In recent days a parade of high-profile columnists have taken to the nation’s newspapers to condemn the wave of protests against the expansion of Coastal GasLink pipeline through Wet’suwet’en territory.
In the National Post, columnist John Ivison decried our descent “from democracy to mobocracy,” and commentator Stephen LeDrew declared a state of “insurrection.” The Globe and Mail published an editorial calling for police to end the protests through physical force.
Most of these columns omit critical details, such as the fact that the Wet’suwet’en hereditary chiefs offered Coastal GasLink an alternative route for the pipeline, which the company declined to pursue. Or that the pipeline runs through land over which the hereditary chiefs, not the elected band councils, hold jurisdiction.
That said, it’s good practice to respond to the strongest form of your opponent’s argument, so let’s set aside these deficiencies and deal with their central claim: the state must uphold the rule of law, these protests undermine the rule of law, and therefore the state must bring them to an end. As the Globe put it:
It is critical to the economy, and to people whose jobs are in jeopardy, that railway service return to normal. It is also essential to society’s sense of legality. Patience is a virtue but, at some point, it becomes incumbent on the police to remove protesters who defy the courts.
This argument is simple enough, but should immediately raise an important question: are there ever cases in which it is wrong for the state to uphold “the rule of law”? Is it ever wrong for “the police to remove protesters who defy the courts”?
Several examples immediately spring to mind which suggest the answer is yes — law-breaking and defying the courts is sometimes justified, and upholding the “rule of law” is not always morally correct.
Take an obvious case to start: Antebellum America had a complex code of laws that governed the institution of slavery. The Fugitive Slave Act of 1850 required escaped slaves be returned to their owners, regardless of where they were captured. Citizens of free states who did not comply with the law were criminalized. Few, however, would argue that their behaviour was wrong because it undermined the rule of law — on the contrary we would celebrate them as heroes.
There are more radical examples. In 1859, the abolitionist John Brown led a party of 22 armed men to raid a military arsenal in Harper’s Ferry, Virginia and initiate a slave revolt. Several civilians were killed along with a number of Virginia militiamen and a United States marine. Though he clearly acted to undermine the rule of law, Brown was immediately regarded by many as a martyr to a righteous cause. This reputation persisted in spite of campaigns to paint him as a criminal.
We can find similar examples in our own history. Views on Louis Riel’s North-West Rebellion — a subversion of the rule of law if there ever was one — have evolved significantly since 1885. Riel is now treasured as a martyr, particularly among Francophone Canadians, and his armed revolt seen as a justifiable response to brutal conditions exacerbated — if not caused — by Federal policy.
In all these cases, undermining the rule of law was a reasonable and moral course of action. In some of them, law-breaking was not only compatible with basic morality, but required by it. Anyone today who chastised fugitive slaves and their collaborators would be rightly dismissed as an unhinged villain.
This is a problem for the Ivisons and LeDrews of the world. Those arguing that the Wet’suwet’en protests should be ended merely because they conflict with the rule of law must also argue that compliance with the law of the day is always correct, and this is clearly not the case. There are many cases in which disobedience — both civil and violent — to the law is morally justified.
With this avenue of argument closed, the next move critics of the protests make is to deploy a more narrow claim: breaking the law might be acceptable in some cases, but not in this particular case because of the harms brought about by the protesters’ tactics. These supposed harms typically include economic damages caused by rail blockades along with the hassles created by road closures.
To assess this claim, we need a way to determine when law-breaking is morally permitted even when it causes harm. I would propose a simple rule: if the harm of the injustice being resisted through law-breaking is greater than the harm caused by the law-breaking itself, then the law-breaking is morally permitted. The only principle at work here is the simple idea that a greater harm is worse than a lesser harm. Nobody should find this controversial.
In all of the cases mentioned above, this principle clearly permits law-breaking and explains why we sympathize with the law-breakers rather than the enforcers. Even in the case of Brown’s raid, which caused considerable harm including the death of civilians, most people agree his actions were morally permissible because slavery, the injustice he was resisting, was so awful.
