OKT: “Do We Need the Rule of Law to Deal with Native Protestors?”

SOURCE: http://www.oktlaw.com/blog/do-we-need-the-rule-of-law-in-new-brunswick-to-deal-with-native-protestors/

October 23, 2013 4:47 pm

By Michael McClurg

Elsipogtog First Nation is only the most recent in a long line of examples of Aboriginal communities protesting resource development on their lands without their consent, and police force being used to ‘take down’ Aboriginal protest sites.  This is not a “new” story – it has happened before. In some cases, like Oka and Ipperwash, it led to full blown public inquiries to get to the roots of why the Aboriginal protests occurred in the first place, why violence escalated, what could have been done to reduce violence, and how to avoid future conflicts.

You would think that after the Report of the Royal Commission on Aboriginal Peoples and the Ipperwash Inquiry Report, we would have learned a lesson or two about helpful and unhelpful ways to deal with these types of conflicts over resources, including appropriate police responses. But watching reactions to Elsipogtog, we at OKT have a strong sense of history repeating itself.

When conflicts arise about Aboriginal people protesting resource development, you often hear people talk about the “rule of law”; it has come up regularly in media reports and commentary during the current occupation and protests involving the people of Elsipogtog. The concept refers to the idea that power needs to be applied uniformly and not arbitrarily. Some people invoke this term to suggest that the Canadian authorities are not applying the rule of law to Aboriginal protesters in the same manner that they would apply them to non-Aboriginal protesters in similar circumstances.

This argument is often raised by people who support “cracking down on” or quashing (possibly through violence) protests in the same manner that the RCMP raided the occupation at Elsipogtog. This refrain has been repeated many times over the past decades, in response to Aboriginal protests in Canada such as Burnt Church, Kanesatake (Oka), Ipperwash, and Caledonia. It is a simplistic and emotional response to highly complex situations which often have deep roots in historical conflicts. It also  misrepresents the “rule of law” by suggesting that it means applying the law strictly under all circumstances regardless of context. This could not be further from the truth. Indeed, courts and other authorities have repeatedly endorsed a contextual approach to Aboriginal occupations and protests.

The Ontario Court of Appeal in Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council et. al. regarding charges for contempt of court for violation of an injunction spoke of the complex nature of the rule of law in the context of Aboriginal protest and occupation:

“… the rule of law has many dimensions, or in the words of the Supreme Court of Canada is ‘highly textured’… The rule of law requires a justice system that can ensure orders of the court are enforced and the process of the court is respected. Other dimensions of the rule of law, however, have a significant role in this dispute. These other dimensions include respect for minority rights, reconciliation of Aboriginal and non-Aboriginal interests through negotiations, fair procedural safeguards for those subject to criminal proceedings, respect for Crown and police discretion, respect for the separation of the executive, legislative and judicial branches of government and respect for Crown property rights.”

Picking up on this language two years later, the Ontario Court of Appeal in Frontenac Ventures Corporation v. Ardoch Algonquin First Nation endorsed its holding in Henco that enforcing the rule of law involves a complex balancing. It said that this balancing should be performed before an injunction is ordered in an Aboriginal protest and it emphasized the importance of negotiation in this balancing.

In other words, the rule of law is not just about issuing and strictly enforcing court orders. Upholding the rule of law involves looking at each matter contextually through the lens of the long history of relations between Aboriginal and non-Aboriginal people in Canada. An excellent synopsis of this history and context is provided in the report of the Royal Commission on Aboriginal Peoples, a commission that was created in the wake of the Kanesatake (Oka) standoff. You can read the highlights of that report here.

A very helpful resource for better understanding the rule of law in the context of Aboriginal occupation/protest is the report of the Ipperwash Inquiry. The Ipperwash Inquiry was headed by the Hon. Justice Sidney B. Linden, a judge of the Ontario Court of Justice and was formed by the Government of Ontario in the aftermath of the shooting of Dudley George during the protest at Ipperwash Provincial Park. Part of the purpose of the inquiry was to consider how violence could be avoided in similar circumstances. The report that emerged from the Ipperwash Inquiry is invaluable to understanding these conflicts and the appropriate police response to them.

