Lex Gill is a researcher for the Canadian Civil Liberties Association’s Privacy, Technology, and Surveillance Project. In that role, she supports the organization’s efforts to map institutions, practices, and civil liberties impacts of state surveillance in Canada. Her recent academic work has focused on the constitutional problems raised by compelled decryption in the United States and Canada as well as the role of metaphor in the law’s understanding of new technologies.
Lex was the 2016 Google Policy Fellow at the Canadian Internet Policy and Public Interest Clinic (CIPPIC), where her work focused on digital freedom of expression, intermediary liability, and invasive police surveillance technologies (notably including IMSI Catchers/cell-site simulators). She is also a former affiliate to the Berkman Klein Center, where she produced research on Internet governance, blockchain technology, and civil liberties in the digital sphere. Lex is a co-author to a Berkman working paper entitled “Towards digital constitutionalism? Mapping attempts to craft an Internet Bill of Rights.”
Researchers and journalists have begun to reveal the extent to which Indigenous activists and organisations in Canada are subject to surveillance by police, military, national security intelligence agencies and other government bodies. While security agencies have long looked beyond ‘traditional’ national security threats and set their sights on activists – even in the absence of evidence linking these individuals or organisations to any violent criminal activity – this reality is increasingly the subject of media and public scrutiny. As Jeffrey Monaghan and Kevin Walby have written, the language of “aboriginal and multi-issue extremists” in security discourse blurs the line between threats to national security, matters of ordinary law enforcement, and lawful, democratic advocacy.
In this piece, we summarise some of what is known about the surveillance practices employed to keep tabs on Indigenous leaders and activists, and describe their impact on Charter-protected and internationally recognised human rights and freedoms.
Indigenous nations and peoples have emerged, worldwide, as vocal defenders of land and water, organising to protect ancestral territories and ways of life. In Canada, while aboriginal and treaty rights are constitutionally recognised and affirmed, the interpretation of those rights is highly contested and a matter frequently before the country’s highest court. Indigenous activists and organisations in Canada have led popular resistance to the development of new oil and gas pipelines, hydroelectric dams, mining operations, and other extractive industries that have significant environmental impact and which frequently encroach on Indigenous territories.
This resistance – with tactics ranging from peaceful protest and strategic litigation to the establishment of creative action camps and blockades – has frequently been met with a forceful police response. Through diligent research and investigative reporting, a pattern of extensive surveillance of these activities has also emerged – implicating law enforcement, intelligence agencies and numerous other government bodies.
The pattern of surveillance against Indigenous activists and organisations… can be characterised as disproportionate and alienating
Both freedom of expression and assembly are guaranteed under the Canadian Charter of Rights and Freedoms, which forms part of the Canadian constitution. The freedom from unreasonable search and seizure – which provides constitutional protection for privacy – is also guaranteed. The law recognises certain limits to these rights, provided they further a compelling government objective and are proportionate to that objective. However, the pattern of surveillance against Indigenous activists and organisations that has emerged in Canada is one that can clearly be characterised as disproportionate and alienating, with no evidence that it is necessary. Though these operations are inherently covert, Indigenous activists, researchers and human rights advocates have begun – largely through access-to-information requests – to piece together a clearer picture of the ways in which this surveillance takes place. Below, we discuss surveillance of individual leaders, surveillance of communities and movements, and how the agencies and departments that gather information use and share it.
Government agencies have engaged in surveillance and information-gathering activities focused on Indigenous leaders and activists. Take for example the case of Dr. Cindy Blackstock, who is a Gitksan activist for child welfare, the Executive Director of the First Nations Child and Family Caring Society of Canada, and a Professor of Social Work at McGill University. Dr. Blackstock’s organisation (along with the Assembly of First Nations) had sought justice at Canada’s Human Rights Tribunal regarding the federal government’s failure to provide equal funding for services for First Nations children, youth and families living on First Nations reserves. Access to information requests revealed that between 2009 and 2011, Dr. Blackstock was subject to extensive monitoring by Indigenous and Northern Affairs Canada (INAC) – the government department responsible for Indigenous issues — and the Department of Justice. Officials monitored her personal and professional activities on Facebook and attended between 75 and 100 of her public speaking engagements, taking detailed notes and widely distributing reports on her activities. In 2013, Canada’s Privacy Commissioner found that by engaging in this personal monitoring – which was unrelated to her professional activities or her organisation’s case against the government – the Department of Justice and INAC had violated Dr. Blackstock’s privacy rights.
