May 26, 2014
Marysville Place, P O Box 6000
Fredericton, NB E3B 5H1
Re: EIA Applications 1381, 1382, 1383, 1384
Dear Hon. Danny Soucy, Minister of Environment and Local Government:
On behalf of myself and a large majority of community members in Kent County, I am writing to comment on all four current “Phased Review process” EIA applications by SWN Resources Canada. All four have the same project proposal numbers from the proponent: #121810275. I have identified them here by the Government of New Brunswick application numbers. All four are being addressed
simultaneously in pages 1 to 8 below, as these comments deal with issues of your government’s process, which I believe comes before the specifics of their content. If the process is unfair, opaque and misleading, which I contend it is, then the details are almost irrelevant. In the latter portion of this document, I briefly address a few major specific points regarding the four sites.
THE PROPOSED ACTIVITY
The exploration activity proposed in each of the four documents is drilling of a “vertical stratigraphic well to further assess the potential for hydrocarbon-bearing formations underground,” and includes:
- “the construction of two access roads and well pad on Crown Land near Lower Saint-Charles,New Brunswick” (GNB-Phased Review #1382: Executive Summary, 3rd para);
- “the construction of an access road and well pad on Crown Land near Pangburn, New Brunswick” (GNB-Phased Review #1381: Executive Summary, 3rd para);
- “the construction of a well pad on Crown Land near Bronson, New Brunswick” (GNB-Phased Review #1383: Executive Summary, 3rd para);
- “the construction of two access roads and well pad on both private and Crown Land near Galloway, New Brunswick” (GNB-Phased Review #1384: Executive Summary, 3rd para).
On the Government of New Brunswick website, it further states that each of these applications is to install a “2-hectare” well pad and “associated infrastructure.” Each “vertical stratigraphic well” will be drilled “to an approximate depth of 1000-4000m,” which amounts to a hole straight into the earth through whatever water or rock is there, down to perhaps 4 km or 2.5 miles.
The British onshore shale oil and gas industry website UKOOG says 2 hectares is a common size for a production stage well pad. 1 The well pads proposed by SWN Resources Canada (SWN) are much bigger than usual for stratigraphic purposes. 2 Thus it appears that the proponent, in complicity with your department, is obscuring the true goal of this development. These well pads are not being built simply for stratigraphic exploration as claimed. They are building to commercial production standards because that is how industry anticipates their use. This is what each could look like in a few years: 3
THE PROBLEMS WITH PHASED REVIEWS
Through something termed a “Phased EIA” review process, the Government of New Brunswick has created an enormous loophole to allow unfettered upscaling of shale gas and oil development in this province. The “Phased” review process can avoid ever triggering a valid and full scale (“Comprehensive” 4) Environmental Impact Assessment review. “Phased Review” is a phrase that has only appeared in print on the NBDELG website in the past two months. The subject applications are the first to be declared as undergoing a “Phased Review process” on your online EIA registration list.
The “Phased EIA process” apparently began informally in early 2011, which coincides with the earliest reports from other regions about the serious detrimental impacts this industry can have. 2011 is also when New Brunswick citizens became alarmed about the development of the shale gas extraction industry in NB. There have been warning bells about this deep shale gas mining industry since its inception in the early 2000’s. However, since 2010 (or earlier) no application by Apache, Contact or Corridor for gas well work in Penobsquis or in Elgin has triggered a Comprehensive EIA Review.
The “Phased EIA process” does not have the force of law for standards of accuracy, completeness, or for subsequent enforcement. It is un-mandated, un-legislated, and hence unenforceable, and the proponent knows this. In Section 1.0 of each application, the proponent states that the Phased EIA “closely mirrors” the EIA required by law in Regulation 87-83, but if we look closely, each of the proponent’s four documents includes the following text about the “Phased EIA process”:
“This document is submitted to NBDELG as part of the Phased EIA Process… For greater certainty 5, this project does not trigger an EIA registration, but rather this document is a submission pursuant to the Phased EIA process… …An EIA registration 6 requires governmental approval before the work that is described therein is carried out.”