If you want to understand what is happening at Elsipogtog, and recommended ways to deal with a conflict like this, we highly recommend reading the Ipperwash Inquiry report, as there are many parallels and many of the final recommendations are relevant.

Here are some highlights from the Ipperwash Inquiry report that provide important context on the current events at Elsipogtog:

  • Aboriginal occupations and protests are a symptom of our collective inability to fairly resolve centuries-old tensions and conflicts between Aboriginal and non-Aboriginal communities over the control, use, and ownership of land. Until we “design institutions or implement processes that can resolve these tensions more effectively”, protests and occupations are very likely to continue
  • Aboriginal occupations differ from other kinds of protest and occupation in part because of the long history of mistrust between the police and Aboriginal people – “Police strategy must emphasize the development of communication networks and trusting relationships with Aboriginal people before, during, and after protests”
  • The role of the police is limited to maintaining public order. It is not the role of police to resolve the underlying issue, that is the role of government and government should not duck it – “(G)overnments should not avoid their constitutional obligations to First Nations and Aboriginal people under the cloak of keeping out of police ‘operational matters’”
  • Occupations and protests over land and resources are not new: Historically both non-Aboriginal and Aboriginal communities have used occupations and protests to secure lands and resources from one another, however, non-Aboriginal people have secured much more land and resources this way than Aboriginal people have
  • Studies have shown that, despite commonly held misconceptions, Aboriginal occupations and protests over the past 50 years have been notable for their low levels of violence

It is this context that informs the “rule of law” as it pertains to Aboriginal occupation and protest. Respecting the rule of law is about more than simply charging and arresting people according to the strict letter of the written law. A nuanced and contextual approach is required. An approach that recognizes the underlying history of these protests is needed. An approach that addresses the need of governments to uphold the rule of law by meeting their legal obligations to respect Aboriginal rights is needed.

An extremely important part of the legal context at Elsipogtog is that the protests are occurring on land (and are about land) that the people of Elsipogtog never ceded title to. Aboriginal people in this part of Canada signed Peace and Friendship Treaties with the British in which they never ceded any territory. Canadian law recognizes that the occupation of land by an Aboriginal community at the time of the arrival of Crown sovereignty means that the Aboriginal community owns that land. So, the rule of law in this case would arguably dictate that the protesters have every right to be on their traditional land and that in fact, others, including the Crown and resource extraction companies, are trespassers.

In cases like Elsipogtog, injunction orders and police enforcement cannot and should not exist in a vacuum, separated from the extremely complex historical, cultural, and legal nuances of the situation. If such a simplistic approach is taken to Aboriginal protests, as some in the media would encourage, trust and the potential for negotiation and reconciliation is greatly reduced and the potential for violence and continued protest greatly increases. Those results are not consistent with upholding the rule of law. And they will not bring peace to the land …

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CBC: N.B. Premier firm on shale-gas pledge as anti-fracking protesters cheer injunction’s end

In an interview, New Brunswick Premier David Alward says he is hoping SWN Resources, the Texas energy company exploring for shale gas near Rexton, N.B., will resume its operations. (ANDREW VAUGHAN/THE CANADIAN PRESS)

JANE TABER

HALIFAX — The Globe and Mail

Published Monday, Oct. 21 2013, 9:06 PM EDT

Last updated Monday, Oct. 21 2013, 9:10 PM EDT

Just days after a violent anti-fracking protest, New Brunswick Premier David Alward is pressing ahead with his vow to develop a shale gas industry, suggesting First Nations people will share the economic benefits.

But natives are not budging, arguing that their drinking water, which they fear the fracking process could contaminate, is not for sale.

