While Hurricane Arthur made the headlines slamming into New Brunswick, July 5, it is the people of Elsipogtog First Nation and their supporters who will be remembered for making history on that date long after Arthur is forgotten.
Since the Supreme Court of Canada ruling nine days before that Aboriginal peoples still retain lawful title to their ancestral lands not sold or ceded by treaty, the Elsipgotog First Nation became Canada’s first First Nation to ‘reclaim’ ancestral land.
The land reclaimed by the Mi’kmaq is alongside Highway 11, near the exit to St. Charles, a village about 40 kilometers north of Bouctouche. It’s the same land targeted by a shale gas company, Southwestern Resources Canada (SWN), for drilling its first well in Kent County. The patch of grass looks innocuous, but it’s actually a key battleground in a hard-fought campaign by the citizenry of Kent County to stop shale gas.
People here have been peacefully resisting shale gas for three years. They call SWN’s proposed drill site the ‘kill zone’ and some are already making plans to leave. Now, bolstered by the Supreme Court decision, they may not have to leave.
Two women from Sackville on hand to support the Mi’kmaq termed the brief ceremony a “beautiful moment for all of us” and said the band’s action was necessary because provincial governments are “turning forests into barren land.”
SWN’s target drill site is also Mi’kmaq land that was never sold or given up by any treaty. That well-known fact makes the Supreme Court’s June 26 Tsilhqot’in decision in British Columbia look like a real ‘game-changer’ for the Mi’kmaq in New Brunswick too.
“We’re here to reclaim land the Crown is poisoning because we can’t allow that,” Mi’kmaq Warrior Chief John Levi said. “They want to kill us all.” A sign placed at the site says the Mi’kmaq are reclaiming the land “due to mismanagement of land held in trust by the Crown.”
A plaque attached to that sign notes that the land has been “reclaimed under the authority of the Signitog District Grand Council and Band Council Resolution, Chronological No. 2013-09-30, of Elsipogtog First Nation, Kopit Lodge.”
The historic moment was live streamed on YouTube by Dee Shanger. Shanger has been making a video record of the Mi’kmaq attempts to have their authority over their ancestral lands respected by the provincial government.
To applause of those gathered to witness the event, Levi declared that “if SWN comes back, we’ll be here too.” Those sentiments were echoed by Ann Pohl who has been unwavering in her support of the Elsipogtog First Nation and opposition to shale gas development.
“”We’ll be back on the line again if we need to be,” Pohl said. She is one of a number of people named by SWN last year in a so-called ‘SLAPP’ suit designed to stop their anti-shale gas protest work. The peaceful resistance to shale gas development in Kent County last year may not be necessary if the provincial government willingly complies with the Supreme Court decision.
It now appears quite likely that the Mi’kmaq will be taking legal action against the Province of New Brunswick to force it to respect the law. Such legal action would very likely make shale gas development here all but impossible. There are also serious implications for forestry leases granting access to traditional Aboriginal land.
“With the Supreme Court of Canada’s Tsilhqot’in decision, it is absolutely clear that the Mi’kmaq People have a truly winnable case,” Pohl. “The IMW Peace and Friendship Legal Fund will finance this winning challenge.”
Anyone wishing to support the Mi’kmaq legal action can send donations to the IMW Peace and Friendship Legal Fund at 249 Main St, Elsipogtog NB E4W-2X2. IMW stands for Iapjiw Maliaptasikt’tiew Wskwitqamu, which means “Forever taking care of the earth.”
In giving the Supreme Court decision, Justice McLachlin detailed what a provincial government’s ‘duty to consult’ Aboriginal people about development on their land entails.
Compounding the failure of the Province of New Brunswick in its duty to consult with the Elsipogtog First Nation about such development is the fact that the Alward government granted those permits and leases to SWN in direct opposition to the clearly expressed wishes of the land owners. Further, it used the RCMP to forcibly repress peaceful opposition from those who, in light of June’s Supreme Court decision, still hold lawful title to that land.
The Tsilhqot’in lawsuit in BC was that people’s response to their provincial government giving timber leases to a private company on their ancestral land. The parallels to timber leases on forest lands never ceded by the Mi’kmaq and other Maritime First Nations are striking. Summarizing a 2006 Supreme Court of Canada decision, (R. v. Morris, 2006 SCC 59,  2 S.C.R. 915) Justice McLachlin stated that “since Aboriginal rights are akin to Treaty rights, the Province has no power to legislate with respect to forests on Aboriginal title land.”
With the Tsilhqot’in decision, the country’s highest court has struck down the authority previously claimed by many provincial governments, including the Alward Conservatives in New Brunwick, unilaterally to allow resource companies access to the ancestral lands of any First Nation in Canada. In New Brunswick, the Alward government has also granted leases for shale gas companies to develop unconventional shale gas and oil deposits on Aboriginal land never sold or ceded by any treaty.
The June 26 Supreme Court decision notes that, in Canada, “Aboriginal land rights survived European settlement and remain valid to the present unless extinguished by treaty or otherwise.” It also says that “the right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders.”