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June 22, 2015

Canada: C-51 and Aboriginal protests

Scott Stockdale

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Legal scholars David Milward Professor, Faculty of Law, University of Manitoba Faculty of Law and Pamela Palmater associate professor and Chair, Indigenous Governance, Ryerson University are expressing concerns that Bill C-51 - now law - could have a serious and detrimental impact on Aboriginal protests in this country.

Speaking on a recent edition of The Agenda, on TV Ontario, with Steve Paikin, Dr. Milward, and Dr. Palmater, raised concerns that Bill C-51 could mean Aboriginal Canadians will be labelled terrorists should they be involved in land claims protests.

Moreover, Dr. Milward said Canada already has the Anti-Terrorism Act which may target Indigenous peoples and may be used to disregard their constitutional rights.

The Canadian Anti-Terrorism Act – Bill C-36 – became law on December 18, 2001.   

The "omnibus" bill included provisions for secret trials, preemptive detention and expansive security and surveillance powers for government security agencies. In Criminal Law Quarterly 2012, Dr. Milward expressed his concerns about Bill C-36:

“Canada, post 9/11, enacted anti-terrorism legislation that is constitutionally suspect because of broad definitions of what constitutes terrorist activity, and it is conferral of enormous discretionary powers to executive and law enforcement authorities. It is especially troubling in that it encourages Canada to meet any Aboriginal protest, violent or not, as a terrorist threat that must be forcefully repressed without respect for constitutional rights.”

Dr. Palmater said that although Bill C-51 was promoted as anti-terrorist legislation, it covers far more than that. 

“I expected to see legislation which dealt specifically and exclusively with terrorism. When you read the definitions, they're not just talking about terrorism: They're talking about threats to national security, creating new laws around that; and they have about nine different examples, only one of which is terrorism. The rest is threats to sovereignty, critical infrastructure, economic stability, diplomatic relations; all of the things that could be captured by any activist activity. Every time I go to Samoa, Peru or United Kingdom and say 'Canada's breaching Indigenous rights, Canada's breaching human rights', I'm interfering with diplomatic relations.”

Preventative detention is another concern Dr. Palmater expressed about Bill C-51, particularly how it may affect the Indigenous peoples of Canada.  She said  “preventive detention” as the term is used in Bill C-51 is another way of saying they can arbitrarily detain you on various suspicions that you're committed to terrorist activities and terrorist activities are defined as any activity. It could even mean information you have on your laptop that was never publicly disseminated.

“They are given what legal experts call a carte blanche, so they're lowering all the standards on what's normally allowed under our justice system. So (before Bill C-51) you had to have some kind of a probable cause that someone is going to commit a terrorist offence that will result in someone's harm and now they're reducing that to 'it may on suspicion' as opposed to having any kind of sound evidentiary basis.”

And because Bill C-51 doesn't appear to be based on evidence, instead giving security agencies  discretion to decide if someone is breaking the law,  she's concerned about the impact Bill C-511 will have on Canada's Indigenous peoples, noting that aboriginal people are already overrepresented in prisons and overrepresented in deaths in police custody.

“We've had maybe two deaths from terrorism on Canadian soil but we've had 1200 murdered and missing indigenous women. Where's the Bill C-51 for them? We're really talking about an over-exaggerated response to just a fear, not even evidence-based reality.”

Bill C-51 extends the amount of time the government can hold someone without charge from three days to seven days. Moreover, Dr. Palmater said that Bill C-51 does allow certain kinds of torture and, although there are limits in the legislation; for instance, government interrogators can’t do anything to interfere with sexual integrity; there's a whole range of torture someone in preventative detention could be subjected to. As well as the moral aspect of it and the way it will affect Canada's credibility in the world, Dr. Palmater said torturing detainees could lead to false confessions.

“For a week long, that could get anybody to admit anything especially when you're talking about regular Canadian citizens and this is what the focus is here.”

Dr. Milward questioned whether we even need anti-terrorism legislation Canadian. He suggested that Bill C-51 is more for political reasons than a security issues.

“Canadian constitutional law already recognizes exceptions for public emergencies safety, so CSIS would forward information to the RCMP and the RCMP would say, 'Oh we have to deal with this ; we don't have enough time to get a warrant,' and then afterwards they would have to justify it to a judge. There are already recognized exceptions that accommodated those kinds of concerns. In that light I just don't see anti-terrorism legislation as necessary and to do so it basically embraces throwing away freedoms for the sake of some sort of false sense of security. So I really think both the Tories and the Liberals are engaging in some sort of crass politicking.”

Dr. Palmater said the RCMP Commissioner came out and said that under the current anti-terrorism legislation, under the criminal code, they have all the power they need to address terrorism. The issue is lack of resources and how the Harper government's policies are affecting the Indigenous peoples of Canada.

“For Indigenous people, we signed treaties to create this territory, and to jointly govern. The mutual legal obligation was to maintain this territory in peace. Harper's been going out and making war under the guise of terrorism. It sounds really good to the electorate but it's a specific message to Indigenous people and people who are opposing pipelines, and the tar sands and everything else.”

She added that never in history have you seen such all party resistance to a government bill.

“You've got former prime ministers, former Supreme Court of Canada judges, former privacy commissioners, and former CSIS officials - people from all party lines - saying this is really dangerous. This is not what Canada is about and specifically we fear for Indigenous people. Without this bill look at what's happened to us.”

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