Earle Peach is the director of several community choirs in Vancouver, BC Canada. He was arrested as part of an action in March where members of a Quaker-rooted prayer circle stood in prayer blocking the gates of a Trans Mountain Pipeline worksite near the Brunette River in Burnaby. The TMX is a government owned pipeline currently in expansion mode to enable increased capacity for transmission of fossil fuels for export to Asia.
At his sentencing hearing he sang Anne Feeney’s song Have You Been to Jail for Justice. (He is serving a 14 day sentence and will have a 1 year probation that includes not being within 500 metres of a TMX or contractor site). We are pleased to hear his court address prior to sentencing. This text is shared with permission.
I’m grateful to be before you today. This is a moment I’ve thought about long and hard, as I’m sure it’s been for many who have come before me. We are deeply privileged to share this moment, by which we shape our own lives but also in a small way the future of our existence on this planet. It’s a moment in which you, the judge, and you, mr prosecutor, play a crucial part, in providing the incentive to correct myself. I’ll say more about this a bit later. First I want to speak about justice.
Madam judge, you and I share a common belief in justice, although we may interpret it a bit differently. I know you only as a representative of the law, so it’s presumptuous of me to speculate about your opinions; suffice to say that in one view, perhaps one you share, justice represents the product of a vast edifice of jurisprudence over time, modified by changes in society and legislation but always aimed at preserving the collective will of the people. I don’t deny that it is that, but for me in a more basic sense justice is not a legal framework but a universal concept, representing the protection of rights and duties. Now by a right I mean a state which confers upon the holder the privilege of dictating, or limiting, the actions of others, and the flipside of a right is of course a duty, which compels the holder to act or limit their action in accord with the rights of others.
The most basic right is the right to exist, and this right is inherent to all living things a priori, in other words simply because they do exist. Plankton has a right to exist. Marine creatures have a right to exist. Plants have a right to exist. And humans have a right to exist. This right is limited only by the need for survival of another creature. In the case of humans, if we remove the right of an individual to exist we generally call it murder, although of course there are exceptions such as self-defense. If we remove the right of a class of humans to exist we call it genocide, and this is considered a much worse crime, for which “self-defense” is an imaginary excuse.
Strangely when we cross the human boundary, this right seems to evaporate in human estimation. Of course the notion of plankton having the same rights as a human is absurd; however, the right of plankton as a class to exist, and the duty of humans to honour that existence, is, in my view, not an artifact of our imagination but something which would hold even in the absence of humans to judge it. This duty is multiplied exponentially when the existence of plankton is understood to be integral to the survival of many other species on this planet, include humans. And yet there is nothing in the law which protects the right of plankton to exist, nor for that matter the right of anything but humans to exist. This is where your view of justice and mine part ways; for if the great legal framework you represent fails to accommodate these basic universal rights, we thereby lay the groundwork for our own imminent destruction.
Consider the fact that plankton are responsible for 50% of the oxygen we produce. They provide the most basic food source for all life in the ocean. If the plankton disappear, ultimately all life in the ocean will cease, and humans will be forced to live in artificial climates, never stepping outside into an atmosphere which will not support them. Most of the plants we live on will cease to exist. Most of our population will die. This is not speculation, it’s supported by the most sophisticated modelling we can come up with. It’s not something to worry about in the future: it’s happening now.
You may not be familiar with a study by scientists at Dalhousie University published in 2010 which estimated that 40% of the plankton in our oceans has vanished since 1950, and that on average since 1899 the amount of plankton in the oceans has dropped by one percent annually. It’s not rocket science to understand that this represents an existential threat to all the creatures in the ocean and the land, including us.
Why is this happening? Of course the answer is changing ocean temperature due to anthropogenic climate change, caused by the use of fossil fuels. This is the crisis which our national broadcaster tells its employees they are not allowed to refer to as an emergency or a crisis; those are “opinions”, which will alienate some portion of CBC listenership. Climate change is, you know, political. Lots of people think it’s a hoax, just like they think Covid 19 is a hoax. Companies like Exxon, Enbridge, Chevron and the rest pay hundreds of millions of dollars to spread lies and uncertainty about this impending nightmare, and they’ve been very successful. They have obtained legal status as individuals, with even more rights than the average person. Internal documents from Exxon clearly show not only that the company has known and lied about climate change since the late 1960’s, but that they are banking on it to open up new areas for drilling like the arctic wildlife refuge, and the northwest passage, once all the ice is gone. And these companies have co-opted governments into accepting their agenda, putting public money into projects which will perpetuate the use of fossil fuels well into the remainder of this century. To put it bluntly, the future of the world is at stake and we as a species are doing next to nothing to halt the roller coaster to oblivion.
Why are we doing nothing? Because despite the law’s claims to dispensing justice equally, or even wishing to do so, the evidence points in a different direction. Far from offering justice to all creatures alive, which one might think would be appropriate if we truly considered ourselves stewards of the earth, our societies don’t even offer justice to the majority of human beings. Corporations and the rich avoid taxes by stashing their money in offshore havens. They play hardball with hapless national governments, demanding relaxation of regulations, treaties and other agreements in return for what they call “investments”; or they sucker naive governments into “investments” themselves which are ultimately suicidal (I won’t mention Enbridge). They ruin natural environments and walk away without consequences, leaving the public to pick up the bill. In the third world they hire killers to eliminate their critics, particularly if those critics are speaking on behalf of indigenous populations. Not to put too fine a point on it, corporations act like criminal gangs, pillaging and destroying as they see fit and expecting their civil hosts to function as their police.