In the same Section of each of the four proposal documents, the proponent has also included the following paragraph about the Government of New Brunswick’s “Phased Review process”:
“New Brunswick legislation and regulation require that certain projects or work must be evaluated through an environmental impact assessment (EIA) process (see Schedule A to the New Brunswick Environmental Impact Assessment Regulation – Clean Environment Act, Regulation 87-83). In addition, the Province of New Brunswick has created a Phased EIA process and though this process is not yet governed by any specific legislation or regulation, certain projects such as oil and gas exploration drilling work are evaluated through a Phased EIA submission to the New Brunswick Department of
Environment and Local Government (NBDELG). The Phased EIA process is characterized 7 as an opportunity for greater environmental stewardship by allowing regulators and the public to conduct early stage evaluation of various project developments.”
These quotes from the proponent’s applications appear to serve as their disclaimer about the entire “Phased EIA process.” This is extremely relevant. What the proponent seems to be saying is that development can go ahead without government approval because this “Phased EIA process” is not governed by any New Brunswick legislation or regulation. In the endnotes are comments in regards to text I have emphasized from the proponent’s document. This “Phased EIA process” (my emphasis, the proponent’s terminology) appears to be an attempt by the NBDELG to expedite approvals without any safeguards from the analysis and oversight that would be provided by a valid, informed and transparent comprehensive EIA review.
Now SWN Resources Canada proposes to slide through permanent commercial well pad construction in Kent and Queens counties based on a “Phased EIA process” review, and the Government of New Brunswick is facilitating this apparent underhandedness. The Executive Summary of each application also makes it clear that at no point down the road does the proponent expect a comprehensive EIA review (as per NB Reg. 87-83), because each also has this sentence: “The scope of future work will be defined as a new project description and submitted as a sequel to this Phased EIA Submission.8 ”
To clarify what is actually happening with these Phased Reviews, on February 26, 2014 I had a 40-minute telephone conversation with David Maguire, Manager of the Environmental Assessment Section, in the Sustainable Development and Impact Evaluation Branch of the Department of Environment and Local Government. Mr. Maguire clearly stated to me that “this government plans to encourage companies to proceed with shale gas development.” Work that is identified in proposals as “preliminary” or “small” can be approved without much intervention in order to get things moving. If a company wants to “do this or that or a frack here or there,” GNB will facilitate that because it is in accord with its pro-shale gas development policy.
He said, “Only when the company says, we want to go into commercial production” will the Minister get involved to say yea, nay, or approve with conditions to the proposal. This begs the question: at what point is the development determined to be undertaken with the intent of commercial production? I submit we are at that point with these proposals from SWN Resources Canada. To call it anything else is, in my opinion, a deliberate attempt to deceive the population of New Brunswick.
At this point I must call to your attention one example of where your department has seriously under-stepped its mandate. In Section 2.2 of each of the subject proposals, there is description of how the proponent intends to deal with waste liquids and tailings from that site. These wastes will contain drill fluids (of unspecified ingredients) as well as other material. As a complicating factor, due to high prevalence of uranium and radon gas in New Brunswick, the wastes generated from drilling up to 4 km into the earth at these four locations will very likely also be contaminated with NORM`s (Naturally Occurring Radioactive Materials) that have been retrieved from underground. The plans outlined in these applications for storage, treatment and disposal of these waste pollutants (at best) and hazardous radioactive or carcinogenic substances (more likely) are genuinely sketchy – vague and inadequate.
Regulation 87-83, specifically under SCHEDULE A: UNDERTAKINGS (87-108.m), appears to identify all waste disposal systems for projects like this as an automatic trigger for a full, public Comprehensive EIA review. This makes it even more concerning that NBDELG is allowing these applications to be processed in a casual “Phased” off-the-cuff manner. NBDELG appears to be failing to do its job, as per its own legislation, which lends credibility to the concern that the Phased EIA process is truly only designed to avoid the restrictions (protections) found in the most current legislated GNB rules and policies.
GNB has been arguing for almost three years that it can protect the health and natural environment of New Brunswickers with its: “world-class” regulations for industry; capable enforcement and inspection services within government; and, a bona fide environmental impact review process.
