Civil Disobedience, Environmental Protest and the Rule of Law

By Janet Keeping  :: Law Now ::  February 28, 2013

What is civil disobedience?

Civil disobedience involves intentional violation of the law to achieve a result the law-breakers believe is in the public interest. Civil disobedience is a form of protest intended to draw attention to a wrong or injustice which the protesters believe is sufficiently serious to morally justify violation of the law. In 2008 Greenpeace activists unleashed a banner at a political meeting which said “Stelmach: the best Premier oil money can buy” during a speech by then Premier Ed Stelmach. In doing so, the protesters intentionally violated several laws, including criminal trespass – they had no legal right to be at the meeting or do what they did. But in their view, their actions were morally justified because the government led by Stelmach was complicit in the environmental harm caused by oil production.

According to Roberta Lexier civil disobedience is typically defined as “a public, non-violent and conscientious breach of law undertaken with the aim of bringing about change in laws or government policies.”1 As Lexier says, the goals of civil disobedience are “to publicize an unjust law or a just cause” and “to appeal to the conscience of the public” so as “to end complicity in the injustice which flows from obedience to unjust law.” Sometimes the goals are more strategic, that is, aimed at pressuring the authorities to take a particular step towards alleviation of the injustice, for example, in Lexier’s words, “to force negotiation with recalcitrant officials.” Recent road obstructions by some Aboriginal groups as part of Idle No More were undertaken with the goal of pressuring government officials – in particular, the Prime Minister and the Governor General – to agree to meet with certain chiefs. Civil disobedience can also be aimed at disrupting the process by which people who have violated an unjust law are prosecuted, for example, by encouraging so many people to defy the law that the authorities are overwhelmed by their number. As Lexier puts it, the goal in this context is to “clog the machine.”

Direct versus indirect civil disobedience

Sometimes the law violated in a civilly disobedient action is the very law that protesters seek to change. This was the case in an iconic instance of civil disobedience when in 1955 a young black woman, Rosa Parks, defied the Montgomery, Alabama law requiring city buses to be racially segregated by confining black passengers to the back of the bus. When she was asked to vacate her seat, in the first row of the back section, because a white man wanted to sit as close to the front of the bus as possible, she refused. Her conviction for violating the law led to a boycott of the city’s bus system and eventually to repeal of that law.

But the wrongness of a law or government policy cannot always be highlighted directly, that is, by violation of that very law or policy. Take for example, the recent legislative changes which weaken protection for Canadian waterways and are of particular concern to the Idle No More movement. Bill C-45, the 2012 omnibus bill removes many bodies of water from consideration under the Navigable Waters Protection Act. Unlike a legal command, such as “black people must sit at the back of the bus,” a law which removes statutory protection cannot itself be violated. Other means must be found, such as obstruction of roads or the occupation of government offices. The latter technique was used in 2009 when protesters sought to convince then federal environment minister, Jim Prentice, to take serious measures to counter climate change by illegally occupying his constituency office in Calgary.

Public opinion and civil disobedience

Non-violence, as Lexier notes, is usually cited as a defining characteristic of civil disobedience. Some challenge this requirement. However, not only is violence probably contrary to the very concept of civil disobedience, it is also likely to prevent achievement of protesters’ goals. Thinking strategically, are ordinary people more or less likely to be inspired to demand the legal or policy change protesters believe is needed if the disobedience is violent? In stable democracies such as Canada, the U.K. and the U.S. – where mass disorder and public displays of violence are rare – the public’s response to violence is likely to be highly negative, and thus, violence is likely to hinder rather than help advance protesters’ goals. If it is important to appeal to “the conscience of the public” and to “end complicity” with injustice, then how the public is likely to react to the protest must be taken into account.

Also important is that public opinion changes over time. For example, when suffragettes broke laws to protest the fact that women did not have the right to vote, many people were horrified and denied that what protesters had done was justified in the name of achieving reform of Canadian voting laws. But of course, it was not long before the fact that women had ever been denied the right to vote seemed ludicrous, itself completely beyond the pale.

The law on civil disobedience

From one point of view, the law on civil disobedience is quite straight-forward. By definition civil disobedience involves a deliberate breaking of the law. The activists occupying the environment minister’s Calgary office had no authority to obstruct the use of that office. Such protesters, if prosecuted, will be convicted, unless a court decides the law in question is unconstitutional, which happens only rarely. The fact that the law was broken to point to a serious problem – Canada’s refusal to take significant steps to limit climate change – would not be relevant to a conviction. It is well-established in Canadian law that motive – the reason people break the law – is irrelevant to guilt or innocence.

