Invisible Horizons of a Just Palestine/Israel Future

I spent last week at the United Nations, meeting with ambassadors of countries in theMiddle East and presenting my final report to the Third Committee of the General Assembly as my term as Special Rapporteur for Occupied Palestine comes to an end.

Richard Falk

My report emphasized issues relating to corporate responsibility of those companies and banks that are engaged in business relationships with the settlements. Such an emphasis seemed to strike a responsive note with many delegations as a tangible way of expressing displeasure with Israel’s continuing defiance of its international law obligations, especially in relation to the unlawful settlements being provocatively expanded in the West Bank and East Jerusalem at the very moment that the resumption of direct negotiations between the Palestine Authority and the Government of Israel is being heralded as a promising development.

There are two reasons why the corporate responsibility issue seems to be an important tactic of consciousness raising and norm implementation at this stage: (1) it is a start down the slippery slope of enforcement after decades of UN initiatives confined to seemingly futile rhetorical affirmations of Israeli obligations under international law, accompanied by the hope that an enforcement momentum with UN backing is underway; (2) it is an expression of tacit support for the growing global movement of solidarity with the struggle of the Palestinian people for a just and sustainable peace agreement, and specifically, it reinforces the claims of the robust BDS Campaign that has itself scored several notable victories in recent months.

My intention in this post is to put aside these issues and report upon my sense of the diplomatic mood at the UN in relation to the future of Israel/Palestine relations. There is a sharp disconnect between the public profession of support for the resumed peace negotiations as a positive development with a privately acknowledged skepticism as to what to expect. In this regard, there is a widespread realization that conditions are not ripe for productive diplomacy for the following reasons: the apparent refusal of Israel’s political leadership to endorse a political outcome that is capable of satisfying even minimal Palestinian aspirations; the settlement phenomenon as dooming any viable form of a ‘two-state’ solution; the lack of Palestinian unity as between the Palestinian Authority and Hamas undermining its representational and legitimacy status.

The most serious concern on the Palestinian side is whether protecting the interests and rights of the totality of the Palestinian people in a peace process can be achieved within the present diplomatic framework. We need to be constantly reminded that ‘the Palestinian people’ cannot be confined to those Palestinian living under Israeli occupation: refugees in neighboring countries; refugees confined within occupied Palestine, but demanding a right of return to their residence at the time of dispossession; the Palestinian minority living in Israel; and 4-5 million Palestinians who constitute the Palestinian diaspora and its underlying reality of enforced exile.

It was also clear that the Palestinian Authority is confronted by a severe dilemma: either to accept the inadequate proposals put forward by Israel and the United States or reject these proposals and be blamed once again by Tel Aviv and Washington for rejecting a peace offer. Only some Israeli anxiety that the Palestinians might actually accept the U.S. proposals might induce Israel to refuse, on its side, to accept what Washington proposes, and spare the Palestinians the embarrassment posed by the dilemma of swallowing or spitting. That is, Israel when forced to show its hand may actually be unwilling to allow any solution to the conflict based on Palestinian self-determination, even if heavily weighted in Israel’s facvor. In effect, within the diplomatic setting there strong doubts exist as to whether the present Israeli leadership would accept even a Palestinian statelet even if it were endowed with only nominal sovereignty. In effect, from a Palestinian perspective it seems inconceivable that anything positive could emerge from the present direct negotiations, and it is widely appreciated that the PA agreed take part only after being subjected to severe pressure from the White House and Secretary Kerry. In this sense, the best that Ramallah can hope for is damage control.

There were three attitudes present among the more thoughtful diplomats at the UN who have been dealing with the Palestinian situation for years, if not decades: the first attitude was to believe somehow that ‘miracles’ happen in politics, and that a two state solution was still possible; usually this outlook avoided the home of the devil, that is the place where details reside, and if pressed could not offer a scenario that explained how the settlements could be shrunk sufficiently to enable a genuine two-state solution to emerge from the current round of talks; the second attitude again opted to support the resumption of the direct talks because it was ‘doing something,’ which seemed preferable to ‘doing nothing,’ bolstering this rather vapid view with the sentiment ‘at least they are doing something’; the third attitude, more privately and confidentially conveyed, fancies itself to be the voice of realism in world politics, which is contemptuous of the advocacy of rights and justice in relation to Palestine; this view has concluded that Israel has prevailed, it has won, and all that the Palestinians can do is to accommodate an adverse outcome, acknowledging defeat, and hope that the Israelis will not push their advantage toward a third cycle of dispossession (the first two being 1948, 1967) in the form of ‘population transfer’ so as to address their one remaining serious anxiety—the fertility gap leading to a feared tension between professing democracy and retaining the primary Zionist claim of being a Jewish state, the so-called ‘demographic bomb.’

