Clearing a path for fracking: strategic use of arrests and charges?

Fredericton – SWN Resources Canada’s exploration equipment currently sits silent in New Brunswick, but shale gas development creeps forward through the removal and neutralization of people opposed.

Since SWN, a subsidiary of Houston-based Southwestern Energy, set out in Kent County to explore for shale gas in June 2013, almost 100 fracking opponents have been arrested. Arrests have continued into January, long after demonstrations have ended, and two Mi’kmaq men, Germain Junior Breau and Aaron Francis, have remained in jail since October 17, the day of the violent raid by RCMP on the blockade of SWN’s thumper trucks.

Suzanne Patles is a Lnu treaty scholar from Eskasoni and member of the Mi’kmaq Warriors Society. She has been arrested twice and detained and charged on a third occasion. “For me the arrests, charges and conditions violated my treaty rights and my Aboriginal rights and my title to the land,” says Patles who points to the 1999 Supreme Court of Canada ruling that reaffirmed the Peace and Friendship Treaties of 1760-61 between the Mi’kmaq people and the Crown. The treaties reveal that the Mi’kmaq and other indigenous people in New Brunswick have never ceded land or resources in New Brunswick.

Patles’ first arrest was on June 9. She had drawn a circle with tobacco and was in prayer in front of police, who were attempting to make way for SWN equipment. She was nabbed for obstruction and mischief and put under conditions to stay one kilometre away from SWN equipment, preventing her from access to her own traditional territory. Nineteen RCMP officers surrounded her in Moncton on September 11 for breaching the “one kilometre” condition on July 28. The charge was subsequently dropped.

Miles Howe, a journalist with the Halifax Media Co-op, has been arrested three times while covering shale gas resistance. Each time he has been released without facing charges, leading many to conclude he was really arrested for his critical coverage. After his last arrest on November 26, Canadian Association of Journalists (CAJ) president Hugo Rodrigues responded, “RCMP behaviour suggests they are unfamiliar with the Charter rights of a free press and the allowances those rights permit journalists while covering controversial and volatile situations.”

Charges and restrictive conditions have also been used as bargaining chips, to SWN’s advantage. In a deal between Mi’kmaq negotiators and the RCMP on July 30, it was agreed that charges would be dropped on 25 of the 35 people arrested (to that point) in exchange for allowing SWN to complete summer exploration work.

Fracking opponents are disadvantaged in this process. Once arrested and charged by police, the charges are treated as legitimate, with restrictive conditions lasting for perhaps many months or longer.

Hope Levi, a Mi’kmaq woman from Elsipogtog, was struck by a SWN truck on December 2. She intended to pursue a formal complaint, but she backed down when she was reminded by a RCMP investigator on December 8 that she had breached conditions stemming from her October 17 arrest. “I want to make a statement, but I don’t want to go to jail,” Levi told Jorge Barrera of the Aboriginal Peoples Television Network (APTN).

Threats of litigation and having to pay penalties have also been used to try and ward off opponents. In October 2013, SWN filed a lawsuit for an unknown sum of damages in the New Brunswick Court of Queen’s Bench. The statement of claim named 10 people as well as Jane Doe and John Doe placeholder names for others they may wish to go after later for damages.

Ann Pohl is one of the people named to the suit and sees it as a groundless Strategic Lawsuit Against Public Participation (SLAPP), designed not necessarily to win but to financially dry up or intimidate opponents. The organizer with Upriver Environment Watch in Bass River, Kent County, explained why she and the others were targeted, “My theory is that [we] are strong and effective cross-­cultural communicators who are ethically very strong and utterly committed to ending the threat of fracking in New Brunswick, so they wanted us scared into giving up. It did not work.”

Three more people have been arrested since December 20 for allegedly threatening the media on October 19. “It goes to show that what they are trying to do is continue to intimidate the people who have their feet on the ground (…) why didn’t they deal with it on [October 19] when it allegedly happened,” says Patles.

Perhaps raising the most alarm is that two Mi’kmaq Warriors, Germain Junior Breau and Aaron Francis, remain in jail more than three months after their October 17 convictions. They pleaded not guilty to an almost unbelievable total of 35 charges on December 20.

The Crown is using all three grounds for pre­-trial confinement: the possibility that an accused will not attend court, protection or safety of the public and the rarely used “maintaining confidence in the administration of justice,” essentially to make examples of them.

Alison Menard, lawyer for the Warriors, expressed concern about their treatment. Menard told the Halifax Media Co-op on Oct. 22, that “Our system is based upon not punishing people prior to trial. If you believe in that system, if you believe in the presumption of innocence and the importance of our Charter values, [then] we don’t punish people pre-­trial.”

“It’s like they’re being convicted prior to being found guilty or not,” says Patles. “The system has developed in a way that has allowed for the [continued] incarceration and political imprisonment of our people.” She encourages people to write letters to the jailed warriors to show solidarity and support.

Letters to Aaron Francis and Germain Junior Breau can be sent to:
Southeast Regional Correctional Centre
345 Lino Rd.,
Shediac, NB
E4P 0H6

Asaf Rashid is a regular contributor to the NB Media Co-op and hosts the weekly radio show, From the Margins, on CHSR 97.9 FM, a volunteer owned and operated campus/community non-profit radio station in Fredericton.