Keep fossil fuels in the ground to stop climate change

There is nothing random about the pattern of silence that surrounds our lives. Silences occur where powerful interests are at risk of exposure.

Minimum Monument, Nele Azevedo

In the fourth piece in the Guardian’s major series on climate change, George Monbiot argues that once coal, oil and gas are produced, they will be used. And yet, after 23 years of UN negotiations there have been almost no steps taken to stop the production – rather than the use of – fossil fuels

You can read previous pieces here

By George Monbiot, reposted from The Guardian, Mar 10, 2015

If you visit the website of the UN body that oversees the world’s climate negotiations, you will find dozens of pictures, taken across 20 years, of people clapping. These photos should be of interest to anthropologists and psychologists. For they show hundreds of intelligent, educated, well-paid and elegantly-dressed people wasting their lives.

The celebratory nature of the images testifies to the world of make-believe these people inhabit. They are surrounded by objectives, principles, commitments, instruments and protocols, which create a reassuring phantasm of progress while the ship on which they travel slowly founders. Leafing through these photos, I imagine I can almost hear what the delegates are saying through their expensive dentistry. “Darling you’ve re-arranged the deckchairs beautifully. It’s a breakthrough! We’ll have to invent a mechanism for holding them in place, as the deck has developed a bit of a tilt, but we’ll do that at the next conference.”

This process is futile because they have addressed the problem only from one end, and it happens to be the wrong end. They have sought to prevent climate breakdown by limiting the amount of greenhouse gases that are released; in other words, by constraining the consumption of fossil fuels. But, throughout the 23 years since the world’s governments decided to begin this process, the delegates have uttered not one coherent word about constraining production.

Compare this to any other treaty-making process. Imagine, for example, that the Biological Weapons Convention made no attempt to restrain the production or possession of weaponised smallpox and anthrax, but only to prohibit their use. How effective do you reckon it would be? (You don’t have to guess: look at the US gun laws, which prohibit the lethal use of guns but not their sale and carriage. You can see the results on the news every week.) Imagine trying to protect elephants and rhinos only by banning the purchase of their tusks and horns, without limiting killing, export or sale. Imagine trying to bring slavery to an end not by stopping the transatlantic trade, but by seeking only to discourage people from buying slaves once they had arrived in the Americas. If you want to discourage a harmful trade, you must address it at both ends: production and consumption. Of the two, production is the most important.

The extraction of fossil fuels is a hard fact. The rules governments have developed to prevent their use are weak, inconsistent and negotiable. In other words, when coal, oil and gas are produced, they will be used. Continued production will overwhelm attempts to restrict consumption. Even if efforts to restrict consumption temporarily succeed, they are likely to be self-defeating. A reduction in demand when supply is unconstrained lowers the price, favouring carbon-intensive industry.

You can search through the UN’s website for any recognition of this issue, but you would be wasting your time. In its gushing catalogue of self-congratulation, at Kyoto, Doha, Bali, Copenhagen, Cancún, Durban, Lima and all stops en route, the phrase “fossil fuel” does not occur once. Nor do the words coal or oil. But gas: oh yes, there are plenty of mentions of gas. Not natural gas, of course, but of greenhouse gases, the sole topic of official interest.

The closest any of the 20 international conferences convened so far have come to acknowledging the problem is in the resolution adopted in Lima in December last year. It pledged “cooperation” in “the phasing down of high-carbon investments and fossil fuel subsidies”, but proposed no budget, timetable or any instrument or mechanism required to make it happen. It’s progress of a sort, I suppose, and perhaps, after just 23 years, we should be grateful.

There is nothing random about the pattern of silence that surrounds our lives. Silences occur where powerful interests are at risk of exposure. They protect these interests from democratic scrutiny. I’m not suggesting that the negotiators decided not to talk about fossil fuels, or signed a common accord to waste their lives. Far from it: they have gone to great lengths to invest their efforts with the appearance of meaning and purpose. Creating a silence requires only an instinct for avoiding conflict. It is a conditioned and unconscious reflex; part of the package of social skills that secures our survival. Don’t name the Devil for fear that you’ll summon him.