As I reject all three of these postures, I will not leave my position as Special Rapporteur with a sense that inter-governmental diplomacy and its imaginative horizons have much to offer the Palestinian people even by way of understanding evolving trends in the conflict, much less realizing their rights, above all, the right of self-determination. At the same time, despite this, I have increased my belief that the UN has a crucial role to play in relation to a positive future for the Palestinian people—reinforcing the legitimacy of seeking a rights based solution rather than settling for a power based outcome that is called peace in an elaborate international ceremony of deception, in all likelihood on the lawn of the White House. In this period the UN has been playing an important part in legitimating Palestinian grievances by continuously referencing international law, human rights, and international morality.

The Israelis (and officialdom in the United States) indicate their awareness of this UN role by repeatedly stressing their unconditional opposition to what is labeled to be ‘the delegitimation project,’ which is a subtle propagandistic shift from the actual demand to uphold Palestinian rights to the misleading and diversionary claim that Israel’s critics are trying to challenge Israel’s right to exist as a state sovereign state. To be sure, the Palestinians are waging, with success a Legitimacy War against Israel for control of the legal and moral high ground, but they are not at this stage questioning Israeli statehood, but only its refusal to respect international law as it relates to the fundamental rights of the Palestinian people.

Let us acknowledge a double reality. The UN is a geopolitical actor that is behaviorally manipulated by money and hard power on many fundamental issues, including Palestine/Israel; this stark acknowledgement severely restricts the effectiveness of the UN with regard to questions of justice. Fortunately, this is not the whole story. The UN is also a normative actor that articulates the grievances of peoples and governments, influences public discourse with respect to the global policy agenda, and has great and distinctive symbolic leverage in establishing the legitimacy of claims. In other words, the UN can say what is right, without being necessarily able to do what is right. This distinction summarizes the narratives of articulating the Palestinian claims and the justice of the Palestinian struggle without being able to overcome behavioral obstacles in the geopolitical domain that block their fulfillment.

What such a gap also emphasizes is that the political climate is not yet right for constructive inter-governmental negotiations, which would require both Israel and the United States to recalculate their priorities and to contemplate alternative future scenarios in a manner that is far more congruent with upholding the panoply of Palestinian rights. Such shifts in the political climate are underway, and are not just a matter of changing public opinion, but also mobilizing popular regional and global support for nonviolent tactics of opposition and resistance to the evolving status quo. The Arab Spring of 2011 initially raised expectations that such a mobilization would surge, but counter-revolutionary developments, political unrest, and economic panic have temporarily, at least, dampened such prospects, and have lowered the profile of the Palestinian struggle.

Despite such adverse developments in the Middle East from a Palestinian perspective, it remains possible to launch within the UN a broad campaign to promote corporate responsibility in relation to the settlements, which could gradually be extended to other unlawful Israeli activities (e.g. separation wall, blockade of Gaza, prison and arrest abuses, house demolitions). Such a course of action links efforts within the UN to implement international law with activism that is already well established within global civil society, being guided by Palestinian architects of 21st century nonviolent resistance. In effect, two disillusionments (armed struggle and international diplomacy) are coupled with a revised post-Oslo strategy giving the Palestinian struggle a new identity (nonviolent resistance, global solidarity campaign, and legitimacy warfare) with an increasing emancipatory potential.

Such an affirmation is the inverse of the ultra realist view mentioned above that the struggle is essentially over, and all that is left is for the Palestinians to admit defeat and for the Israelis to dictate the terms of ‘the peace treaty.’ While admitting that such a visionary worldview may be based on wishful thinking, it is also appropriate to point out that most political conflicts since the end of World War II have reflected the outcome of legitimacy wars more than the balance of hard power. Military superiority and geopolitical leverage were consistently frustrated during the era of colonial wars in the 1960s and 1970s. In this regard, it should be understood that the settler colonial enterprise being pursued by Israel is on the wrong side of history, and so contrary to appearances, there is reason to be hopeful about the Palestinian future and historical grounds not succumb to the dreary imaginings of those who claim the mantle of realism. More

 

Transatlantic Free Trade Agreement: A Corporate Power Grab That Must Be Stopped

The Transatlantic Free Trade Agreement (TAFTA) between the US and EU intends to create the world's largest free trade area, 'protect' investment and remove ‘unnecessary regulatory barriers’. Corporate interests are driving the agenda, with the public having been sidelined. Unaccountable, pro-free-trade bureaucrats from both sides of the Atlantic are facilitating the strategy (1)

In addition to the biotech sector and Big Pharma, groups lobbying for the deal have included Toyota, General Motors, IBM and the powerful lobby group the Chamber of Commerce of the US. Business Europe, the main organisation representing employers in Europe, launched its own strategy on an EU-US economic and trade The Transatlantic Free Trade Agreement (TAFTA) between the US and EU intends to create the world's largest free trade area, 'protect' investment and remove ‘unnecessary regulatory barriers’. Corporate interests are driving the agenda, with the public having been sidelined. Unaccountable, pro-free-trade bureaucrats from both sides of the Atlantic are facilitating the strategy (1)

In addition to the biotech sector and Big Pharma, groups lobbying for the deal have included Toyota, General Motors, IBM and the powerful lobby group the Chamber of Commerce of the US. Business Europe, the main organisation representing employers in Europe, launched its own strategy on an EU-US economic and trade partnership in early 2012. Its suggestions were widely included in the draft EU mandate.

