Judge forcing First Nation to take protection of traditional lands to trial in denying injunction
Anti-fracking activists denied injunction in Canada
by Andrea Schmidt November 18, 2013
Local fears rise as renewed seismic testing looms in area of New Brunswick inhabited by the Elsipogtog First Nation
Protesters clashed with police last month over fracking plansCourtesy 95.9 Sun FM, Miramichi, New Brunswick
FREDERICTON, Canada - A judge ruled here Monday against an injunction to suspend controversial shale gas exploration activities in Kent County, New Brunswick, which last month created headlines across North America when protests in the area turned violent as activists burned police cars amid dozens of arrests.
The injunction was filed last week by the Elsipogtog First Nation, who fear the exploration activity will lead to shale gas extraction - known as "fracking'' - and will harm their land and water.
Justice Judy Clendening of the New Brunswick Queen's Court Bench made the ruling on the injunction, which had been filed by Elsipogtog Chief Aaron Sock and the First Nation band council against the government of New Brunswick, SWN Resources Canada and a provincial umbrella group of First Nations Chiefs.
"It is a small step backward, I guess," Sock told reporters outside the provincial court in New Brunswick's capital, Fredericton. "But in the big picture we're going to be regrouping and coming back with a different strategy."
"The fight between Elsipogtog First Nation and the government of New Brunswick concerning the lack of consultation is far from over," said T.J. Burke, the lawyer representing the elected chief and band council of the small Mi'kmaq community.
Lawyers for the government of New Brunswick and SWN Resources Canada left the court without comment.
After the ruling, which lasted only twenty minutes, a small group of supporters shed tears and hugged Chief Sock outside the courtroom.
"We're nervous and scared about what's going to happen," said Judy Miksovsky, a supporter from Saint Mary's First Nation, where opposition to shale gas has also been fierce. "We need to make sure we stay peaceful. I don't think what we're doing is wrong."
The denial of the injunction on Monday - and the specter of renewed exploration activity on Highway 11, about 30 miles from Elsipogtog - have raised the likelihood of new confrontations between the RCMP, SWN workers and those opposed to shale gas development.
"I'm just one man," Chief Sock said when asked by reporters if he could say how his community would respond to the ruling, "and I can't really commit to anything. I just hope and pray that it remains peaceful."
"New Brunswickers aren't going to give up - not those of us who are intent on sending this industry packing," said Shawnee Main, a Fredericton resident who has actively supported the protests since the spring. "And our indigenous people have a lot of people standing up behind them in this cause."
'No impact to' treaty rights
The ruling is a victory for the Progressive Conservative government of New Brunswick, which is looking to shale gas extraction to bring jobs and revenue into a cash-strapped province struggling with an unemployment rate over 10 percent and a declining tax base. The government granted the exploration licenses to SWN Resources Canada in 2010, in exchange for investment in the province worth $47 million.
New Brunswick Premier David Alward has repeatedly signaled his unwillingness to back down on shale gas development, despite the opposition that Elsipogtog First Nation's stand has helped galvanize across the province. Last week, the premier told reporters that the exploration underway in Kent County is "a beachhead" for resource development in the province.
The motion for an injunction argued that the Elsipogtog First Nation had not been properly consulted about the exploration activities. The Canadian Constitution recognizes aboriginal and treaty rights, and a series of court cases have given rise to a legal standard known as "the duty to consult." It obliges the Crown - in this case the provincial government of New Brunswick - to consult and accommodate First Nations in proportion to the extent that their aboriginal and treaty rights stand to be impacted by resource development projects.
But what constitutes adequate consultation is not defined by law - and the "duty to consult" doesn't give First Nations the right to say "no" to projects they oppose.
Judge Clendening ruled that the issue of whether or not proper and sufficient consultation has taken place should be addressed in trial, not through an injuncton. "There are significant issues raised by Mr. Burke and in the affidavit of Chief Sock, but those can only be determined at trial," she said.
The government maintains it has gone above and beyond the consultation required of it at the exploration stage. "Everybody recognizes that there is no impact to environment, land use, or treaty rights" from seismic testing work, Minister of Mines and Energy Craig Leonard told Al Jazeera in an interview last month.
SWN Resources Canada maintains that it is operating "safely and responsibly, and in full compliance with the laws of the country and Province."
The motion for the injunction further argued that for SWN to continue exploration activities would constitute a threat to public safety. Citing "credible evidence that outside radical elements are converging," it warned of "a very real danger that as active seismic exploration is recommenced in the coming hours and days, outside radical elements, the Respondent SWN and the RCMP [Royal Canadian Mounted Police], other police and even military forces, all interact so as to cause a repeat or escalation of the unacceptable and dangerous events that took place in Rexton on October 17, 2013."
On that day, the RCMP raided a protest site set up near a lot on which SWN was parking seismic testing equipment and vehicles. RCMP officers entered the camp with automatic rifles, dogs and beanbag pellet guns to enforce an injunction obtained by SWN against the occupants. As the day progressed, RCMP pepper-sprayed elders and women from Elsipogtog. Six RCMP vehicles were then set on fire.
In her ruling, Judge Clendening said: "If, as suggested by the Applicants, an outside radical element may be converging in significant number on New Brunswick, then should it be the Respondents for whom an injunction may be granted."