Protection of the environment and health begins with a valid and thorough environmental impact review process. As stated on your own website,
“Environmental Impact Assessment (EIA) is a process through which the environmental impacts
potentially resulting from a proposed project are identified and assessed early in the planning
process. EIA identifies steps that can be taken to avoid negative environmental impacts or reduce
them to acceptable levels before they occur. EIA therefore, represents a proactive, preventative
approach to environmental management and protection.”
Your Guide to Environmental Impact Assessment in New Brunswick further says that the EIA process:
“gives technical specialists from government, as well as local residents and the general public, a
chance to provide their input to the decision-making process… this is not intended to be a
mechanism for stopping developments for which the anticipated impacts can be avoided or reduced
to acceptable levels through mitigation 9.”
In summary, the proposals being reviewed at this stage do not constitute an honest, transparent and full disclosure of the proponent’s actual intent for these sites. The point was made above that the proponent declares these are not registration documents for an EIA, yet NBDELG appears to be making this all look like a real EIA process, and has assigned an EIA number and listed the documents as registration documents. The proponent even seems to suggest no EIA approval is required before proceeding, which makes sense in that the “Phased EIA process” is an unregulated and unlegislated process. This whole process seems designed to make it look like something is being done to protect the local environment, communities, and health of all creatures including, while in fact nothing is being done to avoid the negative impacts of the intended development for these sites. NBDELG is involved in hoodwinking the public with these sham reviews, and this is completely unacceptable in view of the risks this industry poses. It seems to me that NBDELG is legally bound to hold the full “Comprehensive” EIA by 87-108 (m).
THE PROBLEMS WITH NOTICE AND CONSULTATION
The affected public in this very rural region has not been given valid opportunity to be involved in decision-making about this development. Industrial development of this nature can lead to detrimental impacts far beyond the 1.8 km radius the proponent has notified in this so-called “phase.” While two of the four projects are technically in Queens County, that area is much like the rest of rural, Kent County, and in our sort of “neighbourhood”:
- Most local people are incredibly wise about the land, water and natural environment and what it needs for sustainability, but have no experience making formal responses on matters like this.
- Some people who have heard about the proposals but did not get letters (because of distance from the sites) believe they cannot comment on the matter because they did not get a letter.
- Others outside the radius of properties that got letters from SWN, especially seasonal property owners, are just hearing about the location and scope of the proposed development in the past week. They are not being informed by your DELG staff or the proponent about where to go for more information or to make comments.
As I mentioned to NBDELG staff member Crystale Harty when these applications were first filed, there are other issues that interfere with the population’s right to be informed about these industrial development proposals. High speed only came to many parts of Kent County in the past few years, and not that many people have the computer literacy/skills to get information and/or make responses online.
An important factor in this computer skills deficit is low literacy levels in Kent County and other rural regions across the province – of which your government is well aware. Interpreting the meaning of these proposals requires a Level 4 or 5 literacy skill. The majority of rural New Brunswickers are at or below Level 3, which would make comprehending the documents and writing a cogent response very difficult. Putting copies of the applications in local libraries is a sound idea but is of very little real benefit. Who has time to sit and read them at the library even if the person had advanced literacy skills?
As well, it is not possible to print any of the four .pdf reports produced by Stantec for the proponent. Seemingly, they have been saved as secured files. This makes the process even more restrictive.
Oral communication is the best way to share information with people who have low literacy skills. Many people ask why SWN and NBDELG are not holding public meetings about this – with presentations and question periods. In May 2013, SWN planned to speak at a public meeting in Saint-Louis; they cancelled at the last minute citing safety concerns. Yet, shortly after the dramatic events of October 17 2013, a SWN representative attended a meeting in a large tent on Route 116, to try to get local residents to accept the seismic testing. He came alone, to a meeting held in the dark of night with more than 100 local residents. He left alone. He and his vehicle were not assaulted in any manner.
