Backgrounder for IMW Peace & Friendship Legal Fund:
Iapjiw Maliaptasiktɨtiew Wskwitqamu
Protecting the Earth for Future Generations
PLEASE NOTE: This “Backgrounder” was written in July 2014.
…In September 2014, the Alward Conservative government of NB was replaced by the Gallant Liberal government, who PROMISED to bring in a moratorium on deep shale fracking. …Industry slowed to a crawl. …We all waited with bated breath. …On Dec 18, 2014, the new Premier of NB did that rarest of rare things — KEPT A REALLY DIFFICULT PROMISE!
Please see Shale gas moratorium details unveiled by Premier Brian Gallant.
There has been a huge amount of personal sacrifice, and there is still a WHOLE lot of work to do, but at least we have won a few major battles… The text below begins to explain how we got to this exciting point, and how we intend to ensure we continue winning the “war” to protect our environment for future generations.
One air, one water, one earth. No’kmaq — we are all related.
WE ARE ALL TREATY PEOPLE,
learning what living in Peace & Friendship truly means in this crucial century.
The Government of New Brunswick (GNB) ignored more than three years of unprecedented unity of grassroots
opposition to development of the deep shale oil and gas industry. This opposition has included petitions, rallies, lobbying, information sessions, letters, erecting a Tepee on the grounds of the legislature, and much more. GNB has leased roughly one-quarter of the province to shale gas and oil companies, much of this in the more populated parts of NB.
Serious Health and Environmental Impacts
In our view, shale gas mining cannot be done safely at the present time, and therefore should not be undertaken.
In other jurisdictions where “unconventional fracking” for deep shale fuel is extensive (like GNB plans) there have been many serious environmental and health impacts. In her peer-reviewed and acclaimed October 2012 report, Recommendations Concerning Shale Gas Development in New Brunswick, New Brunswick’s Chief Medical Officer of Health Dr. Eilish Cleary discusses these issues from a public health perspective.
A uniting concern is increasing evidence of the impacts of climate change due to release of gasses from fossil fuels during the shale gas mining process, as this report from the
The Government of New Brunswick has “stacked the deck” in favour of shale gas development.
To implement it uncritical support for this industry, GNB has ensured that meaningful public health and environmental protections is not possible. To start with, ass soon as the corporation has completed the leased exploration agreement, they can apply for a permit to do “exploratory” drilling. This includes building all infrastructure for production.
The “deck” is even more thoroughly stacked! GNB’s Environmental Impact Assessment process is being done in an unlegislated “phased” and intentionally rapid and minimalist manner, as described in this PowerPoint produced by GNB staff to introduce the “Phased Review” approach to “stakeholders”: Phased EIA – Oil & Gas – Stakeholder Meeting Jan 27 2011 (1) Following this procedure, it seems corporations escape any serious review until full commercial production is imminent.
GNB claims to have world-class policies to prevent the issues that this industry has spawned in other regions, but in fact GNB has only guidelines for industry (not legislated regulations) and no meaningful enforcement capacity. Last year GNB allowed the corporation all variances they wanted, eg. to “explore” on wetlands and outside lease areas. As things stand, the industry will not even be required to pay any meaningful royalties on the resource.
“Idle No More” joins hand on “No Frack NB” issue
In the winter of 2012-2013 the Idle No More movement birthed across Canada and in First Nation communities. The Elsipogtog community became energized in concern that fracking would lead to critical level plant destruction, water poisoning, and endangerment of all life.
Anglo and Acadian New Brunswickers, Mi’kmaq and Maliseet Peoples, and many other diverse allies protected the environment from June-December 2013. During this time, Southwestern Energy (SWN Resources Canada) continued its shale gas exploration program with support from the provincial police force (RCMP), government of New Brunswick, private security forces, and the dominant NB industrial corporation (Irving) which also owns almost all media in the province.
Government Fails to Uphold “Honour of the Crown” regarding the Mi’kmaq People of Elsopogtog
After failing at their treaty and constitutional responsibilities, provincial and federal governments sponsored a major show of force on October 17, 2013. Many hundreds of innocent and peaceful people were hurt, criminalized, and traumatized for defending their homeland.
The Texas-based Southwestern Energy’s wholly owned Canadian subsidiary SWN Resources Canada completed its preliminary exploration in December 2013, in the face of continuing opposition. At the present time, GNB is poised to approve four applications from SWN Resources Canada to build infrastructure wellpads and do initial drilling.
Working together with traditional Mi’kmaq Nation leadership, Elsipogtog Chief and Band Council took steps to try to prevent the disaster of fracking in their territory. These steps included:
- Questioning the validity of the consultation process for which the Government of New Brunswick is constitutionally bound;
- Sending letters of eviction to SWN Resources and all sub-contractors, signed by both traditional and elected leadership;
- Making known 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;
- Direct reclaiming of the land, which was never ceded in the “Peace & Friendship” Treaties.
Safekeeping of the Water: Kopit Lodge is Born
Outside of Mi’kma’ki, nowhere else on Planet Earth is Mi’kmaq language spoken, 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 their traditional responsibility since time immemorial, the Mi’kmaq People are tasked with protection of these forests, waters, animals, and of course their Nation as a whole, against any and all maltreatment, abuse, potential destruction, and malfeasance.
In Spring 2014, committed allies from Elsipogtog and nearby NB communities created a gathering place called Kopit Lodge (Kopit means Beaver), which is fully endorsed in this mission by elected and traditional leadership in Elsipogtog First Nation. Here is Kopit’s mission:
Safe Keeping of the Water:
We are people of the earth united
to protect the waters. Our objective is to protect our children’s inheritance through coordination and persistence. Our group is committed to nonviolent resistance. Kopit Lodge is committed to work with All Peoples and groups who share this vision.