An increasing number of politicians and citizens groups have criticised the secretive negotiations and are demanding that they be conducted in an open way. This is growing concern that the negotiations could result in the opening of the floodgates for GMOs and shale gas (fracking) in Europe, the threatening of digital and labour rights or the empowering of corporations to legally challenge a wide range of regulations which they dislike.

One of the key aspects of the negotiations is that both the EU and US should recognise their respective rules and regulations, which in practice could reduce regulation to the lowest common denominator. The official language talks of ‘mutual recognition’ of standards or so-called reduction of non-tariff barriers. For the EU, that could mean accepting US standards in many areas, including food and agriculture, which are lower than the EU's.

The US wants all so-called barriers to trade, including controversial regulations such as those protecting agriculture, food or data privacy, to be removed. Even the leaders of the Senate Finance Committee, in a letter to U.S. Trade Representative Ron Kirk, made it clear that any agreement must reduce EU restrictions on genetically modified crops, chlorinated chickens and hormone-treated beef.

The public in Europe does not want such things. People want powerful corporations to be held to account and their pratices regulated by elected representatives who they trust to protect their interests, the public good. However, the TAFTA seems an ideal opportunity for corporations to force wholly unpopular and dangerous policies through via secretive, undemocratic means. They have been unable to do this in a democratic and transparent manner, so secret back room deals represent a different option.

Corporate demands include an “ambitious liberalisation of agricultural trade barriers with as few exceptions as possible.” Food lobby group Food and Drink Europe, representing the largest food companies (Unilever, Kraft, Nestlé, etc.), has welcomed the negotiations, with one of their key demands being the facilitation of the low level presence of unapproved genetically modified crops. This is a long-standing industry agenda also supported by feed and grain trading giants, including Cargill, Bunge, ADM and the big farmers' lobby COPA-COGECA. Meanwhile, the biotech industry on both sides of the Atlantic is offering its “support and assistance as the EU and the US government look to enhance their trade relationship.”

New Report

If the pro-free-market bureaucrats and corporations get their way and successfully bar the public from any kind of meaningful information input into the world’s biggest trade deal ever to be negotiated, Europeans could end up becoming the victims of one of the biggest corporate stitch ups ever. Left unchallenged, it will allow huge private interests to dig their profiteering snouts into the trough of corporate greed at the expense of ordinary people.

And that’s not hyperbole. Such a view is confirmed by the release of a new report on the eve of the second round of negotiations that are due to begin in Brussels next week.

The report, published by the Seattle to Brussels Network (S2B) (2), reveals the true human and environmental costs of the proposed TAFTA. ‘A Brave New Transatlantic Partnership’ highlights how the European Commission’s promises of up to 1% GDP growth and massive job creation through the EU-US trade deal are not supported even by its own studies, which predict a growth rate of just 0.01% GDP over the next ten years and the potential loss of jobs in several economic sectors, including agriculture.

The report also explains how corporations are lobbying EU-US trade negotiators to use the deal to weaken food safety, labour, health and environmental standards as well as undermine digital rights. Attempts to strengthen banking regulation in the face of the financial crisis could also be jeopardised as the financial lobby uses the secretive trade negotiations to undo financial reforms, such as restrictions on the total value of financial transactions or the legal form of its operations.

Kim Bizzarri, the author of the report:

“Big business lobbies on both sides of the Atlantic view the secretive trade negotiations as a weapon for getting rid of policies aimed at protecting European and US consumers, workers and our planet. If their corporate wish-list is implemented, it will concentrate even more economic and political power within the hands of a small elite, leaving all of us without protection from corporate wrongdoings.”

The report also warns that the agreement could open the floodgate to multi-million Euro lawsuits from corporations who can challenge democratic policies at international tribunals if they interfere with their profits.

Pia Eberhardt, trade campaigner with Corporate Europe Observatory and author of ‘A transatlantic corporate bill of rights’:

“The proposed investor rights in the transatlantic trade deal show what it is really about: It’s a power grab from corporations to rein in democracy and handcuff governments that seek to regulate in the public interest. It’s only a matter of time before European citizens start paying the price in higher taxes and diminished social protection.” in early 2012. Its suggestions were widely included in the draft EU mandate.

An increasing number of politicians and citizens groups have criticised the secretive negotiations and are demanding that they be conducted in an open way. This is growing concern that the negotiations could result in the opening of the floodgates for GMOs and shale gas (fracking) in Europe, the threatening of digital and labour rights or the empowering of corporations to legally challenge a wide range of regulations which they dislike.