The system your department has approved for public comment on these Phased EIA’s is highly questionable and undermines the right of the public to be part of the decision-making process. These decisions will affect property values as well as treaty rights, in addition to the other issues mentioned above. All local populations have the right to be fully involved in this crucial decision-making process, in a meaningful and respectful manner. 10
RECOGNITION OF TREATY, ABORIGINAL AND INDIGENOUS RIGHTS,
AND THE TRADITIONAL RESPONSIBILITIES OF THE Mi’KMAQ PEOPLE
All four of these proposals are located in the Signigtog District of the Mi’kmaq Nation. Outside of Mi’kma’ki, nowhere else on Planet Earth is the Mi’kmaq language spoken, or their traditions upheld, ceremonies practiced, or heritage entrenched. It is the recognized right of the Mi’kmaq People of Elsipogtog to protect their water, their land, their communities, their way of life, and their culture. As part of their traditional responsibility since time immemorial, the Mi’kmaq People are tasked with the protection of these forests, waters, animals, and of course their Nation as a whole, against any and all maltreatment, abuse, potential destruction, and malfeasance.
Together with the Federal Government of Canada, your government is obligated to uphold the honour of the Crown vis-a-vis promises made in the Peace and Friendship Treaties, as well as other agreements concerning aboriginal and indigenous rights enshrined in the Canadian Constitution and in the international human rights treaties and declarations to which Canada is signatory. Up to now, your government and the federal counterpart have addressed valid issues of the First Nations of this region with deception, trickery, disrespect, and ultimately a state-sponsored show of force in which many hundreds of innocent and peaceful people were traumatized. Some people were also criminalized for the act of defending their treaty rights and protecting the natural environment of their original territory.
Pursuant to their treaty, inherent and indigenous rights, the Elsipogtog First Nation community is resolutely concerned that shale gas extraction in Signigtog will lead to plant destruction, water poisoning, and endangerment of human and animal life. Together with the traditional Mi’kmaq Nation leadership, the Elsipogtog Chief and Band Council deem this situation as a critical-level threat and have already taken a number of steps to try to avert this potential disaster, including, but not limited to:
- Questioning the process of full consultation for which the Government of New Brunswick is constitutionally bound;
- Sending out letters of eviction to SWN Resources and all sub-contractors, signed by both sets of leadership;
- Making known their conviction that this land has not been ceded or surrendered to any other authority or government;
- Passing a Band Council Resolution (BCR) to notify the Province, other agencies, and corporations that they are trespassing on such lands.
I would suggest that you are on the losing side of history and that you should immediately reconsider and alter your strategic approach and goals. It is noted that the proponent has submitted no archeological information, and that their consultation and/or engagement with First Nations is not reported. For your information, old-timers in upriver Kent County have spoken about a continuous nonreserve Aboriginal settlement in a remote area out along Salmon River Road, north of the bog, on the south side of the road, up the mid-1900’s. In regards to the honour of the Crown, prior to approval it is essential your government consult archival materials and oral history under the direction of genealogical and historical experts recommended by Elsipogtog and St. Mary’s First Nations.
OTHER ENVIRONMENTAL AND HEALTH ISSUES
Members of our communities believe that your government does not have our long term public and environmental health as its first concern. We are enormously concerned about what this industry will do to our water, our hunting grounds, our fishing streams, our crops and gardens, our domestic animals, our health, property values, and the viability of this region for future generations. We want your government to undertake full environmental analysis and protection in a public-friendly manner.
Alone among the heads of New Brunswick ministries and departments, we trust that the Chief Medical Officer of Health for the Province of New Brunswick is concerned first and foremost about the health of the public and the environment we all live in, and that she has a deep understanding of relevant social, cultural and economic issues. Dr. Cleary has explicitly said that there are too many public health, environmental, and risk-benefit unknowns about this industry and that the province should stall any development while further research can be compiled and analyzed from other regions where fracking has been done, as well as undertaking a number of baseline studies that have not been done so far. We agree with her. We want her to be given the resources and mandate to update her research and recommendations from her October 2012 report, and then we want her subsequent revised recommendations implemented before any further development of this industry is contemplated.
