could start extracting any minerals, the company went bankrupt, leaving the PNG government with millions of dollars of debt and the local marine environment severely damaged. David Heydon, the former CEO of Nautilus, went on to found Canada-based company DeepGreen, which recently became The Metals Company when it merged with NASDAQ-listed Sustainable Opportunities Acquisition Corporation.
While seabed mining in nations’ territorial waters faces delays, there is a move to start mining in international waters within the next two years. The Pacific island nation of Nauru, which sponsors the Nauru Ocean Resources Inc. (NORI), a subsidiary of The Metals Company, recently triggered a “two-year rule” that would require the International Seabed Authority (ISA), the U.N.-mandated body overseeing seabed mining in international waters, to allow mining to commence with whatever rules and regulations are in place by then.
There is considerable opposition to deep-sea mining in international waters from scientists, conservationists, governments and civil society. At last month’s congress of global conservation authority the IUCN in Marseille, France, delegates voted overwhelmingly in support of a motion that called for a moratorium on deep-sea mining and the reform of the ISA. Government agencies from 37 states voted in favor of the motion, including Germany, a sponsoring state for a deep-sea mining company.
“There’s a number of things that are stacking up in favor of a moratorium,” McCabe said. “And this New Zealand case is another solid, concrete example of this activity being shown to be too destructive.”
Elizabeth Claire Alberts is a staff writer for Mongabay. Follow her on Twitter @ECAlberts.
Editor’s note: Colonialism has not ended. It is in full force. It is what civilization does. For this to end, governments must give the Land Back. All BLM, Forests and Park land should be returned to the sovereign Nations it was stolen from. Turtle Island is Treaty Land, ceded or unceded. Treaties are the Supreme Law of the Land and must be honored. Australia just returned more than 395,000 acres of land to the Eastern Kuku Yalanji people. It included the Daintree National Park which is believed to be the oldest living rainforest in the world. Protections for the Bears Ear National Monument are being reinstated and management of the 1.3 million acres will be placed back into indigenous management. Rightful Lands, Rightful Hands!
As Colorado and other states eliminate Columbus Day as a holiday, it might seem as if our society has begun to repudiate the legacy of a slave trader/explorer who fed Spain’s lust for gold by trafficking in, and annihilating, native peoples. In truth, we continue to celebrate it.
We celebrate it every time the desires of the dominant culture override the concerns of native peoples about destruction of their homelands and sacred sites. Despite relentless legal and political resistance from affected tribes, Canadian oil that is produced by converting forests to sand pits recently began flowing through the Enbridge Line 3 pipeline.
The U.S. Senate should adopt a resolution endorsing the UN Declaration and explicitly repudiate the white supremacy of Johnson v. McIntosh. Only then will Columbus’s legacy be in doubt.
Earlier this year, a federal court ordered the federal government to reassess the environmental impacts of the Dakota Access Pipeline, yet the Biden administration is allowing it to continue to operate.
In the coming days, it is likely that, over the objections of native people, including the Fort McDermitt Paiute-Shoshone Tribe and Atsa Koodakuh Wyh Nuwu/People of Red Mountain, backhoes will claw into Thacker Pass, Nevada, a relatively pristine desert landscape and site of a U.S. Cavalry massacre of Paiutes. Thacker Pass contains the largest lithium reserves in the United States. The mine will destroy nearly 5,700 acres to fuel the “green energy” revolution touted by advocates of the Green New Deal.
Affected tribes and native activists asked U.S. District Court Judge Miranda Du to stop the excavation, which she declined to do. The federal-agency defendants “do not dispute that the Tribes consider the entire Thacker Pass area sacred,” Judge Du stated. Regardless, she noted that the tribes lack the “right to prevent all digging in the entire Project area” and instead are entitled only to consultation with U.S. officials.
What Columbus achieved through bloodshed and savagery is now accomplished with paper weapons wielded in a federal court.
Judge Du’s blunt statement about the toothless legal recourse available to tribes also reveals the white supremacy embedded in federal law. In 1823, in Johnson v. McIntosh, Justice John Marshall cited the “superior genius” of Europe as justification for federal dominance over native nations. Marshall acknowledged how “extravagant the pretension of converting the discovery of an inhabited country into conquest may appear.” Still, “if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land and cannot be questioned.”
Nearly 200 years after Marshall invoked the “Doctrine of Discovery,” the fundamental relationship between native nations and the U.S. government is unchanged. Despite occasional pledges from presidents to honor native rights, those promises are mostly gimmicks designed to distract from the day in, day out policy choices that undermine native rights through federal approval of projects like the Thacker Pass lithium mine and the Dakota Access and Enbridge pipelines.
The Obama administration endorsed the UN Declaration on the Rights of Indigenous Peoples, which requires states to obtain “free, prior and informed consent” before taking actions that affect native peoples, yet that endorsement has had no effect on approval of massive projects so destructive to native lands. For this reason, the Biden administration should immediately enforce those protections in federal permitting decisions. The U.S. Senate should adopt a resolution endorsing the UN Declaration and explicitly repudiate the white supremacy of Johnson v. McIntosh. Only then will Columbus’s legacy be in doubt.