One of the key aspects of the negotiations is that both the EU and US should recognise their respective rules and regulations, which in practice could reduce regulation to the lowest common denominator. The official language talks of ‘mutual recognition’ of standards or so-called reduction of non-tariff barriers. For the EU, that could mean accepting US standards in many areas, including food and agriculture, which are lower than the EU's.

The US wants all so-called barriers to trade, including controversial regulations such as those protecting agriculture, food or data privacy, to be removed. Even the leaders of the Senate Finance Committee, in a letter to U.S. Trade Representative Ron Kirk, made it clear that any agreement must reduce EU restrictions on genetically modified crops, chlorinated chickens and hormone-treated beef.

The public in Europe does not want such things. People want powerful corporations to be held to account and their pratices regulated by elected representatives who they trust to protect their interests, the public good. However, the TAFTA seems an ideal opportunity for corporations to force wholly unpopular and dangerous policies through via secretive, undemocratic means. They have been unable to do this in a democratic and transparent manner, so secret back room deals represent a different option.

Corporate demands include an “ambitious liberalisation of agricultural trade barriers with as few exceptions as possible.” Food lobby group Food and Drink Europe, representing the largest food companies (Unilever, Kraft, Nestlé, etc.), has welcomed the negotiations, with one of their key demands being the facilitation of the low level presence of unapproved genetically modified crops. This is a long-standing industry agenda also supported by feed and grain trading giants, including Cargill, Bunge, ADM and the big farmers' lobby COPA-COGECA. Meanwhile, the biotech industry on both sides of the Atlantic is offering its “support and assistance as the EU and the US government look to enhance their trade relationship.”

New Report

If the pro-free-market bureaucrats and corporations get their way and successfully bar the public from any kind of meaningful information input into the world’s biggest trade deal ever to be negotiated, Europeans could end up becoming the victims of one of the biggest corporate stitch ups ever. Left unchallenged, it will allow huge private interests to dig their profiteering snouts into the trough of corporate greed at the expense of ordinary people.

And that’s not hyperbole. Such a view is confirmed by the release of a new report on the eve of the second round of negotiations that are due to begin in Brussels next week.

The report, published by the Seattle to Brussels Network (S2B) (2), reveals the true human and environmental costs of the proposed TAFTA. ‘A Brave New Transatlantic Partnership’ highlights how the European Commission’s promises of up to 1% GDP growth and massive job creation through the EU-US trade deal are not supported even by its own studies, which predict a growth rate of just 0.01% GDP over the next ten years and the potential loss of jobs in several economic sectors, including agriculture.

The report also explains how corporations are lobbying EU-US trade negotiators to use the deal to weaken food safety, labour, health and environmental standards as well as undermine digital rights. Attempts to strengthen banking regulation in the face of the financial crisis could also be jeopardised as the financial lobby uses the secretive trade negotiations to undo financial reforms, such as restrictions on the total value of financial transactions or the legal form of its operations.

Kim Bizzarri, the author of the report:

“Big business lobbies on both sides of the Atlantic view the secretive trade negotiations as a weapon for getting rid of policies aimed at protecting European and US consumers, workers and our planet. If their corporate wish-list is implemented, it will concentrate even more economic and political power within the hands of a small elite, leaving all of us without protection from corporate wrongdoings.”

The report also warns that the agreement could open the floodgate to multi-million Euro lawsuits from corporations who can challenge democratic policies at international tribunals if they interfere with their profits.

Pia Eberhardt, trade campaigner with Corporate Europe Observatory and author of ‘A transatlantic corporate bill of rights’:

“The proposed investor rights in the transatlantic trade deal show what it is really about: It’s a power grab from corporations to rein in democracy and handcuff governments that seek to regulate in the public interest. It’s only a matter of time before European citizens start paying the price in higher taxes and diminished social protection.” More

 

 

 

The Biggest Criminal Enterprise in History

Terracide and the Terrarists Destroying the Planet for Record Profits

We have a word for the conscious slaughter of a racial or ethnic group: genocide. And one for the conscious destruction of aspects of the environment: ecocide. But we don’t have a word for the conscious act of destroying the planet we live on, the world as humanity had known it until, historically speaking, late last night. A possibility might be “terracide” from the Latin word for earth. It has the right ring, given its similarity to the commonplace danger word of our era: terrorist.

The truth is, whatever we call them, it’s time to talk bluntly about the terrarists of our world. Yes, I know, 9/11 was horrific. Almost 3,000 dead, massive towers down, apocalyptic scenes. And yes, when it comes to terror attacks, the Boston Marathon bombings weren’t pretty either. But in both cases, those who committed the acts paid for or will pay for their crimes.

In the case of the terrarists -- and here I’m referring in particular to the men who run what may be the most profitable corporations on the planet, giant energy companies like ExxonMobil, Chevron,ConocoPhillips, BP, and Shell -- you’re the one who’s going to pay, especially your children and grandchildren. You can take one thing for granted: not a single terrarist will ever go to jail, and yet they certainly knew what they were doing.