Applying this principle to the Wet’suwet’en protests, we should first notice that it obviously permits many of the protesters’ tactics that have been criticized in the media. Blockading the entrance to the British Columbia legislature, for example, causes virtually no harm and is done in resistance to significant injustice. Yet this action was met with outcry from high-profile media and political figures. Given their role in shaping opinion and policy, it is especially disturbing that they appear to lack a rational framework for understanding the moral character of the events unfolding around them.
But let’s accept the claim that these protests are incurring economic damages, largely through the shutdown of rail traffic. This is surely a cost — the CN Rail Strike last year brought rail to 10 per cent of its normal capacity and cost the railway $18 million per day. The total cost of the strike, which would include harm to CN’s customers and secondary industries, was undoubtedly higher.
It’s important to qualify this by noting that it is corporate entities that bear a portion, if not most, of these damages rather than the average Canadian. Some, but not all, of the costs may still be passed on to consumers and workers. We need to bear this in mind when considering the scale of harm incurred by the Wet’suwet’en protests.
All of this, however, is only one side of our calculus. We must also consider the severity of the injustice being resisted by the law-breaking.
On that side of the equation, the harm is almost unquantifiably great.
The protesters are resisting institutions that have over the course of centuries inflicted a litany of atrocities and crimes almost too numerous and horrible to contemplate. These crimes include murder, rape and kidnapping on a scale large enough to constitute genocide. This was a systematic abuse that emerged from the nature of the relationship between the Canadian state and Indigenous communities. Some of the specific injustices are no longer carried out as they were in past decades, but some are, including the refusal to obtain appropriate consent of Indigenous communities for resource extraction projects on their land, and on their terms.
The protests happening now are in resistance not only to the Coastal GasLink pipeline, but to the nature of the relationship between Canada and Indigenous peoples that caused — and continues to cause — so much suffering. Molly Wickham, a spokesperson for the Wet’suwet’en, made this explicit in recent comments: “Indigenous people see what’s happening to us and see what’s happening to our territory and our pristine waters – and to our people on the ground, having semiautomatic weapons aimed at us. People are responding to that in appropriate ways.”
If the protests are successful in achieving their purpose, it will mean a major blow has been struck against this perverse relationship. Not only would this specific expression of that relationship — building a pipeline through unceded land over the objection of local chiefs — be rejected, but a template for asserting Indigenous rights will have been established.
The implications of this would be profound. Victory here will fundamentally alter the power dynamics between Indigenous communities, the state and capital in this country. Governments will be forced to think twice before ignoring Indigenous interests in favour of industry when doing so could mean grinding the country’s rail network to a halt. This is the only way real change will occur — not through the benevolence of the state, but through the assertion of power by Indigenous communities.
The short-term economic harms and day-to-day inconveniences of this fight may be real, but the longer-term benefits of winning it are substantially greater. Recall our principle: if the harm of the injustice being resisted through law-breaking is greater than the harm caused by the law-breaking itself, then the law-breaking is morally permitted.
Given the history of Canada’s relationship with Indigenous people, and how the nature of that relationship has brought about incredible suffering, it’s inconceivable that whatever relatively minor economic harms we are experiencing in the short-term outweigh the harms this relationship has generated in the past, continues to generate today, and will generate in the future if the status quo maintains.
The Wet’suwet’en protests have ignited a broader resistance to the unjust treatment of Indigenous people that ought to be applauded. This fight against injustice — like all that came before it — will come with a price. But simple analysis through a framework of everyday morality tells us that it is a price worth paying.
Unfortunately, the narrow perspective of our nation’s media opinion-makers does not permit even this most basic moral calculation. Theirs is a fantasy world where the law is synonymous with justice, and law-breakers must be brought to heel. They cannot see that without the fight, there can be no progress. Of course, this is nothing new. Every major struggle for justice has been dismissed, derided and denigrated as law-breaking anarchy. It’s a craven defence of the powerful lacking any moral rationale. Frederick Douglass was right: power concedes nothing without a demand. This fight is just, and it is moral. Hold the line and win.
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