The Fight Against Ottawa’s Crazy and Unconstitutional Single-Use Plastics Ban

In their rush to strike a virtuous blow against plastic waste, the federal Liberals skipped a few important steps. The 2022 ban on plastic straws, shopping bags and other useful household items deliberately ignored the basic facts of waste disposal in Canada, as well as the economic reality of substituting other materials for cheap and effective plastic. What else got overlooked? Canada’s Constitution. With a court hearing set for later this month to decide on the fate of the ban, Christine Van Geyn takes a close look at the legal arguments involved in Ottawa’s efforts to phase out certain plastic items, and the vast constitutional threat this poses if allowed to stand.

Like many writers, I prefer to work surrounded by other busy people going about their day. And as I sat down in a bustling café in downtown Toronto to begin writing this story with my laptop and an iced matcha latte before me, I instinctively reached for a straw. And my heart quickly sank – ugh, paper.

I care about sea turtles, I really do. But as I poked that flimsy thing through the lid and took a sip, it was not sweet enjoyment I was experiencing. It was bitter disappointment. Almost immediately the straw started to soften and it soon collapsed upon itself. It was like trying to drink through a soaked napkin. Frustrated, I tossed the straw aside and drank straight from the cup, hoping that I wouldn’t end up with bright green latte all over my laptop or sweater. Yet another small indulgence ruined by Ottawa.

Small indulgences, ruined. Across the country, Canadians are growing frustrated with a single-use plastics ban that has given them useless paper straws and taken away useful items such as plastic bags. (Source of right photo: CTV News)

I’m not alone. Across the country Canadians are griping about dissolving cardboard straws, berating themselves for forgetting their reusable shopping bags (made of a much thicker and unrecyclable plastic) and wondering exactly how they’re supposed to eat their takeout meal without a fork. Life is stressful enough with inflation, rising public drug use, street protests, overseas wars and other major calamities. Now even the tiniest details of our lives – like enjoying a cold drink on a hot day – have been imperilled as well. And yet a soggy, useless straw is not just a lousy way to start your workday. It’s also another worrisome example of the Justin Trudeau government’s relentless intrusions into provincial and local jurisdictions.

There is hope, however. In November 2023, a Federal Court judge struck down the government’s regulatory efforts against certain plastic items as “unreasonable and unconstitutional”. The ban, however, continues to remain in force while Ottawa appeals that ruling. The appeal will be heard later this month; and the legal charity I work for, the Canadian Constitution Foundation (CCF), will be an intervenor because we think this is a very important case. At stake are the very foundations of Canada’s Constitution. And a chance to get some straws that actually work.

Canada’s Plastics Ban 101

It’s easy to understand the desire to reduce plastic waste. Images of masses of trash floating in the Pacific Ocean or videos of sea turtles and birds choked by ring-carriers and bags have a visceral impact on many people. We all want a clean environment that is safe for wildlife and humans alike.

Ottawa knows best: While many Canadian cities, including Edmonton (shown at left), were experimenting with various regulations for single-use plastics, the federal government usurped their jurisdiction by announcing a nation-wide ban on six common plastic items to take effect in 2022. At right, Prime Minister Justin Trudeau unveils the federal plastics ban at a press conference in Mont-Saint-Hilaire, Que., 2019. (Source of right photo: The Canadian Press/Paul Chiasson)

And it is for these reasons that reducing plastic waste has been a policy goal for governments across Canada for many years. Numerous cities and towns have experimented with different approaches. Vancouver, Edmonton, Montreal and Guelph, for example, have all imposed some type of ban on what are termed “single-use” plastics. Toronto has not done so, but recently introduced a bylaw requiring businesses to ask customers if they’d like a single-use item and requiring them to accept reusable bags and cups. In early 2024, Calgary introduced a single-use plastic bylaw prohibiting businesses from giving customers single-use straws and food-ware unless they specifically asked, and requiring a 15¢ charge for single-use bags. Calgarians immediately went ballistic, however, forcing City Council to repeal the measure just weeks after coming into effect.

Despite these many diverse local innovations, in 2022 the federal government imposed its own vision on the country with a sweeping attempt to eradicate or severely curtail the use of six single-use plastic items: straws, cutlery, takeout containers, stir sticks, plastic bags and ring-carriers. These banned items would need to be replaced by substitutes made of other material, such as paper, wood, ceramic or metal.

As environmental policy, the federal plastics ban has some very large problems. As this C2C Journal article pointed out, Canadian plastic waste comprises a perishingly small share (0.02 percent to 0.03 percent) of total ocean plastic pollution. Almost all plastic waste in Canada is either recycled, incinerated or landfilled; it is not polluting the environment. The federal government’s own analysis also revealed that eliminating single-use plastics would actually increase overall waste generation rather than reduce it. While the goal is to remove approximately 1.6 million tonnes of plastic waste from 2023 to 2032, the amount of other waste streams is expected to grow by 3.2 million tonnes. This is because substitutes tend to be heavier than the plastic items they replace.

Sea turtles are safe with us: Despite widespread concern over the effect of plastic pollution on ocean life, the overwhelming majority of plastic garbage in Canada is either recycled, landfilled or incinerated; Canada’s share of plastic ocean pollution is estimated at between 0.02 percent and 0.03 percent. (Sources: (photo) Shutterstock; (chart) Greenpeace)

It gets worse. According to the government’s Strategic Environmental Assessment, substitutes for plastic products, such as paper bags, “typically have higher climate change impacts” including higher greenhouse gas emissions and a reduction in air quality. By banning plastic bags, straws and so on, we will end up with not only more garbage, but also a dirtier environment.

An Order-in-Council signed in April 2021 brazenly declared every product made from plastic to be a threat to human health. This includes everything from children’s toys, water pipes, health-care devices and protective helmets to car parts and computer keyboards.

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The plastics ban fails on basic economics as well. A cost/benefit analysis prepared by the federal government puts the ten-year monetary benefits arising from a reduction in plastic garbage across Canada at $616 million. On the other side of the ledger, the costs – including the impact on businesses required to replace perfectly useful plastic items with lower-quality substitutes that are generally more expensive – comes in at $1.9 billion. By the federal government’s own reckoning, its policy thus entails a net loss of $1.3 billion. In sum, the plastics ban does nothing to reduce worldwide ocean pollution, creates twice as much garbage as it saves and imposes costs exceeding its benefits by a substantial margin. Based on these rational measures alone, we should bin the ban. But the biggest reason to oppose it is constitutional.

Ottawa Takes Charge

Waste management is a provincial matter which provinces typical delegate to municipalities. This process is working well, as evidenced by all the experimentation in plastic waste policies described above. Yet the Trudeau government desperately wanted to be seen as a leader on this issue. And to get around the fact Ottawa has no clear authority to do so, the Liberals had to get creative.

Their solution was to add all “plastic manufactured items” to the list of toxic substances maintained under the Canadian Environmental Protection Act. Thus an Order-in-Council signed in April 2021 brazenly declared all products made from plastic to be a threat to human health. This includes everything from children’s toys, water pipes, health-care devices and protective helmets to car parts and computer keyboards. Items that are indispensable to our daily lives instantly became “toxic” as the result of a single federal Cabinet order. The policy took effect at the end of 2022.

Toxic, every last one. As a result of a 2021 Order-in-Council, the entirety of “plastic manufactured items” – including everything from children’s toys to life-saving medical devices – was declared hazardous to human health under the Canadian Environmental Protection Act. (Source of bottom photos: Pexels)

In response to this obvious absurdity, a group of plastic industry companies called the Responsible Plastic Use Coalition demanded a judicial review, arguing the federal order made no practical or scientific sense. Faced with the prospect of defending its decision to declare, among other things, a wide variety of life-saving and medically-necessary devices as officially toxic, the federal government claimed it only intended to restrict the use of plastics that posed a real risk to the environment. Despite categorizing all plastic as deadly, Ottawa said it was only looking to regulate the harmful bits, like straws and plastic bags. Bureaucrats, using the new authority granted them by Cabinet, would later decide which was which.

The federal government tried a similar line of argument when defending another piece of controversial environmental legislation, the Impact Assessment Act. This act purported to subject proposed new infrastructure projects to review across a vast range of economic, social, health, environmental and even gender-related impacts. The law was challenged in court by Alberta on the grounds that it intruded into provincial jurisdiction. In court, Ottawa argued that it only intended to regulate projects with environmental impacts of significant national concern. The Alberta Court of Appeal was unmoved by this attempted rationale, finding the Act unconstitutional, and last October a 5-2 majority of the Supreme Court of Canada upheld the lower court’s findings. Chief Justice Richard Wagner wrote for the majority that Parliament “plainly overstepped their constitutional competence” by purporting to regulate projects that would otherwise fall within provincial jurisdiction. The vast majority of the Act was found to be unconstitutional.