It wasn’t that complicated. In recent years, the companies they run have been extracting fossil fuels from the Earth in ever more frenetic and ingenious ways. The burning of those fossil fuels, in turn, has putrecord amounts of carbon dioxide (CO2) into the atmosphere. Only this month, the CO2 level reached400 parts per million for the first time in human history. A consensus of scientists has long concluded that the process was warming the world and that, if the average planetary temperature rose more than two degrees Celsius, all sorts of dangers could ensue, including seas rising high enough to inundate coastal cities, increasingly intense heat waves, droughts, floods, ever more extreme storm systems, and so on.

How to Make Staggering Amounts of Money and Do In the Planet

None of this was exactly a mystery. It’s in the scientific literature. NASA scientist James Hansen first publicized the reality of global warming to Congress in 1988. It took a while -- thanks in part to the terrarists -- but the news of what was happening increasingly made it into the mainstream. Anybody could learn about it.

Those who run the giant energy corporations knew perfectly well what was going on and could, of course, have read about it in the papers like the rest of us. And what did they do? They put their money into funding think tanks, politicians, foundations, and activists intent on emphasizing “doubts” about the science (since it couldn’t actually be refuted); they and their allies energetically promoted what came to be known as climate denialism. Then they sent their agents and lobbyists and money into the political system to ensure that their plundering ways would not be interfered with. And in the meantime, they redoubled their efforts to get ever tougher and sometimes “dirtier” energy out of the ground in ever tougher and dirtier ways.

The peak oil people hadn’t been wrong when they suggested years ago that we would soon hit a limit in oil production from which decline would follow. The problem was that they were focused on traditional or “conventional” liquid oil reserves obtained from large reservoirs in easy-to-reach locations on land or near to shore. Since then, the big energy companies have invested a remarkable amount of time, money, and (if I can use that word) energy in the development of techniques that would allow them to recover previously unrecoverable reserves (sometimes by processes that themselves burn striking amounts of fossil fuels): fracking, deep-water drilling, and tar-sands production, among others.

They also began to go after huge deposits of what energy expert Michael Klare calls “extreme” or “tough” energy -- oil and natural gas that can only be acquired through the application of extreme force or that requires extensive chemical treatment to be usable as a fuel. In many cases, moreover, the supplies being acquired like heavy oil and tar sands are more carbon-rich than other fuels and emit more greenhouse gases when consumed. These companies have even begun using climate change itself -- in the form of a melting Arctic -- to exploit enormous and previously unreachable energy supplies. With the imprimatur of the Obama administration, Royal Dutch Shell, for example, has been preparing to test out possible drilling techniques in the treacherous waters off Alaska.

Call it irony, if you will, or call it a nightmare, but Big Oil evidently has no qualms about making its next set of profits directly off melting the planet. Its top executives continue to plan their futures (and so ours), knowing that their extremely profitable acts are destroying the very habitat, the very temperature range that for so long made life comfortable for humanity.

Their prior knowledge of the damage they are doing is what should make this a criminal activity. And there are corporate precedents for this, even if on a smaller scale. The lead industry, the asbestos industry, and the tobacco companies all knew the dangers of their products, made efforts to suppress the information or instill doubt about it even as they promoted the glories of what they made, and went right on producing and selling while others suffered and died.

And here’s another similarity: with all three industries, the negative results conveniently arrived years, sometimes decades, after exposure and so were hard to connect to it. Each of these industries knew that the relationship existed. Each used that time-disconnect as protection. One difference: if you were a tobacco, lead, or asbestos exec, you might be able to ensure that your children and grandchildren weren’t exposed to your product. In the long run, that’s not a choice when it comes to fossil fuels and CO2, as we all live on the same planet (though it's also true that the well-off in the temperate zones are unlikely to be the first to suffer).

If Osama bin Laden’s 9/11 plane hijackings or the Tsarnaev brothers’ homemade bombs constitute terror attacks, why shouldn’t what the energy companies are doing fall into a similar category (even if on a scale that leaves those events in the dust)? And if so, then where is the national security state when we really need it? Shouldn’t its job be to safeguard us from terrarists and terracide as well as terrorists and their destructive plots?

The Alternatives That Weren’t

It didn’t have to be this way.

On July 15, 1979, at a time when gas lines, sometimes blocks long, were a disturbing fixture of American life, President Jimmy Carter spoke directly to the American people on television for 32 minutes, calling for a concerted effort to end the country’s oil dependence on the Middle East. “To give us energy security,” he announced,

“I am asking for the most massive peacetime commitment of funds and resources in our nation's history to develop America's own alternative sources of fuel -- from coal, from oil shale, from plant products for gasohol, from unconventional gas, from the sun... Just as a similar synthetic rubber corporation helped us win World War II, so will we mobilize American determination and ability to win the energy war. Moreover, I will soon submit legislation to Congress calling for the creation of this nation's first solar bank, which will help us achieve the crucial goal of 20% of our energy coming from solar power by the year 2000.”

