Minister says First Nations consultation only required after shale gas exemption approved

The Higgs government is defending its decision to wait until its partial lifting of a moratorium on fracking to begin consultations with Indigenous people on shale gas development.

Aboriginal Affairs Minister Jake Stewart told the legislature Thursday he would respect the government's legal obligations to consult First Nations about the possible resumption of shale gas development in the Sussex area.

But he said that obligation only kicked in with the recent cabinet approval of an order-in-council allowing an exemption from the province-wide moratorium.

"This process starts now," he said in question period. "We didn't even have a regulation until now, so there was nothing to talk about."

Stewart said he told several New Brunswick Indigenous leaders during an Assembly of First Nations meeting in Ottawa in December the new Progressive Conservative government would go ahead with the exemption.

But he said there was no requirement to start formal consultations until the cabinet order was approved. That happened at the end of May.

"There was a moratorium in place on this industry, so it wasn't even really worth talking about," he said. "I mean, how can you move forward with an industry when there's a moratorium?"

Oppositions says government failed

The previous Liberal government imposed the province-wide moratorium on fracking after winning the 2014 election, a campaign dominated by the shale gas issue.

Last December, the Progressive Conservatives won a confidence vote in the legislature on their throne speech, which included a section on exempting the area around Sussex from the moratorium.

That's where Corridor Resources has been extracting natural gas since 1999. The company halted all new fracking after the Liberal moratorium was imposed. The PCs say there's a potential $70 million investment for the area if Corridor can resume fracking in 2021.

But opposition parties and Mi'kmaq chiefs are warning that the government may already have failed to fulfill its legal obligations.

"Consultation should take place early and often," Chief Bill Ward of Metepenagiag First Nation said in a tweet. "Doing so after making the decision isn't really consultation, it's just notifying us. …Consultation is being treated as a 'check mark' in the list of things to do, rather than building an actual relationship."

The Liberals pointed to a 2010 Supreme Court of Canada ruling, one of many that has helped establish the legal "duty to consult" Indigenous people on resource projects.

"The duty to consult arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it," the court said at the time.

Interpretation different for PCs and Opposition

Stewart did not speak to reporters Thursday, but Premier Blaine Higgs said he interpreted the duty to consult as beginning "when we know that we're actually going to do something."

But the premier also said that, based on discussion he has had, the requirement is "really vague" with no clear timelines or milestones.

"I was shocked by how undefined it is and I'm really working to change that," he said.

The Sussex area falls within the approximately one-third of the province claimed by Mi'kmaq people in recently launched Aboriginal title discussions with the federal government.

Green Party MLA Kevin Arseneau said he has been told by some Wolastoqi people that it also falls within their traditional area and they should be consulted as well.

Arseneau said if the law is not clear, the PCs should have erred on the side of consultations before making the cabinet order.

He said: "It's always better to go too early than too late."