Calling out an absurdity: Responsible Plastic Use Coalition, an industry lobby group, challenged the Trudeau government’s declaration that all plastic is toxic in the Federal Court of Canada.

A similar thing happened with the plastics ban. In November 2023, Federal Court of Canada Justice Angela Furlanetto sided with the plastics coalition and struck down the law, calling the government’s sweeping attempt at banning plastics as “outside their authority.”

In her ruling, Justice Furlanetto shredded the government’s tortuous logic defining every form of plastic to be a threat to human health, observing that “plastic manufactured items” is far too broad a category to include on a list of toxic substances; the government provided no evidence to establish that every product listed was actually harmful. “The broad and all-encompassing nature of the category of [plastic manufactured items] poses a threat to the balance of federalism as it does not restrict regulation to only those [items] that truly have the potential to cause harm to the environment,” she wrote. She also noted that “for a chemical substance to be toxic it must be administered to an organism or enter the environment at a rate (or dose) that causes a high enough concentration to trigger a harmful effect. In this instance, the reverse logic appears to be applied…”

As Justice Furlanetto held in her 2023 Federal Court decision, ‘The machinery of criminal law cannot be used to assume control over something that is not within Parliament’s authority.’

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Justice Furlanetto also held that the Cabinet order extended far beyond the federal government’s ability to regulate the environment through the Canadian Environmental Protection Act. As a result, she ordered the ban quashed and declared invalid and unlawful. Ottawa immediately appealed this ruling, with the case to be heard at the Federal Court of Appeal on June 24 and 25. Alberta and Saskatchewan are both intervenors and will argue that the Federal Court ruling should be upheld. British Columbia is intervening to support the federal government’s position that the order is within federal jurisdiction. There are other public interest interveners as well, including the CCF, EcoJustice, and Animal Justice.

The Bogus Fight Against Plastic Criminality

“Unreasonable and unconstitutional”: In her November 2023 ruling, Federal Court of Canada Justice Angela Furlanetto found that Ottawa overstepped its jurisdiction in classifying all plastic goods as toxic. Ottawa is now appealing her ruling. (Source of photo: @FedCourt_CAN_en/X)

One of the main issues at the appeal will be the role of the federal government’s criminal law power. Section 91(27) of the Constitution Act grants the federal government exclusive authority to make criminal law. And previous court rulings have found and affirmed that prohibiting truly toxic substances, like lead and mercury, under the Canadian Environmental Protection Act is a legitimate expression of that power.

But it is no magic wand. Ottawa cannot simply claim a need to invoke its “criminal law power” and instantly transform any issue into an area it can regulate. As Justice Furlanetto held in her 2023 Federal Court decision, “The machinery of criminal law cannot be used to assume control over something that is not within Parliament’s authority.” In this case, criminal law power should not be allowed to justify the sweeping inclusion of every imaginable plastic product on the list of “toxic” substances and therefore place them all under the umbrella of federal authority. This is what lawyers call ultra vires – Latin for “outside the power”, in this case, of a government.

Criminal law powers should be applied cautiously. To claim authority to regulate something based on this authority, Parliament must clearly demonstrate the criminal aspect of the targeted activities. The federal government cannot assume control over an entire area which is not, in itself, harmful or dangerous. This is particularly important when Parliament has asserted control and jurisdiction over an amorphous subject matter prone to overlapping jurisdictions, like environmental regulation.

“Harm should be real”: According to University of Alberta law professor Eric Adams, the federal government’s criminal law power must only be used when there is a real threat of criminal behaviour. Fretting about plastic pollution does not meet such a test. (Source of photo: University of Alberta)

When the framers of Canada’s original Constitution in the 1860s decided that the federal government and not the provinces should control criminal law, this was premised on Parliament using its authority to prevent actual harm. University of Alberta law professor Eric Adams has written that criminal law power rests on the notion that “harm should be real in the sense that Parliament has a ‘rational basis’ for seeking to suppress it with prohibitions” and that it can be “demonstrated with evidence.” Accordingly, federal criminal law power must be focused, justified and rationally connected to a real criminal threat to the area in question, in this case the environment. Deeming every single imaginable plastic manufactured item “toxic” does not meet this test.

Hardly Incidental

The federal government will be defending the Cabinet order listing non-harmful plastics as toxic by arguing that any intrusion into provincial jurisdiction is merely “incidental” and not worth worrying about. There is, indeed, an aspect of Canadian constitutional law called the “incidental effects doctrine” which recognizes that it is practically impossible for one level of government to legislate without touching on the powers of another level of government in some way.

Negotiating the application of the incidental effects doctrine requires a flexible approach to federalism that permits collateral and secondary effects on another jurisdiction without threatening the main intent of the originating jurisdiction’s legislation. This concept was crystallized in the 2007 Supreme Court ruling in Canadian Western Bank v. Alberta that found Alberta was within its constitutional right to regulate the sale of insurance (a provincial responsibility) at banks in the province, even if the banking sector itself fell under federal jurisdiction.

Hardly incidental: Ottawa argues its intrusion into provincial jurisdiction over plastics is merely “incidental” and should be allowed to stand. In previous rulings, however, the courts have rejected such arguments when the outcome would make an “otherwise unconstitutional law valid”. In 2019, the B.C. Court of Appeal struck down a proposed B.C. law intended to stop the federally-regulated Trans Mountain pipeline (shown) on similar grounds. (Source of photo: Adam Jones, Ph.D. – Global Photo Archive, licensed under CC BY 2.0)

But such incidental effects cannot be limitless; they must indeed be incidental. Courts have repeatedly emphasized in other cases that a flexible approach to federalism must not “erode the constitutional balance” inherent in Canada’s division of powers and cannot make an “otherwise unconstitutional law valid”, as a 2019 B.C. Court of Appeal ruling stated in striking down a proposed B.C. law intended to stop the Trans Mountain pipeline, a federally-regulated endeavour. The classification of effects as incidental or consequential must be made with clarity and rigour.

The Trudeau government’s Cabinet order that all plastics are “toxic” clearly crosses the dividing line between incidental effects and intrusion into provincial jurisdiction. Plastic is ubiquitous in modern society and most matters requiring the regulation of plastic materials properly fall under provincial jurisdiction. By listing all imaginable types of plastics as toxic, without regard to whether they actually cause any harm, the federal government sought to greatly expand its jurisdiction across an exceedingly broad subject area. Like criminal law powers, the incidental effects doctrine should not be misused to cloak far-reaching legal effects from constitutional scrutiny.

The Bigger Threat

The brilliance of Canadian federalism is that it prevents the concentration of power within any single institution or level of government and creates laboratories of democracy across Canada where different jurisdictions can tailor different policy solutions and test what works best. Canada’s constitutional division of powers is thus a pathway to better policies that lead to a freer Canada. It also acts as a restraint on government overreach. It deserves to be protected.

But in numerous recent court cases and policies, the Trudeau government has demonstrated its extreme ambivalence – if not outright hostility – to Canada’s constitutional federal structure. In examples including the Greenhouse Gas Emission Pricing Act Reference, the Impact Assessment Act Reference and now the Cabinet order on plastics, the mechanism, if not the intent itself, is to grab additional authority from other levels of government in order to impose national policies that violate the founding structure of our country. This is why the plastics case has implications far beyond saving Canadians from soggy straws.

Ottawa would essentially become the master of all environmental policy in the country; and since so many other policy areas have an environmental dimension, the federal government could gradually come to rule them all.

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The CCF will argue in the Federal Court of Appeal that federal environmental regulation poses a unique challenge to the division of powers, particularly where the purported federal target is submerged in a sea of local and provincial jurisdiction. Accordingly, federal statutes must be tightly focused on federal targets and not allowed to wander deeply into provincial jurisdiction.