Breaking such silences requires a conscious and painful effort. I remember as if it were yesterday how I felt when I first raised this issue in the media. I had been working with a group of young activists in Wales, campaigning against opencast coal mines. Talking it over with them, it seemed so obvious, so overwhelming, that I couldn’t understand why it wasn’t on everyone’s lips. Before writing about it, I circled the topic like a dog investigating a suspicious carcass. Why, I wondered, is no one touching this? Is it toxic?

Brazilian artist Nele Azevedo’s ice sculptures in the shape of humans are placed in public places to highlight climate change. Photograph: Tobias Schwarz / Reuters/REUTERS

You cannot solve a problem without naming it. The absence of official recognition of the role of fossil fuel production in causing climate change – blitheringly obvious as it is – permits governments to pursue directly contradictory policies. While almost all governments claim to support the aim of preventing more than 2C of global warming, they also seek to “maximise economic recovery” of their fossil fuel reserves. (Then they cross their fingers, walk three times widdershins around the office and pray that no one burns it.) But few governments go as far as the UK has gone.

In the Infrastructure Act that received royal assent last month, maximising the economic recovery of petroleum from the UK’s continental shelf became a statutory duty. Future governments are now legally bound to squeeze every possible drop out of the ground.

The idea came from a government review conducted by Sir Ian Wood, the billionaire owner of an inherited company – the Wood Group – that provides services to the oil and gas industry. While Sir Ian says his recommendations “received overwhelming industry support”, his team interviewed no one outside either the oil business or government. It contains no sign that I can detect of any feedback from environment groups or scientists.

His review demanded government powers to enhance both the exploration of new reserves and the exploitation of existing ones. This, it insisted, “will help take us closer to the 24bn [barrel] prize potentially still to come”. The government promised to implement his recommendations in full and without delay. In fact it went some way beyond them. It is prepared to be ruthlessly interventionist when promoting climate change, but not when restraining it.

During December’s climate talks in Lima, the UK’s energy secretary, Ed Davey, did something unwise. He broke the silence. He warned that if climate change policies meant that fossil fuel reserves could no longer be exploited, pension funds could be investing in “the sub-prime assets of the future”. Echoing theBank of England and financial analysts such as the Carbon Tracker Initiative, Davey suggested that if governments were serious about preventing climate breakdown, fossil fuel could become a stranded asset.

This provoked a furious response from the industry. The head of Oil and Gas UK Malcolm Webb wrote to express his confusion, pointing out that Davey’s statements came “at a time when you, your Department and the Treasury are putting great effort into [making] the UK North Sea more attractive to investors in oil and gas, not less. I’m intrigued to understand how such opposing viewpoints can be reconciled.” He’s not the only one. Ed Davey quickly explained that his comments were not to be taken seriously, as “I did not offer any suggestions on what investors should choose to do.”

Barack Obama has the same problem. During a television interview last year, he confessed that “We’re not going to be able to burn it all.” So why, he was asked, has his government been encouraging ever more exploration and extraction of fossil fuels? His administration has opened up marine oil exploration from Florida to Delaware – in waters that were formally off-limits. It has increased the number of leases sold for drilling on federal lands and, most incongruously, rushed through the process that might, by the end of this month, enable Shell to prospect in the highly vulnerable Arctic waters of the Chukchi Sea.

Similar contradictions beset most governments with environmental pretensions. Norway, for example, intends to be “carbon neutral” by 2030. Perhaps it hopes to export its entire oil and gas output, while relying on wind farms at home. Amotion put to the Norwegian parliament last year to halt new drilling because it is incompatible with Norway’s climate change policies was defeated by 95 votes to three.

Brazilian artist Nele Azevedo’s ice sculptures in Berlin, September 2009. Photograph: Tobias Schwarz / Reuters/REUTERS

Obama explained that “I don’t always lead with the climate change issue because if you, right now, are worried about whether you’ve got a job or if you can pay the bills, the first thing you want to hear is how do I meet the immediate problem?”