Turning briefly to the specific applications, a few specific concerns beg attention. I focus more on the western sites as they are in more isolated areas and are less likely to generate comments from neighbouring concerned citizens:
- In regards to the Pangburn site, this is located in a boggy area – adjacent to Canaan Bog, peatlands, an environmentally protected area, and a deer wintering area. Although the nearest watercourse is more than 30 meters away (Otter Brook), there is no doubt that the entire area is riddled with underwater streams. While the stratigraphic analysis will have rather minimal impact on most of these life systems, it has already been established above that the proponent has much larger intent for these well pads so everything said in this application is quite possibly only half true (at best). Although one of the proponent’s biologists who is said to have expertise in a broad number of disciplines (“wetland/botany/aquatic/forestry”) attended the site on one occasion (in September 2013) with a “wildlife/avian biologist,” their conclusion that there are “no species at risk” inspires no confidence or reassurance. One cannot help but think of Dr. Louis Lapierre, who made a career of writing similar recommendations for industry and government, only to be eventually discredited as having invented his credentials as a biologist. All of their findings, including the proposed mitigation strategies regarding flaring and ambient artificial lighting, or claims that these will not disturb nesting birds or rare plants, can only be met with skepticism. For starters, the curriculum vitae, site reports and recommendations from these biologists must be made available to the public in their entirety.
- A similar situation and set of concerns apply to the Bronson site, which is very close to Pangburn but is located further than Pangburn from a watercourse (1500m – Black Water Brook). However, in this case the findings of apparently the same team of biologists inspire even less confidence – because the site visit occurred in April 2014, when the region was still very heavily blanketed by “snow cover.” The proponent acknowledges this resulted in an “absence of seasonally present animals” – neglecting to mention the absent seasonal streams, birds, insects, vegetation, etc. Because it was winter, all that could be seen were trees. Unlike Pangburn which was recently totally clear-cut, at Bronson there is “considerable regrowth from past cutting” including an unusually large stand of yellow birch in the vicinity. Yellow birch is a very scarce tree in the defoliated Acadian forest, and is the host for a natural medicine important to the Mi’kmaq. The proponent says they are planning another visit this summer. Again, the starting place for generating confidence in the conclusions reached by these biologists is to release their curriculum vitae, and original site reports and recommendations to the public.
- Lower Saint-Charles: the Mayor of Richibucto has expressed alarm about this location, commenting that it is in very close proximity to Richibucto’s municipal water source.
- Galloway: Adjacent to the Galloway site are a number of thriving agricultural plantations principally berries (strawberries and cranberries) which required considerable up-front cost for the plantings and which are highly susceptible to pollutants in the water and air. Poisoning operations such as this, and putting them out of production, will impact local long-term sustainable employment, as well as the local economy and food security.
Your government has already done great damage to many people who live in Kent County. As things stand, it is very well known that industry has obtained no social license to prepare for commercial shale gas production here. Your abandonment of care for bona fide environmental impact analysis is not in keeping with the spirit of environmental impact assessment regulations either here in New Brunswick or elsewhere in Canada. You are rushing us all headlong into this irreversible industrial endeavour, for which a scientifically valid cost-benefit analysis has never been done.
GNB’s attitude appears to be that sketchy oversight and a meaningless consultation process is fine. The only explanation for this lack of care is that GNB does not want to put barriers in the way of industry. The legalese cited from the proponents’ application (see section 1 above) suggests that industry expects to continue with this simulated EIA process (“Phased EIA process”) and to never trigger the Comprehensive Review that clearly is intended by Regulation 87-83 for such a hazardous industry.
If the proponent obtains these approvals without a full and thorough review of the environmental risks and impacts, the precedent is set for approval of all subsequent small, incremental “phases” of development on this site without serious study. At any future point, the proponent could reasonably argue everything is already in place, so all remaining plans do not require any serious, transparent, comprehensive EIA process.
I am confident that the comments I have made here represent the sentiments of almost all our community members, both year-round and seasonal residents. More than 90% of Kent County residents, concerned physicians from Rexton and Richibucto, all Local Service Districts Committees, and the Mayors of 5 of the 6 Kent County municipalities are totally opposed to any further exploration, and we are even more opposed to development of commercial production. We are alarmed about the known facts. Elsewhere this industry has had unpredictable, uncontrollable and devastating impacts on adjacent, downwind or watershed-connected natural environments. The same thing could happen here, especially when the government is neglecting its fiduciary obligation to ensure valid and full Environmental Impact analysis.
If these issues arise here, the health of all living creatures in our land, air and water bioregions will certainly be compromised. It is therefore recommended that:
- the proponent be directed to amalgamate these proposals into one application and resubmit with detailed discussion of reasons for constructing such durable infrastructure and well pads, as well as their medium and long term intended use of these sites, and full disclosure of the proponent’s expert biologist reports (along with their academic qualifications and experience). as well as how the intended ultimate development will likely impact the surrounding area; and,
- your department initiate a Comprehensive EIA Review to review the amalgamated application, and undertake the public consultation appropriate to that extensive review with all communities in this region including full Treaty-based consultation with First Nations communities.