If plastics of all kinds are confirmed as toxic substances, and Parliament is given authority to regulate them, this could trigger a whole host of other regulatory environmental mechanisms in the areas of licensing, regulation of substitutes and offset mechanisms that would further encroach on provincial jurisdiction. It is widely discussed, for example, that the federal government will seek to uphold its planned cap on oil and gas emissions, as well as its Clean Electricity Regulations (both currently in draft form) through similar listings under the Canadian Environmental Protection Act. It would also likely use its criminal law power to get a foothold into the regulation of methane, carbon dioxide and other substances in order to control them in a detailed manner. And there is reasonable concern the federal government could also attempt to regulate things like electricity markets and other technologies under these newfound powers. Ottawa would essentially become the master of all environmental policy in the country; and since so many other policy areas have an environmental dimension, the federal government could gradually come to rule them all. The only thing necessary for each new intrusion will be for the Liberals – or some other future activist federal government – to whisper the magic phrases “criminal law power” and “incidental effects” and it becomes so.

Where will it end? According to the Canadian Constitution Foundation, allowing the federal government to get away with labelling all plastic products as toxic will inevitably encourage further intrusions into local and provincial jurisdiction, allowing Ottawa to set itself up as the master of all environmental policy. Shown, protesters gather outside the Federal Court in Toronto during the initial plastic-ban hearings in 2023. (Source of photo: Michael Cole/CBC)

If the division of powers under Canada’s Constitution means anything, the Federal Court of Appeal must find the Trudeau government’s plastics ban unconstitutional. My struggle to drink my straw-free iced latte is thus a small part of a much larger struggle for balance and respect in Canada’s foundational framework. I am slurping with purpose.

Christine Van Geyn is litigation director of the Canadian Constitution Foundation.

Main image shows an anti-plastics slogan projected onto the Supreme Court of Canada building in Ottawa on Earth Day, April 22, 2024. Source of image: The Canadian Press Images PHOTO/Oceana Canada and EARTHDAY.ORG.

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C2C Journal

Mischief Trial of the Century: Inside the Crown’s Bogus, Punitive and Occasionally Hilarious Case Against the Freedom Convoy’s Tamara Lich and Chris Barber, Part I

Published on November 1, 2024

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From the C2C Journal

By Lynne Cohen

In his judicial review of the Liberals’ response to the 2022 Freedom Convoy protest, Federal Court Justice Richard Mosley ruled that “there was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable.” With Prime Minister Justin Trudeau’s draconian actions thus exposed as unnecessary and excessive – in other words, illegal and unconstitutional – what now awaits Tamara Lich and Chris Barber, who each face up to 10 years in jail for playing key roles in the protest? In the first of a two-part series, Lynne Cohen charts the lengthy and vindictive prosecution of the pair, from their first appearance in downtown Ottawa to their initial arrest and pre-trial treatment.

As the 13-month-long trial of Freedom Convoy organizers Tamara Lich and Chris Barber lurched into its final days at the Ottawa Courthouse, Assistant Crown Attorney Siobhain Wetscher reached for her highest dudgeon and broadest hyperbole. In making her closing arguments, Wetscher declared this to be an “overwhelming case” backed by an abundance of “significant evidence.” Attempting to draw the focus onto the assembled facts, she swatted away claims it was a politically-motivated prosecution. “The defendants are not on trial for politics,” Wetscher stressed. “They crossed the line, objectively. The smell, the noise, the harassment were not lawful!” Given the reaching tone and considering the actual weight of the evidence, it often seemed as if Wetscher was trying to convince herself as much as Ontario Court Justice Heather Perkins-McVey.

To back their case, Wetscher and fellow Assistant Crown Attorney Tim Radcliffe had prepared a PowerPoint presentation that was projected onto two screens in Courtroom 5 during their final arguments. Entitled “R. v. Christopher Barber & Tamara Lich: Closing Submissions of the Crown”, the 106-slide exhibit began by listing the various charges: committing mischief, obstructing a peace officer and blocking a highway as well as counselling others to commit mischief, obstruct, block a highway and disobey a court order (the last one against Barber only). It also offered a quick guide to dozens of previous mischief, obstruction and intimidation judgements considered relevant to the case.

An “overwhelming case”: According to the closing arguments of Assistant Crown Attorneys Siobhain Wetscher (top left) and Tim Radcliffe (top right) presented in the Ottawa Courthouse, the trial of Freedom Convoy organizers Tamara Lich and Chris Barber was not about politics, but the fact the pair “crossed the line” during the protest. (Source of bottom photo: CTV News)

Beyond a useful summary of the charges and case law, the Crown’s slideshow was also meant as one last reminder of the “significant evidence” arrayed against the Freedom Convoy pair. It thus contained numerous exhibits already submitted during the 45-day trial, including maps of the protest area, snippets from TikTok videos, transcripts from press conferences, witness testimony and interrogations as well as court orders, texts, letters, handbills, emails, Facebook posts and so on. As such, it serves as a kind of multimedia scrapbook for the entire three-week-long protest in Ottawa during January and February 2022.

And as is usually the case with scrapbooks, there were also plenty of photographs, presumably selected for the same reason as all the other evidence – because they bolster the case against Lich and Barber. In particular, the pictures are meant to provide proof of their close partnership in leading an unlawful protest and convincing others to break the law. But there’s a problem with this plan: none of the photos show either doing anything other than participating in an entirely peaceful, apparently constitutional and often quite-joyous-looking protest.

Slide 61, for example, shows the duo in winter gear hugging each other with big grins on their faces. Slide 76 has a smiling Lich explaining on TikTok that the protest is “like Canada Day on steroids.” Slide 100 is a screenshot of Lich on the verge of being arrested telling her Facebook supporters that, “I pray and hope that you will make your choices from love…we can only win this with love.”

And then there’s slide 106. The presentation’s last slide pairs a quote from Wetscher and Radcliffe with yet another picture of Lich and Barber. The text reads, “The Crown respectfully requests that the court find Mr. Barber and Ms. Lich guilty of all counts as charged.” The photo shows them together once more – again smiling broadly. This time they’re standing with Mike Stack, another protester, in front of Barber’s truck “Big Red”. If the point of this photo is to prove once and for all that Lich and Barber were engaged in a dangerous, insurrectionist conspiracy, it fails miserably.

The Crown’s 106-slide closing presentation served as a multi-media scrapbook of the three-week-long Freedom Convoy protest, inadvertently highlighting the event’s joyousness and peacefulness. Of note, the final slide (bottom) shows a smiling Lich, Barber and fellow protester Mike Stack – while Barber’s dog Zippy enjoys the view from the driver’s seat of Barber’s truck “Big Red”.

And hilariously – as a close inspection reveals Barber’s dog Zippy sitting in Big Red’s driver’s seat, mouth agape in a wild doggy smile, looking down upon the trio as if to say, “Look at me. I’m driving the truck!” For a criminal case that threatens Lich and Barber with a decade in jail for allegedly imperilling the very foundation of public order across Canada, and has consumed more than a year of precious court time, Zippy’s photo-bomb doesn’t answer the question of guilt, it raises an entirely different one.

Is this really the best the Crown can do?

Freedom’s Just Another Word for Long-Haul Trucking

On January 23, 2022, the Freedom Convoy began rolling out from Canada’s West Coast towards Ottawa, while other smaller groups of vehicles streamed westward from Quebec and other points. Three months earlier, the Government of Canada had unexpectedly announced that cross-border truckers who had not received a course of Covid-19 vaccination would have to isolate for up to two weeks when crossing the U.S.-Canada border, overturning an earlier exemption for the trucking industry. Despite furious pushback, Prime Minister Justin Trudeau refused to relent and the mandate came into effect on January 15.

‘What kind of country had Canada become?’ Lich would later write about the impact of mandatory vaccine requirements. ‘We had governments who seemed far more obsessed with promoting vaccines…than they did with the reality and the struggles of the Canadian people. Someone had to stop it.’

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In response, thousands of truckers and others in cars and pickup trucks from all over the country joined the procession to make their feelings known, while thousands more waved them on from freeway overpasses and small towns along the way. Lich and Barber were involved in this movement from the beginning – creating social media accounts, setting up fundraising efforts and building an internal support structure – although the convoy itself defied organization. Lich and Barber may have been instrumental, but they were not almighty.