Money is certainly a problem, but not necessarily for the reasons Obama suggested. The bigger issue is the bankrolling of politics by big oil and big coal, and the tremendous lobbying power they purchase. These companies have, in the past, financed wars to protect their position; they will not surrender the bulk of their reserves without a monumental fight. This fight would test the very limits of state power; I wonder whether our nominal democracies would survive it. Fossil fuel companies have become glutted on silence: their power has grown as a result of numberless failures to challenge and expose them. It’s no wonder that the manicured negotiators at the UN conferences, so careful never to break a nail, have spent so long avoiding the issue.

I believe there are ways of resolving this problem, ways that might recruit other powerful interests against these corporations. For example, a global auction in pollution permits would mean that governments had to regulate just a few thousand oil refineries, coal washeries, gas pipelines and cement and fertiliser factories, rather than the activities of seven billion people. It would create a fund from the sale of permits that’s likely to run into trillions: money that could be used for anything from renewable energy to healthcare. By reducing fluctuations in the supply of energy, it would deliver more predictable prices, that many businesses would welcome. Most importantly, unlike the current framework for negotiations, it could work, producing a real possibility of averting climate breakdown.

Left to themselves, the negotiators will continue to avoid this issue until they have wasted everyone else’s lives as well as their own. They keep telling us that the conference in Paris in December is the make or break meeting (presumably they intend to unveil a radical new deckchair design). We should take them at their word, and demand that they start confronting the real problem.

With the help of George Marshall at the Climate Outreach and Information Network, I’ve drafted a paragraph of the kind that the Paris agreement should contain. It’s far from perfect, and I would love to see other people refining it. But, I hope, it’s a start:

“Scientific assessments of the carbon contained in existing fossil fuel reserves suggest that full exploitation of these reserves is incompatible with the agreed target of no more than 2C of global warming. The unrestricted extraction of these reserves undermines attempts to limit greenhouse gas emissions. We will start negotiating a global budget for the extraction of fossil fuels from existing reserves, as well as a date for a moratorium on the exploration and development of new reserves. In line with the quantification of the fossil carbon that can be extracted without a high chance of exceeding 2C of global warming, we will develop a timetable for annual reductions towards that budget. We will develop mechanisms for allocating production within this budget and for enforcement and monitoring.”

If something of that kind were to emerge from Paris, it will not have been a total waste of time, and the delegates would be able to congratulate themselves on a real achievement rather than yet another false one. Then, for once, they would deserve their own applause. SOURCE

Twitter: @georgemonbiot. A fully referenced version of this article can be found at Monbiot.com


Nele Azevedo

The Brazilian artist Nele Azevedo works with installation and video, but she is best known for her “melting men” sculptures in cities around the world. These consist of thousands of small figures she has carved from ice and arranged on urban monuments.


 

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A brief history of the UN climate talks

June 1992

At the Rio Earth Summit, countries agree to establish the UN Framework Convention on Climate Change.

December 1997

The first international agreement to cut carbon emissions, the Kyoto protocol, is finalised.

February 2005

The Kyoto Protocol becomes international law after Russia ratifies the agreement. The US fails to ratify it.

December 2009

A summit in Copenhagen (COP15) ends in disappointment with a weak deal on action after Kyoto expires in 2012, leading countries to submit voluntary carbon cuts up to 2020.

December, 2011

Leaders in Durban (COP17) agree that by 2015 they will finalise an agreement on emissions cuts beyond 2020.

November 2014

China and US strike deal hailed as historic by observers, with US pledging to cut emissions by at least 26% by 2025 and China to peak emissions by 2030.

December 2014

In Lima (COP21), negotiators agree a draft text for a climate deal to be finalised in Paris in 2015, which will mandate cuts from all the nearly 200 countries in the UN process.

February and March 2015

Switzerland becomes the first country to announce its pledge for the Paris climate summit (an ‘INDC’ in UN jargon), followed by the EU as a bloc. Other countries are expected to follow.

Karl Mathiesen

SOURCE

 

Mark Carney defends Bank of England over climate change study

Governor hits back at Nigel Lawson’s description of research into effects of global warming on insurance industry as ‘green claptrap’

Mark Carney
The Bank of England governor, Mark Carney, has emphasised the risk of climate change to insurance companies. Photograph: WPA Pool/Getty Images

reposted from The Guardian, Mar 10, 2015

Climate change is one of the biggest risks facing the insurance industry, the governor of the Bank of England has said after a former Conservative chancellor dismissed a study on global warming as “green claptrap”.

