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"My function is not to negotiate"

The cross examination of Tactical boss Sergeant Bernard, as Mi'kmaq Warriors trial continues

by Miles Howe

Sergeant Bernard, tactical boss of the October 17th raid. [Photo: Miles Howe]
Sergeant Bernard, tactical boss of the October 17th raid. [Photo: Miles Howe]

Moncton, New Brunswick – Day two of the trials of Germaine 'Jr' Breau and Aaron Francis, the incarcerated members of the Mi'kmaq Warriors Society, continues today.

The day began with presiding Judge Jackson addressing Breau's appeal to have the name of the RCMP officer who uttered racist remarks on the October 17th raid of the anti-shale gas encampment disclosed to the defence team. The motivation for this appeal, ostensibly, is to know if and when the individual in question might be taking the stand, most likely to provide testimony against Breau or Francis.

Judge Jackson noted that the disclosure was indeed relevant to the trial, but that he was in effect stonewalled from granting Breau's request by the Crown's revelation that no such records surrounding who the racist officer in question might actually be.

Indeed, on Monday the Crown would neither confirm nor deny that RCMP spokesperson Julie Rogers-Marsh, who noted in an earlier statement to APTN that the officer in question was subject to an internal investigation, actually even worked for the RCMP.

This suggests that either Rogers-Marsh was lying to APTN when she noted the officer was undergoing an internal investigation, or that the Crown is lying when it says that no such records of an internal investigation might have taken place.

In any case, the defence is now unable to know whether the officer in question, who noted to the effect that: 'Crown land belongs the government, not to fucking Indians', will be taking the stand.

The remainder of the morning was spent with the defence cross-examining Tactical Troop Site Commander Sergeant Richard Bernard.

Defence lawyer Gilles Lemieux focused his cross-examination on the tactics used by Bernard, both in leading up to the October 17th raid and in the weeks leading up to it.

Bernard conceded that the blocking of the entrance to the compound where Houston-based gas giant Southwestern Energy Resources Canada (SWN) was the “illegal” component of the protest and that in his opinion: “I wouldn't call being camped out an unlawful act.”

This is relevant because the brunt of Bernard's October 17th planning, in terms of forces initially expended, was related to sweeping through an adjacent field to the Irving-owned compound with guns drawn and “clear(ing) the area.”

To Bernard, basically, even though the illegal activity was actually the blocking of SWN's equipment, the entire area had become one big protest site – an illegal one at that.

There is now serious question as to whether the encampment adjacent to the SWN compound received written permission from the land owner to camp there, with alternating theories related to exactly where the land boundaries for the area upon which they are encamped began and ended.

Also of interest, tactically, was Bernard's information related to when the October 17th raid was planned, and when it was decided to execute the plan.

Bernard noted in court that the decision to execute the raid was taken at 9:35am of October 15th. He noted that in a meeting with RCMP negotiators they advised him that if things did not progress between the two sides, that he should “get the ball rolling” (read: attack the encampment) on the morning of the 17th.

This is important because until this point the RCMP have repeatedly stuck to the narrative that there was a marked escalation in volatility on both October 15th and 16th, and that the decision to attack the encampment on the 17th was predicated on this breakdown of both tempers, and, one would think, negotiations.

In fact this is false.

If anything, the increase in volatility was the result of Irving-owned Industrial Security Limited security guards exiting the SWN compound in a previously unknown – and provocative – manner. ISL employees, including former a New Brunswick police officer, exited the compound by a main gate on both the 15th and 16th, and approached a 'sacred fire' area while armed.

This was in direct contradiction with previously negotiated agreements that existed between the RCMP and the Mi'kmaq Warriors.

As well, Bernard noted that negotiations continued well into the 16th and into the early hours of the 17th. In fact, tobacco was exchanged between both sides.

While Bernard did not know the symbolism of the exchange at the time, it appears that he has recently done some research into the customs of the unceded territory upon which he resides.

“The passing of tobacco is a sign of respect and a sign that people are making a pledge to each other,” testified Bernard.

In this case, the pledge most likely would have been to continue to negotiate peacefully, not attack violently only a few hours later.

So while day two continues with no clear direction as to the actual charges facing Francis and Breau – the majority of which are related to allegedly throwing Molotov cocktails and pointing a firearm, respectively – those in attendance have been privy to a 'setting of the scene' of sorts.

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