In introducing Bill 57, the long-shrouded Protection of Critical Infrastructure Act, the government of Premier Brian Pallister has demonstrated that when it comes to dealing with peaceful but disruptive protests that might impede transport or access, it’s inclined to test the waters of Canada’s constitutional right to protest.
Bill 57, if passed, would allow the owners or operators of "critical infrastructure" — which could describe construction projects, pipeline developments, agriculture and food-production facilities, financial or health-care institutions, courthouses and prisons, government facilities, oil, gas and electricity projects and structure and other designated categories — to apply to Court of Queen’s Bench for an order to stop or limit protests.
Should the court be satisfied the infrastructure in question qualifies as "critical" and protesters’ interference threatens safe and timely construction, use or operation, those who disobey the court’s orders would face daily fines of up to $5,000 for individuals and $25,000 for corporations (individuals could also face up to 30 days in jail).
While Justice Minister Cameron Friesen said this week the proposed legislation is not in reaction to any specific incidents but rather is intended to be "proactive," the likely inspiration for Bill 57 isn’t difficult to find: the numerous costly blockades across Canada in support of the Wet’suwet’en hereditary chiefs’ opposition to a natural gas pipeline project in British Columbia.
Those protests inspired Alberta’s Bill 1, a similarly worded "critical infrastructure" law that came into effect last June; Mr. Pallister was also vocal last year in his criticism of, and frustration at, the blockades and the economic harm they inflicted, and then-justice minister Cliff Cullen instructed his department to review Alberta’s legislation to assess whether something similar could be brought forward here.
That the premier along with business and government leaders in Canada were irritated by the protests in winter of 2020, is not surprising in the least. By their very nature, protests and acts of civil disobedience are conducted to catch the attention of government officials. And therein lies their power — they’re difficult to ignore.
For example, if Birdtail Chief Ken Chalmers had not threatened to blockade the CN rail line running through his First Nation in 2006, would the federal government have taken notice and sat down to the bargaining table? By involving large corporations such as Enbridge and CN, which pressured the Canadian government to start negotiations, Birdtail and other Manitoba First Nations managed to leverage their protests into tangible results.
Birdtail Sioux has maintained an open dialogue with the provincial and federal governments, and Chalmers said they’ve maintained a promise to not block rail lines as long as said dialogue is open.
As Chalmers told the Sun this week, "it really upsets reconciliation when one side puts up a law like that."
The revealed contents of Bill 57 drew predictable reactions from opposition parties, environmental groups, organized labour and Indigenous leadership over the proposed legislation’s perceived overreach and discriminatory intent.
"It’s a strategy, obviously, to silence the voices and the views of First Nations people who have been excluded for a very long time from infrastructure strategy and investments in terms of our partnership on a government-to-government basis," said Southern Chiefs’ Organization Grand Chief Jerry Daniels, who added that the new law would inevitably be challenged in court — as has been the case in relation to the Alberta law since its passage.
And therein lies the rub of Bill 57 — it’s a bill that seeks to render unlawful behaviour whose legal limits are already defined in criminal law, yet its own constitutionality is bound to be subject to a lengthy and expensive series of legal challenges as soon as it is proclaimed.
We’re left wondering what Pallister is seeking to achieve with a proposed bill whose principal attribute is the heavy-handed manner with which it would seek to pre-empt public displays of disagreement. Sound public policy, or just another settled grudge?
Ironically, there’s certainly enough in Bill 57 to inspire a public protest in and of itself. And if the Tories believe that future protestors will allow themselves to be herded into government and business-approved protest locations, they may find themselves drowning in constitutional politics before too long.
» Winnipeg Free Press and The Brandon Sun