Let those truckers roll, 10-4: In January 2022, thousands of vehicles from across the country converged on Ottawa to protest a dramatic change in the federal government’s Covid-19 vaccine policy for cross-border trucking. (Sources of photos: (top) Andrei Filippov/Shutterstock; (bottom) GoToVan, licensed under CC BY 2.0)

Lich was born in Saskatoon to a Métis family and adopted as an infant. She has lived a varied life on the Prairies, working mainly as an administrator in the energy services sector and raising three children. She currently lives in Medicine Hat, Alberta with her husband Dwayne, who farms. She’s proud of her native heritage and also boasts of being a singer in a garage rock band. Lich has been politically active for many years, typically drawn to a robust defence of Western Canada’s political interests and consistently opposing the current Trudeau government. In 2018 she joined the “Yellow Vest” movement, and has also been a member of the Alberta Wildrose Party and the federal Maverick Party.

But it was the federal Liberals’ draconian response to the Covid-19 pandemic that pushed her activist inclinations into overdrive. “What kind of country had Canada become?” Lich would later write about the impact of vaccine mandates. “We had governments who seemed far more obsessed with promoting vaccines…than they did with the reality and the struggles of the Canadian people. Someone had to stop it.”

As for Barber, he hails from the small southwest Saskatchewan city of Swift Current. The 49-year-old married father of two children owns and operates a trucking firm, C.B. Trucking Limited, which specializes in long hauls of agricultural equipment. His popular TikTok account @bigred19755 provided him with a platform to complain – often impishly – about the impact of government regulation on the trucking business. As would be expected, the government’s response to the Covid-19 pandemic had a major impact on his business. Barber got the vaccine shots as required, but disagreed with how they were imposed.

By the time they got to Ottawa: Lich (left, with husband Dwayne) of Medicine Hat, Alberta, and Barber (right, with Big Red) of Swift Current, Saskatchewan, found themselves leading the Freedom Convoy as a result of their shared opposition to federal Covid-19 vaccine mandates.

“I was at risk of losing all that hard work [building my company] to not being able to cross the border anymore,” he explained to True North News. As his frustration with Covid-19 rules grew, Barber leveraged his status on social media to become a leading voice for truckers’ outrage over vaccine policy, which in turn spurred him to help launch the Freedom Convoy. “I was angry, very angry,” Barber later explained. “The provincial mandates, the federal mandates…it seemed like it was an over-reach.” From 30,000 followers prior to the convoy, Barber’s TikTok account grew to 170,000 by the time the truckers rolled into Ottawa.

When Lich, Barber and the rest of the original convoy reached Ottawa in late January, numerous other groups and individuals unaligned with the initial organization had joined the protest for their own reasons, and with their own objectives, timelines and standards of behaviour. What most participants had in common was a deep antipathy towards the Trudeau government and a desire to make this known in the heart of the nation’s capital. Their right to do so peacefully was initially acknowledged by the Ottawa Police Service (OPS). As they arrived, OPS officers met the truckers, showed them where to park and took steps to allow them to store provisions. For the first week or so, Lich and Barber worked closely with the cops to keep emergency routes open and relations cordial. This congenial situation eventually soured, however, as the protesters lingered.

Just over two weeks later, on February 14 the federal government took the unprecedented step of invoking the Emergencies Act based on the Liberal Cabinet’s assertion that the protest constituted a Canada-wide “public order emergency” that could not be dealt with under existing laws and which involved threats of “serious violence against persons or property.” This essentially criminalized the Freedom Convey and all its supporters. Riot police then moved to physically clear the protest area, and 196 protesters in the immediate area were arrested. Another 76 individuals were arrested elsewhere in Canada at around the same time for attending other protests, including blockades at three border crossings in Ontario, Manitoba and Alberta.

Crushing the “insurrection”: Initially accommodated by the Ottawa Police Service, the Freedom Convoy protest was later deemed a national “public order emergency”. Shown at top left, police circulate throughout the protest on February 9; top right, police hand out notices to protesters on February 17; at bottom, police confront and arrest protesters on February 18. (Sources of photos: (top left) The Canadian Press Images/Lars Hagberg; (top right) The Canadian Press/Justin Tang; (bottom left and right) Michel Elzo/Shutterstock)

The federal Liberals also bullied Canada’s chartered banks into freezing the bank accounts of many people connected to the protest. Lich and Barber had their personal finances locked and both were later arrested. Lich’s single, initial charge was for “counselling to commit the offence of mischief”; Barber was charged with counselling mischief, as well as obstruction and ignoring a court order. While half-a-dozen other charges were later added to the pair’s alleged offences, mischief was the common thread that connected them to the vast majority of other protesters arrested during the crackdown.

This prevalence of mischief seems a rather surprising fact. Amidst what was supposedly a massive and violent breakdown in public order, mischief – or counselling others to be mischievous – turned out to be the most serious crime the police could detect. In Ottawa there were no assaults, no murders, no guns or bombs, no fraud or extortion, no rioting and looting, no treason. Nothing, in other words, that might have signalled that an actual (as opposed to imagined or media-manufactured) insurrection was underway or imminent.

There was, however, one criminal act that provably did occur in Ottawa during the protests. Two men attempted to set an apartment building’s entryway alight and then sealed the doors shut. This appalling and dangerous act was immediately attributed by some to the protesters. Ottawa mayor Jim Watson, for example, stated it “clearly demonstrates the malicious intent of the protesters occupying our city.” Police soon established, however, that the fire had no link to anyone connected to the Freedom Convoy.

Legal Mischief

While the term conjures up images of a misbehaving toddler, section 430 of the Criminal Code of Canada defines mischief very broadly as the willful destruction of property or interference with others’ lawful enjoyment of their own property. It should not be taken too lightly, cautions Michael Spratt, an Ottawa criminal lawyer. “Yes, mischief can be something very minor, for example drawing graffiti on a public space, or chalking a sidewalk,” Spratt says in an interview. “But mischief can also include very serious offences, for example, occupying and blockading the national capital and inflicting extreme harm on its residents, businesses, and communities.”

It seems doubtful the entirety of the chaos caused by the Freedom Convoy can be laid at the feet of Lich and Barber. Plenty of other participants deserve a large share of the blame, Velloso said, pointing especially to the police.

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As an indictable offence, mischief carries a maximum penalty of 10 years in prison. Since lawyers for Lich and Barber readily admit that mischief occurred during the protest, Spratt says the only legal issue to be decided in court is whether the pair were at fault “either as a party, a participant, an encourager, an abettor or a leader of the convoy who bears some responsibility for it.” In other words, Lich and Barber could be found guilty even if they didn’t commit any mischief themselves. That would, however, require crafting a rather elaborate theory to explain a rather mundane crime.

Not every legal observer is convinced mischief best fulfills the government’s claim that it was facing an incipient violent insurrection, as is required by the Emergencies Act. According to University of Ottawa law professor Joao Velloso, most mischief charges in Canada are actually quite minor and usually punished without any jail time. Reliance on what he, unlike Spratt, views as a rather insignificant crime as the means to punish Freedom Convoy protesters seems like “a safe, bureaucratic choice for the police,” Velloso explained to The Canadian Press, adding it is “a less demanding choice in terms of police work.”

Much ado about mischief: While Ottawa criminal lawyer Michael Spratt (left) says mischief can include “very serious charges”, University of Ottawa law professor Joao Velloso (right) observes that most mischief charges in Canada are minor and punished without any jail time. (Sources of photos: (left) Michael Spratt; (right) Errol McGihon/Saltwire)

Plus, it seems doubtful the entirety of the chaos caused by the Freedom Convoy can be laid at the feet of Lich and Barber. Plenty of other participants deserve a large share of the blame, Velloso said, pointing especially to the police. “The seriousness of the mischief during the protest was produced by lack of policing,” he asserted. This echoes the February 17, 2023 findings of the Public Order Emergency Commission chaired by Justice Paul Rouleau, which also concluded that “policing failures” – in particular, inviting the truckers into the downtown area without any long-term plan to remove them – “contributed to a situation that spun out of control.”

In deciding whether the mischief charges faced by Lich and Barber are a big deal or not, it helps to consider the fate of other Freedom Convoy protesters faced with the same charge, many of whom have been represented by the Justice Centre for Constitutional Freedoms (JCCF). Steven Vardy, for example, was arrested while driving in downtown Ottawa after the Emergencies Act had been imposed and charged with obstruction. The charge of mischief was added after police discovered Vardy had narrated a video about the protest. The Crown dropped the obstruction charge before trial, and after two days in court the judge determined the mischief charge was equally untenable, and it too was dismissed.