Speaking at the House of Lords, Mark Carney mounted a robust defence of the Bank’s work on the impact of climate change on the insurance industry in the face of claims by Nigel Lawson that it had its priorities wrong.

Lawson was referring to a recent speech by Paul Fisher, a senior policymaker at the Bank, whowarned insurers they could take a “huge hit” by investing in fossil fuels, which could collapse in value if action is taken to curb greenhouse gas emissions in line with scientific advice. Fisher is deputy head of the Bank’s Prudential Regulation Authority, which supervises insurers and banks with the aim of ensuring financial stability.

The Bank has recently surveyed the insurance industry on its fossil fuel investments, as it investigates the risk of an economic crash if action on climate change renders oil and gas assets worthless. The contribution from Threadneedle Street is expected to be published after the election by the Department for Environment, Food and Rural Affairs (Defra) as part of a bigger report on the impact of climate change.

More frequent storms, hotter summers and an increase in flooding have driven up the global insurance industry’s annual weather-related losses to $200bn (£133bn) a year – a fourfold increase in 30 years. But the insurance industry’s investments in fossil fuel companies have attracted less attention.

Carney told the Lords economic affairs committee that the potential impact of climate change was a fundamental issue for industry regulators. “In the insurance business one of the top risks is climate change … it is absolutely essential to oversee and supervise the third largest insurance market in the world.”

Carney said the issue of stranded carbon – where coal, oil and gas may have to be left in the ground – was about proper reporting to determine the true value of corporate assets. “It could well be the case that [the insurance industry] is well provisioned, but we have a responsibility to run that down.”

The Bank last year added its voice to growing concern about the risks of a “carbon bubble” to the global economy. As oil and gas companies are among the biggest in the world, a sudden collapse in asset prices could trigger an economic crash.

At a World Bank meeting last year, Carney said the vast majority of fossil fuel reserves may be “unburnable” if global temperatures are to be limited to 2C, as pledged by the world’s governments.

Earlier in the session at the Lords, which ranged widely over economic and monetary policy, Carney said he expected inflation to fall to 0% and stay there for much of the rest of the year. The consumer price index tumbled to 0.3% in January, raising fears of deflation. However, Carney said it would be foolish for the Bank to resort to financial stimulus to fight the “one-time adjustment” of falling oil prices. SOURCE


 

 

Take Action! Ban microbeads in Ontario

 

Petition from Environmental Defence, Mar 10, 2015

Screenshot 2015-02-17 at 12.19.13 PMThe Great Lakes – a source of drinking water for more than 80 per cent of Ontarians – are choking on plastic pollution. Millions of tiny synthetic plastic beads, called microbeads, are flowing from our bathroom drains – from products like body wash, toothpaste, and facial cleansers – directly into the Great Lakes and other waterways.

Despite being small in size, these beads are having a big impact.

They are being eaten by fish and birds, which can cause digestive blockages, dehydration, and even death from starvation thanks to stomachs full of plastic. The plastics absorb dangerous toxics that can harm wildlife when they mistake the colourful beads for food.

Thankfully, Ontario is taking action. MPP Marie-France Lalonde introduced a private member’s bill that would ban the sale and manufacturing of microbeads in Ontario.

Your help is needed to ensure the proposed law is passed. Send an email to ask Glen Murray, Minster of Environment and Climate Change, to help get the bill passed and to thank MPP Lalonde for her leadership on this issue. Screenshot 2015-02-17 at 12.19.13 PM

One Step Forward and Two Steps Back: Province Found To Have Breached Aboriginal Consultation Obligations For Second Time

by Joan M. Young and Melanie J. Harme, McMillan LLP, reposted from Mondaq, Mar 10, 2015

In Da’naxda’xw/Awaetlala First Nation v. British Columbia Hydro and Power Authority, 2015 BCSC 16, for the second time, the Supreme Court of British Columbia has declared that the Province failed to fulfill its duty to consult with a Aboriginal group regarding the boundaries of a protected conservancy established in the Aboriginal group’s traditional territories. However, the Aboriginal group did not succeed in its claim that the Province had guaranteed the awarding of a contract with BC Hydro for the purchase of hydro-electric power from a company with ties to the Aboriginal group.