In an interview on Monday, Mr. Alward said he is hoping SWN Resources, the Texas energy company exploring for shale gas near Rexton, N.B., will resume its operations.

He made his comments as native protesters and Elsipogtog First Nation people cheered a New Brunswick judge’s decision on Monday to lift an injunction that had ordered them to stop blocking trucks from leaving the SWN Resources compound to do seismic testing in the area.

The trucks were removed after the RCMP moved in on the native protesters’ encampment last Thursday to enforce the injunction.

Some First Nations people interpreted the judge’s decision as a message to SWN to leave the province. The Premier sees no correlation.

“It’s very much one day at a time,” Mr. Alward said of the resumption of SWN operations. “What we have to remember is that the current work that SWN is doing is exploration. That’s what this phase has been.”

SWN has not replied to requests to comment on when or if it will restart exploration.

“Certainly, my hope and my confidence is that we will see a shale gas industry develop in New Brunswick,” Mr. Alward said. “We can’t afford otherwise.”

He said it would bring prosperity to the province and allow young people who have moved west for work to return home. The Premier repeated, too, that the industry would be developed safely and securely with environmental studies and consultations with First Nations.

“In the end, we are all collectively going to benefit as New Brunswickers, including First Nations, both as individuals but as communities as well,” he said.

Support has poured in for Elsipogtog First Nation from other native groups across the country after Thurday’s violence, in which police cars were torched, rocks thrown and protesters pepper-sprayed. Over the weekend, the native leadership there called for calm – and uneasy quiet has fallen, although protesters remain at the encampment.

It is not clear how the situation will be resolved.

“There is absolutely no way, absolutely no way [we] are going to agree to any form of fracking on or near our community,” said Robert Levy, a band councillor and a former Elsipogtog chief. “They can offer everything. They can offer all the monies they want. We just can’t take that chance of our water for our kids and our kids yet to be born.”

Native groups are not the only ones concerned about fracking. Liberal opposition leader Brian Gallant is calling for a moratorium.

“I believe we need to press pause,” Mr. Gallant said, noting that two studies of the industry are to be released in the next year. “The environment and health risks concern me more than the potential economic benefits excite me.”

Mr. Gallant is meeting on Tuesday with native leaders. Mr. Alward said provincial and band officials are trying to work out a process to resolve the situation. He decided to skip a trade mission this week to Brazil with his Atlantic colleagues to deal with the situation.

With a report from the Canadian Press

A summary of today’s court proceedings in Moncton

An account of today’s court proceedings in Moncton  from Moncton Anti-Fracking (FB)

Today was a bit of a fiasco in the Moncton Courthouse. We arrived at 8:45 only to find a long line of people waiting to clear security. A comment was made that clearing to board an aircraft was a faster smoother process than entering the courthouse.

SWN was scheduled for 9:30am to hear the judge render his decision regarding the indefinite injunction against the people of New Brunswick. The sheriff announced it had changed to 1pm.

Warriors were scheduled for 9:30 am in two separate court rooms. People were splitting up, room 5 and room 8. Another announcement by the sheriff. The warriors would all be using the same lawyer, so they would be moving everyone to room 8, a small court room that wouldn’t hold everyone.

People jammed in the court room, and waited for about 45 minutes, then came another announcement from the sheriff. There was a delay, and court would resume at 1:00 pm.

Dashing off for a quick lunch, and headed back to the courthouse for 12:30 (the lines getting in have been long all day). Two sessions to cover, what to do? Warriors at 1pm, SWN at 1:30. The good news was the courts were on the same floor, and people can come and go when they like.

Lawyers arrived for the warriors, and the judge entered the courtroom. The crown had more evidence and more charges. The defense lawyers asked for time to review the material, and 3 warriors had their bail hearings held over until tomorrow morning at 9:30 am. The other 3 warriors had their bail hearing held over until Wednesday morning at 9:30 am.