But other legal issues about civil disobedience are more difficult. For example, when civil disobedience is non-violent and respectfully undertaken – for example, by giving the authorities advance notice of actions which will inconvenience the public – is it in the public interest that activists should be charged? What should the answer depend upon: how long the protest goes on; how many people are inconvenienced by it; whether there is damage to property as a result; or some other factor?

Civil disobedience and environmental issues

The history of civil disobedience shows it has been used to advance some of the most pressing public policy issues of the day – for example, the right of women to vote, desegregation of the American South and the need to end Apartheid in South Africa. When legal measures – such as petitioning, legal marches and political campaigns – have been exhausted, people convinced their cause is just may resort to violation of the law to try to move the consciences of their fellow citizens. Currently, many Canadians believe the environmental crisis is so severe they are prepared to break the law to prevent further degradation, for example, by obstructing the construction of additional pipelines, or at least to support those willing to do so.

Civil disobedience has upon occasion contributed a great deal to improving the human condition. It will do so again.

Civil disobedience and the rule of law

Part of what makes Canada a better place to live than many other countries is that Canadians have a relatively strong commitment to the rule of law. Disputes in the public realm – for example, whether houses will be torn down to make room for a new transit line or highway – are settled with reference to publicly agreed upon laws made by democratically elected representatives. Many disputes in the private realm – for example, which parent gets custody of the children upon divorce – are also subject to decision according to law.

A recognition that civil disobedience can play a healthy role in Canadian society does not undermine the rule of law. Quite the reverse, actually. For the citizens of a country to respect law, their legal and governmental systems must, on the whole, seem legitimate to them. When a law is so offensive to the conscience of a significant number of people that they are willing to engage in or support the breaking of that law, then society as a whole is put on notice that change may well be needed.

Our legal and governmental systems are not perfect, and they never will be. But where imperfections are serious, it is right – not wrong – to take a stand against them. A conscientious citizen should not abide by a law or policy that is profoundly unjust. Civil disobedience can strengthen the rule of law by leading to the correction of unjust or seriously wrong laws before disrespect for the system as a whole has a chance to take hold.

The protest price tag 

(and a citizens’ response)

Telegraph Journal  ::  5 February 2014

Last fall’s violent confrontation in Kent County is once again top-of-mind among New Brunswick residents, as Premier David Alward has become increasingly vocal in his support of continued shale gas exploration in New Brunswick – no matter the opinion of the small minority who clashed with the RCMP last October.

Last fall’s confrontation between the GNB and citizens of Kent County and their supporters from throughout the maritimes was the result of Premier David Alward who was not willing to listen to or respect the 16 to 1 vote of Kent County mayor and LSDs representing Service District 6. These men and women stood up with the citizens they represent and demanded a moratorium on further unconventional gas exploration and development in Kent County.

Now, just as the shale gas question is starting to feel like the ballot issue in the run-up to the next provincial vote, the cost of ensuring public safety in the face of the Kent County protests has come in. And the final tab wasn’t cheap – it cost the provincial Department of Public Safety more than $9.4 million to allocate sufficient RCMP resources to Kent County.

The $9.4 million represents the cost that David Alward and the PCNB were willing to pay with our tax dollars to intimidate and arrest citizens of New Brunswick who did not agree with their decision to bring this hazardous, toxic and dangerous industry into their neighborhoods and near their homes without their informed consent.

In considering such a hefty bill, it is important to remember the events leading up to the October clash. The government of New Brunswick gave a private firm consent to undertake seismic testing in southern New Brunswick, and ensured that New Brunswick residents opposed to shale gas development held a right to protest. Unfortunately, that right to protest grew into something very different, as civil unrest replaced the much more basic freedom to protest.

The Alward government did not bring just any private industry into our province.  He signed a pact with a foreign company whose only obligation is to their out-of-province stakeholders. SWN’s track record as well as the entire unconventional shale gas industry has been far from safe or responsible.  Those who would be forced to live in such an environment find their very way of life threatened.  When David Alward and the PCNB government decided to ignore their concerns and belittle those citizens, it was Mr. Alward set the stage for civil disobedience.

The situation at the anti-shale encampment had become increasingly tense in the months leading up to the intervention by the Mounties. Regular highway traffic was interrupted on a number of occasions, and acts of vandalism were escalating. On the morning of the conflict, police cars were set afire, and countless weapons were seized. It’s a small miracle nobody was seriously hurt in the clash.