Announcing the Launch of the IMW Peace & Friendship Legal Fund
Idle No More brought fresh energy to the Indigenous rights movement. On June 26 2014, the SCC’s Tsilhqot’in decision breathed new hope into unceded Mi’kmaq territory. On the following day, Bruce McIvor of First People’s Law posted this comment on the SCC’s Tsilhqot’in decision In his online advocacy blog,:
“Canadians awoke this morning to the post-denial period of Indigenous rights… The dots-on-a-map theory of Aboriginal title is dead… Aboriginal title can include territorial claims and… the implications are profound…
“Duty to consult has new life… Government and industry will have to step up and acknowledge the new reality… In permitting provincial laws to apply to Aboriginal title lands the Court made new law and saddled the provinces with hefty legal obligations. …When Indigenous people succeed in confirming their Aboriginal title a province will not simply be able to apply their laws through box-ticking consultation. They will be subject to the much more onerous burden of obtaining consent or justifying infringements…
“For Indigenous people with pre-Confederation treaties (e.g. the peace-and-friendship treaties in the Maritimes) the implications are obvious. Their claims to Aboriginal title can now be pursued with renewed confidence…”
As Bruce has said, “The jig is up!” Other legal experts agree:
- “Aboriginal title applies to territories, not ‘postage stamp’ sized sites of intensive occupation.” (Andrea Bradley and Senwung Luk of Olthius, Kleer, Townshend, see http://www.oktlaw.com/blog/in-a-first-for-a-canadian-court-scc-recognizes-aboriginal-title-for-tsilhqotin-nation/)
- Aboriginal title is “territorial… It goes from mountaintop to mountaintop in some places; it covers valleys and vast tracts of land.” (David Rosenberg of Woodward & Company, quoted by Dene Moore, http://metronews.ca/news/canada/1078984/top-court-grants-land-title-to-first-nation/)
- “Any development on Aboriginal title lands would be subject to the consent of the Aboriginal title holder. Absent such consent… the Crown must establish that the infringing use serves a compelling and substantial public interest and is consistent with the Crown’s fiduciary duty to the Aboriginal title holder… Any proposed development must not “deprive future Aboriginal generations of the control and benefit of the lands.” Therefore “exhaustion of particular resources and the footprint of proposed developments will be given significant scrutiny… Resource development in areas where Aboriginal title remains an issue” (like New Brunswick) “will require enhanced Aboriginal engagement, clear public benefit and protection of future Aboriginal use”.” (Alexandria J. Pike and Sarah V. Powell of Davies, Ward Phillips & Vineberg, see http://www.mondaq.com/canada/x/324292/
- “…You simply have to stop the project and get their consent. That changes everything. ‘Consultation,’ and having to get ‘consent,’ are markedly different… The Maritimes are all unceded territory. The Mikmaq, Maliseet and Passamaquoddy didn’t give up a single inch of territory. Talking about shale gas, this is a huge victory for Elsipogtog!! Shale gas and New Brunswick are going to have to come to the table on very different terms, completely rethink how they do work with First Nations… This is good for Canadians too, an epic win for NBers. It actually protects their future too because at the end of the day, farmable land and clean water is what we all need to survive as humans. There are all kinds of jobs that can be had, they don’t all have to be in an extractive industry, they can be in environmental, sustainable industries. That’s where the international community is heading and there’s tons of jobs in those areas.” (Pam Palmater interview on CBC radio, http://www.cbc.ca/informationmorningmoncton/2014/06/30/game-changer/)
We are all Treaty People!
The Government of New Brunswick is on the losing side of history — but we must take them to court to prove that!
The Co-Chairs of the IMW Peace & Friendship Legal Fund are delighted to have the support of Chief and Council of Elsipogtog First Nation as well as traditional leaders, elders inside and outside the community, and and many non-aboriginal allies. Everyone wants to see this Fund grow quickly so we can hire a lawyer to protect our health, communities, water, natural environment, and so much more.
It is a great pleasure to announce that the National Office of the Council of Canadians (COC) has agreed to be the Financial Trustee for this fundraising initiative. All donations to fund will be held in trust by COC, and can only be withdrawn from that trust fund for the costs of mounting this legal defence of the land and water. A Memorandum of Understanding has been signed to assure that all donations are handled appropriately. Donors can have full confidence that their donations will go to this purpose only.
Please help us assemble financial resources for
Protecting the Earth for Future Generations
Iapjiw Maliaptasiktɨtiew Wskwitqamu
To ensure that your valued contribution is handled with integrity and security that gives you confidence, please mail your donation cheques to our Financial Trustee:
Council of Canadians National Office, 700-170 Laurier Ave W., Ottawa, ON K1P 5V5. Make your cheque PAYABLE to “Council of Canadians” BUT ALSO WRITE
on the note line or cheque back that this donation is for the “IMW Legal Fund.”
You can also contribute online through our Go Fund Me site, via PayPal:
< Elsipogtog, N.B – Legal Action Fund >
Comments posted on this blogspace are not regularly monitored, so if you have questions or need more info, please email to email@example.com This email address goes to Serena Francis (Mi’kmaq grandmother) and Ann Pohl (Canadian grandmother) who are co-chairs of the IMW Legal Fund fundraising campaign.
Nogemag. Welaliek. Merci. Thank you.