Treehouses against TMX: Another frontier of civil disobedience

The conflict at Fairy Creek has drawn headlines this year, but it’s far from the only case where passionate activists are choosing to risk arrest, and even imprisonment, to impact the world they live in. Civil disobedience, or nonviolent noncompliance with rules or laws considered unjust, is making a comeback among young people desperate for ways to do something about the intersecting crises facing society.

In Burnaby, B.C., activists have taken to the trees in their efforts to block construction of the Trans Mountain Expansion (TMX), a multi-billion-dollar federally owned pipeline project that would transport oil from the Alberta tar sands to a shipping facility in Burnaby. They have set up treehouses in forests that must be cleared for the pipeline construction to move forward, and spent weeks at a time living high above the ground.

The land defenders want TMX cancelled, and are hoping to help build a mass mobilization to address the climate crisis. Their treehouses lie in the path of the pipeline, threatening to delay its construction.

“If the laws are saying, go and jump off that climate cliff, are you going to do it?”

Some have been arrested for nonviolent civil disobedience and face criminal charges, with many of those cases already having resulted in peaceful activists being sentenced to 30 days in jail. Despite the risks, new treesits keep popping up.

“These protesters, on the whole, have been model protesters,” said Leo McGrady, a teacher, writer and lawyer with many years of experience representing activists and teaching and writing about protests. “They’ve been very determined, but at the same time very respectful and peaceful, which is essential for an effective protest.”

He said a key element of civil disobedience is that participants are nonviolent. They are prepared to be penalized for their conduct, and they accept it. This enhances the effect their protest has in the minds of the public and helps persuade others of the rightness of their cause.

“It’s extremely important to continue to make the point about climate change and the extraordinary damage that it’s doing to our lives on our planet,” he said.

“The rich people have their lobbyists, and the poor people have their feet,” he added, quoting lawyer Nathalie Des Rosiers, former counsel for the Canadian Civil Liberties Association.

While lobbyists push politicians to enact laws protecting big corporations, the impact of climate change is most dramatic on the poor.

The land defenders have occupied the treetops since last December, building hammock-type tents 20 metres above the ground to block the construction of TMX.

After a tug of war lasting nearly a month, the treehouse protesters in the Brunette River area of Burnaby retreated temporarily in late September, after heavily armed RCMP tactical officers descended on the protest site. The latest treesit went up in late November, and its occupant was extracted and arrested a few days later.

It has been a tiring and stressful experience. The treetop activists have endured pouring rain, below zero temperatures, and the summer’s scorching heat domes. And throughout it all, the knowledge that the RCMP could arrive to remove them at any time.

For at least six months, TMX workers filmed the tree-sitters’ every move with video cameras. Timothee Govare, a lead tree-sitter, told Ricochet that even when he came out to urinate, the TMX worker on guard would start recording.

“They have been using this tactic to intimidate and profile land defenders,” he said. “TMX has leveraged similar footage in court to prosecute land defenders for breaching the injunction order. Therefore, activists who are filmed are potentially facing prison time if they are then recognized from the footage.”

McGrady said there’s no expectation of privacy in these circumstances, and no limits on the intrusiveness of the person filming. The RCMP and media are free to videotape or photograph what they want to.

Tree-sitters could regularly hear chainsaws and see falling trees as close as 15 metres to them, with loggers popping up next to their treehouses. The project construction area gradually expanded to include the treehouses earlier this year, turning them into obstacles to construction.

Burnaby RCMP Media Relations Officer Cpl. Michael Kalanj told Ricochet that until recently the demonstrators were not impeding TMX from completing work and therefore they were permitted to exercise their right to peaceful and lawful protest.

Since September 7, the treehouses have been under a state of siege. TMX workers enclosed one tree-sit with blue fencing and later got closer to the treehouses using what land defenders called “the tank” — a bucket truck on tank treads with a cherry picker to extract tree-sitters.

“The City of Burnaby still opposes the TMX project and has determined it is not in the public interest of the citizens of Burnaby.”

Usually, tree-sitters stayed in the treetops for two or three days at a time, but on September 21 Govare told Ricochet that he had been in the canopy for at least 10 days.

“When it’s getting more dangerous, and when we’re getting closer to being arrested, fewer people want to show up. Our work is also up in the trees, and not everyone wants to do this kind of work. We need people that show up for the protection of our collective mother [earth], because she is sustaining us.”

In September, at least seven people were arrested in violation of a court-ordered injunction stating they could not obstruct, impede, or otherwise prevent access to TMX worksites. These individuals were either praying, trespassing, or locking themselves into the ground when they were apprehended.

TMX was finally able to dismantle the treehouses in place at the end of September with repeated help from RCMP tactical teams. But Govare said the land defenders would keep going back because the impending consequences of climate change are catastrophic. He was arrested on September 24, after a nearby worker was hit on the head by a branch and taken to the hospital while he was moving between tree-sits. The Burnaby RCMP said the incident remains under investigation.

“Demonstrators have a right to lawful, peaceful and safe protest, and Trans Mountain has a right to complete its work. Burnaby RCMP is working to ensure that the rights of all parties are protected and that all parties and the public are kept safe,” Kalanj said. The Burnaby RCMP is an impartial party, he added.

“We’re not about to give up,” said Govare. “This land has to be protected because it sustains us. We do not want the pipeline. It’s very dangerous for the citizens of Burnaby, especially [because] the tank farm is run as close as 80m from the population, and the tank farm is highly vulnerable to fires induced by earthquakes.”

He says Chris Bowcock, chief of the Burnaby Fire Department, has stated clearly that if a retaining tank was to catch fire, the resources available to fight it are deeply insufficient, leaving the people in the surrounding community at grave risk.

The City of Burnaby says its fire department is fully funded and competent when it comes to protecting people from normal municipal risks — but when it comes to the unique fire and emergency risks posed by the tank farm, shipping terminal and oil pipeline, the fire department is not trained or funded to respond.

The safety risks from this project, particularly the tank farm, remain significant and unacceptable, said the city’s legal counsel, Greg McDade. The expansion of the tank farm is happening in an urban residential neighbourhood, near schools and a nearby university.

McDade said the city is not aware of any changes being made to the project to reduce this risk.

“The City of Burnaby still opposes the TMX project and has determined it is not in the public interest of the citizens of Burnaby,” he told Ricochet.

“However, the courts have ruled that under our federal constitutional structure, the city’s consent is not required, and the federal Canadian Energy Regulator has the power to authorize this project against the city’s wishes,” he said.

Despite widespread opposition the Canadian government maintains that the project is in the public interest, in line with the recommendation made by the Canada Energy Regulator.

According to Natural Resources Canada, the federal government approved the TMX project on June 18, 2019, under the former National Energy Board Act, subject to 156 binding conditions, having considered a wide variety of scientific research and data.

“This included the National Energy Board’s (now the Canada Energy Regulator) review of the Project’s potential impacts on the marine environment and endangered species, the latest evidence-based science, and extensive consultation with 129 Indigenous groups,” a Natural Resources Canada spokesperson said.

Trans Mountain replied to a series of questions from Ricochet about cost overruns and the need for consent from affected communities with an email, saying the company is committed to ongoing public engagement during the project.

“We are prepared for oil releases and other emergencies such as fire, security breaches and natural disasters including earthquakes, floods, lightning strikes and avalanches. We also have firefighting equipment and safeguards in place, including an early fire detection system and foam piping on all floating roof tanks, fire pumps, a foam trailer, a large fire-water reservoir, hoses, monitors and other equipment.

“We continue to enhance our firefighting capacity and capabilities at storage terminals,” the email said.

Local protests against the TMX project began in 2014 on Burnaby Mountain. The Tsleil-Waututh and Squamish First Nations have opposed the project since its inception, bringing cases against the project to court. Over the years, more and more concerned people have sought to block the project with their bodies, leading to hundreds of arrests.

In 2018, the B.C. Supreme Court granted an indefinite injunction against protests that blocked construction.

“But do you see how controversial that is? Protesting is a critical part of our democracy,” said Govere. “Hundreds of people got arrested already. It means a lot of people care.

“Yet the more people care, the more they make it illegal to protest, which is very strange. Because the more people care, the more they should be changing things, the more they should cancel this project. Aren’t we in a democracy?”

According to University of Victoria law professor David Milward, when issuing an injunction the courts only consider the harm done to the resource industry and its ability to make money.

“Almost never have I ever seen any real meaningful consideration of what harm will happen to Indigenous Peoples’ interests, what harm will happen to the natural lands. You do have to wonder if there’s some sort of colonial underpinning that really skews law in a certain direction.”

Those who are the most committed to stopping the project face the longest sentences, said Govare, with Indigenous activists routinely facing longer sentences than settler activists.

“Usually, the judges get tired of prosecuting people for the same thing, so they amp up the consequences. Then you don’t just have community service hours to do. You have prison time to do.

“And if you go and block the work again, it might be three months to six months of prison that you have to do.”

“There’s no justification for solitary confinement. That’s just inexcusable.”

Land defender Stacy Gallagher, a member of the Serpent River (Anishinaabe) First Nation, already spent 19 days in jail during the COVID-19 pandemic. He now faces a three-month jail term for peacefully praying on the TMX work site.

According to Trans Mountain’s injunction, RCMP officers have to follow five steps, including notifying people on site that they are in breach of the law and giving them time to leave before arresting them.

Gallagher said he did not hear police read an injunction to him, but he was still arrested, with several charges laid against him.

He is now appealing his 90-day jail sentence.

“I was tortured” in jail, he said, through “19 days in solitary confinement on a nonviolent charge. They made a criminal charge against a peaceful person.”

Every day in jail he spent most of the time in his “little bubble,” had no interaction with other human beings, and had only one hour a day when he could go outside to take a shower, make a phone call, or walk in a small yard where he couldn’t see the sky. And COVID-19 was in the prison, with only the guards wearing masks.

“Solitary confinement” refers to the confinement of prisoners for 22 hours or more a day with no meaningful human contact. “Prolonged solitary confinement,” defined as solitary confinement for more than 15 days in a row, is considered torture under the Nelson Mandela Rules (also called the UN Standard Minimum Rules for the Treatment of Prisoners).

“Canada signed on to the United Nations rules, but yet they allowed it,” said Gallagher.

“There’s no justification for solitary confinement. That’s just inexcusable,” said McGrady. But he added that there’s nothing Gallagher can do unless he was treated with violence or his life was under direct threat.

Gallagher doesn’t think of himself as a Canadian citizen and said he only follows the natural laws that reside inside of him. “That is, to respect and care about Mother Nature from the heart, take responsibility for everything, not just the human family. The human family is so small compared to the elements, the medicines, the animals.”

But the judges and the police have always ignored his right to protest on unceded land, he said.

“Even if the laws of Indigenous people don’t take the form of statutes and judges don’t announce decisions, that doesn’t mean that there aren’t sophisticated legal principles or legal orders that Indigenous communities are trying to make work, even if in the background away from public eyes,” said Milward.

“For example, they may take the form of stories and rituals and teachings from Elders to younger generations. But the protests are instances where the imperatives of those legal orders are showing up in a particular way that’s visible to the public,” he said.

A peaceful protest guide written by McGrady states that for most of Canada’s history, Indigenous Peoples were considered to have no real laws. Europeans saw the land as existing in a juridical vacuum when they first arrived. “The notion that there is no real Indigenous law is still found in our legislature, in our courts, and amongst the legal profession. Change has been slow and remains precarious.”

The Canadian government has passed a law committing it to implement the United Nations Declaration on the Rights of Indigenous Peoples. “At the same time, the UNDRIP doesn’t have the force of domestic law, so the judges frequently ignore the rights of Indigenous Peoples,” said Milward.

He thinks the only way to make a change is to embarrass Canada in front of the rest of the world and force the government to do something.

“We understand that consultations on major projects have a critical role to play in building a renewed relationship and we took a whole-of-government approach on TMX to ensure Indigenous peoples were meaningfully consulted, as per the direction of the Federal Court of Appeal,” said Natural Resources Canada in an email. “Local law enforcement agencies are working to ensure a safe environment for stakeholders and other observers, while respecting their right to demonstrate in favour or in opposition of this project.”

“There have been instances in human history … in which disobedience to law has proved a benefit to law and society,” stated Samuel Freedman, then chief justice of the Manitoba Court of Appeal.

There are three qualities to civil disobedience. First, it is nonviolent. Second, participants must be prepared to accept the penalty arising from the breach of the law. And third, their purpose must be to expose the breached law or administrative decision as immoral or unconstitutional, in the hope that it will be repealed or changed.

According to data provided by the Burnaby RCMP, from March 2018 to October 1, 2021, 249 arrests have occurred in Burnaby for breach of the injunction order.

Compared with the old-growth logging protest at Fairy Creek, the number of arrests is modest. The logging blockades on Vancouver Island have resulted in more than a thousand arrests, the largest act of civil disobedience in Canadian history.

“It’s a really painful lesson that people who are protesting in Fairy Creek got sprayed and beaten by the police,” Govare said. “Civil disobedience does involve a lot of individual sacrifices, but the benefits for society can be very important. And that is why we are willing to put our lives on the line.”

McGrady speculates that the cost of policing the protest lines and enforcing the injunction at Fairy Creek has already exceeded what it would cost the provincial government to buy out Teal-Jones’s interest in logging the old-growth forests.

If the government did that instead, he said, it would be a triple-win situation. The company wins, the protesters win, and the public wins by still having the old-growth forest.

McGrady also pointed out that the courts have made cookie-cutter decisions on the Fairy Creek and TMX protests. The law very explicitly says the courts cannot involve themselves in these political controversies, “but the practical reality is, not only do they involve themselves, but almost invariably, they come down in favour of the corporate interests or the commercial interests.”

“I’ve been practicing for 52 years. The law has always favoured large corporations,” he said.

“We’re seeing doctors, lawyers, professors, businesspeople, and teachers out on the protest line. These are mainstream, ordinary, middle-class people who are getting progressively more worried about what is happening to our planet.”

“Legality is not a compass to morality,” Govare said. “If the laws are saying, go and jump off that climate cliff, are you going to do it? We see through it, and are willing to sacrifice our well-being to push society in the direction of climate justice. We don’t have much choice really — it’s civil disobedience or exponential climate chaos.”

Using B.C. premier John Horgan as an example, Govare said “the government is not addressing the root cause of why people are doing civil disobedience.” Horgan promised to stop old-growth logging when campaigning for election, “but he’s not following through, and the more he acts like this, the more there’s going to be civil disobedience.”

Gallagher said Indigenous people have tried every avenue in the Canadian system. They’ve written letters to Parliament, to the politicians and school boards, and more. They have launched court cases. “The government has never helped my people, never. I need to do a nonviolent action right there and tell them how much I care. I don’t know any other effective way.”

“I’m not an activist. I’m not an environmentalist. Those things are new,” he said. “We’re just doing what we’ve always done. I’ve never protested in my life. I protect. I go right where the ‘murder scene’ is to stop it.”

McGrady used to describe nonviolent Indigenous protests as civil disobedience but changed his vocabulary after talking with a chief of a First Nation. The chief pointed out that Indigenous Peoples’ land and rights are being jeopardized by the illegal and “disobedient” conduct of Canadian governments and corporations..

Gallagher said the first time he prayed on the worksite was after seeing a female orca pushing its dead child for 17 days all along the coast with her nose. “Imagine a human woman carrying her dead child through the business districts of these false cities. It was heartbreaking. That’s a sign for us to listen. So I sat down and started singing and praying.”

He said he would continue doing this for the rest of his life because this is the “only job” he has. “I can’t be fired or laid off.”

“If you look at the rights that have been established with protest, it’s remarkable,” adds McGrady. He also thinks civil disobedience works, citing a recent book by Harvard professor Erica Chenoweth called Civil Resistance: What Everyone Needs to Know. In her study of the effects of civil disobedience versus violent action to bring about social change and governmental change, she concludes that civil disobedience works better than other methods.

McGrady said the stereotype of “people practicing civil disobedience” as “extremists or radicals” is long gone.

“We’re seeing doctors, lawyers, professors, businesspeople, and teachers out on the protest line. These are mainstream, ordinary, middle-class people who are getting progressively more worried about what is happening to our planet.”