From day one, the citizens who supported and blockaded the SWN equipment in the Irving compound in Rexton acknowledged that what they were doing was an act of peaceful civil disobedience and were willing to be arrested.  It was either the Alward government or the RCMP who decided to prolong the standoff to the point that a significant confrontation was inevitable.  By waiting, they allowed those with ill intent - whether from outside or the RCMP itself - to infiltrate the compound.

Because shale gas continues to be an emotional issue, let’s collectively agree to hold the discussion firmly in the public sphere, and not relegate it to a protest campsite in rural Kent County.

Those who strive to protect the way of life we all enjoy and cherish have continuously sought a dialogue with the Alward government though many channels to no avail.  In order to have a “public discussion” it is imperative that all sides are willing to listen to each other and reach a consensus of action - that is the very definition of a democracy.

We already have working shale gas wells in the province, and they are quietly contributing to both the province’s jobs picture and the government’s finances. If the seismic testing results are positive, we can – if we choose – have a whole lot more wells, and produce real value for the provincial economy. But this is ultimately a choice that should be made at the ballot box by the majority of New Brunswick voters – not a small minority at a protest campsite.

The gas wells referenced are in the community of Penobsquis. While they do provide a few jobs and some small royalty payments, they have adversely affected the relationships between residents, affected their health and well being, reduced their property values and even their ability to sell their properties if they wish to leave.

Even if the seismic testing results are positive, a 10-year moratorium on further exploration and development should be initiated until much more baseline evidence can be peer reviewed to ensure ALL the citizens of New Brunswick understand what is ultimately at stake and can grant their consent to proceed.

The PCNB 2010 platform included the passage of a Referendum Act to allow citizens of New Brunswick to vote on issues that could have profound consequences.  This would have required a full disclosure of all impacts of the issue - positive as well as negative.  Perhaps if the PCNB platform promise had been enacted, we all could have avoided the angst and divisiveness that the Alward government created and the unfortunate of this past summer.

Richard Lachance & Eveline Haché

Cocagne NB

743-6582

Justice, the Law and Non-Violent Resistance

During 2013 hundreds of citizens demonstrated against unconventional shale gas exploration and future development in New Brunswick. 21 people were arrested on Highway 126, and dozens more arrested at the Highways 134 encampment on October 17 and along Highway 11 defending the environment by peaceful civil disobedience and non-violent resistance.  Our opponents say we are ‘going too far’, but consider the very great things people willing to break the law ‘for the good of all’ have accomplished using peaceful civil disobedience and non-violent resistance as their tool:

• In 1918, women in Canada won the right to vote because brave people were willing to be arrested and go to jail;
• Slaves in the United States were freed in 1863 after years of struggle during which thousands of people went to jail to demand justice for Black people (for example, people hid slaves to help them get to safety in Canada);
• India achieved independence in 1947 after years of peaceful civil disobedience and non-violent resistance with thousands of people demanding justice by going to jail; and 
• In 1993, Africans living in South Africa became full citizens in their own land because people went to jail to demand justice and freedom!

People willing to be arrested and go to jail for justice for all are ‘prisoners of conscience.’  Their decision to resist unjust, bad laws using only peaceful civil disobedience and non-violent resistance has won freedom and justice for millions of people around the world.  

What about Unconventional Shale Gas and Oil Development?

We know from the experience of people in other places that unconventional shale gas and oil development poses the most serious threat to our environment that New Brunswick has ever seen!  It is fundamentally unjust to place the health and safety of an entire province at risk for any reason! 

• Ten years of failed experience by the unconventional shale gas and oil industry has not resulted in a safe method of extraction for people or the environment;
• There is simply no known way to prevent wells from leaking, and no known safe and permanent way to clean up those chemicals once they’re in the environment;
• A growing number of countries and cities have already banned unconventional shale gas and oil exploration and development; 
• Only governments that place private profit ahead of public health and safety would allow unconventional shale gas and oil development;
• Doctors and scientists around the world are warning about the dangers of unconventional oil and shale gas development;
• Without baseline data and research, the New Brunswick College of Family Physicians has called for an industry moratorium; and
• ‘Water is life’ because nothing can live without it.

If a river or the land is poisoned, the animals, plants and people who need that water and land to live must either leave, become ill or die.  When an aquifer is poisoned, all the communities and people that depend on it for their water must leave or die. 

Who really thinks politicians and gas companies know more about our health than doctors?  Are we ready to sacrifice our family’s health and our province’s future for a short-term industry and a few, temporary jobs in New Brunswick?

The struggle to ban unconventional shale oil and gas is a struggle to protect life itself.