While waiting in court for the proceedings to begin, we chatted with the sheriff. He seemed like a really nice guy, so we asked if we could sing. He said sure, as long as it wasn’t too loud, as to bother the other court sessions going on on the same floor.
We sang the Mother Earth Song. The sheriff said we should take it on the road and sooth some of the uprising in prisons, because it was such a soothing song. Once that proceeding was over (held over) we quickly headed to the swn court room.

The swn court room was packed. The same sheriff came in, and said “if you guys want to sing in this room too, it’s okay with me” and we sang the Strong Woman Song. It was beautiful.

The swn lawyer looked defeated. Judge Rideout didn’t read his entire decision, but quickly said the injunction was denied, and people could read his entire decision later. Copies were made available.

The swn lawyer rode the elevator with two women who were talking about the love in the room. He asked “do you still love me?” and they gave him a hug, and told him he still had time to come over to our side. Priceless!

Outside the courthouse there was jubilation, drums, the honor song, and a lot of hugs and tears. One more step towards a future of clean air and water for our children, their children, and the next seven generations and beyond.

Solidarity! To all our Brothers and Sisters! All My Relations!

AJA: Shale gas company loses bid to halt Canada protests

After last week’s protests over gas exploration turned violent, a judge ruled that demonstrations may continue
Topics:
Environment
Canada
Energy
Fracking protest
Members of the Elsipogtog First Nations group protest a shale-gas project near Rexton, New Brunswick, Thursday.
Courtesy 95.9 Sun FM, Miramichi, New Brunswick

A Canadian court ruled Monday to deny an energy company’s request for a permanent injunction to prevent interference with shale-gas exploration in New Brunswick. The ruling allows protests to continue and for demonstrators to once again occupy roads used by energy-company vehicles.

Justice George Rideout issued a ruling in the Court of Queen’s Bench against the motion of Texas-based Southwestern Energy, known as SWN Resources in Canada.

An informal coalition of First Nations and nonnative protesters had blocked a road to prevent the company from continuing its exploration. The judge did not state the reasons for his decision but said a written statement would be issued.

SWN Resources, which did not respond to Al Jazeera’s request for comment, argued in court that the protest was costing the company $60,000 a day.

The barricade and protests, part of a wider movement by dozens of local community groups that have opposed fracking there for years, began last month on Route 134 near Rexton, about 515 miles east of Montreal.

The protests gained international attention last Thursday when an anti-fracking protest blocking the company’s activities in New Brunswick turned violent.

“This is not just a First Nations campaign. It’s actually quite a historic moment where all the major peoples of this province — English, French and aboriginal — come together for a common cause,” David Coon, head of the Green Party in New Brunswick, told Al Jazeera. “This is really a question of justice. They want to protect their common lands, water and air from destruction.”

A temporary injunction was issued on Oct. 3 ordering the protesters to leave. This resulted in negotiations with the provincial government, local residents opposed to fracking and First Nation leaders — but did not end the protest.


‘When cops show up with guns and pepper spray and arrest 40 people and take a situation that’s been peaceful and attack them — then suddenly it’s a big story,’ Bennet said.

Last Thursday, over 100 Royal Canadian Mounted Police (RCMP) officers arrived with guns and dogs to enforce the injunction, resulting in violent clashes.

The RCMP reported it had seized weapons from some of the protesters and that protesters had torched police vehicles. Activists said the RCMP moved in aggressively — firing tear gas and pepper spray and setting dogs on them; about 40 protesters were arrested.

“In New Brunswick over the last three or four years, there have been continual meetings and demonstrations against shale-gas exploration, so clearly the people are not in support of the fracking industry coming to their province,” John Bennet, executive director of the Sierra Club Canada, told Al Jazeera.

He said the protests have been going on for years and have always been peaceful. He said he tried to get the media to cover the protests before but could not generate interest.

“Suddenly last Thursday, when cops show up with guns and pepper spray and arrest 40 people and take a situation that’s been peaceful and attack them — then suddenly it’s a big story,” Bennet said.