Christine DeCaire, another JCCF client, was arrested while standing alone on Nicholas Street in downtown Ottawa as police moved to enforce the Emergencies Act on February 18. She was acquitted at trial, a result recently confirmed after the Crown appealed. JCCF client Ben Spicer was charged with mischief, obstruction and weapons offences after police grabbed him off the street during the protest and found a pocket knife and bear spray in his backpack. Spicer was then secretly recorded in a police van. After a six-day trial, all charges were dropped because he’d been arrested unlawfully. Evan Blackman, yet another JCCF client, was charged with mischief and obstruction, and had three bank accounts frozen. Drone footage later showed Blackman holding back protesters in order to de-escalate the situation. And just before he was arrested, he could be seen singing “O Canada”. The judge dismissed all charges after a one-day trial because of evidentiary weakness; the Crown is appealing.

Feeling mischievous: Police arrested 196 protesters in Ottawa after the Emergencies Act’s invocation, charging many with mischief and obstruction. Most had their charges later dropped or were found not guilty at trial, with the Justice Centre for Constitutional Freedoms playing a key role in these successful defences. (Source of photo: The Canadian Press/Justin Tang)

Not every mischief case has collapsed in calamitous fashion, however. Publicity-seeking protester Tyson “Freedom George” Billings, who was not represented by the JCCF and had no direct link to Lich or Barber, pleaded guilty to counselling others to commit mischief. The other charges against him were dropped and he was sentenced to time served, about four months. And Pat King, who also garnered ample attention during the protest, is still awaiting the verdict of his mischief trial, which lasted three weeks. King and Billings were notable for their confrontational and often uncooperative relationship with the police during the protest, in sharp contrast with Lich and, for the most part, Barber.

Another exception to the raft of failed cases is the fate of the so-called “Coutts Four”. Separately from the Ottawa protest, Chris Carbert, Anthony Olienick, Chris Lysak and Jerry Morin were among the most hard-line of hundreds of participants at a tense, weeks-long standoff at the Coutts, Alberta border crossing. On February 15 the four were arrested and charged with conspiracy to murder police officers as well as other weapons and mischief offences, upon which the whole protest disintegrated. Meanwhile, up to 100 other protesters at the site were charged with provincial regulatory offences.

Mischief ignored: The “Coutts Four” – (left to right) Chris Carbert, Anthony Olienick, Jerry Morin and Christopher Lysak – were found guilty of serious crimes arising from a tense blockade at the Coutts, Alberta border crossing. While Olienick and Carbert were also found guilty of mischief, their six-month sentences for this crime are to be served concurrently with their other, longer sentences. (Source of montage: CBC)

This past February, Lysak pled guilty to possession of a weapon in an unauthorized place and Morin pled guilty to conspiracy to traffic firearms – clearly serious offences, but a vast reduction from the potential life sentences they faced. Both were sentenced to time served. More recently, Olienick and Carbert each received sentences of six-and-a-half years for various weapons offences. As for their mischief charges, each received an additional six-month sentence to be served concurrently with the other, more serious convictions. Finally, an Alberta law firm recently announced that of nearly 50 clients facing provincial charges for participating in the Coutts border protest, all either had their cases dropped or resolved for a nominal fine of $1 each.

At this point, Lich and Barber appear to be the only remaining major participants from the entire national saga who are still available to punish.

“Prosecutorial Vendetta”

While outcomes have varied, a clear pattern emerges from a survey of mischief charges laid during the Emergencies Act. Most have been dismissed or returned with a not guilty verdict after only a few days in court. A few – such as Billings’ guilty plea – have resulted in a minor sentence befitting the minor character of the crime itself. For Olienick and Carbert, their guilty verdicts for mischief had no impact on their overall jail time; they faced much more serious charges, and their mischief was essentially ignored. And the mischief trial for Pat King, who is still awaiting his verdict, was completed in three weeks.

‘There is no question whatsoever that this is a political trial,’ Goldkind states emphatically in an interview.

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By comparison, the trial of Lich and Barber stretched into a 13-month epic, comprising 45 trial days. All for a collection of rather modest mischief and obstruction charges. Why would that be?

The answer, according to Ari Goldkind, a high-profile Toronto criminal defence lawyer, lies in the exact thing Wetscher tried so hard to wave away during her concluding statement: politics. “There is no question whatsoever that this is a political trial,” Goldkind states emphatically in an interview. For the Trudeau government to justify its suspension of Canadians’ civil liberties through the Emergencies Act requires an identifiable villain or two. Lich and Barber fit that bill. The length and unprecedented vigour with which the Crown has pursued the pair – Lich especially – as well as the manner in which the trial has dragged on, argues Goldkind, suggest there’s a “prosecutorial vendetta” against them.

“Prosecutorial vendetta”: Referring to Lich and Barber, high-profile Toronto criminal defence lawyer Ari Goldkind says, “There is no question whatsoever that this is a political trial.” (Source of photo: Lorenda Reddekopp/CBC)

When Lich herself arrived in Ottawa, the diminutive, then-49-year-old Métis grandmother quickly became the public “face” of the protest. At a February 3 press conference, for example, she was introduced as “the spark that lit this fire and the leader of this organization.” And while she claims in her book Hold the Line: My story from the heart of the Freedom Convoy that such a description “wasn’t accurate,” she nonetheless admits she filled a necessary role. “I guess I found a talent I didn’t know I had before,” she writes, speculating that her time spent on stage with her band might have prepared her for all the attention. “But I mostly feel like it was guided by God,” she adds.

While the Freedom Convoy was essentially ungovernable, comprised as it was of many disparate groups and publicity-seeking, independent-minded individuals, Lich tried her best to put her own calm and reasonable stamp on the proceedings. Throughout the protest, Lich’s efforts were observably peaceful and without any apparent mal intent. One of her first acts was to set up an independent group of accountants to handle the flood of donations financing the protest to prevent any suggestion of financial impropriety. In her dealings with the police, she always tried to find common ground – a fact readily acknowledged by police witnesses during the trial. Sergeant Jordan Blonde of the OPS protest liaison team, for example, noted in his testimony that Lich was always “polite” in his dealings with her, and that the protest itself was comprised of “many different groups and factions… [and] unattached people” who were not “aligned with anybody.”

In her own interactions with the protesters, over whom she had no real control, Lich repeatedly stressed the protest’s peaceful nature and worked tirelessly to rid the movement of disreputable or hateful characters. She even cobbled together a deal with Ottawa mayor Watson to move some trucks out of the downtown area; ironically, that deal went into effect on the same day as the Emergencies Act was invoked. As her lawyer Lawrence Greenspon observed in a brief courthouse lobby interview, “She is a genuine, very pleasant person, and almost a throwback to the peace-and-love days. She was preaching all along that ‘we only wanted a peaceful, non-violent demonstration.’”

“A throwback to the peace-and-love days”: According to her lawyer Lawrence Greenspon (at left centre, in barrister’s robe), Lich was a source of calm and grace throughout the protest and “only wanted a peaceful, non-violent demonstration.” (Source of photo: The Canadian Press/Adrian Wyld)

Perhaps it’s this “peace-and-love” attitude that has provoked such spite towards her. Whatever the reason, the official animosity has been painfully obvious. While the physically-imposing Barber was released on bail less than 48-hours after his arrest, Lich spent 18 days awaiting bail. At her first bail hearing, Ontario Justice Julie Bourgeois claimed Lich posed such a risk to the “physical, mental and financial health and well-being” of the people of Ottawa that she denied her application outright. Only after a bail review hearing several weeks later was Lich finally released pending trial. As Goldkind points out, many extremely violent and/or repeat offenders in Canada spend no time at all in jail following their arrest. This, as many critics observe, is the result of the Liberals’ 2019 bail reform package widely derided as a “catch-and-release” policy; it apparently doesn’t apply to Lich.

When she was finally set free, Lich returned to Alberta saddled with a long list of bail conditions, including that she neither publicly support the protest nor have any contact with other protest organizers unless a lawyer is present. “After weeks of fighting for Canadians’ right[s] and freedoms, I was losing so many of mine,” she laments in Hold the Line. It was because of these efforts, however, that in June 2022 it was announced that Lich had been awarded the annual George Jonas Freedom Award, sponsored by the JCCF. Naturally enough she wanted to go to Toronto to accept the honour in person. But before she could, the Crown came after her yet again.

At her next bail hearing, the Crown argued that the decade of prison time Lich faced made her a flight risk and that she should be kept in jail until her trial was over – a move that would have resulted in several years of imprisonment, regardless of the verdict.

