CBC: Shale gas injunction ruling to come Monday

First Nation seeking court injunction to halt shale gas exploration in Mi’kmaq territory

CBC News Posted: Nov 15, 2013 10:42 AM AT Last Updated: Nov 15, 2013 9:13 PM AT

RCMP and protesters clashed on Highway 11 near Kouchibouguac National Park this week over controversial shale gas exploration in the Rexton, N.B., area.RCMP and protesters clashed on Highway 11 near Kouchibouguac National Park this week over controversial shale gas exploration in the Rexton, N.B., area. (Jen Choi / CBC)

The Elsipogtog First Nation and SWN Resources Canada will learn Monday whether a judge will force the energy company to stop shale gas exploration in a large swath of New Brunswick.

Lawyers with the band, the company and the province spent Friday afternoon arguing over the case in Court of Queen’s Bench in Fredericton. Justice Judy Clendenning has reserved her decision until Monday.

While lawyers battled in court, the protest site on Highway 11 near Laketon was quiet — a far cry from Thursday when protesters stood toe to toe with police and one woman was arrested.

The trucks used for seismic testing were not out Friday. Instead, they sat parked behind a fence at the Caledonia Industrial Park in Moncton.

“We’re peaceful warriors,” said protester Judd Poulette. “People are like ‘Oh, warriors are violent, they’re the ones that go in right away.’

“Warriors are here to protect the elders and kids. That’s what I’m here for.”

In court, Elsipogtog lawyers argued the injunction is urgently needed as “outside radical elements” create the risk of more violent confrontations like those in Rexton, N.B., last month between protesters and police.

They also said the province didn’t properly consult aboriginal communities on shale gas development, a legal requirement.

Elsipogtog lawyer T.J. Burke said with the decision delayed until Monday, SWN is free to conduct seismic testing for now.

“They still can continue at this time to explore over the weekend,” Burke said. “We just hope everything remains peaceful.”

Premier David Alward has called the fight a “beachhead” in his vision of economic development.

He argued again Thursday that testing is low-impact — and that SWN will comply with a higher standard of consultation if it finds enough shale gas to develop.

“There will be a very significant consultation process that will be required to be undertaken by them,” he said.

But First Nation representatives argue it’s not SWN, but the province that has to consult. Since positive tests would lead inevitably to development, the province has already failed and testing should stop now, they say.

Alward has also warned the same groups protesting in Kent County this week will also oppose mining and pipeline projects in the province.

He said the ongoing opposition to SWN Resource’s shale exploration puts at risk not only the company’s plans, but also a proposed mine north of Fredericton and a planned pipeline to bring Alberta crude to the Irving refinery in Saint John.

“The unlawful protests that have taken place in Kent County cannot be accepted by any New Brunswicker,” he told reporters.

‘There is credible evidence that outside radical elements are converging in significant numbers on New Brunswick.’– Elsipogtog First Nation 

The Elsipogtog application contends there is “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, other police and even military forces,” would interact to create a repeat of the “unacceptable and dangerous events” that happened in Rexton on Oct. 17.

Dozens of protesters were arrested and six RCMP vehicles were destroyed by fire in a clash on the protest line that day. Protesters had prevented SWN from accessing its exploration equipment for almost three weeks and the company had obtained a court injunction ordering an end to the protest.

SWN Resources has been laying lines and placing geophones this week near Kouchibouguac National Park to carry out seismic testing for potential shale gas deposits. The continuation of exploration has been met by protests.

Laketon protestShale gas protesters and RCMP were nose to nose on Highway 11 near Kouchibouguac National Park in New Brunswick on Thursday. (Jen Choi / CBC)

On Thursday, a 46-year-old woman was arrested for mischief, assaulting a police officer and resisting arrest.

Cpl. Jullie Rogers-Marsh said the RCMP is investigating several incidents of vandalism as a truck belonging to a private company working in the area and several pieces of equipment were damaged.

“Most people that were there at the Laketon side that were protesting were doing so in a peaceful manner, but there were some obviously that were not,” said Rogers-Marsh on Thursday. “There were threats of illegal acts today and some crimes obviously were committed.

“So we’re certainly asking people that want to continue to protest to do so in a safe, peaceful and lawful manner.”

A few protesters were in Laketon on Friday morning should exploration activities resume, but there were no seismic exploration trucks or RCMP evident in the area of Thursday’s events.

The RCMP’s commanding officer for New Brunswick said the force moved in on the protesters on Oct. 17 because the situation had turned dangerous.

The premier said “outside forces” within the protest camp had escalated the situation.

“When outside forces came in, it’s certainly intimidating on many different sides,” Alward said at the time.

In its application for an injunction, Elsipogtog argued the New Brunswick government is “engaging in what amounts to impermissible self-help” to SWN Resources by permitting shale gas exploration without sufficient consultation with the aboriginal community, as required under the Supreme Court of Canada’s ruling in Haida Nation v. British Columbia in 2004.  It seeks a court order to suspend all exploration activities in the Signitog District of Mi’kmaki, which covers most of New Brunswick south of the Miramichi River and a portion of Nova Scotia, where it borders New Brunswick.

“This behaviour, in violation of the supreme law of Canada, takes the form of unrelenting and uncompromising Crown affirmation of the rights it purported to grant to SWN, without regard for the rights of the applicant,” states the band in its application.

Alward and Energy Minister Craig Leonard have repeatedly stated that SWN’s ongoing work is exploratory in nature to determine if there is potential for feasible shale gas production in New Brunswick. They have said more consultation would take place if SWN, or any other company, wants to move into production in the province.

Shale gas is extracted through injecting a mixture of sand, water and chemicals into the earth under high pressure to fragment shale rock and release the natural gas that is otherwise inaccessible. Opponents fear the potential impact of that process on the groundwater supply.