It’s true that, at a time when the science of climate change was in its infancy, Carter wouldn’t have known about the possibility of an overheating world, and his vision of “alternative energy” wasn’t exactly a fossil-fuel-free one. Even then, shades of today or possibly tomorrow, he was talking about having “more oil in our shale alone than several Saudi Arabias.” Still, it was a remarkably forward-looking speech.

Had we invested massively in alternative energy R&D back then, who knows where we might be today? Instead, the media dubbed it the “malaise speech,” though the president never actually used that word, speaking instead of an American “crisis of confidence.” While the initial public reaction seemed positive, it didn’t last long. In the end, the president's energy proposals were essentially laughed out of the room and ignored for decades.

As a symbolic gesture, Carter had 32 solar panels installed on the White House. (“A generation from now, this solar heater can either be a curiosity, a museum piece, an example of a road not taken, or it can be a small part of one of the greatest and most exciting adventures ever undertaken by the American people: harnessing the power of the sun to enrich our lives as we move away from our crippling dependence on foreign oil.”) As it turned out, “a road not taken” was the accurate description. On entering the Oval Office in 1981, Ronald Reagan caught the mood of the era perfectly. One of his first acts was to order the removal of those panels and none were reinstalled for three decades, until Barack Obama was president.

Carter would, in fact, make his mark on U.S. energy policy, just not quite in the way he had imagined. Six months later, on January 23, 1980, in his last State of the Union Address, he would proclaim what came to be known as the Carter Doctrine: “Let our position be absolutely clear,” he said. “An attempt by any outside force to gain control of the Persian Gulf region will be regarded as an assault on the vital interests of the United States of America, and such an assault will be repelled by any means necessary, including military force.”

No one would laugh him out of the room for that. Instead, the Pentagon would fatefully begin organizing itself to protect U.S. (and oil) interests in the Persian Gulf on a new scale and America’s oil wars would follow soon enough. Not long after that address, it would start building up a Rapid Deployment Force in the Gulf that would in the end become U.S. Central Command. More than three decades later, ironies abound: thanks in part to those oil wars, whole swaths of the energy-rich Middle East are in crisis, if not chaos, while the big energy companies have put time and money into a staggeringly fossil-fuel version of Carter’s “alternative” North America. They’ve focused on shale oil, and on shale gas as well, and with new production methods, they are reputedly on the brink of turning the United States into a “new Saudi Arabia.” More

 

Corporate Abuse of Human Rights?

Keystone XL Activists Labeled Possible Eco-Terrorists

in Internal TransCanada Documents

Demonstrators in DC via sandiego350.org

Documents recently obtained by Bold Nebraska show that TransCanada - owner of the hotly-contested Keystone XL (KXL) tar sands pipeline - has colluded with an FBI/DHS Fusion Center in Nebraska, labeling non-violent activists as possible candidates for "terrorism" charges and other serious criminal charges.

Further, the language in some of the documents is so vague that it could also ensnare journalists, researchers and academics, as well.

TransCanada also built a roster of names and photos of specific individuals involved in organizing against the pipeline, including 350.org's Rae Breaux, Rainforest Action Network's Scott Parkin and Tar Sands Blockade's Ron Seifert. Further, every activist ever arrested protesting the pipeline's southern half is listed by name with their respective photo shown, along with the date of arrest.

It's PSYOPs-gate and "fracktivists" as "an insurgency" all over again, but this time it's another central battleground that's in play: the northern half of KXL, a proposed border-crossing pipeline whose final fate lies in the hands of President Barack Obama.

The southern half of the pipeline was approved by the Obama Admin. via a March 2013 Executive Order. Together, the two pipeline halves would pump diluted bitumen ("dilbit") south from the Alberta tar sands toward Port Arthur, TX, where it will be refined and shipped to the global export market.

Activists across North America have put up a formidable fight against both halves of the pipeline, ranging from the summer 2011 Tar Sands Action to the ongoing Tar Sands Blockade. Apparently, TransCanada has followed the action closely, given the level of detail in the documents.

Another Piece of the Puzzle

"The Hot Springs School District practiced a lockdown procedure after pretending to receive a letter from a group that wrote 'things dear to everyone will be destroyed unless continuation of the Keystone pipeline and uranium mining is stopped immediately," explained the Rapid City Journal. "As part of the drill, the district's 800 students locked classroom doors, pulled down window shades and remained quiet."

This latest revelation, then, is a continuation of the troubling trend profiled in investigative journalist Will Potter's book "Green Is the New Red." That is, eco-activists are increasingly being treated as domestic eco-terrorists both by corporations and by law enforcement.

TransCanada Docs: "Attacking Critical Infrastructure" = "Terrorism"

The documents demonstrate a clear fishing expedition by TransCanada. For example, TransCanada's PowerPoint presentation from Dec. 2012 on corporate security allege that Bold Nebraska had "suspicious vehicles/photography" outside of its Omaha office.