Similarly, Dr. Pamela Palmater is a Mi’kmaq lawyer, member of the Eel River Bar First Nation, and an Associate Professor and Chair in Indigenous Governance at Ryerson University. Following public revelations that Dr. Cindy Blackstock was being monitored by the government, Dr. Palmater made access to information requests to INAC, the Canadian Security Intelligence Service (CSIS – Canada’s national spy agency), the Royal Canadian Mounted Police (RCMP – Canada’s national police force), and the federal Department of National Defence (DND). While many of the records sought were legally exempt from disclosure, Dr. Palmater noted that some portions of her request to CSIS were exempt under section 15(1)(c) of the Access to Information Act as relating “to the efforts of Canada towards detecting, preventing or suppressing subversive or hostile activities.” In a statement to the Public Safety Committeeof the House of Commons related to its study of Bill C-51 (Anti-Terrorism Act, 2015) Dr. Palmater stated that INAC also admitted to having 750 pages of documentation on her activities and whereabouts, but had destroyed the files before they had the opportunity to give them to her.
Clayton Thomas-Muller’s case provides another example. Mr. Thomas-Muller is a member of the Mathias Colomb Cree Nation and a former Idle No More organiser. The Aboriginal Peoples Television Network (APTN) National News obtained documents from criminology professor Dr. Jeffrey Monaghan demonstrating that in 2010 and 2011, information about Thomas-Muller (who was at the time a member of the Indigenous Environmental Network (IEN)) had made its way into the RCMP’s Suspicious Incidents Report (SIR) despite acknowledgement that there was no specific criminal threat at issue: Thomas-Muller was simply planning a trip to the Wet’suwet’en action camp against the Northern Gateway pipeline. The report was referred for inclusion in the SIR on the basis that IEN was an ‘extremist’ group, although the basis for this characterisation, or how the group was designated as such, is not known.
The records detailing monitoring of individual activists and leaders speak to a larger pattern of surveillance against non-violent dissent, Indigenous-led social movements and their allies. As APTN reported in relation to the documents referring to Thomas-Muller, RCMP records also listed a number of groups as “involved persons,” including “the Defenders of the Land, Direct Action in Canada for Climate Justice, Ontario Public Interest Research Group, Ruckus Society, Global Justice Ecology Project, Sea to Sands Conservation Alliance, Canadian Youth Climate Coalition, the Indigenous Action Movement and the Wet’suwet’en Direct Action Camp.” In 2014, the British Columbia Civil Liberties Association (BCCLA) filed complaints against both the RCMP and CSIS, alleging unlawful surveillance against opponents of Northern Gateway that included many of the same organisations. While the Civilian Review and Complaints Commission for the RCMP launched an independent investigation, the Security Intelligence Review Committee (SIRC) (the body responsible for CSIS oversight) instead held a series of secret hearings. They issued a decision in 2015, but barred the BCCLA from speaking about the outcome. The BCCLA has since applied for judicial review of this decision.
Just last month, documents obtained by VICE News demonstrate that the RCMP surveilled Indigenous activists who constructed a Tipi on Parliament Hill as part of Idle No More’s Unsettling Canada 150, a campaign coinciding with 150 years since Canadian confederation. Idle No More has come under government scrutiny on other occasions: in 2015 documents obtained by APTNconfirmed that Aboriginal Affairs and Northern Development (AAND, now INAC) shared information about peaceful protests led by the group with Canada’s spy agency, the Canadian Security Intelligence Service (CSIS), and passed on information about meetings between government and First Nations leaders to the Integrated Terrorism Assessment Centre (ITAC), the Royal Canadian Mounted Police (RCMP) and others.
The Government Operations Centre (GOC) called an emergency teleconference… and widely circulated a spreadsheet detailing these solidarity events
In 2013, an RCMP raid on a Mi’kmaq-led anti-fracking camp in Elsipogtog, New Brunswick triggered a heated confrontation and dozens of arrests. Documents revealed that the Canadian Forces National Counter-Intelligence Unit was also involved in monitoring the situation at Elsipogtog. In response to the raid, activists took to social media, calling for peaceful solidarity actions to take place in the following days. APTN revealed that the Government Operations Centre (GOC) called an emergency teleconference with a long list of federal departments and widely circulated a spreadsheet detailing these solidarity events. It included such events as “a jingle-dress healing dance in Kenora, Ont., a prayer ceremony in Edmonton and an Idle No More ‘taco fundraiser, raffle and jam session’ planned at the Native Friendship Centre in Barrie.”
The surveillance and monitoring of Indigenous communities and movements is in no way confined to the examples noted above. In 2011, the Toronto Star reported that a distinct Joint Intelligence Group (JIG) of the RCMP was formed specifically to monitor the activities of Aboriginal groups in 2007. While the unit was “dismantled” in 2010, the RCMP would not confirm whether the same activities were taking place under another name or program. Documents revealed that as of 2009, their activities focused on 18 “communities of concern,” flagged largely for their opposition to logging, mining or pipeline projects.