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At a court hearing necessitated by the award (since her bail conditions also banned her from setting foot in Ontario), Crown prosecutor Moiz Karimjee argued that simply by accepting the honour, Lich had violated the terms of her bail and should be locked up again. Such an absurdity was quickly brushed aside by the presiding judge, who ruled she could travel to Ontario to attend the celebration, provided she abided by the remainder of her bail restrictions. While there, however, Lich was photographed standing beside another convoy participant, Tom Marrazzo.

The fateful photo: When she went to Toronto to accept the 2022 George Jonas Freedom Award at a gala presentation, Lich was photographed beside fellow protester Tom Marrazzo (second from right) with lawyers standing just off-camera. This led to a Canada-wide warrant for her arrest and another 31 days in jail. (Source of photo: CBC)

As she recalls in her book, “Lawyers were standing just outside the frame” when the picture was snapped, in fulfilment of her bail conditions. No matter. When the lawyer-less picture began circulating on social media after she’d returned home, Karimjee issued a Canada-wide arrest warrant in her name. Two homicide detectives were then dispatched from Ottawa to pick Lich up in Medicine Hat; the two burly detectives slapped her in leg shackles for the trip to the Calgary airport. You can’t be too careful with grandmothers.

At her next bail hearing, the Crown argued that the decade of prison time Lich faced made her a flight risk and that she should be kept in jail until her trial was over – a move that would have resulted in several years of imprisonment, regardless of the verdict. To this request, Superior Court Justice Andrew Goodman asked Karimjee if he could name a single mischief case in Canada that had resulted in a 10-year sentence. When Karimjee demurred, Goodman set Lich free once more.

In his ruling, Goodman offered his own expert opinion on the fate awaiting Lich. She “is charged with mischief and obstructing police-related offences, not sedition or inciting a riot,” the judge pointed out. “It is highly unlikely that this 49-year-old accused, with no prior criminal record and questions regarding her direct participation in the overall protests…would face a potentially lengthy term of imprisonment.”

Even if she’s found guilty, Goodman concluded, she’ll probably be sentenced to no more than time already served. All told, that amounts to 49 nights in jail. Says Goldkind: “That’s 49 nights longer in jail than someone who is caught driving three-times over the legal [alcohol] limit would likely face.” Had Karimjee gotten his way, however, she’d still be in jail – a term of 28 months and counting.

In an effort to explain the Crown’s extreme hostility towards her, Lich reveals in her book that prosecutor Karimjee has donated over $17,000 to the federal Liberal Party since 2013 and that his generosity has merited an invitation to at least one “donor appreciation” event with Trudeau himself. Similarly, Bourgeois, the judge who initially denied Lich bail, was once a Liberal candidate in an Ottawa-area riding during the 2011 federal election. In her journey through the courts to that point – a case the Crown argues is not political in any way – it was Karimjee and Bourgeoise, both with longstanding and very public Liberal sympathies, who had been the gatekeepers of a legal system intent on holding her to account for leading a massive political protest against the Liberal government. As Lich writes, “I didn’t stand a chance.”

“I didn’t stand a chance”: According to Lich’s book Hold the Line, Crown prosecutor Moiz Karimjee (top right) made substantial donations to the Liberal Party of Canada beginning in 2013, while the judge in her initial bail hearing, Justice Julie Bourgeois (bottom right), ran as a Liberal candidate in the 2011 federal election. (Sources of photo: (top right) True North; (bottom right) juliebourgeoisgpr/YouTube)

Part II of “Mischief Trial of the Century: Inside the Crown’s Bogus, Punitive and Occasionally Hilarious Case Against the Freedom Convoy’s Tamara Lich and Chris Barber” will appear on November 5.

Lynne Cohen is a journalist and non-practicing lawyer in Ottawa. She has published four books, including the biography Let Right Be Done: The Life and Times of Bill Simpson.

Source of main image: The Canadian Press/Adrian Wyld.

C2C Journal

The Indigenous “Land Back” Movement: A Land Mine for Canadians

Published on October 26, 2024

Todayville

From the C2C Journal

By Michael Melanson

Amidst the litany of grievances levelled by Indigenous organizations it is easy to overlook the genuine progress made by some First Nations. Democratically elected native governments have negotiated additional rights, expanded their lands and gained control over natural resources and major projects, creating a sustainable economic base. But that apparently isn’t the course desired by a vocal subset of politically charged Indigenous North Americans. They’re unsatisfied with incremental progress or compromise. They are all grievance, all the time. And they want it all. Michael Melanson examines the emergence of the Indigenous “Land Back” concept, its evolution into militancy and potential violence, and its recent metastasis into some of the darkest crevices of the human psyche.

At a recent in-service for Manitoba teachers on the subject of Indigenous education, attendees were told by guest speaker Christopher Emdin that “resistance to colonialism is not terrorism” – the words splashed across a giant display screen. The American author and educational theorist was alluding to the October 7, 2023 Hamas terror attack against Israel, but he was also making a general statement about lands “occupied by settler colonialists” – i.e., ordinary non-Indigenous Canadians. Emdin had been hired because “settler colonialism” has become a source of pedagogical angst in the Winnipeg School Division. In trying to do its bit to effect Indigenous Reconciliation, the division – like others across Canada – has come to regard settler colonialism as the historic yet current oppressor. Emdin’s message conveyed an essential subtext: Indigenous people have a right to resist colonial occupation by any means necessary in order to get their land back.

Land Back is a political sentiment originating among Indigenous thinkers and activists in the United States that is now flourishing in Canada. Land Back is fundamentally revanchist: it seeks a return of lands considered to have been possessed by North American Indigenous peoples before contact with Europeans. As such, virtually all of North America can be regarded as former native territory if “possession” is defined loosely enough. It is difficult to characterize Land Back as a political movement because it lacks the associated cohesion and formal organization. Its core impulses are a combination of mysticism, grievance, aspiration and ideology. But its goals are unquestionably political – often fiercely so.

“Resistance to colonialism is not terrorism,” Christopher Emdin recently told a gathering of Winnipeg teachers; the American educational theorist was speaking in reference to Hamas’ terror attack on Israel on October 7, 2023 (right) but also as a general condemnation of “settler colonialism”. (Sources of photos: (left) The Brainwaves Video Anthology/YouTube; (right) AP Photo/Ohad Zwigenberg)

Definitions of Land Back (also sometimes spelled Landback, LandBack or #LandBack) vary among professional and grassroots activists, opinion-leaders and other adherents. Jesse Wente, the journalist and current Chair of the Canada Council for the Arts, says Land Back is “about the decision-making power. It’s about self-determination for our Peoples here that should include some access to the territories and resources in a more equitable fashion, and for us to have control over how that actually looks.”

Ronald Gamblin, an Anishinaabe from Manitoba who is National Learning Community Coordinator of the 4Rs Youth Movement, states that the term “encompasses a complicated and intergenerational web of ideas/movements. When I hear Indigenous youth and land protectors chant ‘Land Back!’ at a rally, I know it can mean the literal restoration of land ownership. When grandmothers and knowledge keepers say it, I tend to think it means more the stewardship and protection of mother earth. When Indigenous political leaders say it, it often means comprehensive land claims and self-governing agreements.”

No single definition: Canadian arts journalist Jesse Wente (bottom left) describes Land Back as being “about the decision-making power”, while for Ronald Gamblin (bottom right) from 4Rs Youth Movement, the meaning depends on the person using it. Still others say it includes having the Sioux tribe gain control over the iconic U.S. Presidential Memorial at Mount Rushmore, South Dakota (top). (Sources of photos: (top) Dean Franklin, licensed under CC BY 2.0; (bottom left) Royal Ontario Museum/YouTube; (bottom right) 4Rs Youth Movement)

From its general beginnings around 2010 or even earlier, Land Back’s first explicit expression came in 2018, according to Wikipedia, when Arnell Tailfeathers, a member of the Blood Tribe in Alberta, used it in the protests demanding the reversion to Sioux tribal control of the world-famous U.S. Presidential Memorial at Mount Rushmore in the Black Hills of South Dakota. Versions of Land Back now are also found in Australia, New Zealand, Fiji and Mexico.

Though it is hard to pin down precisely – as the varying descriptions above make clear – generally speaking Land Back is a militant iteration of aboriginal nationalism. Proponents often disavow the legitimacy of Canada and the United States and frequently express hostility to their citizenry, whom they label “settler colonialists”. As in virtually all expressions of ethnic and racial nationalism, an autonomous sovereign territory is sought by some Land Back proponents.

