The Mi’kmaq nation in the Canadian province of New Brunswick was at the forefront of both violent anti-shale gas protests and the indigenous land rights debate last month. The target was the seismic testing and exploration work of a Canadian subsidiary of Texas-based Southwestern Energy. Canada and the US have similar shale geological formations, which have made the technology that has driven a US shale gas boom, adaptable north of the border. But the reaction to these developments in Canada, or at least in New Brunswick, has added to the debate about natural resource investment and shale gas technology. New Brunswick is referred to as a “have-not” province because it receives transfer payments from the federal government to cover mandated social programs. Many residents support natural resources development, which may have been the expectation of the provincial government when it approved shale gas exploration with distinct rules. But the indigenous people in the area, the Mi’kmaq and Maliseet, also known as First Nations, have stated that although they too support economic development, they were not consulted on the shale gas plans.
The Mi’kmaq maintain a 13,000-year-old claim on their traditional lands, but it is the provincial government that owns the natural resource rights. Provincial and federal officers were enforcing an injunction against protestors when the events in mid-October turned from slowing traffic on a highway near the exploration site to guns, dogs, pepper spray and burning police cars. Reports stated that the Royal Canadian Mounted Police (RCMP) found weapons at the site. The protestors say that the exploration is taking place on their traditional hunting lands. New Brunswick’s rules for natural gas exploration apply to private and provincial land.
If this dispute were to be presented for international dispute resolution, with the Mi’kmaq represented as a sovereign nation seeking a resolution with the New Brunswick provincial government, the Canadian federal government and a US corporation, all parties would likely disagree as to whether any law had been violated when exploration began. The provincial and federal governments have the law enforcement officials, but the Mi’kmaq can point to various peace and friendship treaties none of which appear to have surrendered the rights to land. A private member’s bill was introduced in the Canadian Parliament this year calling for legislation to ensure that Canada’s laws are consistent with the UN Declaration on the Rights of Indigenous Peoples. There is little belief that such a law would be passed anytime soon.
Similar to other First Nations cultures, Mi’kmaq tradition emphasizes the connection of all living things. But for all parties in this Native land dispute to come to the table, as has successfully been accomplished in the past, there would need to be at least a common understanding of applicable laws, a willingness to recognize conflicting claims and rights, and the collective leadership to pursue an agreement. So far, it appears that none of those variables have manifested in this fight.