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Inside Alberta’s Controversial Critical Infrastructure Defence Act

On May 28th, 2020 the Critical Infrastructure Defence Act, or Bill 1, was passed by Alberta Legislature and awaits Royal Assent to enter into law.

It permits provincial police to:

Arrest, without warrant, anyone who is present at any location defined as essential infrastructure or interferes with the operation of the infrastructure, including pipelines.

In short: Bill 1 makes it easier to punish economic disruption in Alberta and raises concerns over environmental justice, indigenous land claims, and civil and labour rights.  

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Bill 1 explained: Bill 1 was introduced on February 25th, 2020, six days after demonstrators blockaded CN’s main rail line in West Edmonton in support of Wet’suwet’en hereditary chiefs’ opposition to the Coastal GasLink pipeline in B.C.

  • While blockading railways is already illegal, “apparently those disincentives haven’t been strong enough for some people,” said Alberta Premier Jason Kenney.

The legislation imposes harsher provincial penalties on the unlawful blocking of or presence on critical infrastructure including pipelines, railways, telecommunication lines, oil and gas sites, and highways. Notably, highways are defined broadly in s.1(1)(p) of the Traffic Safety Act to include any public or privately-owned thoroughfare, including driveways and adjacent ditches.

  • The language of the Bill leaves “critical infrastructure” open to redefinition in the future.
  • Violators face up to $25,000 in fines and up to 6 months in prison.
  • Corporations that aid, counsel, or direct the commission of an offence can be fined up to $200,000.

By combining the power to arrest without warrant, harsher penalties, and a broad definition of critical infrastructure, the cabinet has an expanded capacity to criminalize lawful protest anywhere in the province. 

Effect on civil society: Bill 1 is part of a broader trend in security governance which classifies environmental activities that threaten extractive economic interests as domestic security threats.

What they said:

  • Alberta Justice Minister Doug Schweitzer declared Alberta “will not be held economic hostage by illegal blockades” and called upon other Justice Ministers to introduce similar legislation.
  • Premier Kenney blamed Teck mining company’s withdrawal from its $20 billion Frontier oilsands mine project on “virtual anarchy” and “chaos” stemming from protests.

Indigenous efforts to protect their lands against extractive activities are central to this trend.

The Assembly of First Nations said the legislation could criminalize dissent and violate indigenous land ownership:

“Under the Canadian Criminal Code, peaceful protest is currently allowed to block transportation routes.”

“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 Alberta Federation of Labour’s Executive Council also raised concerns over labour rights.

“[It] will bring Alberta closer to a police state than perhaps it’s ever been” and “aims to make strikes and protests illegal for trade unions and our allies.”

This comes at a time where many public sector collective agreements are up for negotiation.

  • In February this year, the Alberta government proposed a 1% wage rollback and three subsequent years of wage freezes for nearly 24,000 public sector workers.
  • Temporary legislation during the covid-19 pandemic introduced further rollbacks to workers’ rights.

Potential challenges: The Lieutenant-Governor must sign off on the Bill, granting Royal Assent, before it comes into force as law. Refusal to grant Royal Assent is rare.  

  • The new legislation may be open to constitutional challenge. The Canadian Charter of Rights and Freedoms guarantees freedom of expression, peaceful assembly, and association.

However, Alberta Liberal leader and constitutional lawyer specializing in indigenous rights, David Khan, noted it would take years to challenge Bill 1 in courts.

  • In the meantime, Albertans’ rights to dissent and peaceful protest would be compromised.
  • While existing case law entrenches freedom of expression in public streets, Charter rights won’t apply in the same way to private property like pipeline construction sites.

There may also be a section 15 challenge on the basis of equality rights.

“The prohibitions in Bill 1 will have an adverse impact on marginalized individuals and groups – those who are racialized, Indigenous, LGBTQ2S+, disabled, gendered, poor. While Bill 1 is neutral on its face […] members of these groups will likely face arrest and prosecution disproportionately under Bill 1.”

University of Calgary law professor Jennifer Koshan

Section 35 of the Charter protects Aboriginal title and treaty rights. However, given that most indigenous land in Alberta is covered by treaties, Howard Kislowicz, an associate professor in University of Calgary’s Faculty of Law, said that s.35 challenges would need to determine if indigenous rights defined in those treaties apply.

The bottom line:

  • Bill 1 permits Alberta police to arrest without warrant anyone who is present at or interferes with the operation of essential infrastructure. It applies a broad definition of essential infrastructure and imposes harsher provincial punishments for unlawful activity. 
  • Environmental, indigenous, and labour advocacy groups are concerned that this expands the criminalization of dissent.
  • The Bill is consistent with a trend in Canadian governance of framing environmental and indigenous activism against extractive economic interests as security threats.
  • While the legislation is open to constitutional challenge, such challenges can take years to resolve. In the meantime, right to dissent and peaceful protest in Alberta would remain compromised.