Karen Breslin is an attorney and teaches political science at Metropolitan State University of Denver.
After mass graves full of Indigenous children have been found, how can Canada justify ongoing land theft?
Featured image: The site near the former Marieval residential school where a ground search has been underway. Image has been shared by The Federation of Sovereign Nations and Cowessess First Nation. (Photo by Dennis Ward, Twitter)
By Justin Podur
Canada is developing a new image: one of burning churches, toppling statues, and mass graves. There are thousands more unmarked graves, thousands more Indigenous children killed at residential schools, remaining to be unearthed. There can be no denying that this is Canada, and it has to change. But can Canada transform itself for the better? If the revelation of the mass killing of Indigenous children is to lead to any actual soul-searching and any meaningful change, the first order of business is for Canada to stop its all-front war against First Nations. Much of that war is taking place through the legal system.
Canadian politicians have said as much, adopting a motion in June calling for the government to stop fighting residential school survivors in court. A long-standing demand, it has been repeated by Indigenous advocates who have expressed amazement in the face of these horrific revelations that the Canadian government would nonetheless continue to fight Indigenous survivors of systematic child abuse by the state.
To get a sense of the scope of Canada’s legal war on First Nations, I looked at a Canadian legal database containing decisions (case law) pertaining to First Nations. I also looked at the hearing lists of the Federal Court of Canada for ongoing cases. My initial goal was to identify where Canada could easily settle or abandon cases, bringing about a harmonious solution to these conflicts. Two things surprised me.
The first was the volume and diversity of lawsuits Canada is fighting. Canada is fighting First Nations everywhere, on an astoundingly wide range of issues.
The second thing: Canada is losing.
The Attack on Indigenous Children and Women
In his 1984 essay “‘Pioneering’ in the Nuclear Age,” political theorist Eqbal Ahmad argued that the “four fundamental elements… without which an indigenous community cannot survive” were “land, water, leaders and culture.” Canada fights Indigenous people over land, water, fishing rights, mining projects, freedom of movement, and more. The assault on Indigenous nations is also a war against Indigenous children and women.
Note that this isn’t about the history of residential schools. It’s about discrimination against Indigenous kids in the present day. “In fact, the problem might be getting worse,” writes Blackstock, compared to “the height of residential school operations.” As evidence, she refers to a 2005 study of three sample provinces showing a wide gap between the percent of First Nations children in child welfare care (10.23 percent) compared to a much lower rate for non-First Nations children (0.67 percent). In 2006, following the Canadian government’s repeated failures to act on the inequity described in this report (which also included comprehensive suggested reforms that had both moral and economic appeal), Blackstock writes, “the Caring Society and the Assembly of First Nations agreed that legal action was required.” The CHRT was very clear in its 2019 decision that the federal government should compensate each victim the maximum amount, which addressed the victims as follows:
“No amount of compensation can ever recover what you have lost, the scars that are left on your souls or the suffering that you have gone through as a result of racism, colonial practices and discrimination.”
Canada’s war on Indigenous children is also a war on Indigenous women. The sterilization of Indigenous women, beginning with Canada’s eugenics program around 1900, is another act of genocide, as scholar Karen Stote has argued. Indigenous women who had tubal ligation without their consent as part of this eugenics program have brought a class-action suit against the provinces of Alberta and British Columbia, both of which had Sexual Sterilization Acts in their provincial laws from the 1920s in Alberta and 1930s in British Columbia until the early 1970s, and Saskatchewan, where sexual sterilization legislation was proposed but failed by one vote in 1930. A Senate committee found a case of forced sterilization of an Indigenous woman as recently as 2019.
The Legal-Financial War on First Nations Organizations
As Bob Joseph outlines in his 2018 book 21 Things You May Not Know About the Indian Act, Canada first gave itself the right to decide Indian status in the Gradual Civilization Act of 1857, which created a process by which Indigenous people could give up their Indian status and so become “enfranchised”—which they would have to do if they wanted to attend higher education or become professionals. The apartheid system was updated through the Indian Act of 1876, from which sprang many evils including both the residential schools and the assertion of Canadian control over the way First Nations govern themselves. In 1927, when Indigenous veterans of World War I began to hold meetings with one another to discuss their situation, Canada passed laws forbidding Indigenous people from political organization and from raising funds to hire legal counsel (and from playing billiards, among other things). The Indian Act—which is still in effect today with amendments, despite multiple attempts to repeal it—outlawed traditional governance structures and gave Canada the power to intervene to remove and install Indigenous governance authorities at will—which Canada did continuously, from Six Nations in 1924 to Barriere Lake in 1995. As a result, at any given moment, many First Nations are still embroiled in lawsuits over control of their own governments.
