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Legal expert Nicole O’Byrne, assistant professor in the University of New Brunswick’s faculty of law, recently weighed in on the debate over shale gas development in New Brunswick.

O'Byrne was featured on the front page of the Times and Transcript on November 1. Read the full story below.

Anti-shale gas court case could work, says expert
Times & Transcript (Moncton)
Fri Nov 1 2013
Byline: Cole Hobson

With an uncertain future for the shale gas industry in New Brunswick, a University of New Brunswick law educator said the Elsipogtog First Nation likely does have a legal avenue to pursue if it attempts to reclaim control over Crown land where SWN Resources Canada is licensed to work.

Nicole O'Byrne is an assistant professor with UNB’s Faculty of Law and she is also doing her Ph.D in Aboriginal law. She said native land claims and treaty rights are an extremely complex matter, but the way they have been constructed in this region leaves open the possibility that the industry’s opponents could have a viable court case.

“There have not been land cession treaties negotiated in the Maritimes especially and in New Brunswick. So what that means is the Aboriginal title has never been cleared. It’s been recognized as an interest, but it has never been cleared. So what that means is the government has an obligation to negotiate into land cession treaties and figure out who still has claim,” she said. “I would argue because the Aboriginal people never ceded sovereign rights ... that there is live claim for Aboriginal title of the lands in New Brunswick.

“At the very minimum it means the government - both federally and provincially - have to come to the table to deal with the fact that the land claim hasn’t been negotiated, there has been no treaty to deal with that claim.”

Although O’Byrne suggests court action could potentially be successful in halting shale gas development in the province, the Assembly of First Nations regional chief for New Brunswick and Prince Edward Island said that’s not the avenue he wants to see taken to deal with the current “chaos state” surrounding the industry.

Roger Augustine doesn’t believe a court action is the best way to go in the ongoing and divisive controversy surrounding SWN Resources Canada’s shale gas exploration program in the region.

“SWN has quite a battle ahead of them. If they want to approach this through a legal battle, it’s going to be expensive for all of us and it’s not going to help solve anything. I simply see that there is more of a business resolution in place to sit down and talk to SWN,” he said. “The duty to consult didn’t just come from the First Nations here, it came from a Supreme Court decision and I think we need to go back and revisit that and start all over again and with respect.

“Settling this stuff in court is going to be a long process and very expensive process and it’s not going to help deal with the ongoing situation here with the protesters or the protectors. It will reignite out there.”

O’Byrne explained that treaties are a legal instrument and what they do historically is “recognize that the government has an obligation to Aboriginal people to recognize their prior occupation of the land and that interest has to be dealt with seriously.”

In the 18th century, she said the treaties signed in Canada were primarily Peace and Friendship Treaties and there was nothing in them about a land claim. She said that land cession “wasn’t on the table” in the 18th century, as it was not seen to be relevant at the time.

By the 19th century, while moving into Ontario and further westward, the purpose of treaties began to change, with more focus on things like reserve land, agricultural supplies and yearly treaty payments.

“Those kind of treaties happened out west, the numbered treaties, the land and cession treaties – those kind of treaties never happened in the Maritimes,” O’Byrne said.

The Elsipogtog First Nation this week has written a resolution to reclaim control over Crown land.

The resolution, obtained by the Times & Transcript and dated Tuesday, is a call to “reclaim stewardship over all unoccupied alleged Crown land.”

“We, the people, have been compelled to act to save our waters, lands and animals from ruin,” reads a statement with an attached consent form to enlist protectors, signed by Elsipogtog Chief Aaron Sock. “The resolution reclaims responsibility for stewardship of our reserved native lands.

“Our lands have never been ceded which means we have never surrendered our land. For centuries the British Crown claimed to be holding the lands in trust for us, but they have been badly mismanaged by Canada, the province of New Brunswick and corporations.”

The resolution explicitly states that First Nations people are now resuming stewardship of the Crown land. It goes on to mention that “SWN has been evicted from our territory according to our traditions and convictions that we still own the land” and that the province “has been put on notice.”

O’Byrne said the extent or scope of the duty to consult would be the key issue in a legal dispute in Elsipogtog.

“The Aboriginal people are asserting that they have a veto over natural resources development. This is a broad interpretation of consultation. However, this view is strengthened by the fact that there has been no land cession treaty and that the lands in question still have unextinguished Aboriginal title,” she said. “The provincial government asserts that extensive discussions should fulfil their duty to consult. I would argue that the scope of the duty to consult is somewhere in the middle.”

O’Byrne said the Supreme Court of Canada has had a number of significant rulings noting that governments must live up to the Honour of the Crown obligations and consult with Aboriginal people in a meaningful way regarding proposed natural resource development.

“The real crux of the matter is that the court has given little guidance on what fulfils this obligation to consult,” she said.

O’Byrne said going to court may help define the rights and obligation and could answer whether there is an unextinguished Aboriginal title to the lands in question and what is the scope of the duty to consult in this situation.

“However, at the end of the day, the court will leave it up to the interested parties to come to a workable solution. And this would occur only after several levels of court, five to seven years of litigation, and millions of dollars in litigation costs,” she said. “The most workable solution is for the parties to not go to court and to negotiate an acceptable solution based on natural resource sharing.”

The situation is garnering attention from Aboriginal law experts across Canada. Gordon Christie is a professor and the director of the Indigenous Legal Studies Program at University of British Columbia Law and he said the situation in the Maritimes is “basically murky.”

“When you have people living in a territory with land interest and another people come along and plop down on top of them and no agreement is made between them, that just creates a problem that’s really what is still the situation today, even though we’re talking about 300 or 400 years,” he said. “There’s still no real settlement of how these two political groups are going to live together on one piece of land.”

Christie said he thinks the provincial and federal government “want this to just go away somehow magically, but it’s not going to happen.”

From what he’s seen, Christie also believes the Elsipogtog First Nation would have a good argument on the matter to make in court.

With the big issue being consultation, Augustine said he believes it may not have been adequately addressed originally, but he now thinks the province is prepared to “sit down and put everything back on the table” and “do it right this time.”

“I know as First Nations we need to start looking across the country where this type of event has taken place, like B.C. for example. They are dealing quite heavy with this natural resources and there are some bands in B.C. that are very successful with revenue sharing and partnerships with the province,” he added, noting he’s hosting chiefs from around the country at a conference on economic development in Moncton in early November and he hopes to address these issues.

Augustine is optimistic a solution can be found and said there’s “no choice” but to sit down and negotiate. He said First Nations have made their point, but now it’s time to find a resolve everyone can benefit from.

“Fracking to me is just one of the areas of concern. There’s a whole natural resources revenue sharing, in partnership with other companies across the country and from other parts of the world,” he said. “It’s a bigger picture and you can’t really expect to invite businesses from other parts of the world - if you don’t settle this one right it’s really going to undermine the First Nations economy.”

Augustine reiterated that while it’s important their treaties and land claims be honoured, the Assembly of First Nations are not “anti-development.” He said he’s glad no one got hurt in recent protests and they have learned a lot, but sometimes “there has to be a war, then you can talk peace later.”

He added that this is the fifth large-scale protest effort he’s been involved in over the past 37 years and they all ended up “with somebody losing, and it’s usually the community.”

“We don’t want to go out there and create this impression on our youth that the only way to settle something is through violence. I’m totally, totally against violence,” he said. “We don’t want to send a message across the country that this is how we do business each and every time.”