Key Points

  • The Crown’s failure to adequately consult with Aboriginal groups will not always result in a meaningful remedy being granted by the courts.
  • Accommodations measures by the Crown must not be “pointless” and need to be based on correct assumptions.
  • Legislative measures can require appropriate consultation and accommodation where such measures may impact an aboriginal group’s traditional territory.

Background

In 2008, BC Hydro issued a “Clean Power Call” seeking proposals to sell electricity to BC Hydro. Kleana Power Corporation, an independent developer and operator of hydro-electric projects, sought to compete in the Clean Power Call with a plan to sell electricity generated by a proposed hydro-electric project located within the traditional territories of the Da’naxda’xw First Nation. Income from the project would be shared by Kleana with the Da’naxda’xw.

The traditional territories of the Da’naxda’xw span the north end of Vancouver Island and Knight Inlet on the central coast of British Columbia. Kleana’s hydro-electric project was proposed for the Upper Klinaklini River area at the head of Knight Inlet. Since 2002, the Upper Klinaklini area had been protected under land use management legislation on a temporary basis. In 2008, the Province designated the area as a conservancy. Both of these designations meant that Kleana’s proposed hydro-electric project was not a permitted use.

Prior to the conservancy designation, the Da’naxda’xw had requested that the conservancy boundary be amended so that Kleana’s project could proceed. In 2007, the Province proposed that the project area would be removed from the conservancy so that Kleana could proceed with an environmental assessment and permitting requirements and seek an energy purchase agreement with BC Hydro as part of the anticipated Clean Power Call. In the event that Kleana did not proceed with the project, the area would be returned to the Upper Klinaklini conservancy and the original boundary would be restored.

In spite of this promise by the Province, legislation was introduced in 2008 that protected the full Upper Klinaklini River area without the Da’naxda’xw’s requested boundary amendment. This unexpected change gave rise to a complaint by the Da’naxda’xw that they had not been adequately consulted regarding the conservancy and the Da’naxda’xw threatened legal action if the legislation was enacted without amendment.

The Da’naxda’xw’s concerns led to what was described as a “rather unprecedented” meeting between the Da’naxda’xw and the Province’s Minister of Aboriginal Relations, Energy Minister, Minister of Forests and various deputy ministers and senior staff. According to the Da’naxda’xw, at that meeting the Energy Minister assured them that if Kleana lost the opportunity to participate in the 2008 Clean Power Call as a result of a delay in amending the conservancy boundary, then the Energy Minister would direct BC Hydro to enter into negotiations with Kleana for an energy purchase agreement at a price for power that was linked to the results of the winning bids in the Clean Power Call. On the basis of this assurance, the Da’naxda’xw did not challenge the legislation designating the project area as a conservancy.

BC Hydro’s Clean Power Call proceeded but Kleana was not among the project proponents that moved forward. BC Hydro asked for comfort, directly from the government, regarding the required amendment to the conservancy boundary. When Kleana representatives requested that the Environment Minister provide the required assurance, the Minister took issue with the assertion that there had been a commitment to amend the conservancy boundary.

In March 2010, BC Hydro announced that 23 proposals from the Clean Power Call had been selected for energy purchase agreements. Kleana’s project was not selected and shortly thereafter Kleana was advised by BC Hydro that its project was no longer under consideration.

The Da’naxda’xw and Kleana continued to advance the boundary amendment through the process directed by the Province until the Environment Minister advised in April 2010 that he did not intend to recommend an amendment to the conservancy boundary. The Da’naxda’xw and Kleana responded with an application to the Supreme Court of British Columbia for judicial review of the Minister’s refusal to recommend an amendment.

The First Ruling

A decision was rendered by the Court in May 2011. The Crown was found to have a duty to consult with the Da’naxda’xw with respect to their request to amend the conservancy boundary and the Environment Minister was found to have breached that duty. As a result, the Court quashed the Minister’s decision, declared that the Minister had a legal duty to consult with the Da’naxda’xw, with a view to considering a reasonable accommodation, and declared that the Minister had failed to fulfill his constitutional duty to adequately consult with the Da’naxda’xw.