Journalists noted that the JIG reported on a weekly basis to approximately 450 recipients, including “unnamed ‘industry partners’ in the energy and private sector,” highlighting a potentially troubling information-sharing relationship between government and private corporations. The Dominion and a summary of these issues by Voices-Voix reported that intelligence sharing between government and private sector actors has regularly taken place through classified briefings, raising concern among Indigenous and environmental activists. As Clayton Thomas-Muller reflected in an interview with APTN National News following revelations that he had been under surveillance:
“We are challenging the most powerful corporate entities on the planet … What we have on our side is endless human resources. We have the power of our ancestors and traditions fueling us. We are intimately aware of the domestic surveillance that is happening as well as the agenda to criminalise Indigenous dissent.”
VICE News has also obtained documents demonstrating that Canada’s spy agency has taken a keen interest in the movement against the Dakota Access Pipeline, led by the Standing Rock Sioux Tribe at the Oceti Sakowin Camp. In a 2016 CSIS document, the spy agency noted that “there is strong Canadian Aboriginal support for the Standing Rock Sioux Tribe as many see similarities to their own struggles against proposed pipeline construction in Canada (Northern Gateway, Pacific Trails, Energy East, etc.).”
In 2015, the federal government passed legislation (Bill C-51, the Anti-Terrorism Act 2015) that enabled even greater information-sharing practices amongst government agencies about “threats to critical infrastructure” or “the economic and financial stability of Canada”, both of which may provide an excuse to share information in a manner that chills and thereby threatens the constitutionally recognised right to protest. The same legislation afforded dramatic new “disruption” powers to CSIS. Over 100 Canadian legal academics wrote a lengthy analysis in opposition to the bill. Melina Laboucan-Massimo described the chilling effects of the legislation for openDemocracy in 2015:
“It is legislation like this that makes it difficult for people to not be scared into silence, and for people like me who believe that we need a just transition to renewable energy and engage in peaceful protests that may be seen as criminal in the eyes of the Canadian government. But this history is not new for us as Indigenous peoples here in Canada. It is the continuation of neo colonialism seen now in the form of resource extraction, environmental and cultural genocide.”
Bill C-51 is currently subject to a constitutional challenge led by the Canadian Civil Liberties Association (CCLA) and Canadian Journalists for Free Expression. Despite promises to correct the unconstitutional aspects of Bill C-51, the current government’s proposed reform to national security law (Bill C-59) fails to address many of the concerns raised in that Charter challenge. The notion that peaceful resistance – such as opposition to pipeline projects or other private development – constitutes a meaningful threat to “critical infrastructure” encourages the profiling of Indigenous groups by Canada’s national security bodies.
The Canadian government is only beginning to confront its history of violence and colonialism against Indigenous peoples. As Pam Palmater testified to the House of Commons in 2015:
Every aspect of our identity has been criminalised, both historically and into the present day. In every single instance, we’ve had to resist all of these laws, keeping in mind that these were all validly enacted laws. It was legal to take Mi’kmaq scalps; it was legal to confine us to reserves; it was legal to deny us legal representation. All of these things were law in Canada. We had to be criminals, in that we had to break the law in order to preserve our lives, our physical security, and our identities.”
A systemic pattern of over-policing and over-incarceration of Indigenous peoples by the Canadian government remains a core feature of our legal system
Sixty percent of First Nations children on reserve continue to live in poverty and there are over 70 First Nations communities where drinking water advisories have been in effect for one year or more. A systemic pattern of over-policing and over-incarceration of Indigenous peoples by the Canadian government remains a core feature of our legal system. Though First Nations, Métis and Inuit peoples comprise about 4% of the Canadian population, they make up over 23% of the federal inmate population, leading commentators to describe Canada’s prisons as “the new residential schools.” This pattern of criminalisation means that Indigenous people in Canada are more likely to be disproportionately subject to the kinds of “everyday surveillance” associated with poverty, urbanisation and incarceration, alongside the enhanced surveillance threats faced by those who are active on issues of land and water. The surveillance of Indigenous activists and organisations in Canada must be understood as part of this larger context.
The CCLA is concerned about the long-term impacts of government surveillance of individuals and communities in Canada generally, and of Indigenous activists in particular. While surveillance is most often discussed in terms of privacy rights – and while it is doubtlessly true that many forms of state surveillance are deeply invasive intrusions into the private lives of individuals and communities – privacy is not the only right at stake. In fact, the kind of government surveillance that Indigenous activists and groups have been subject to has the potential to affect a wide range of rights and freedoms protected by the Charter, as well as jeopardise many of our most deeply held democratic values. Pervasive surveillance creates a climate of insecurity, with the potential to discourage legitimate democratic participation, curtail peaceful assembly, and chill freedom of speech, of religious expression and of the press. When these consequences are disproportionately aimed at those engaged with the democratic process through their activism and political work, democracy, and the public interest as a whole, suffer.
Top photo | Angela Miracle Gladue, center, a member of the Frog Lake First Nations, a Cree community in Edmonton, Alberta, Canada, attends a rally in support of the Standing Rock Sioux Tribe and in opposition of the Dakota Access oil pipeline, in Lafayette Park near the White House, Sept. 13, 2016, in Washington.
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