If you choose not to take this route, I further and alternatively request that the New Brunswick Ombudsman Mr. Charles Murray (who is copied on this letter) comment on the issues I have raised in this letter in regards to Section 21.1.a or 21.1.b of the Ombudsman Act, RSNB 1973.
Copies of this were sent to:
Chad Peters, SWN Resources firstname.lastname@example.org
Charles Murray, Ombudsman email@example.com
Crystale Harty, Environment & Local Government Crystale.Harty@gnb.ca
David Maguire, Manager, Environmental Assessment ELG David.Maguire@gnb.ca
Dr. Eilish Cleary, NB Chief Medical Officer of Health Eilish.Cleary@gnb.ca
Karen White, Director, Healthy Environments, Health Karen.White@gnb.ca
Stephan Hamel, Healthy Environments, Health Stephan.Hamel@gnb.ca
Jennifer Murray, Director, Office of the Ombudsman Jennifer.Murray@gnb.ca
Perry Haines, ADM. Environment & Local Government Perry.Haines@gnb.ca
Hon. David Alward, Premier of New Brunswick David.Alward@gnb.ca
Hon. Craig Leonard, Minister of Energy and Mines Craig.Leonard@gnb.ca
Paul Lang, Executive Director, Kent Regional Service Commission Paul.firstname.lastname@example.org
Aboriginal Rights Coalition – Atlantic
Canadian Union of Public Employees (NB)
Conservation Council of New Brunswick
Council of Canadians, Atlantic Region and National Office
Elsipogtog First Nation, Chief and Council
Fredericton & District Labour Council
KAIROS, Atlantic Region
Kopit Lodge, Elsipogtog First Nation
Leaders of all NB Opposition Parties
Maritime Conference of the United Church of Canada
Mi’kmaq Grand Council, Signigtog District
New Brunswick Anti-Shale Gas Alliance
New Brunswick Environment Network, Shale Gas Caucus
New Brunswick Federation of Labour
St. Mary’s First Nation. Chief and Council
1 From Institute of Director’s report ‘Getting Shale Gas Working’ on UKOOG site
2 In Alberta, for example, the maximum size permitted for a stratigraphic well pad is 0.8 hectares. See 100.1.(a) at
Integrated Standards and Guidelines (Alberta Govt, Dec. 2013)
3 Photo borrowed for non-profit purposes from http://blogs.discovermagazine.com/water-works/2013/06/24/what-thefrack-is-up-with-drinking-water-and-shale-gas-extraction/#.U3zw3_ldXng My estimate of size made on basis on trucks.
4 See: http://www2.gnb.ca/content/dam/gnb/Departments/env/pdf/EIA-EIE/GuideEnvironmentalImpactAssessment.pdf
5 My emphasis. I understand that the term “greater certainty” is used here because the proponent is saying they are doing
this the way NBDELG told them they could, and they know it is not the genuine process as required by law (Regulation
87-83) and therefore they are not really responsible for anything if it comes to the matter of legal review by a court.
6 My emphasis. Reading this altogether, it seems clear that the proponent is saying that none of this has any basis in law
and is not binding in the way an EIA registration would be.
7 My emphasis. It is characterized as this by NBDELG, but I argue in this document that it is nothing of the sort! This
departmental messaging and my analysis of the shortcomings are substantiated by the presentation given to key
stakeholders in January 2011: Phased Environmental Impact Assessment (EIA) Process for Oil & Gas Development
in New Brunswick. This GNB public relations powerpoint was made available to me by a friend outside government.
8 My emphasis. “Phased EIA” was designed by NBDELG to minimize oversight of industry impact. A sequel is intended.
9 My emphasis. There is no evidence negative impacts of the true intended development for these sites can be mitigated.
10 It came to my attention right after I submitted this that SWN Resources Canada apparently closed its online comment board at least one day (perhaps more) prior to May 26th, which is the date they stated as the deadline in their letters to property owners.