The consultations ordered by the Court proceeded with eventual result being the amendment of the conservancy boundary as the Da’naxda’xw had originally requested.

After the conservancy boundary had been amended, the Da’naxda’xw and Kleana requested that the Energy Minister direct BC Hydro to enter into negotiations for a power purchase agreement with Kleana, as they asserted had been promised back in 2008 at the “rather unprecedented” meeting. The Minister did not act on this request and the Da’naxda’xw and Kleana again applied to the Supreme Court of British Columbia for judicial review.

After the commencement of legal proceedings, the Minister directed BC Hydro to enter into negotiations with Kleana. This direction was considered insufficient by the Da’naxda’xw and Kleana as they believed that the commitment to them also included a right to have the project considered on the same terms as other projects in the 2008 Clean Power Call.

The Second Ruling

The Da’naxda’xw and Kleana’s dispute with the Province came before the Supreme Court of British Columbia for a second time in the Summer of 2014 and a decision was rendered in early January of 2015. The Court determined that on the critical factual issue, the Da’naxda’xw and Kleana failed to prove that the Energy Minister made a clear commitment that, once the conservancy boundary was amended, he would direct BC Hydro to negotiate an electricity purchase agreement with Kleana on the basis of factors and terms that applied to power projects under the 2008 Clean Power. Rather, the commitment was limited to merely directing BC Hydro to enter into negotiations with Kleana. This conclusion was reached by the Court on the basis of the equivocal evidence of what occurred at the meeting, letters sent subsequent to the meeting that narrowed the scope of the commitment, and the limited power of the Energy Minister to give direction to BC Hydro.

While the Da’naxda’xw and Kleana failed to convince the Court on this key issue, the Court nevertheless went on to find that the Da’naxda’xw were entitled to further relief to remedy the breaches of the duty to consult found by the Court in the earlier 2011 proceedings.

The Court held that if the Province had fulfilled its duty to consult in a timely way prior to the introduction of the original conservancy, the conservancy boundary probably would have been amended in time for Kleana’s project to be fully considered in the 2008 Clean Power Call. The breach of the duty to consult deprived the Da’naxda’xw and Kleana of the opportunity to have a complete assessment made of the project before the Clean Power Call closed and rendered the boundary amendment irrelevant because the project will never be built. Therefore, the accommodation that was arrived at following the consultations earlier by the Crown was pointless. The Court held that when a form of accommodation is pointless, it cannot be consistent with the honour of the Crown or be adequate to discharge the Crown’s duty to consult with the Da’naxda’xw.

Conclusion

The Court concluded that the Province therefore failed to fulfill its duty to consult as the Court had earlier ordered and the Da’naxda’xw were entitled to a remedy on that basis. However, the Court refused to direct a particular form of accommodation as requested by the Da’naxda’xw and instead limited the remedy to declarations that the Province failed to consult with the Da’naxda’xw and has a legal duty to consult with the Da’naxda’xw, with a view to considering a reasonable accommodation. Whether a third trip to the courts will be required to finally determine what the correct level of consultation and accommodation is remains unknown. SOURCE


 

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

C-51 hearings begin in Ottawa. We’ll be watching

Public Safety Minister Steven Blaney. Blaney also took some heat, in committee and on Twitter, for comparing the promotion of terrorism to the holocaust.

 

By Stewart True, reposted from the CCPA, Mar 10, 2015

Public attention in Canada is appropriately focused on proposed omnibus security legislation (Bill C-51) that, from most expert accounts, appears to unnecessarily weaken privacy protections and threaten civil liberties to give Canada’s spy agencies, the Canadian Security Intelligence Service and the RCMP in particular, new powers of preventative arrest and the ability to disrupt potential terrorist activities (through illegal means if a court warrant will allow it).

The government had wanted to rush C-51 through Parliament, but public and parliamentary opposition forced the Conservatives to hold nine committee hearings (rather than the three they originally proposed). Those hearings began today, with Public Safety Minister Steven Blaney, Attorney General Peter MacKay, RCMP Commissioner Bob Paulson, and CSIS Director Michel Coulombe fielding most questions from the all-party (minus the Greens) standing committee on public safety and national security.

