Anti-shale gas activists and Mi'kmaq chiefs are warning the Higgs government to prepare for another fight over fracking, now that a moratorium on the practice is being lifted in one part of the province.

The Progressive Conservative government is also facing questions about whether it has fulfilled its legal obligation to consult First Nations communities, who oppose the practice.

"As the rest of the world is moving one way, New Brunswick is moving the other," said Jim Emberger of the New Brunswick Anti-Shale Gas Alliance.

"On that basis if nothing else, there are many reason to suspect that this could be challenged in many ways," he said, pointing out the group took the Alward government to court on the issue and has kept in touch with its lawyers.


Jim Emberger of the New Brunswick Anti-Shale Gas Alliance says Higgs's plan to allow shale gas development will be challenged. (Jacques Poitras/CBC)


"Watch this space. …The possibilities are there for sure."

'Duty to consult'

Meanwhile, nine Mi'kmaq chiefs said in a written statement they had been "blindsided" by the news. They pointed out a commission on fracking recommended in 2016 that the province "rebuild its relationship" with First Nations before lifting the moratorium.
"The premier must remember the Crown has a duty to consult, and to seek our consent to development in our territory," Chief George Ginnish of Natoaganeg First Nation said in the statement.
He added that Mi'kmaq should have been consulted when the government "was just considering"lifting the moratorium.

The fierce reaction led PC Energy and Resource Development Minister Mike Holland to call for calm.


Energy Minister Mike Holland has called for calm over reaction to the PC government's plan to allow shale gas development in the Sussex area. (CBC)

He portrayed the regulatory change as just one of "a number of steps" in the process, including Indigenous consultation he is promising to do.

"Let's just let the temperature down here," he told reporters. "This is a long-term project. Nobody's doing anything knee-jerk."

Holland said $70 million in new investment is possible in the area, but that no development is likely before 2021.

Document not public yet

Higgs revealed the regulatory change in a scrum with reporters Tuesday. He said the order-in-council exempting an area near Sussex from the fracking moratorium had been approved by the cabinet sometime in May.

The order-in-council, normally a public document, wasn't available on the government's website Wednesday.

"There remain a few procedural aspects that need to be completed," said spokesperson Tyler Campbell in a statement. "Once those are completed, we'll be able to release them publicly."
The previous Liberal government established the moratorium province-wide after winning the 2014 election.

Last fall, Higgs's minority government won a vote on its throne speech endorsing a limited lifting of the moratorium in the area near Sussex, where Corridor Resources has been extracting natural gas since 1999.

Corridor halted fracking new wells when the moratorium was put in place.

Area included in Aboriginal title discussions

Holland said Wednesday the area covered by the exemption is limited to around Penobsquis and Picadilly, and it does not extend as far as Turtle Creek and Albert County near Moncton, as the Liberals warned it would.

Even so, it falls within the one-third of the province now the subject of Aboriginal title discussions between the federal government and Elsipogtog First Nation.

Holland said he's hoping for "a very interactive exchange of information" with Mi'kmaq leaders and believes he can accommodate them.

"This is not an issue that's going to come down to a yes or no answer," he said.

Corridor Resources has a number of gas wells in the Sussex area. (Pierre Fournier/CBC)

But Green Leader David Coon said the cabinet decision shows why the Higgs government should be part of the Aboriginal title negotiations.

"If they were at the table, they would clearly realize they couldn't just drop this decision without actual consultation with First Nations, with the Mi'kmaq in this case," he said.

The Liberals criticized Higgs for not being transparent about the cabinet decision last month, but the premier said in question period that with a public vote in the legislature last fall and his promise to implement it by the end of May, "this is no surprise."

"Now I know it is a shock to the opposition that we are actually following up on what we said we would do," he said. "We are actually doing what we said we would do, when we said we would do it."

Liberals considering second reading for bill

After last fall's PC throne speech vote, then-Liberal leader Brian Gallant introduced a bill to codify the moratorium in legislation. Because the moratorium exists only as a regulation, it is easily amended by cabinet order, without a vote in the legislature.

Gallant's bill would have changed that, but the Liberals haven't used their allotment of opposition days in the legislature to bring it back for second reading.

"It's in the cards," Liberal MLA Benoit Bourque said Wednesday. "We're certainly considering it."

Premier Blaine Higgs has confirmed that his Progressive Conservative government quietly passed regulatory changes last month that will allow shale gas development to resume in the Sussex area.
Higgs told reporters that his cabinet approved an order-in-council carving out an exception to a province-wide moratorium.

"We've done the modifications necessary on the current regulation," he said during a scrum on economic development issues. "My goal is to be able to tell Corridor [Resources] within a month's timeframe that we are open for business."

Corridor Resources started extracting gas in the Sussex area since 1999 but halted new fracking after the Liberal government of Brian Gallant imposed its moratorium after the 2014 election.
Higgs said he'd been planning to make the announcement publicly in Sussex sometime in the next month.

"We want to make that announcement so officially they can go out and look for investors," he said.

Consultation promised

He also vowed that before any project goes ahead, his government will consult with Indigenous people in the hopes of avoiding the kind of confrontations between protestors and police that took place near Rexton in 2013.
"We want to do this right. We want to do this right through the whole First Nations engagement and through what potential may exist, and make sure everyone understands it's a very regional approach," Higgs said.

"We don't want this to turn into an issue like happened four or five years ago. We want it to be one element of that area that can move forward in a productive way, and not get stopped and started because of people not getting informed properly."


Corridor Resources started extracting gas in the Sussex area since 1999, but halted new fracking after the Liberal government of Brian Gallant imposed its moratorium after the 2014 election. (Pierre Fournier/CBC)

Higgs said, however, that he's not sure yet which First Nations he would need to consult. "Do I have someone that I need to speak to, right today, about it? No, I don't know who that is."

The federal government recently signed a memorandum of understanding with the Elsipogtog First Nation to begin talks on Aboriginal title to about one-third of the province, including the area around Sussex.

Secret decision

The Opposition Liberals immediately condemned what they called a secretive decision by Higgs and his cabinet.

"He didn't consult with New Brunswickers," said Dieppe Liberal MLA Roger Melanson. "They made a decision behind closed doors, in cabinet. … The premier of this province thinks he's running a majority government, and he's not."

But Higgs did win majority support in the legislature for the move last December when three People's Alliance MLAs voted with the PCs on his throne speech motion. The motion had been amended to endorse excluding the Sussex area from the moratorium.


Premier Blaine Higgs said his government will consult with Indigenous people in the hopes of avoiding confrontations. (CBC)

The Liberals responded by introducing a bill to write the province-wide moratorium into law, something they didn't do when they were in government. That would make it impossible to approve exemptions by cabinet order.

But so far the Liberals have not used their allotment of opposition days in the legislature to bring the bill forward for second reading.

Green Party Leader David Coon called on them to do that this week in light of Higgs's comments.