BTBObserver Q&A Emily Gilbert, Pt.

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Keith White recently chatted with Professor Emily Gilbert, Program Director of the University of Torontos Canadian Studies Program. In the second of this two-part Q&A series, Professor Gilbert sizes up the Beyond the Border(BTB) initiative, highlights the silver-lining of the U.S. shutdown and sequester on BTB, and stresses the role public scrutiny must play in effective cross-border initiatives.
How are Canada and the United States doing at managing their shared border? Given the length of the Canada-U.S. border, its management is reasonably effective. While we have seen increased securitization at the border, and even militarization, overt violence is infrequent. For many people, long security lines and surly border guards are the main inconveniences that they will facean experience that is not uncommon at border crossings around the world. But there are others for whom the border is much less seamless. There are numerous accounts of non-white travelers being held up at the border, and the American Civil Liberties Union has filed a lawsuit against the US Border Patrol for this very reason. Questions have also been raised about the ways that information sharing is taking place. The case of Maher Arar is regularly referenced to point out the problems in how information is shared. On a stopover at a US airport, Arar, a dual citizen of Canada and Syria, was subject to extraordinary rendition from the United States to Syria, even though he was then a Canadian resident. Americas security concerns about Arar were based on information supplied by the Canadian Royal Canadian Mounted Police (RCMP), evidence later demonstrated to have been of dubious origin. While Arar was exonerated in Canada and paid compensation for his wrongful treatment, he continues to be included on the US no-fly list. This incident raised numerous issues around how information is shared between the two countries, the oversight that has been set up, and public access to information and appeal. As information sharing increases rapidly through Integrated Border Enforcement Teams, shared entry and exit border management and biometric preclearance programs, the protocols around information sharing need to be made more transparent and accountable. With respect to the movement of goods, a truck cargo pre-inspection pilot project was announced in March, 2013. Sites in Canada will be set up where U.S. Customs and Border Protection agents will conduct primary inspection on designated trucks heading to the United States. Although assurances have been made that U.S. agents on Canadian soil will be subject to Canadian law, unlike the Nxt Generation controversy, more clarity on accountability and oversight would be helpful, particularly in the realms of information sharing.

BTB/RCC: How do you think these two initiatives are going overall? And what impact has sequestrationnot to mention the U.S. government shutdownhad on these initiatives?

The progress that has been made on the BTB/RCC is paltry. Right from the get-go there were concerns that the United States, fraught with budget concerns, would not provide the resources necessary to implement the sweeping changes that were promised. Sequestration, which kicked in on March 1, 2013, was felt immediately at the border. 5,000 border agents were cut and overtime was reigned in, dramatically slowing down all border traffic. The complete shutdown of the U.S. federal government will only make things worse. While unlikely the border will close, delays will no doubt continue and worsen, as the budget crisis plays out. Cross-border issues can't be high on the U.S. agenda at the moment. For someone like me concerned with the sweeping changes that BTB/RCC could bring about, the delay is not unwelcome, for it might lead to more opportunities for public scrutiny of the proposed changes.

The progress that has been made on the BTB/RCC is paltry.

Other initiatives around border mobility have suffered because of lack of U.S. funding. Sequestration has had an immediate impact on border crossing. Staff hours at the U.S. Customs and Border Protection have been cut, and widespread layoffs have led to delays in document processingas travellers are advised on large signs at Canadian airports. Moreover, several proposals have been raised to implement fees for border-crossing vehicles, both personal and commercial, which would have negative effects on trade and tourism. While these have not come to pass, the proposals raise questions about Americas commitment to an open border with Canada. One of the biggest problems facing land crossing is the inadequate infrastructure. Nowhere is this more in evidence than at the Detroit-Windsor crossing, the busiest in North America. A new bridge has finally been announced, but it will be completely paid for by the Canadian government, subsidized by tolls on the Canadian side of the bridge, and in partnership with the private sector. This investment is lopsided; American contributions to the bridge would more clearly demonstrate the principles of partnership that are meant to underpin the Beyond the Border declaration. The slow progress suggests that border initiatives are not at the top of the agenda for both governments. But this is not necessarily a bad thing. The delays provide more opportunity for information to be made public about the initiatives and for public debate. As a Canada expert even teaches a class a class on Canada's borders, what are the big, underappreciated historical and contemporary Canada-U.S. border issues? There are lots of examples, but Ill focus on the two that I think are most important. First, the rights of indigenous peoples at the border have become undermined in recent years, and especially since 9/11. Historically, the Jay Treaty of 1794 recognized the rights of indigenous peoples to freely cross the border. The Treaty of Ghent of 1814 after the War of 1812 reaffirmed the special mobility rights of indigenous peoples. While there are numerous examples of the treaties being abrogated over the years, the more intense securitization of the border since 9/11 has had a particularly troubling impact for indigenous peoples.

Perhaps none as much as the Mohawk of Akwesasne who live on reserve lands that straddle the Canada-U.S. border, which splits their community in two. A number of sovereignty issues for indigenous peoples have reared their head in recent years, from the arming of border security personnel, to cigarette trade, to the lack of recognition of Mohawk passports that were recognized internationally for decades. As indigenous peoples continue to press for their rights to be recognized, e.g. the Idle No More movement, it is possible that tensions that already exist at the border will escalate unless there is better recognition of indigenous sovereignty. Second, while most of the interest in the Canada-U.S. border focuses along the 49th parallel, Arctic borders will soon command attention. There are no issues around the land border between Alaska and the Yukon, but how it extends into the Beaufort Sea is a matter of dispute. Since the 1982adopted United Nations Law of the Sea, states are accorded exclusive economic rights for 200 nautical miles beyond their territorial border. Canada and the United States contest where to draw the line that determines their respective rights; as a result, there is a maritime area of over 8,000 sq miles in dispute. With the discovery of hydrocarbon resources in the region, and as shipping and tourism increase because of climate change, this border dispute could erupt sometime soon. Final question: Anything else you'd like to share either for this Q&A? The Beyond the Border declaration has been heralded by the Canadian Prime Minister as the most significant steps forward in Canada-US cooperation with the North American Free Trade Agreement. And yet, unlike the earlier free trade agreements, there has been little public or parliamentary debate about these initiatives: whether they are necessary, cost effective, and support and protect human rights. Cooperation between Canada and the United States is laudable, but it should not take place beyond public scrutiny. This is especially important as border policies are being used to reconfigure security both at the border and away from it. In both countries, more intense post-9/11 security measures have resulted in more authority being invested in border personnel, particularly away from the border. In Canada, there are many more reports of border agents knocking on doors, raiding workplaces, and waiting outside schools looking for undocumented residents. In the United States, the Border Patrol have been setting up checkpoints and undertaking warrantless arrests up to 100 miles away from the border. These practices underline that border initiatives such as the Beyond the Border declaration are underpinned by a more hardened approach to immigration and refugee claimants. They normalize a preventative approach to security that hinges upon a presumption of guilt, not innocence. This denotes a significant change in Western understandings of law and democracy. More public debate is warranted.

These practices underline that border initiatives such as the Beyond the Border declaration...normalize a preventative approach to security that hinges upon a presumption of guilt, not innocence.