“For me it brings images of Custer and people attacking Indian villages to make them leave. It was done in the same spirit. They could have come in without weapons and tried to mediate. Instead the police did a dawn raid in camouflage. They caused the violence.”

Spoiling the land

Coon, who spent some time at the protest, described it as friendly, peaceful and welcoming.

“My impression was that the people were overwhelmingly local and all ages. The atmosphere was almost like a block party. People had lawn chairs out. They even had a turkey dinner,” Coon said.

Many local residents are opposed to fracking because they fear their water will be contaminated, their land degraded and air polluted, he told Al Jazeera.

“These are rural communities with very clear air, beautiful land, drinkable water. They don’t want to see that spoiled,” Coon said. “When energy companies move in, they industrialize the area, which completely changes the quality of life in those communities.”

Though the protest includes a diverse group of local residents who say they will not allow fracking on their land because of environmental and health concerns, the only legal argument can be made by its First Nations members.


‘These people have a democratic and constitutional right to be consulted about what happens on their land,’ Bennet said. ‘And if that’s not respected, then they have a right to protest.’

Since the mid-1980s, 186 rulings by the Supreme Court of Canada and lower courts have established a precedent that aboriginal people must be consulted and accommodated when development on their land is considered, according to Canada’s CBC news.

That’s because, unlike the rest of Canadian First Nations, the Mi’kmaq and Maliseet peoples — located in New Brunswick — never ceded their territory in treaties or lost it by force, giving them more legal rights over their land than most other First Nations.

“That certainly was not done when the license to explore the land was given to SWN,” said Coon. “It was not done when those licenses were extended.”

Off tribal lands, oil and gas resources generally remain under the control of the provincial or federal government. A request for comment by the New Brunswick government’s energy branch was not answered.

New Brunswick’s Assembly of First Nations Chiefs called on the provincial government Monday to revoke shale-gas exploration permits issued to energy companies until they have been consulted, CNC news reported.

“These people have a democratic and constitutional right to be consulted about what happens on their land,” Bennet said. “And if that’s not respected, then they have a right to protest.”

Regardless of the result of the court ruling Monday, local community activists are determined to do everything they can to stop energy companies from moving into their province.

“Fracking will not occur there. Those communities will not allow it to happen,” Coon said. “To impose the industry on those communities … would require continued police presence and lots of protection around the clock for industry activities.”

Al Jazeera

Global: Judge rules not to extend SWN injunction against shale gas protesters

Judge rules not to extend SWN injunction against shale gas protesters

By Staff  Global News
A police vehicle is seen in Rexton, N.B. as police began enforcing an injunction to end an ongoing demonstration against shale gas exploration in eastern New Brunswick on Thursday, Oct.17, 2013.

A police vehicle is seen in Rexton, N.B. as police began enforcing an injunction to end an ongoing demonstration against shale gas exploration in eastern New Brunswick on Thursday, Oct.17, 2013.

Andrew Vaughan/The Canadian Press

MONCTON – A Moncton judge has ruled against a request by SWN to extend a court injunction against shale gas protesters in Rexton, N.B.

READ MORE: Complete coverage of the shale gas protests in New Brunswick

The injunction, which SWN obtained on Oct. 3, was to remove protesters who were blocking access to SWN equipment needed for shale gas exploration.

SWN Resources had asked for the injunction to be extended indefinitely.

BELOW: The original SWN injunction paperwork

It was hoped talks between the protesters — which included members of the nearby Elsipogtog First Nation and other First Nations, the company and the government — would help the situation come to a peaceful end.

WATCH: Elsipogtog First Nation leaders criticize RCMP over anti-shale protest crackdown

The injunction was due to expire on Friday, and RCMP acted on it Thursday morning. Police clashes with protesters led to 40 arrests after five RCMP vehicles were torched.

SWN claimed it has lost $60,000 a day while access to its equipment has been blocked.

With files from Nick Logan and Laura Brown