The TMX project fails the test of justice on myriad levels. I know many others have brought the particulars of this pipeline before you, and I know it makes no difference to you: a law’s a law, you obey it or break it, and if you break it you suffer the consequences, period. And I’m not expecting any different. However I consider it my right to strain your patience by simply pointing out that if there is any natural justice in the world, justice which recognizes the right of species to exist, this project is an offence against it, and as such it must, it simply must be fought.
Now my concept of justice and yours cross paths in the legal system you represent. This legal system is in effect the conscience of society. It both limits and sanctions the use of violence to achieve the ends of those who control the judiciary, and it is a magnificent edifice indeed. Over time, principles like the recognition of the rights of living creatures have filtered into the judiciary, sometimes through legislation but most often through struggle, or collective horror. The rights of someone not to fear simply because they are a Jew, or a Palestinian, or a homosexual, or a woman, or a worker, or a child, or poor, or disabled, or indigenous, or any other of a thousand cheap rationales for putting one above the other, have found their way into the law, and these rights limit the violence that the arm of the law, that is, the military or the constabulary, or even corporations, can exercise.
Witness the ability of a little hummingbird to stop a pipeline, even temporarily! What better example could there be of the recognition of natural justice in jurisprudence? It says, in effect, that the desire of rich corporate executives to maximize their profits, or even the desire of a political machine to appease a desired constituency, do not trump this creature’s inherent right to exist. Would that the law also protected plankton!
The question then is, how does the law evolve to more closely resemble what I’m calling natural justice? And the answer is, most often, through violating unjust laws. I know you know that throughout western history laws have changed primarily when there is a public mood for them to change, and that mood is primarily expressed through civil disobedience. John Rawls in 1971 described civil disobedience as “a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies. On this account, people who engage in civil disobedience are willing to accept the legal consequences of their actions, as this shows their fidelity to the rule of law.” I am indeed willing to accept those consequences.
And it is for this, more than anything else, that I have to thank you first as a representative of the legal system; for representing a system which is not immune to change, and not simply the justifying arm of tyrants and criminals. I could climb over the fence on North Road, say no to two nice police officers when they offered to walk me out without charges, and not end up riddled with bullets, or having my home burnt down, which could well have been the case in the 1930’s.
I could enjoy all the protections of the law afforded presently to a nice, articulate, reasonably well-educated white, male, middle class settler when they commit an act of civil disobedience, which is what this was. Unfortunately the original peoples of Turtle Island have experienced nothing like these protections. The law has allowed them to be cheated, assaulted and murdered, dispossessed of their languages, families, cultures, livelihood, in short, their identities. It is not anything like an understatement to say that this legal system has overseen and enabled genocide, and although some changes have occurred they are woefully inadequate.
It will take a lot of civil disobedience from people like me to bring more meaningful changes to this state of affairs, and one danger is that people like me will imagine that this is someone else’s fight, not theirs.
Secondly, I have to thank you for offering us a way to finally stop this pipeline. We are at the nexus of a place of real possible change. Once people understand that being sent to jail as a form of civil disobedience is effective in, even essential to, changing the system, you have lost the war. There comes a point in every struggle when too many people have been arrested, and the case against them collapses. In Clayoquot Sound, on which much of the current paradigm of punishment is based, it took only 900 arrests. It’s perfectly obvious that if 5000 people were arrested and imprisoned for violating the TMX injunction, the project would stop permanently. Even 2000 would do it, and this is the Achilles heel of the punitive paradigm: At a certain point incarceration is not a deterrent, but rather an inducement, an incentive, to action, as people realize that their swelling numbers bring the status quo ever closer to its knees. The prosecution has to rely on the fear and complacency of citizens to maintain “order”, and when that fear and complacency evaporates, so does the project. All that is necessary is for us to recognize our own power, and to act according to principles embodying a world view we wish to bring about, a world in which all creatures are respected and protected equally.
There remains only to tell you how I will use my time in jail fruitfully. I intend to read some books I’ve already ordered for North Fraser Pretrial, so I certainly hope you’re sending me there; to write music and songs, which is my lifelong journaling habit; and to reflect on how I can be a better, more effective activist: how I can respond to the parts of myself that want to give up, sit back and wait for the end to come. Years from now, if I live that long, how would I ever justify my capitulation?
I’ll tell you that around me I see people who are tired of attempting to bring change by allowing harm to be inflicted on themselves. They act nonviolently and conscientiously, aware of the likely consequences of their actions; they take stands based on the highest principles our society can aspire to. Many of these people have worked much harder and for longer than I have, and I confess that their diligence is both an admonishment and an inspiration to me, and I hope to others. For now we need others, people willing to put themselves out, even a bit.
People willing to say “I will do what’s necessary even if I suffer for it”. And I want to point out to those people that thanks to Justice Affleck, one consequence of arrest people need not fear is a criminal record. As you know, justice Affleck declared that all arrests in the matter of TMX will not be written into an offender’s criminal record, for which I can only offer him thanks. And with that, I’ve said all I have to say.
Thank you for your patience.