That same presentation also says TransCanada has received "aggressive/abusive email and voicemail," vaguely citing an incident in which someone said the words "blow up," with no additional context offered. It also states the Tar Sands Blockade is "well-funded," an ironic statement about a shoe-string operation coming from one of the richest and most powerful industries in human history.

Another portion of TransCanada's PowerPoint presentation discusses the various criminal and anti-terrorism statutes that could be deployed to deter grassroots efforts to stop KXL. The charge options TransCanada presented included criminal trespass, criminal conspiracy, and most prominently and alarmingly: federal and state anti-terrorism statutes.

Journalism Could be Terrorism/Criminal According to FBI/DHS Fusion Center Presentation

An - a Crime Analyst at the Nebraska Information Analysis Center (NIAC), the name of the Federal Bureau of Investigation (FBI) and Department of Homeland Security (DHS) funded Nebraska-based Fusion Center - details all of the various "suspicious activities" that could allegedly prove a "domestic terrorism" plot in-the-make.

NAIC says its mission is to "[c]ollect, evaluate, analyze, and disseminate information and intelligence data regarding criminal and terrorist activity to federal, state, local and tribal law enforcement agencies, other Fusion Centers and to the public and private entities as appropriate."

Among the "observed behaviors and incidents reasonably indicative of preoperations planning related to terrorism or other criminal activity" is "photography, observation, or surveillance of facilities, buildings, or critical infrastructure and key resources." A slippery slope, to say the least, which could ensnare journalists and photo-journalists out in the field doing their First Amendment-protected work.

Another so-called "suspicious activity" that could easily ensnare journalists, researchers and academics: "Eliciting information beyond curiosity about a facility's or building's purpose, operations, or security."

Melissa Troutman and Joshua Pribanic - producers of the documentary film "Triple Divide" and co-editors of the investigative journalism website Public Herald - are an important case in point. While in the Tioga State Forest (public land) filming a Seneca Resources fracking site in Troy, Pennsylvania, they were detained by a Seneca contractor and later labeled possible "eco-terrorists."

"In discussions between the Seneca Resources and Chief Caldwell, we were made out to be considered 'eco-terrorists' who attempted to trespass and potentially vandalize Seneca’s drill sites, even though the audio recording of this incident is clear that we identified ourselves as investigative journalists in conversation with the second truck driver," they explained in a post about the encounter, which can also be heard in their film.

"We were exercising a constitutional right as members of the free press to document and record events of interest to the public on public property when stripped of that right by contractors of Seneca."

Activists protesting against the American Legislative Exchange Council (ALEC) during its April 2013 meeting in Arizona were also labeled as possible "domestic terrorists" by the Arizona FBI/DHS Fusion Center, as detailed in a recent investigation by the Center for Media and Democracy. More

The Beaver Lake Cree Judgment: The Most Important Tar Sands Case You’ve Never Heard Of

Sure they’re bad for the environment, for human health, and for wildlife, but we rarely stop to wonder if the Alberta tar sands are in fact unconstitutional.

But the constitutional standing of the tar sands – one of the world’s largest and most carbon-intensive energy projects – is just what’s at stake in a treaty rights claim the Beaver Lake Cree Nation (BLCN) is bringing against the Governments of Alberta and Canada in a case that promises to be one of the most significant legal and constitutional challenges to the megaproject seen in Canada to date.

Signaling the high-stakes of the whole dispute, it has taken five years of beleaguered fighting just to have the case go to trial. Canada and Alberta – the defendants – fought tooth and nail during those five years to have the claim dismissed outright, saying the case put forward by the BCLN was “frivolous, improper and an abuse of process.”

The BCLN is challenging these governments on the grounds of the cumulative impacts of the tar sands and has indicated some 19,000 ‘individual authorizations’ and 300 individual industrial projects in their claim. The governments of Alberta and Canada tried to have the case dismissed under Rule 3.68, a measure meant to protect defendants from cases that are…well…“frivolous, improper, and an abuse of process.”

But this case isn’t one of those.

Canada claimed the claim was “unmanageable” and “overwhelming,” suggesting the 19,000 authorizations were likely to have fallen within the relevant regulatory framework at the time of their approval and needn't be bothered with. But, as one judge stated, a claim cannot be dismissed based merely on its scope. The courts agreed, telling Canada that no further “delaying tactics” should be permitted in this litigation lest the entire claim be “stonewalled at an early stage through excessive particularization.”

What is more, the court said Canada’s complaint “flies in the face of the Supreme Court of Canada” and its previous decisions, indicating Canada’s counsel was unsuccessful in its attempts to squeeze out of a tight legal position. Canada even sought to have its portion of the claim whittled down to “limit its exposure” in the case, a position the court said Canada’s “counsel candidly admitted to advancing…for strategic reasons.”