Canada controls the resources available to First Nations, including drinking water. In another national embarrassment, Canada has found itself able to provision drinking water to diamond mines but not First Nations. This battle too has entered the courts, with a class-action suit by Tataskweyak Cree Nation, Curve Lake First Nation, and Neskantaga First Nation demanding that Canada not only compensate their nations, but also work with them to build the necessary water systems.
Canada dribbles out humiliating application processes by which Indigenous people can try to exercise their human right to housing. When combined with the housing crisis on reserves, these application processes have attracted swindlers like consultant Jerry Paulin, who sued Cat Lake First Nation for $1.2 million, claiming that his efforts were the reason the First Nation received federal funds for urgent housing repairs.
Canada uses the threat of withdrawal of these funds to impose stringent financial “transparency” conditions on First Nations—the subject of legal struggle, in which Cold Lake First Nations has argued that the financial transparency provisions violate their rights. Canada has used financial transparency claims to put First Nations finances under third-party management, withholding and misusing the funds in a not-very-transparent way, as the Algonquins of Barriere Lake charged in another lawsuit. An insistence on transparency is astounding for a country that buried massive numbers of Indigenous children in unmarked graves.
Win or lose, the lawsuits themselves impose high costs on First Nations whose finances are, for the most part, controlled by Canada. The result is situations like the one where the Beaver Lake Cree are suing Canada for costs because they ran out of money suing Canada for their land. When First Nations are winning in court, Canada tries to bankrupt them before they get there.
Land and Resources Are the Core of the Struggle
The core issue between Canada and First Nations is land. Most battles are over the land on which the state of Canada sits, all of which was stolen and much of which was swindled through legal processes that couldn’t hold up to scrutiny and are now unraveling. “[I]n simple acreage,” the late Indigenous leader Arthur Manuel wrote in the 2017 book The Reconciliation Manifesto, this was “the biggest land theft in the history of mankind,” reducing Indigenous people from holding 100 percent of the landmass to 0.2 percent. One of the most economically important pieces of land is the Haldimand tract in southern Ontario, which generates billions of dollars in revenue that belongs, by right, to the Six Nations, as Phil Monture has extensively documented. Six Nations submitted ever-more detailed land claims, until Canada simply stopped accepting them. But in July, their sustained resistance led to the cancellation of a planned suburban development (read: settlement) on Six Nations land.
Many of the First Nations court battles are defensive. Namgis, Ahousaht, Dzawada’enuxw, and Gwa’sala-’Nakwaxda’xw First Nations have tried to defend their wild fisheries against encroachment and pollution by settler fish farms. West Moberly, Long Plain, Peguis, Roseau River Anishinabe, Aroland, Ginoogaming, Squamish, Coldwater, Tsleil-Waututh, Aitchelitz, Skowkale, and Shxwha:y Village First Nations challenged dams and pipelines. Canada has a history of “pouring big money” into these court battles to the tune of tens of millions—small money compared to its tens of billions subsidizing and taking over financially unviable pipelines running through Indigenous lands—including that of the Wet’suwet’en, whose resistance sparked mass protests across Canada in 2020. The duty to consult First Nations on such projects is itself the outcome of a legal struggle, won in the 2004 decision in Haida Nation v. British Columbia.
First Nations who were swindled or coerced out of their lands (or water, as with Iskatewizaagegan No. 39 Independent First Nation’s case against Winnipeg and Ontario for illegally taking their water from Shoal Lake for use by the city of Winnipeg starting in 1913) fight for their land back, for compensation, or both. The Specific Claims Tribunal has 132 ongoing cases. In Saskatchewan in May, the tribunal awarded Mosquito Grizzly Bear’s Head Lean Man First Nation $141 million and recognition that they never surrendered their land as Canada had claimed they had in 1905. In June, Heiltsuk First Nation won a part of their land back.
Why does Canada keep fighting (and losing) even as its legitimacy as a state built on theft and genocide crumbles? It’s not merely the habits of centuries. It’s also the absence of any project besides the displacement of First Nations and the plunder of the land. Canada could take the first step to ending all this by declaring a unilateral ceasefire in the legal war. Too few Canadians understand that this would actually be a very good thing. First Nations lived sustainably for thousands of years in these extraordinary northern ecosystems. Then the European empires arrived, bringing smallpox and tuberculosis among other scourges. Local extinctions of beaver and buffalo quickly followed, as well as the total extinction of the passenger pigeon. Today’s settler state has poisoned pristine lakes with mine tailings, denuded the country’s spectacular forests, and gifted the atmosphere some of the world’s highest per capita carbon emissions (seventh in the world in 2018—more than Saudi Arabia, which was 10th, and the U.S., which was 11th). Indigenous visionaries have better ideas, such as those presented by Leanne Betasamosake Simpson and Arthur Manuel, or for that matter the Red Deal and the People’s Agreement of Cochabamba.
Under Indigenous sovereignty, Canadians could truly be guests of the First Nations, capable of fulfilling their obligations to their hosts and their hosts’ lands, rather than the pawns of the settler state’s war against those from whom the land was stolen.
