Critical infrastructure protection: Dangerous politics in Manitoba, Alberta and beyond

At the close of last year’s fall legislative session, Manitoba’s Progressive Conservative government introduced 19 bills that will not have any text publicly available until the spring session. One of them, Bill 57, the Protection of Critical Infrastructure Act (PCIA), is the government’s reaction to the February 2020 blockades, occupations and protests in solidarity with the Wet’suwet’en Hereditary Chiefs, who were defending of their land from Canada’s latest round of colonial invasion, this time on behalf of TC Energy. The PCIA is part of a larger Canadian project of “critical infrastructure protection” (CIP), which has allowed Canada’s policing agencies to work with corporations as partners in policing Indigenous sovereignty movements. We know enough about this project to anticipate what Bill 57 will contain.

This larger project has evolved over the past two decades to suppress any threats to the continued operation and profitability of whatever is deemed “critical infrastructure.” For policing agencies and natural resource corporations, the most serious such threat is Indigenous sovereignty movements intent on defending their land from colonial exploitation and the destructive effects of unwanted resource extraction. However, labour, progressive organizations and Manitoba’s left must understand that the Bill will also threaten any movement—trade unions in critical infrastructure sectors or climate justice movements—that could potentially threaten whatever the government calls “critical infrastructure,” typically connected to natural resource extraction, power generation and transportation.

Critical infrastructure protection is a class project

The Progressive Conservative government of Brian Pallister is not the first to take up the mantle of CIP. Alberta passed Bill 1, the Critical Infrastructure Defence Act in late February 2020, also in reaction to the solidarity actions. CIP also has a larger history within federal government, policing and industry circles.

Since “protecting critical infrastructure” is vague and open-ended, ruling political and economic interests have been able to repurpose it at different times for different reasons. The roots of CIP in Canada go back to the Cold War, where its much of its focus was targeting suspected communist functionaries, and concerns over sabotage or industrial espionage were secondary. Following 9/11, Canada began trying to develop a national plan for the protection of critical infrastructure. Canada made it a priority for policing and security agencies to directly collaborate and share information with owners of critical infrastructure (who are often called “stakeholders” in official documents). This began with a 2002 Discussion Paper from the former Office of Critical Infrastructure Protection and Emergency Preparedness (now Public Safety and Emergency Preparedness Canada), which aimed “to stimulate dialogue with stakeholders on concepts and issues” relevant to the development of a National Critical Infrastructure Assurance Program. Producing it involved “the provinces and territories, other federal departments, and industry associations [sharing] their views on shaping the program and [presenting] information about their existing CI programs and plans.”

Canada released its first official position paper on CIP in 2004. The paper highlighted that “over 85 percent of Canada’s infrastructure is owned and operated by the private sector and the provinces and territories,” and stressed the need to reach out to owners, operators and industry associations in critical infrastructure sectors. The paper’s stated mission was to “create an integrated and forward-looking National Critical Infrastructure Protection strategy that will include voluntary participation from industry stakeholders as well as from federal, provincial and territorial governments by the fall of 2005.”

The 2009 National Strategy for Critical Infrastructure arguably went further in putting private owners and operators in the driver’s seat, stressing that primary responsibility for protecting critical infrastructure rested with them. From there, it was a short jump to making the case that public authorities should take direction from private interests. The report goes on to suggest that in working with critical infrastructure partners, “each sector-specific federal department and agency will facilitate the development of sector networks to suit the needs of their stakeholders.” The National Strategy also emphasized information sharing between critical infrastructure owners and government: “Critical infrastructure owners and operators have the expertise and information that governments need to develop comprehensive emergency management plans. In turn, governments will share relevant information in a timely manner… to help owners and operators assess risks and identify best practices.”

Soon, this led to policing agencies spying on land defenders and sharing their intelligence with the very corporations threatening the land. In Policing Indigenous Movements: Dissent and the Security State, Andrew Crosby and Jeffrey Monaghan show that Canadian government and policing bodies have worked directly with private fossil fuel companies to police Indigenous movements asserting sovereignty and defending their land from corporate destruction. In the run-up to the police raid at Elsipogtog in 2013 on unceded Mi’kmaw territory in New Brunswick, the RCMP was regularly coordinating with the Government of New Brunswick’s Natural Gas Assistant Deputy Ministers’ Executive Committee and SWN Resources Canada Inc. SWN had been given a license to explore for shale gas around New Brunswick. The authors also document RCMP surveillance of Indigenous resistance to Enbridge’s Northern Gateway Pipeline in British Columbia and Alberta since at least 2010. By 2013, RCMP officers were working in the Critical Infrastructure Intelligence Team and the Aboriginal Intelligence Group, and the RCMP had already begun monitoring the Unist’ot’en Camp in Wet’suwet’en territory. Until the project died in 2016, the RCMP played the leading role in coordinating with a wide range of policing and government bodies to work closely with Enbridge to police Indigenous resistance to Enbridge’s own Northern Gateway pipeline.

All of this is more worrying in light of what we know about Project SITKA—an investigation carried out by the RCMP’s National Intelligence Coordination Centre from 2014 to 2015 in response to increasing Indigenous and social mobilization (particularly around Idle No More, conflicts over land claims and missing and murdered Indigenous women, girls and two-spirit people). SITKA tracked activists associated with these and other causes. In all, 313 activists were investigated under SITKA, and 89 were found to “pose a criminal threat to Aboriginal public order events.” Yet the same RCMP report that documents this finding also states that “there is no known evidence that these individuals pose a direct threat to critical infrastructure.” Worse, some analysts have argued that the RCMP’s own documents demonstrate that “police are not assessing Indigenous protests in Canada based on factors of criminality but are more concerned about the protestors’ ability to gain public support.” Researcher Miles Howe points to the checklists developed for SITKA to evaluate the potential criminal threat of different organizations. In these checklists (developed by the RCMP’s Director of Research and Analysis Eli Sopow), “it’s not criminality the RCMP are focused on, it’s the ability of that group to create and craft a counter narrative to the one that suggests whatever the police do is across the board legitimate.”

A couple of things should be clear by now. First, CIP’s vagueness has allowed ruling political and economic interests to adapt it to their convenience. In the Cold War, it served anti-communism. Following 9/11, it served to protect against cyber attacks and terrorism. And today, it is used to justify policing and spying on Indigenous and environmental movements in barely concealed partnership with private corporations.

Secondly, critical infrastructure protection is a class project to criminalize tactics that might be successful in disrupting profit-making in environmentally destructive natural resource and critical infrastructure sectors.

Despite their tired claims to being neutral entities enforcing some abstract “rule of law,” in practice the policing and security agencies responsible for critical infrastructure protection (most importantly the RCMP and CSIS) act as agents of Canada’s ruling class against Indigenous sovereignty movements defending their land.

Bill 1: Alberta’s Critical Infrastructure Defence Act

Alberta introduced Bill 1 in late February 2020. In promoting the bill, then Minister of Justice Doug Schweitzer (now Minister of Jobs, Economy and Innovation) insisted “Albertans will not be held hostage to illegal blockades.” He urged other premiers to adopt similar legislation. He may have jumped the gun. Given its extremely expansive definition of “critical infrastructure,” the Alberta Union of Public Employees (AUPE) has taken the government to court, arguing the legislation violates Charter rights to freedom of expression, assembly and association. Although its future is uncertain, it is important to understand what Alberta was trying to accomplish.

With this in mind, Schweitzer’s interview on CTV’s Power Play is revealing. Asked if he was concerned Bill 1 would violate Charter rights to lawful assembly and free expression, he answered: “No. You can come here to the legislature grounds [if] you wanna come here and have your voice heard. Lawful assembly is still preserved under the Charter. This is unlawful activity.” When pressed on the implications of prohibiting protest in public spaces like roads, Schweitzer elaborated:

You know what? There’s civil rights—they can come and stand on the side of the road if they want, they can stand on the side of the railroad tracks if they want, they can come in a park, they can come to the legislature grounds and protest. We’re not infringing on their right to have their voice heard. What we’re saying here is you cannot interfere with the economic livelihood of Albertans.

Clearly, the purpose of Bill 1 is to limit the scope of protest to non-disruptive, non-impactful acts of political expression, further criminalizing actions like putting bodies on the frontlines of extractive projects, occupations, or blocking traffic—all tactics that have contributed to building the power that has allowed Indigenous sovereignty movements to defend their land and halt unwanted extraction.

In explaining why Alberta needed a new law to penalize blocking railways—already punishable by law—Premier Jason Kenney said apparently existing disincentives “weren’t enough for some people.” He also blamed mining giant Teck’s decision to abandon their Frontier Mine oilsands project in part on the “virtual anarchy” and “chaos” of the protest actions during February 2020, and said he had spoken to “major” investors who have cancelled, frozen or suspended investments because of rail blockades. Teck’s Frontier Mine would have operated for 41 years and would have covered 24,000 hectares. That means it would have been about double the size of Vancouver, making it one of the largest oilsands mines ever built in Alberta. By tying February 2020 to the downfall of the Frontier Mine, Kenney is trying to tell Albertans that land defenders and environmentalists are powerful enough to play an important role overturning high-value, environmentally destructive projects—and that’s the problem.

Bill 1 deems 16 types of infrastructure as “essential.” The bill not only covers things like infrastructure for resource extraction and power generation, but also includes “highways” as defined in Alberta’s Traffic Safety Act. This means that in Bill 1, “highways” refer to “any thoroughfare, street, road, trail, avenue, parkway, driveway, viaduct, lane, alley, square, bridge, causeway, trestleway, or other place or any part of any of them, whether publicly or privately owned,” that the public is usually allowed to use for vehicles, either for travelling or parking. It also includes sidewalks and ditches next to highways.

Some legal scholars have pointed out that Bill 1’s definition of “essential infrastructure” is so broad it would seemingly criminalize actions as diverse as:

• Holding a vigil in Calgary’s Olympic Plaza that happens to spill into the parking lot of the nearby mall.
• Indigenous peoples and their allies protesting the construction of a pipeline on-site in Alberta.
• Workers rallying in a parking lot outside a meat packing plant to bring attention to the gendered and racialized impact of the Alberta government’s response to COVID-19.
• Persons with disabilities and their allies protesting cuts to Assured Income for the Severely Handicapped (AISH) on the sidewalk next to the High Level Bridge in Edmonton.
• LGBTQ2s+ groups holding a sit-in under a flagpole on the grounds of the Alberta Legislature after the Pride flag is taken down only one day into Pride month.

Opposition to Bill 1 has made its future uncertain. The Assembly of First Nations (AFN) has urged Kenney to rescind the bill, with AFN Regional Chief for Alberta Marlene Poitras saying “Allowing the bill to pass will serve to erode individual rights, unfairly target Indigenous Peoples, and has no place in a democratic society.” AUPE president Guy Smith said the union is ready to fight the case all the way to the Supreme Court. In addition to concerns over Charter rights, AUPE worries that under Bill 1, “union members could be penalized for actions like protesting or handing out leaflets in front of their workplace.” In response, Schweitzer’s press secretary said the bill is aimed at those who block things like railways, bridges, pipelines and highways. He added that “if union bosses at AUPE are planning blocking railways, they should let Albertans know.” This should only embolden opposition since it seemingly confirms that workers in critical infrastructure sectors could be penalized for job actions under Bill 1.

The future of Bill 1 may be unclear, but its aims are not. It seeks to further criminalize Indigenous land defence and prevent anything like February 2020 from ever happening again. More broadly, it aims to criminalize any effective resistance to the destruction of the land for private profit. The government is apparently fine with people going to the legislature grounds to express their views, but movements capable of possibly succeeding at halting the resource extraction at the root of our climate emergency is a step too far.

What will critical infrastructure protection mean in Manitoba?

Justice Minister Cliff Cullen has said Manitoba’s PCIA would be “similar from a conceptual standpoint” to Alberta’s Bill 1. He also tied the PCIA to February 2020, explaining that “the longer these blockades go on, the more damaging they can be to both the economy and people’s livelihoods.” He went on to say that “The Manitoba government recognizes the rights of citizens to express views on issues and engage in peaceful protests,” but adds that “those rights must be balanced with the right of Manitobans to enjoy their property and preserve their livelihood and access necessary services.” Cullen, like Schweitzer, reassures us that we’d still have the right to express ourselves, but draws the line when protest goes beyond mere political expression and interferes with private property.

Jeffrey Daniels of the Southern Chiefs Organization (SCO) called the legislation “another attack on the rights of Indigenous peoples,” and said the SCO would challenge the PCIA in court if it passed. Manitoba Energy Justice Coalition (MEJC) organizer Laura Cameron wrote in December that if Manitoba’s “legislation is similar to that in Alberta, as we expect it to be, participants of events such as the recent Stella’s employees picket, Wet’suwet’en and Mi’kmaq solidarity rallies and marches, the Tataskweyak blockade for community safety during COVID-19, and the Winnipeg school bus drivers’ strike and picket, could all potentially be subject to fines or arrest.”

If the PCIA becomes law, the government would still allow us to protest and express our opposition to, say, Canadian Premium Sand’s proposed frack sand mine along the East shore of Lake Winnipeg, near Hollow Water First Nation. This project plans to supply silica sand to fracking and other energy projects across North America for over 50 years into the future. But what about Camp Morning Star, a peace camp that was established in 2019, three months before the mine was approved by the province? The Camp was established after it became clear there would be no federal or provincial impact assessment for the project, and Hollow Water chief and council had agreed to a “waiver” of Canada’s constitutional requirement of free, prior and informed consent of First Nations. Camp Morning Star succeeded in delaying the project until Canadian Premium Sands announced the mine had become unfeasible in early February 2020 and that its construction would be delayed by an estimated two years—anticipating a higher price for silica sand by that time.

At the beginning of 2020 (not long before the delay was announced), the Camp explained that “as we celebrate our second year, Camp Morning Star is being revamped. We are committed to maintain a presence on the land, and to continue to assert sovereignty over our traditional territory.” One of the founders of Camp Morning Star recalls that “first, we had to sneak onto our own land, as it was all blocked up.” Camp Morning Star was an assertion of Indigenous sovereignty that interfered with what was to be treated as private property. It’s hard to imagine the PCIA would do anything other than criminalize land defenders who have succeeded in halting an environmentally destructive project on their land.

We might also wonder about the blockades set up in mid-May 2020 by Tataskweyak Cree Nation (TCN), Fox Lake Cree Nation, War Lake and York Factory First Nation. All four nations are partners with Manitoba Hydro in the Keeyask hydroelectric generating station project. They set up the blockades out of concern over the possibility of COVID-19 spreading in their communities from a shift rotation that was set to bring 1,000 new workers to the Keeyask worksite. Manitoba Hydro successfully sought an injunction to allow the RCMP to remove the blockades. In a defiant exercise of Indigenous sovereignty, when presented with the injunction by the RCMP, TCN Chief Doreen Spence tore it up and dropped it to the ground. Hydro was forced to accept a slower shift rotation and a temporarily reduced workforce.

COVID-19 was eventually spread at the Keeyask worksite in November 2020, and Northern Manitoba has seen skyrocketing cases of the virus in recent months, with remote Indigenous communities being hit the hardest. Some First Nations are beginning to exert more control over their borders. Pimicikamak Cree Nation has set up a checkpoint on the only road connecting it with the rest of Manitoba in order to help monitor and curb the spread of COVID-19. The CBC’s Barry Kusch writes that “Pimicikamak has exerted control of its own borders in a manner befitting a sovereign nation.”

Will assertions of sovereignty by Indigenous nations trying to protect their communities be respected in Manitoba under the PCIA? Will Indigenous nations have to compromise their response to COVID-19 to suit the needs of critical infrastructure owners? Alberta’s open-ended prohibition on blocking highways already doesn’t bode well for these cases. Even if Manitoba adopted a more restrictive understanding of critical infrastructure, surely Hydro infrastructure, which is not only a huge part of the provincial economy but also one of the biggest threats Indigenous peoples face in Manitoba, would count as critical. Under existing law, Manitoba Hydro was already able to get an injunction and send the RCMP in to try to remove the blockades. Will the PCIA strengthen Manitoba Hydro’s hand against sovereign Indigenous nations taking action to protect their communities from COVID-19?

Beyond its serious implications for assertions of Indigenous sovereignty in Manitoba, the PCIA also threatens workers. James Wilt shows that “Pallister’s PCs have waged a fierce but relatively quiet war against organized labour since forming government,” and the PCIA could very plausibly be another weapon in this war. The PCIA is likely to undermine the power of workers in critical infrastructure sectors by creating a new legal justification for cracking down on workers that undertake any sort of job action that might block the infrastructure that is their workplace. It’s hard to imagine Pallister’s government going out of its way to make an exception on blocking critical infrastructure for workers, even for unions without a collective bargain and in a legal strike position.

Public sector workers have been the primary target of Pallister’s war on labour. In 2017, the government tried to impose a two-year wage freeze on all new public sector contracts with the Public Services Sustainability Act (PSSA). In response, a coalition of unions representing about 110,000 workers took the government to court and the PSSA was struck down in June 2020. Justice Joan McKelvey called the legislation “a draconian measure that has inhibited and dramatically reduced the unions’ bargaining power and violates associational rights.” The government is appealing the decision.

The Pallister government has also imposed one round of budget cuts after another, often demanding cuts to the staff of Crown corporations. In 2016, the province issued a directive to cut overall management by 15 percent. In 2019, Crown Services Minister Collen Mayer asked the boards of Manitoba Hydro, Manitoba Public Insurance and Manitoba Liquor and Lotteries to set a target of eight percent reductions across all staff levels. The Pallister government also led its response to COVID-19 by demanding cuts to spending and staff levels in the public sector and Crown corporations.

In sum, the government has effectively cut public sector workers’ pay by practically ensuring pay raises don’t keep up with inflation, while also increasing their workload by imposing staff cuts. The consequences have been severe. Although the PSSA never came into full effect, Manitoba Federation of Labour President Kevin Rebeck charged that employers still used the act to delay negotiations or impose wage caps. Former NDP MLA Peter Bjornson points out that with the PSSA held up in court, the Pallister government succeeded in avoiding negotiating contracts with the public sector for three years. One result is that Manitoba nurses have gone without a contract for three years.

In 2018, International Brotherhood of Electrical Workers (IBEW) Local 2034’s Mike Velie explained the cuts to Manitoba Hydro’s staff were creating pressure for employees to accomplish more with fewer resources and added that “the end result is that shortcuts are being developed to keep pace with increasing demands, and the necessary focus on ‘safety’ is gradually being lost.” IBEW has been without a contract with Hydro since 2018. Apparently unphased by the defeat of its “draconian” labour legislation in June 2020, Pallister’s government asked Manitoba Hydro’s president and chairperson to freeze the wages of IBEW workers for two years again in October. This after Hydro’s summer forecast of $47 million in profit, even despite the pandemic’s blow to demand for electricity.

Pallister’s war on workers goes beyond the public sector. Pallister’s government also directly interfered in the University of Manitoba Faculty Association (UMFA)’s contract negotiations in 2016 and 2020, in each case pushing the University of Manitoba to make as few concessions to the union as possible. In October 2020, the government also introduced Bill 16, the Labour Relations Amendment Act, which “would allow an employer to terminate an employee for ‘strike-related misconduct’ even if the employee has not been convicted of a criminal offence for that misconduct.” Additionally, the bill lowers the number of workers needed to decertify a union, from 50 percent to only 40 percent of workers. Pallister also froze the minimum wage in 2017. While the Canadian Centre for Policy Alternatives finds that a living wage for a family in Winnipeg is $16.15 per hour, Manitoba’s minimum wage sits at only $11.90 after years of stagnation. In December 2020, Pallister’s government signaled its intention to repeal the Construction Industry Wages Act, which guarantees a minimum wage for construction workers. The proposal was publicly slammed by construction industry associations as an unwanted potential source of destabilization in an already chaotic economic climate.

We can’t afford to wait and see how the PCIA will be used in Manitoba. Pallister’s politics have always prioritized employers. It’s no coincidence that business leaders pushing for anti-union legislation in the construction industry, for example, are among the Manitoba PC’s top donors. If Hydro workers were to decide to resist Pallister’s assaults on their living standards, as in the 2009 strike, the PCIA could give Pallister another weapon to use against them. Under the banner of CIP, police and property owners have worked together to suppress any threats to critical infrastructure across Canada. Whether this threat to profit-making comes from Indigenous land defenders, non-Indigenous environmentalists on the frontlines of resistance, or a company’s own workers makes little difference from industry’s point of view.

Protection of critical infrastructure has never been an innocent or neutral goal in Canada. It’s an open-ended concept that allows policing agencies to justify repressing Indigenous sovereignty movements on behalf of owners of pipelines, mines, railways and whatever’s labeled “critical.” More broadly though, CIP is a class project where critical infrastructure owners work with Canada’s policing agencies to suppress any threat to the operation of “critical infrastructure,” no matter how destructive that operation may be. Any other movements that could potentially threaten profits in critical infrastructure industries should expect that it will be used against them as soon as they build enough power to achieve their goals.

It’s a very welcome development that the AUPE has taken the government to court over Alberta’s Bill 1. It’s also a positive sign that climate justice organizers from the MEJC have called to reject the PCIA and paid close attention to the Alberta context. In an interview with Canadian Dimension, MEJC organizer Mike Bagamery speaks clearly to Bill 1’s violation of Charter rights, and also to MEJC’s strategy of targeting ridings where PC MLA’s were only narrowly elected. MEJC has positioned itself to play an important role in mobilizing popular opposition the Bill, which will be crucial in defeating it. This will also be an important asset to the almost inevitable legal and Charter challenges to the PCIA.

Manitoba’s left needs to build the power to oppose this bill. The case of the Pallister government’s PCIA is unusual in how clearly it threatens the interests of both Indigenous peoples and workers. The same bill that will no doubt be used to repress Indigenous sovereignty movements will also provide Pallister with another weapon in his war on workers. This is a unique opportunity for labour to stand in solidarity with Indigenous sovereignty movements defending their land from colonial exploitation and environmental destruction. Defending the rights and interests of workers against corporate policing means standing with Indigenous sovereignty movements.

Brendan Devlin is an organizer with the Manitoba Energy Justice Coalition, and a master’s student in Political Studies at the University of Manitoba. His research focuses on capitalist class rule in Canada.