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Climate change activists march at the Alberta Legislature in Edmonton on Oct. 18, 2019.Dave Chidley/The Canadian Press

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A piece of legislation in Alberta aimed at protests and blockades has received royal assent, becoming law at a time when demonstrations have erupted across the United States and Canada. The government argues the law is needed to protect rail infrastructure and pipelines but the legislation has been widely criticized by legal scholars, Indigenous leaders and activists. It is now the subject of a constitutional challenge filed last week by an Alberta labour union.

Here’s what you need to know about Bill 1, also known as the Critical Infrastructure Defence Act.

The backstory

The legislation was tabled last February as blockades stemming from a pipeline dispute in Northern British Columbia had shut down much of Canada’s rail network.

Protesters were supporting the Wet’suwet’en hereditary chiefs in their opposition to the Coastal GasLink pipeline, which runs through their territory. A standoff between the RCMP and Wet’suwet’en Nation fuelled protests and blockades along rail lines in several provinces. The blockades resulted in the temporary layoff of 450 rail workers and disrupted agricultural and oil and gas supply chains throughout the country.

Alberta’s United Conservative Party government held up those blockades to argue in favour of Bill 1. At the time, Premier Jason Kenney and Justice Minister Doug Schweitzer described the situation as “anarchy,” arguing the bill was intended to prevent similar blockades and potential disruptions to pipeline construction.

“Albertans and Canadians respect our constitutionally protected freedoms of expression, of assembly and to protest, but blocking railways, roadways, commuter trains and critical infrastructure is simply and plainly illegal,” Mr. Kenney said when the bill was tabled in February.

“Not only does it mock the principle of the rule of law, which is what holds us together as the central principle of our democratic society, but it also is inflicting massive damage on the Canadian economy.”

Mr. Schweitzer called on his counterparts across Canada, including at the federal level, to put forward similar laws. He said his own province has no tolerance for lawbreaking that damages the economy.

What is in Bill 1, the Critical Infrastructure Defence Act?

The law makes it an offence for individuals and corporations to protest on essential infrastructure, or to aid, direct or counsel someone to interfere with or interrupt the use of essential infrastructure, whether publicly or privately owned.

The act includes major infrastructure such as railways, oil and gas facilities, mine sites and dams, but experts have said the wording of the law would also encompass public spaces frequently used for protest: thoroughfares, roads, streets or sidewalks.

Individuals convicted of violating the law would face a fine of between $1,000 and $10,000, up to six months in jail, or both. Fines for second offences increase to between $10,000 and $15,000.

Legal issues

Legal experts have raised numerous concerns with the law, which is now facing at least one legal challenge. The Alberta Union of Public Employees filed a court challenge last week arguing the law violates the Charter of Rights and Freedoms.

The union argues in its lawsuit that the law violates several sections of the Charter – freedom of expression, freedom of assembly and freedom of association – because it interferes with “legitimate protests, demonstrations, strikes and leafleting.” The lawsuit also argues the law is vague, arbitrary and disproportionate.

Lisa Silver, a professor at the University of Calgary, said the law captures “peaceful, totally non-violent actions and activities that are protected by the Charter.” She suggested the law is vague about what scenarios could lead to arrests and charges.

Prof. Silver and two of her colleagues at the university, Jennifer Koshan and Jonnette Watson Hamilton, said in a recently published critique that the language in the law goes further than merely prohibiting interference with essential infrastructure, but also encompasses peaceful gatherings within these sites.

The professors also criticize the law for targeting organizations or individuals who “aid, direct or counsel” others to protest. They argue this inclusion could include things such as creating a Facebook event for a protest or texting friends to join a peaceful sit-in or march.

Prof. Silver said in an interview the law could tread on the federal government’s exclusive jurisdiction over criminal law under the Constitution, an assertion that is echoed in the union’s legal challenge.

Jonah Mozeson, press secretary for Mr. Schweitzer, said peaceful protests would not lead to arrests.

“Much of the critical commentary is based on vague and hypothetical scenarios that simply overlook the important criteria that the prohibitions only apply to actions taken ‘without lawful right, justification or excuse,’” he said in a statement.

When asked about the lawsuit, Mr. Mozeson said the law is only aimed at people who block infrastructure such as railways, bridges, pipelines and highways.

Indigenous rights

Some of the most vocal opposition to the law has come from Albertan Indigenous groups, which have warned about the impact on their treaty rights when infrastructure runs through their land.

Darcy Lindberg, who teaches at the University of Alberta, said the law grants “broad powers to police officers to arrest even without warrant,” and he warned the law could lead to the arrest of Indigenous peoples accessing their treaty lands, even for hunting, fishing or gathering.

He said the law risks “targeting of Indigenous peoples that are asserting aboriginal rights and treaty rights as well as those using protest as a way to engage in dissent to industrial projects.”

Marlene Poitras, the Alberta Regional Chief for the Assembly of First Nations, said in an interview that the law is “a blatant example of the total disregard for our treaties and our leadership.”

She said the government should have consulted Indigenous communities given the potential effect on their treaty rights, but it failed to do so.

Ms. Poitras noted she plans to discuss the next steps in responding to the passage of the law with chiefs and First Nations leadership in Alberta.

Indigenous activist groups have also expressed concerns about the reach of this legislation. According to Eriel Tchekwie Deranger, executive director of Indigenous Climate Action, the lack of consultation is concerning. She also said the provincial government is, through this legislation, interfering with the ability of Indigenous people to use their treaty lands.

“There is growing concern and alarm about this bill and what its implications could mean for Indigenous rights in this province, but furthermore how this could embolden other provinces in this country to potentially pass similar bills,” she said.

Ms. Tchekwie Deranger noted that even Indigenous leaders that tend to collaborate with the provincial government have spoken out about the law.

Mr. Mozeson said Mr. Schweitzer and Indigenous Relations Minister Rick Wilson will be scheduling outreach to discuss concerns from Indigenous and Métis Albertans.

Our Western Canada newsletter is written by our B.C. and Alberta bureau chiefs, providing a comprehensive package of the news about the region and its place in the issues facing Canada. Sign up today.

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