Mi’kmaq unanimous in opposition to fracking by Selena Ross, August 12, 2014, Herald News
Nova Scotia Mi’kmaq will never support fracking in this province, their representatives say. The Native Council of Nova Scotia has left no room for misunderstandings. In recent months the province’s expert panel on fracking set up a meeting with the council, which speaks for all Mi’kmaq living off-reserve in Nova Scotia.
The council members arrived with a statement and asked for it to be included, word for word, in the panel’s final report, expected out later this month.
The people they represent “oppose the practice of hydraulic fracturing for oil and gas in Nova Scotia,” said the statement.
Throughout the meeting, they “were clear that the Mi’kmaq are opposed to all activities associated with hydraulic fracturing taking place on their traditional lands,” panel member Constance MacIntosh, a professor at Dalhousie’s Schulich School of Law, wrote in a discussion paper the panel released last month.
With strong land rights among Canada’s First Nations, it’s a near certainty that Mi’kmaq would legally need to be consulted in some depth if Nova Scotia authorities wanted to give a green light to the controversial method of oil and gas extraction.
However those consultations are done, the answer will probably be the same: “We’re against fracking, period,” said one Nova Scotia chief.
And if that answer didn’t stop the process, protests are likely, said Chief Rufus Copage of the Sipekne’katik band, the province’s second-largest, known until recently as the Shubenacadie band.
Many concerns in his community are about the availability of clean drinking water, since fracking requires heavy use of local water, Copage said. The band lives on part of the swath of the province identified as potentially rich in frackable gas.
“Two years ago, we lost every bit of our water here in our community,” Copage said. “We didn’t have one bit of water for almost six months.”
He doesn’t know of anybody within the Sipekne’katik band who is open to the idea, he said. “I haven’t heard anybody that’s for fracking, other than the people that are trying to get rich off it.”
When it comes to reserve land, the law is in flux right now, but “it seems extremely unlikely that hydraulic fracturing could take place on reserve land without the explicit consent of the affected First Nation,” MacIntosh wrote in the paper.
With the province’s wider obligations to consult Mi’kmaq on activities that could affect them, a firm “no” could prevent fracking entirely, or it could modify a plan to frack, only allowing it in certain areas or with certain restrictions.
The province’s final decision could land it in court if Mi’kmaq rights had not been properly respected along the way.
Nova Scotia Mi’kmaq have an unusual situation: centuries ago, when they reached a political agreement with white settlers, they never gave up their land rights in the process.
Today they maintain that they hold title rights to their traditionally used land, which includes the right to control and profit from the land. For the most part, that claim hasn’t been confirmed in court, wrote MacIntosh.
A similar claim by the Tsilhqot’in First Nation in British Columbia over a 1,750-square-kilometre piece of land was upheld by the Supreme Court of Canada in a July ruling.
In cases in B.C. and Alberta, the Supreme Court of Canada also ruled that aboriginal title rights included ownership of subsurface mineral rights.
Title rights aside, under established Nova Scotia treaty rights — for example, rights to hunt and fish — consultation becomes necessary when a proposal could have a high impact on those activities, wrote MacIntosh. “A direct impact could arise if a fish spawning ground was harmed by an access road being built near it,” she wrote as an example. “An indirect impact could occur if an increase in noise due to hydraulic fracturing activity resulted in game animals fleeing the area, or if hydraulic fracturing resulted in waters or other aspects of the ecosystem being compromised.”
Mi’kmaq would need to be consulted “if a hydraulic fracturing company asked the province to grant them a permit to withdraw water from a lake where Mi’kmaq people have a right to fish.”
If fracking were allowed, Mi’kmaq would also likely need to be involved in the process of setting up a regime to oversee the industry, she wrote.
“In the big, big picture, it’s hard to imagine them avoiding consultation,” said Jamie Baxter of the Schulich School of Law, another expert in aboriginal law.
“That seems quite clear. But I guess the question is really about, what is the content of the duty at the end of the day? And depending on what kind of activity is going to happen, that’s potentially going to vary.”
The consultation can be less intensive, becoming more of a one-way information session, when a proposal is expected to have a very minimal impact. But those cases are rare, said Naiomi Metallic of Burchells law firm in Halifax.
The vast majority of consultations involve “more than just giving the other side, the First Nations, an opportunity to vent,” Metallic said.
Last year, when protesters in Rexton, N.B., physically stopped shale gas exploration, lawyers for nearby Elsipogtog First Nation argued that New Brunswick hadn’t properly consulted the band.
Molly Peters, a Mi’kmaq woman from Paq’tnkek First Nation in Antigonish County, followed what happened in Rexton, and she said she wouldn’t be surprised to see the same thing if Nova Scotia lifted its moratorium on fracking.
“There’s definitely going to be protests. I can guarantee … based on what we’re seeing in the past,” she said.
Mi’kmaq who protest fracking are defending water and the fish that live in it, she said, “and pretty well our livelihood, because a lot of Mi’kmaq people still rely on hunting and fishing to sustain their families.”
Peters said there’s a perception among many Mi’kmaq that fracking is just “a quick buck.” But there’s also a spiritual element to their opposition.
“Mi’kmaq consider water sacred, so that’s why it’s so important,” she said. “It’s the lifeblood of Mother Earth. It’s the only thing that can sustain us.”
“Our Earth can cleanse itself in many ways, and if we’re not careful of what we do to it, then we might just be cleansed with it. You mess with that balance, there will be consequences, beyond all of our control, really.” [Emphasis added]
What we know we don’t know about fracking, Before surveying the land and finding the gas, before boring the wells and breaking the shale, questions must be answered by Geoff Davies, The Coast
The province’s two-year moratorium on it is almost up, and all the questions lie at the feet of Dr. David Wheeler, president of Cape Breton University. