photo source: The National Post
Canada made international headlines in October when 6 RCMP vehicles were torched outside of sleepy Rexton New Brunswick. It occurred when a protest by the Elsipogtog First Nation band (aboriginal people) over shale gas exploration turned violent. The band has been pushing for the suspension of all oil and gas licences and permits issued to SWN Resources Canada for exploration in the District of Mi'kmaki located in eastern New Brunswick (prov).
The protesters say they're concerned that a shale gas industry poses a threat to the environment. They are particularly concerned with hydraulic fracturing, or fracking; a process involves injecting water and chemicals down a well to fracture layers of shale rock in order to release trapped pockets of natural gas.
The dispute has been ongoing. There have been blockades of SWN exploration equipment, vandalism, and weapons seized. The company obtained a court injunction ordering an end to the blockade in November. A counter attempt by the protesters to obtain an injunction against the exploration activities on the basis of inadequate consultation was rejected by the New Brunswick Court of Queen’s Bench judge.
There is disagreement on how consultation should be done, by whom, and based on what nature of activity – exploration with relatively minor impacts, or production where fracking and other substantial impacts may occur. It is in these grey areas where conflicts ignite. Relying on the law for issues with a clear social licence component should always be a last resort when all other best efforts have failed. But what does the law say?
Aboriginal Consultation Obligations in Canada
The common law duty to consult is based on judicial interpretation of the obligations of the Crown, in relation to potential or established Aboriginal or Treaty rights of the Aboriginal peoples of Canada, recognized and affirmed in section 35 of the Constitution Act, 1982. The Crown was originally seen as the federal government but there are now considered to be “provincial crowns”.
The duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it.
The scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.
The Crown is not under a duty to reach an agreement; rather, the commitment is to a meaningful process of consultation in good faith.
Two sides, two viewpoints
Elsipogtog lawyers argued the province hadn’t properly consulted the band for the exploration activities taking place on their traditional lands. Elsipogtog argues it's not SWN Resources Canada, but the province that has to consult. And since positive tests would lead inevitably to development, Elsipogtog's lawyers argued the province has already failed in its duty to consult and testing should stop now.
In rejecting the Elsipogtog injunction request, Justice Judy Clendening also said there’s evidence of "some type of consultation" between Elsipogtog, the province and the company. And while the band’s claims need to be "carefully considered," that is a matter for trial, not an urgent injunction. In early November, Premier David Alward again said that testing for shale gas development potential is low-impact and said SWN will comply with a higher standard of consultation if it finds enough shale gas to develop. Alward defended criticisms that his government has not consulted enough with First Nations about shale gas development saying it has done so more than any previous government in the province.
Little has come to light on the consultation conducted by the New Brunswick government. Circulating on the Internet is a September 6th letter outlining a meeting on matters of consultation related to the development of the oil and natural gas sector being proposed within Mi'gmag and Maliseet Territory. The structure of the meetings, including what was discussed and who was in attendance, is currently unknown. Sources within the Elsipogtog community note that “no more than three” Elsipogtog elders attended these sessions. As well, while it also cannot be confirmed, the same sources note that elders were only provided with their $200 honorarium upon signing papers noting that they had been consulted.
Land Claims and Resource Ownership
On October 24th, Chief Aaron Sock said his community will go to court to try to take control of Crown lands in New Brunswick.
In a meeting with the Assembly of First Nations National Chief Shawn Atleo, Sock acknowledged “It’s gone past the SWN stuff,” ”It’s gone past the fracking.” ‘At the end of the day, the real question is the title of the land.’ The concern shouldn’t be with blocking roads or fighting with companies. “Because at the end of the day, the real question is the title of the land,” he said. “Once we can distinguish who actually is the rightful owner, then we can start talking about extracting natural resources.”
That’s the recent history, now let’s dig down to the roots. The government’s relationship with First Nations in New Brunswick is governed in part by the Peace and Friendship Treaties of 1760-1761. Unlike later treaties signed with other First Nations in Canada, the Peace and Friendship treaties did not surrender First Nations’ rights to their land. As a result, the Mi’kmaq and Maliseet First Nations continue to claim title to their traditional territory — including the land on which the blockade occurred.
Even in cases where First Nations haven’t proved they have title to disputed land where there is a claim the government still has a duty to consult with them and accommodate their interests.
Conclusion
NB Energy Minister Craig Leonard said New Brunswick is forging ahead with the shale gas industry to create much-needed jobs and revenue. "The reality is that we have the science, we have the facts behind us to understand what the reality is, and that's why we have made the decision to move forward with this very important industry in New Brunswick".
The October 17th incident has galvanized native groups, which have been sending statements of solidarity to the East-Coast band. The Grand Chief of the Assembly of Manitoba Chiefs, Derek Nepinak, said he does not see an immediate resolution. He is calling for a first ministers meeting on the issue of the type of resource equity arrangement the federal government is prepared to make with indigenous people. “We are not going to sit back, we’re not going to let the wealth leave our lands the way it has for the last 100 years, keeping us impoverished …”
AFN’s New Brunswick and PEI regional chief Roger Augustine called it a federal issue, noting the UN Declaration on the Rights of Indigenous Peoples calls for consultation on numerous issues, including conservation and protection of the environment and resource development. AFN National Chief echoed this position "What's required then is meaningful talks on a nation to nation, treaty by treaty basis between the Mi'kmaq nations like Elsipogtog and other levels of government -- in particular the federal Crown who has the primary responsibility."
While unsettled land claims, lack of clarity on what constitutes consultation and accommodation, and who must undertake it, remain, incidents like Rexton will keep recurring. In this case the company, SNW, is caught up in a bigger game, in which it has only partial control. Stay posted for my next blog on what companies can do to manage these important relationships well, avoid becoming pawns in the bigger game, and move their interests forward in a way that addresses the needs of key stakeholders such as First Nations.