Though the CCPA does not have a full-time security expert on staff, we wanted to contribute to the important debate on C-51, and decided that a compendium of these hearings–the testimony presented and the response of government and opposition MPs–could be useful to the public. Rather than explaining each issue and argument outright, we’ll hyperlink to those who can do it better. That will include links to presentations to the committee (where they’re available), news articles, videos and anything else that seems relevant. Before getting to today’s hearing, a bit about why C-51 is so controversial.

The legislation is criticized for broadly expanding the definition of what constitutes a threat to Canada’s national security (for the purposes of information sharing between government departments and with foreign states in a way that could put innocent people’s security and privacy at risk), creating a new offence related to encouraging acts of terrorism that could put a chill on free speech, lowering the threshold for when someone can be detained, on a hunch they “may” (versus “will”) commit a terrorist act, and for when they can be placed on Canada’s “no-fly” list (without making it any easier to have your name removed), and mandating CSIS to take measures at home or abroad to disrupt potential terrorist acts, a power Canadian spies have not had since the 1970s.

For an excellent summary of the legislation, and its many problems, see this recent post by the Voices-Voix coalition and a primer by lawyers Clayton Ruby and Nader Hasan in the March issue of the CCPA Monitor. Legal experts Kent Roach and Craig Forcese are contributing regular critical commentary on Bill C-51 (and have just released a useful list of proposed amendments) on their joint website www.antiterrorlaw.ca.

The government pitch: We’re playing catch-up

Blaney opened today’s hearings with the government’s justification for introducing the new omnibus security bill. He said the attack at the War Memorial and Parliament in October reminded us we need to be vigilant about the evolving terrorist threat, repeating (using only slightly different wording) the Prime Minister’s warning that “The international jihadi movement has declared war on Canada,” that the jihadis “hate our society and they hate our values,” and that their only goal is to “destroy the very principles that make Canada the best place in the world to live.” (Later on, Blaney says only the terrorists can take away our rights and freedoms. How they plan on doing this without a strong, stable, majority government was left up to the imagination of committee members.)

The public safety minister outlined the gaps C-51 attempts to fill, notably the apparent inability of government agencies to share or accept information from each other related to potential threats to Canada’s national security. While the government claims this will address a recommendation coming out of the Air India inquiry, critics like Forcese and Roach are worried that the overly broad definition of what constitutes such a threat (e.g., threats to the appropriate use of critical infrastructure), and the lack of caveats (e.g., limiting the information shared to what is “necessary” and “proportionate” versus simply “relevant”) could compromise the privacy and safety of critics of the government’s economic and energy policies.

Blaney suggested in his presentation and in questions from MPs that “legitimate” protests would not be affected, calling the suggestion they could (by “so-called experts”) “frankly false and ridiculous,” though it is lawyers, former judges and legal experts suggesting it. He also said, with respect to CSIS’s expanded powers of disruption (he gave the example of stopping a shipment of weapons, but also revoking a person’s passport, blocking someone from from associating with certain people, or putting someone under preventative arrest), the existing definition of what is a threat to Canada from the CSIS Act would be applied–not the new one with respect to information sharing.

MacKay focused his presentation on the changes to the Criminal Code that lower the threshold for preventative arrests, recognizance and disruption, which Ruby and Hasan describe clearly in their CCPA Monitor article. He also said, as Blaney did at the top, that these measures “fill a current gap in the law” both with respect to allied countries having comparable powers, and making it a crime to counsel someone to commit an act of terrorism.

Opposition responds: Where’s the oversight?

Questions from opposition MPs focused on three themes: how to ensure CSIS is not acting inappropriately, or outside the scope of the warrants they will need to acquire to engage in certain disruptive or anti-terrorism operations at home and abroad, as a federal court judge found, in 2013, they were already doing; the general inadequacy of existing oversight mechanisms for CSIS, RCMP and other government security activities; and whether the government can truly guarantee that increased information sharing between national, provincial and foreign agencies will not ensnare legitimate protest movements. (Blaney also took some heat, in committee and on Twitter, for comparing the promotion of terrorism to the holocaust.) SOURCE


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Bill C-51: Blaney, MacKay questioned on anti-terror bill fine print