The chief of Elsipogtog First Nation says he hopes the battle against shale gas exploration in New Brunswick will remain peaceful. His comments came Monday after the band lost its emergency bid to have all testing near its territory suspended.
The legal defeat came on Monday, with a New Brunswick Court of Queen’s Bench judge ruling in favour of the province and SWN Resources Canada, the energy company doing the work.
The band had been pushing for the suspension of all oil and gas licences and permits issued to SWN Resources Canada for exploration in the Signitog District of Mi'kmaki — an area that covers south of the Miramichi River and a portion of Nova Scotia near the New Brunswick border.
The decision means SWN is free, for the moment, to continue testing for shale gas.
Despite losing this round in the courts, Elsipogtog Chief Aaron Sock said the legal challenge wasn't a waste of time.
"It is just a small step backwards,” he said. “But in the big picture we’re going to be regrouping and coming back with a different strategy.”
Elsipogtog lawyers argued the province hadn’t properly consulted the band and that "outside radical elements" threatened to produce clashes between protesters and police, similar to what happened last month in Rexton, N.B.
But in her decision Monday, Justice Judy Clendening said it was an "odd request" for the First Nation to seek an injunction against SWN due the risk of violent protests.
"The respondents [SWN and the province] are not inciting this reaction and there is no evidence that the respondents will interfere with a peaceful protest," she wrote.
"The threat of radical elements converging is not a reasonable factor to be considered."
If outside elements pose a problem, she said, it’s up to the company and the province to seek an injunction against them.
She 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.
The band's lawyer, T.J. Burke, said that gives the band a route to keep battling.
"The fight between Elsipogtog First Nation and the government of New Brunswick concerning the lack of consultation is far from over," he said. "This is just one small step to the overall picture."
Lawyers for SWN and the province refused to comment outside the court.
The Assembly of First Nations’ Chiefs in New Brunswick on Monday renewed its calls for a suspension of oil and gas exploration in the province. But it also urged protesters to abide by the rule of law.
Clendening's decision comes after arguments were made in court on Friday.
SWN's shale gas exploration has resulted in heated protests. Last week, Highway 11 near Laketon, N.B., was the site of demonstrations and one arrest. Police are also investigating vandalism.
On Oct. 17, dozens of protesters were arrested and six RCMP vehicles destroyed by fire in a clash on the protest line near Rexton.
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 blockade.
Last week, 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.
"There will be a very significant consultation process that will be required to be undertaken by them," said Alward.
But 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.