This article on the website of High Country News in Paonia, Colorado (not to be confused with the High River, Alberta newspaper of the same name) attempts to instruct “white” readers in the Land Back movement’s virtues – and is therefore instructive in another way. It defines “land ownership” as merely a tactic “that keeps wealth and power in white families” (Hispanic and blacks apparently being uninterested in owning land), equates police with “violence”, lays essentially all of North America’s current ills at the feet of Europeans, suggests “Western colonizers” are “evil”, and talks about “so-called” civilization.

While the sentiments of Land Back are most commonly expressed at the populist levels of social media and public events, the initial success and popularity of early Land Back activists prompted composition of a formal manifesto in 2019: Land Back: A Yellowhead Institute Red Paper. It is written in the spirit of the 1970 Citizens Plus “Red Paper” by Harold Cardinal of the Indian Association of Alberta, which had been issued to angrily counter the Pierre Trudeau government’s preceding White Paper (formally, the Statement of the Government of Canada on Indian Policy, 1969).

Although the 1969 White Paper recognized the clear problems arising from ‘the policy of treating Indian people as a race apart,’ it nonetheless did not call for the complete disassembly of the reserve system or the erasure of Indians’ separate status, but recommended something closer to what Quebec nationalists would later famously term ‘sovereignty-association’.

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The new Red Paper makes it clear that Land Back aims to rationalize aboriginal sovereignty and, as it states on page 48, assert “fulsome Indigenous jurisdiction”. The 65-page document proposes a radical departure from liberal-democratic norms. It seeks to override the non-Indigenous nation-state and privilege a minority on the basis of ethnic/racial origin. The authors appear well-aware of what they are doing. They seek to justify a cultural exception to our ostensibly universalist liberal-democratic creed by using the assimilationist caricature of the 1969 White Paper as their theoretical foil.

Despite being widely if not universally portrayed as such – including by the authors of both Red Papers – the 1969 White Paper was not in my opinion concerned about cultural assimilation, but actually sought a third alternative to Canada’s historically fluctuating and often contradictory Indian policies of segregation and assimilation. Unfortunately, the White Paper only vaguely outlined this third alternative, as in the following passage from page 13: “For many years Canadians believed the Indian people had but two choices: they could live [in effective segregation] in a reserve community, or they could be assimilated and lose their Indian identity. Today Canada has more to offer. There is a third choice – a full role in Canadian society and in the economy while retaining, strengthening and developing an Indian identity which preserves the good things of the past and helps Indian people to prosper and thrive.”

A 2019 official manifesto of Land Back activists (top left) advocates for “fulsome Indigenous jurisdiction” and a radical departure from Western liberal-democratic norms; their argument is based on a common critique of the Pierre Trudeau government’s 1969 Statement of the Government of Canada on Indian Policy, aka the White Paper (top right).

Although the White Paper recognized the clear problems arising from “the policy of treating Indian people as a race apart,” it nonetheless did not call for the complete disassembly of the reserve system or the erasure of Indians’ separate status, but recommended something closer to what Quebec nationalists would later famously term “sovereignty-association”. As the paper states: “Frustration is as great a handicap as a sense of grievance. True co-operation and participation can only come when the Indian people are controlling the land which makes up the reserves.”

The failure of the White Paper as a new policy direction resulted in a continuation of the frustration and grievance of the failed reserve system and, half a century later, Land Back activists like the Red Paper authors are trying to redeem the added years of misery. “Our times, too, are revolutionary,” the document states on page 6. “While tragically little has changed since 1968-1970, there are also emerging debates to reflect on and work through together. We continue to grapple with federal and provincial bureaucrats and/or industry on rights, title, and jurisdiction, but we are increasingly turning inward and are having productive conversations about what reclaiming land and water might look like, for all of us.”

“Citizens plus”: The 1970 “Red Paper” challenged the principles of universalism and racial equality, demanding special rights and thereby giving rise to the notion of “Indigenous exceptionalism”. Shown, Harold Cardinal (standing), 25-year-old leader of the Indian Association of Alberta, addresses Prime Minister Pierre Trudeau and his cabinet during a Parliament Hill meeting, June 4, 1970. (Source of photo: CP PHOTO)

This is a disingenuous remark on the post-White Paper stasis, because that state of affairs was itself largely promulgated by the aboriginal nationalists of the day (and their white academic supporters), who fiercely denounced and resisted any civil reforms that might have resulted in Indians becoming like other citizens of Canada. This stance would have profound consequences.

The 1970s and 80s gave rise to the idea of Canada’s Indians becoming “citizens plus” – as the original Red Paper’s formal title suggested – meaning they would have the same rights as other citizens but also held additional rights by virtue of being aboriginal people. This is also when a notion of “Indigenous exceptionalism” arose and began to challenge the principle of universalism – the liberal-democratic ideal that every citizen should be equal and none should be discriminated against on the basis of race or ethnicity, and which had otherwise come to inform social and government policy in Canada. The great Mackenzie Valley Pipeline debate crystallized and amplified these elements, as well as birthing the Canadian version of the “decolonization” movement, as chronicled in this C2C article.

Forty-six years after Pierre Trudeau’s White Paper, his son was articulating just how far the idea of Indigenous exceptionalism had progressed in Canadian political discourse. During the 2015 federal election campaign, Justin Trudeau said that his government would “renew the nation-to-nation relationship with aboriginal people.” Then-Prime Minister Stephen Harper neglected to press Trudeau on just what he meant by that promise, unfortunately so, because it is a highly dubious statement. What nation-to-nation relationship, never mind what happened to it that necessitated renewal?

The relatively recent concept of universalism fundamentally rejects distinctions in law and governance on the basis of ancestry. The large exception being made for aboriginal people is based mainly on historical grievance: as the Indigenous people of Canada, they suffered from the colonization of their homelands by foreign nations and therefore deserve special considerations of redress.

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Land Back can thus be seen as an accelerant to that fuzzy notion of renewing intra-national relationships (given there are at least 630 First Nations, there are potentially hundreds of nation-to-nation relationships in need of renewal), something that would guarantee years if not decades of grinding political negotiations, with all the frustration, disappointment and anger that would surely entail, leading to still more strife. The new Red Paper’s authors suggest what this might mean when they hint at the inherent militancy of Land Back on page 56: “[Another], and perhaps more direct, type of assertion revolves around physical reclamation or occupation of lands and waters.” If negotiations fail, in other words, we have other tactics at the ready.

Gamblin is explicit about this: “When you look at it, as Indigenous peoples and nations, we come from the land. The land is our home, our mother, our caregiver, it’s what makes us Indigenous,” he writes on the 4Rs Youth Movement website. “Considering this, non-Indigenous folks need to understand that land back is about much more than land. You need to understand that when you hear youth scream ‘LAND BACK’, when you see land protectors stand off against the RCMP, when elders make prayers for the land, and when political figures sit in land negotiations, Land back is about Indigenous peoples confronting colonialism at the root. It’s about fighting for the right to our relationship with the earth. It’s about coming back to ourselves, as sovereign Indigenous Nations.”

The implications of “Indigenous exceptionalism”: Shown at top, graphic art recently posted to social media (at left) and spraypainted on a walkway (location unknown, at right) carrying violence-inciting messages; at bottom left, protesters unload a truck full of tires as they fortify a rail blockade in Tyendinaga Mohawk Territory, Belleville, Ontario, February 2020; bottom right, Ontario Provincial Police arrest a protester at the same blockade. (Sources of photos: (top right) dav, licensed under CC BY-NC-SA 2.0; (bottom left) The Canadian Press/Lars Hagberg; (bottom right) The Canadian Press/Adrian Wyld)

The existential association of being with land has been common if not ubiquitous among Indigenous peoples worldwide throughout history. It has been widely romanticized and is typically regarded as essentially harmless, or at least understandable. But when viewed unsentimentally, it is clear that it is ethno-centric and exclusionary if not explicitly racist. In perhaps its worst expression, the Nazis harnessed this atavistic impulse in their racist doctrine of Blut und Boden (which means “blood and soil”): since they are from the land, they are of the land and, as such, have more right to the land than someone who came to this land from elsewhere.

The relatively recent concept of universalism fundamentally rejects distinctions in law and governance on the basis of ancestry. The large (and ever-growing) exception being made for aboriginal people is based mainly on historical grievance: as the Indigenous people of Canada, they suffered from the colonization of their homelands by foreign nations and therefore deserve special considerations of redress.

