Concerns raised that Alberta’s Critical Infrastructure Defence Act would criminalize protest and violate Charter rights

On May 28, Bill 1, the Critical Infrastructure Defence Act, was passed by the United Conservative Party (UCP) majority government of Premier Jason Kenney in the Alberta provincial legislature (pictured above) in Edmonton.

What does the legislation say?

CBC has explained: “Introduced in February, the bill allows hefty penalties against any person or company found to have blocked, damaged or entered without reason any ‘essential infrastructure’. The list of possible sites is lengthy and includes pipelines, rail lines, highways, oil sites, telecommunications equipment, radio towers, electrical lines, dams, farms and more, on public or private land.”

The Conversation adds: “Those who violate the act can be arrested without a warrant, fined between $1,000 and $10,000 for a first offence and serve up to six months in jail. The fine would increase for second offences, amounting to $25,000.”

That article also notes: “‘Organizations who direct, authorize or otherwise participate in these activities’ could be fined up to $200,000.”

What are the human rights concerns?

The day after the legislation was passed, the local activist group Climate Justice Edmonton tweeted: “Indigenous sovereignty and our collective futures are worth protesting for and no draconian law is going to stop us from doing that.”

The Alberta Federation of Labour, which is comprised of 25 unions representing 175,000 workers, has commented: “Bill 1 will limit freedom of assembly and freedom expression for workers as well as environmentalists and indigenous people.”

They add: “Union picketing is generally limited to public spaces next to the private property of an employer – a sidewalk, boulevard, ditch or parking lot. Through Bill 1, these places – trails, roads, alleys, squares, sidewalks, boulevards, ditches – will be deemed “essential infrastructure” where legal picketing could be punishable by fines and jail time.”

The British Columbia Civil Liberties Association has stated: “We are unequivocally opposed to the Critical Infrastructure Defence Act, which proposes shockingly anti-democratic and unlawful state infringement on civil liberties and human rights.”

They highlight: “The Critical Infrastructure Defence Act is inconsistent with the Canadian Charter of Rights and Freedoms and the Constitution of Canada. If implemented, the Act would likely breach a number of Charter freedoms, constitutionally-protected rights, and division of powers under the Constitution…”

And Assembly of First Nations Alberta Regional Chief Marlene Poitras has stated: “[The bill] will serve to erode individual rights, unfairly target Indigenous Peoples, and has no place in a democratic society.”

What is the context for this legislation?

The Edmonton Journal provides this context for the introduction of the bill: “The legislation was introduced in February as protests in support of Wet’suwet’en hereditary chiefs who were opposed to the Coastal GasLink project in northern B.C. took place across the country including in west Edmonton where protestors interrupted rail shipments for almost 12 hours with a makeshift wooden blockade.”

Another Edmonton Journal article adds: “While blocking railways is already illegal, [Alberta Premier Jason] Kenney said ‘apparently those disincentives haven’t been strong enough for some people’…”

How does this relate to land defenders?

The Assembly of First Nations countered Kenney by stating: “First Nations people across the land are using peaceful protest to support the Wet’suwet’en, recognizing that their laws give hereditary chiefs authority over their lands.”

The cross-country protests that reportedly spurred this legislation in Alberta began shortly after heavily armed RCMP officers entered unceded Wet’suwet’en territories in British Columbia and arrested 22 land defenders and supporters.

On June 5, the BC Prosecution Service stated that criminal contempt charges for those arrested would not be pursued. The Wet’suwet’en have responded: “While we are relieved that charges have been dropped, we know that the arrests and removal of our hereditary chiefs, Wet’suwet’en people, and our invited guests from our unceded lands was unlawful, immoral, and a violation of our most basic human rights.”

Additionally, with respect to Indigenous rights, Alberta is located on Treaty 6, Treaty 7 and Treaty 8 territory. There are 45 First Nations and 140 reserves situated within the province. Alberta’s tar sands, with proven reserves of about 165.4 billion barrels of oil, lie beneath 142,200 square kilometres of land subject to Treaty obligations and UN conventions. Pipelines across these lands are required to export that resource outside the province.

How does this relate to the United Nations?

The protests also began after the UN Committee on the Elimination of Racial Discrimination called on Canada in December 2019 to halt construction of the Coastal GasLink pipeline until it had secured the free, prior and informed consent of the Wet’suwet’en people as required under the UN Declaration on the Rights of Indigenous Peoples.

In response to that resolution, Alberta’s Energy Minister Sonya Savage stated: “With all the injustice in the world, it’s beyond rich that the unelected, unaccountable United Nations would seemingly single out Canada — one of the greatest champions of human rights, democracy and the rule of law.”

She added: “Canada’s duly elected representatives — not unaccountable international committees — are responsible for governing decisions in this country.”

The Committee on the Elimination of Racial Discrimination (CERD) is the body of independent experts that monitors implementation of the Convention on the Elimination of All Forms of Racial Discrimination by its State parties.

The Convention was adopted by the UN General Assembly in December 1965. Canada ratified the Convention in October 1970 and is subject to its provisions.

What’s next?

Alberta Liberal Party leader David Khan, a constitutional lawyer specializing in Indigenous rights issues, has tweeted about his opposition to the legislation: “One of the most odious aspects of Mr. [Kenney’s] draconian, authoritarian #Bill1 (Critical Infrastructure Defence Act) is it criminalizes peaceful public protests/marches down city streets–like the [Black Lives Matter] protests in [Edmonton on June 2].”

Khan adds in his series of tweets on this issue: “It will take years to challenge #Bill1 in our courts–& meanwhile it puts a dangerous chill on Albertans’ rights to express themselves & protest peacefully about important causes.”

For the Critical Infrastructure Defence Act to become law, it requires the Royal Assent of Alberta’s Lieutenant-Governor Lois E. Mitchell.

Her constitutional role involves giving bills the force of law through assent “on the advice of elected officials, but may exercise the right to deny or ‘reserve’ Royal Assent if the bill violates the constitutional rights of Albertans or infringes upon federal jurisdiction.”

Gil McGowan, the president of the Alberta Federation of Labour, which has described Bill 1 as “a step towards a police state”, has commented in the media that the federation will launch a constitutional challenge against the legislation.