On April 30^th, 2013, the courts told Canada and Alberta they’d had enough of the bickering. “The parties will be well-served by returning to their case management judge for the implication plan to advance this litigation through trial,” they wrote.

In other words: get your act together, you’re going to court.

The Rights

The Alberta Court of Appeal’s decision to uphold the claim against the crown, grants the BLCN the opportunity to argue the cumulative negative impacts of tar sands expansion may constitute a legal breach of the band’s historic Treaty 6 with the Canadian government, signed back in 1876.

And the significance of this judgment cannot be overstated. The BLCN’s claim now stands as the first opportunity for legal consideration of the cumulative impacts of the tar sands on First Nation’s traditional territory and the implications of those impacts on the ability to uphold Treaty Rights.

And First Nation’s Rights – enshrined as Aboriginal Rights in section 35 of the Constitution Act, 1982 – are arguably some of the most important emerging rights on the Canadian legal landscape and certainly the most powerful environmental rights in the country.

This, in part, has to do with the fact that what section 35 rights actually legally entail, is still being developed through case law. Dozens of important cases - like the precedent-setting R v. Gladstone andMikisew v. Canada- have been decided by courts over the last 30 years, since the patriation of the Constitution, finding Canada in serious violation of the Constitution when it comes to treaty rights.

Despite the emerging nature of these rights, one thing is clear – First Nations have the inalienable right to hunt, trap and fish in their preferred manner, throughout their traditional territories and the province.

And there’s the rub. If you’ve got a megaproject that is destroying what you might otherwise be hunting, trapping or fishing, you've got a serious constitutional gaffe on your hands. The Constitution is the highest law in the land, and cannot simply be ignored.

The Cumulative Impacts

This puts Canada and Alberta in a tough spot. Over the last decade, as they’ve been welcoming a veritable cascade of new projects in the tar sands area, scientists and conservation groups have been raising the alarm as the consequent research began to show devastating effects on caribou populationsand fish species especially hard done by the escalating development.

The BCLN’s traditional territories blanket an area about the size of Switzerland. Thirty per cent of tar sands production, or about 560,000 barrels of oil, are produced on BLCN every day. The oil industry has plans to grow this number to 1.6 million barrels a day.

The once-pristine forest and hunting grounds are now covered with 35,000 oil and gas sites, 21,700 kilometres of seismic lines, 4,028 kilometres of pipeline and 948 kilometres of road.

Perhaps it has taken Canada and Alberta by surprise that the cumulative impacts might be considered at a constitutional level. After all, neither the province nor the federal government have been particularly proactive in studying the cumulative effects of development in the area.

True, scientists have been fretting about loss of caribou herds and habitat for decades, even citing theSpecies At Risk Act as a potential legal cause to slow the pace and scale of tar sands development. But Canada ignored those pleas for caution as long at it could – until another legal action forced them to release the recent Federal Caribou Recovery Act last fall.

And it was only a few months ago that Environment Canada scientists announced tar sands pollution was present in bodies of water up to 100 kilometres from the centre of development. The accumulating toxins, they discovered, disrupt fish embryos at the developmental stage. The federal government worked overtime to downplay the significance of the research last fall, even preventing lead researchers from discussing their findings with the media.

Overall, the federal government has been just as culpable as provincial leaders in keeping these growing environmental effects under-reported, or under wraps. The BLCN’s upcoming litigation may be the change in tide that brings the cumulative impact discussion to centre-stage.

The Cause for Hope

5 years ago Crystal Lameman’s uncle Chief Al Lameman filed the original claim on behalf of the Nation.

“In 2008 I don't think my uncle knew the attention this litigation would gain,” Crystal said. “His intent and purpose was to protect what little we have left but it has created this movement, this mobilization of a people and it's a great feeling seeing people mobilize beyond the confines of race, color, and creed. This recent win means our judicial system is clearly standing strong in the law of Canada and it gives me hope.”

And Crystal has much cause for hope, according to Jack Woodward, renowned Native Law expert and lawyer on the case.

“The Beaver Lake case will define the point where industrial development must be curtailed to preserve treaty rights,” he said.

“At issue is the cumulative impact of industry, not each individual project. The court will be asked to say if the level of industrial activity in the hunting grounds has now crossed the line to make it impossible to reasonably exercise the harvesting rights. If the Beaver Lake are successful there will be constitutional controls on development to allow the land to recover and to prevent any further encroachments that might disturb wildlife populations.”

A precedent-setting ruling of that sort would have significance for any other First Nation making similar claims regarding the overall impacts of industrial development. This could have serious ramifications for other First Nation groups living near the tar sands or newly-industrialized zones like British Columbia’s northeast. More

 

The Beaver Lake Cree nation's once-pristine forest and hunting grounds are now covered with 35,000 oil and gas sites, 21,700 kilometres of seismic lines, 4,028 kilometres of pipeline and 948 kilometres of road.