People in New Brunswick have launched two lawsuits in an attempt to stop shale gas development, commonly known as fracking, in their province. One of the actions was launched against the Crown in the persons of the Health Minister and the Attorney General by individuals who belong to the New Brunswick Anti-shale Gas Alliance (NBASGA), an organization which represents 22 non-profit and community groups.
The second suit is against the provincial and federal governments and Houston-based Southwestern Energy Resources, a company involved in the exploration for shale gas. Popularly called the “peoples lawsuit” involves a group of 18 individuals, including an organic farmer who once lived and worked in Alberta, a Mi’kmaq woman and her Acadian husband, a sound technician, a Maliseet Grand Council leader, and 59-year-old Lorraine Clair, a Mi’kmaq woman who said she was arrested for protesting against SWN and ordered by the courts not to participate in any further demonstrations. Larry Kowalchuk, a lawyer based in Regina, Saskatchewan, is representing both of the New Brunswick groups.
Fracking is the short hand description for a process in which fractures in rocks below the earth’s surface are opened and widened by injecting chemicals and liquids at high pressure. Hydraulic fracking is the only way in which shale gas can be mined. The NBASGA argues in its statement of claim that chemicals used in fracking will permanently contaminate the water supply and fresh water aquifers with carcinogens and cause other environmental damage, including air pollution. The group says fracking poses such an extreme threat to human health and the environment that it violates Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees all Canadians the right to security of their person.
The NBASGA points to a long list of organizations in New Brunswick — including doctors and nurses, local governments, First Nations, environmental, union and church groups — who are calling for a moratorium on fracking until such a time as there is incontrovertible proof that it can be done safely.
The statement of claim says as well that Nova Scotia, Quebec, Newfoundland, the American states of New York and Vermont, as well as several nations including France, have all imposed a moratorium on the process of unconventional exploration for shale oil and gas.
CBC News also cites a recent report by 14 international experts commissioned by Environment Canada, which concluded that “data about potential environmental impacts [of hydraulic fracking] are neither sufficient nor conclusive.”
The Conservative administration of David Alward has announced the development of shale gas as a decision already taken and eagerly granted exploration licenses on about 1.4 million hectares of Crown land. SNW Resources has been testing on a variety of sites to determine their suitability for fracking and that has generated a broadly-based movement in opposition. The protest has united English, Francophone and First Nations people, as well as local governments and businesses, around a single issue.
Protests began in 2011, and in the spring and summer of 2013, there were non-violent protests in Kent County, about 90 kilometres north of Moncton, when local people blocked the highway in an area where SWN Resources was conducting tests.
In June 2013, the RCMP began to arrest people and then in October 150 RCMP officers, a sniper team and dogs stormed a previously peaceful protest camp near Rexton, New Brunswick. Police said they were enforcing an injunction against a barricade that was preventing vehicles belonging to SWN Resources from exploring. Police overran the camp and arrested 40 people but during the altercation six RCMP vehicles were burned near the site. Locals who had spent three peaceful weeks in the camp prior to the raid said that it was not they who did the burning and suggested dirty tricks.
First Nations and whites
The peoples lawsuit launched on June 26 includes a mix of white and First Nation individuals. Lorraine Clair told CBC News, “As aboriginal people, as a Mi’kmaq woman, I do have the right to protect my own land and to me, that’s why I’m sitting here, is because those rights were taken away from me.”
The exploration activity in New Brunswick is occurring on lands which, in fact, First Nations never ceded or sold to the Crown and on which they are making claims. The peoples lawsuit repeats that argument and it has been buttressed by a unanimous ruling from the Supreme Court of Canada on June 26 involving a First Nations case in British Columbia.
Most First Nations in B.C. are not covered by treaties but have made claims to their ancestral territories. The court agreed that the Tsilhqot’in First Nation has title to 1,750 square kilometres of land in south central B.C. and that Aboriginal title confers the right to use and control the land and to reap the benefits flowing from it. First Nations leaders believe that the ruling means governments will now have to negotiate with them before proceeding on projects on those lands.
That same court judgment offers a powerful boost to the anti-fracking cause in New Brunswick. The provincial and federal governments, which have shown little interest in consulting First Nations, will now have to pause in their pursuit of single-minded resource policies – and that should please anyone who opposes fracking.