Turning again to Gamblin, who provides a routine example of this mindset. “The architects of Canadian colonial policy,” he writes, “knew that if they wanted access to the lands in order to generate wealth and power, that they would need to separate us from this relationship. So, they used tactics such as forced relocation away from our homes and onto reserves (Canada’s apartheid system), introduction of patriarchal governance (Indian Act Chiefs), starvation of traditional resources (such as buffalo massacres), breaking family units and knowledge transfer through Indian Residential Schools, targeting women and children with violent policies, limiting our access to on the land cultural practices, and even making it illegal for us to fight in the Canadian legal framework for stolen land. These were systematic tactics intended on destroying our relationship with our mother.”

Among the Canadian “colonial” government’s “systematic tactics intended on destroying our relationship with our mother”, Gamblin names “targeting women and children with violent policies” and “buffalo massacres”, yet verifiable historical facts contradict his accusations. Shown at top, Indigenous children receiving medical examination; at bottom, a pile of bison skulls in the United States, 1892. (Source of bottom photo: Burton Historical Collection/Detroit Public Library)

Space does not permit a thorough parsing of Gamblin’s litany of grievances, but none of what he writes should be taken at face value. Although superficially factual at first glance, each phrase is loaded with emotionally charged adjectives and adverbs, exaggerations or falsehoods. The intent appears to be to convince by sleight-of-hand and emotion rather than historical accuracy.

Two quick examples by way of illustration. First, to Gamblin’s accusation of “targeting women and children with violent policies”. Sir John A. Macdonald, Canada’s first prime minister, saw to it that every native Canadian was vaccinated against smallpox – in some cases, receiving inoculation even before the local white population. Second, “buffalo massacres” as a “systematic tactic” of “Canadian colonial policy”. It is established that well over 90 percent of the eradication of North America’s up to 50 million bison occurred in the United States. Of the rest, much of this was done by Indian and Métis buffalo hunters and, of that portion, nearly all of it took place before the newly formed Dominion of Canada gained legal control over the Prairies in 1870. The Government of Canada inherited a tragedy; it did not bring it about.

The new Red Paper’s academic tone is an exception to standard aboriginal activist discourse, but it too resorts to emotional hooks. “The stakes of these struggles are immense,” the authors state on page 64. “Of course, while Indigenous land and life are the focus here, the life of our species and of the planet are at risk from the type of economic philosophy and practices of (sic) perpetuated by colonialism and settler colonialism…So the matter of land back is not merely a matter of justice, rights or ‘reconciliation’; Indigenous jurisdiction can indeed help mitigate the loss of biodiversity and climate crisis…Canada – and states generally must listen.”

Having used decolonization ideology as a springboard to investing Indigenous-led solutions with the capacity to save the world, the Red Paper portrays the nation-state as posing a barrier to such an Indigenous-led global salvation. It portrays the UN as “an organization of states that first and foremost defends the territorial integrity of sovereign states,” which “means that states are the primary vehicle to address climate change and loss of biodiversity.” And so, the paper laments on page 65, “Even while the UN recognizes the harms states perpetuate against Indigenous people (including denying consent), they cannot imagine non-state Indigenous-led solutions that may threaten the state system.”

A global saviour in our midst: The Red Paper lays the blame for the world’s climate and biodiversity crises on settler-colonialism and calls for expanding the Land Back movement’s scope to one that offers “non-state Indigenous-led solutions” for the whole world. (Source of photo: Backbone Campaign, licensed under CC BY 2.0)

The Red Paper authors appear to be suggesting that Indigenous organizations (to be determined) be given supra-jurisdictional authority. As grandiose and unrealistic as it sounds, it seems that they think aboriginal people should rule the world because they know what is best for the world and they know that because they are of the world in a way that non-Indigenous people are not; Mother Earth has given them her blessings as a birthright.

The continuing and in some ways worsening Indigenous/non-Indigenous dichotomy is a bane of humanity; it is antithetical to humanism because it presumes to determine who belongs here the most and who the least. If humanity matters most, it cannot matter who was here first. Some of the more sophisticated Indigenous exceptionalists are now staking their global campaign for jurisdiction on an issue of convenience: the fears of an existential peril – climate apocalypse – underpinned by the belief that they are somehow imbued with knowledge, skills and a force of origin that ordinary mortals do not possess. It is of course preposterous, and surely tempting to laugh off such presumption. But it needs to be taken seriously, for it is ultimately a mythos of race that justifies dominance of a sort that, in my view, has genuine and deeply disturbing parallels to Nazi “blood and soil” mysticism.

A new iteration of “Blood and Soil”? Land Back’s fundamental ethno-centrism mushrooms into overt racism among some of its extremist adherents, reminding the author of Nazism’s Blut und Boden doctrine, which held that only the racially pure local Volk had rights to the land. Shown at left, logo of the Reich Ministry of Food and Agriculture; at right, farmers in Innsbruck, Austria wave swastika flags to salute German soldiers, March 1938. (Source of right photo: Bundesarchiv, Bild 183-2005-0923-505, licensed under CC-BY-SA 3.0 de)

Transposed to dullards and maladapts, the sentiments of Land Back become a surly revanchism that does not balk at the potential for barbarism. A disturbing number of Indigenous activists have, for example, come out in support of Hamas, grotesquely refashioning the October 7 atrocity as an act of decolonization. The Idle No More movement hosted a webinar barely a month after the massacre called “From Turtle Island To Palestine”, and a month after that Red Nation in the U.S. staged a teach-in on the same subject. “Palestine is actually doing a Land Back,” declared Sioux activist and academic Nick Estes, who spoke at both events. “They’re actually doing what we think we want to do but we haven’t gone there yet. Palestine is just doing it now…and for me, that was beautiful. I just want our resistance to be so strong, our fire as a people so strong that we just take back what is ours.”

Like Land Back, ‘decolonization’ is a term without fixed definition holding the potential to signify insurrection or violent, racially targeted civil strife. At the very least, in their ambiguous current states of definition, both are programs for which anyone with a chip on their shoulder can ‘write code’.

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Thankfully, there are courageous and notable Indigenous voices calling out such twisted opportunism. Noting that in Israel, it is Jews who are the Indigenous people, Chris Sankey, a businessman and former elected councillor of the Lax Kw Alaams Band near Prince Rupert, B.C., roundly condemned both the Hamas massacre and the attempt to distort its meaning to serve Canadian Indigenous activists’ decolonization agenda. “What has troubled me the most has been the frequency with which my peoples’ struggle for reconciliation has been invoked to justify the bloodshed, often by so-called ‘experts’ in the academy,” Sankey wrote in the National Post. “This is an absurd and, frankly, offensive comparison, as Indigenous-Canadians and Palestinians stand worlds apart.”

Like Land Back, “decolonization” is a term without fixed definition holding the potential to signify insurrection or violent, racially targeted civil strife. It can never be said often enough: “decolonization” is a foreign idea, developed in the context of wars of independence in Africa by trained Marxists who advocated organized violence from the start. It is itself hateful and racist.

Speaking in support of the Hamas atrocities, Sioux activist Nick Estes (top right) praised the Palestinian attackers for “doing a Land Back” and called for the same behaviour among his own people; Chris Sankey (bottom right), a member of the Tsimshian community of Lax Kw’ Alaams in northwest B.C., replies that “Indigenous-Canadians and Palestinians stand worlds apart.” Shown at bottom left, members of Samidoun (subsequently designated a terrorist organization) burn a Canadian flag on the steps of the Vancouver Art Gallery, October 7, 2024. (Sources of photos (clockwise starting top left): Appalachians Against Pipelines/Facebook; @nickwestes/X; Conservative Paty of British Columbia; Jarryd Jaeger)

At the very least, in their ambiguous current states of definition, both are programs for which anyone with a chip on their shoulder can “write code”. Some of those defining those terms are brooding nationalists informed by a colossal ledger of grievances against “settler colonialism” who are self-propelled with an existential sense of moral and mortal imperative and have come to regard themselves as a higher order of the human species. This is real: the Indigenous campaign to force the changing of the name of Powell River, B.C., has featured one aboriginal leader repeatedly referring to white Canadians as “subhuman”.

We should take caution. Between the pity, reverence and romanticization of Indigenous peoples and ways, there is a blind spot in which a ruthless racialist ideology can continue to grow.

Michael Melanson is a writer and tradesperson living in Winnipeg, Manitoba.

Source of main image: The Canadian Press/Nathan Denette.

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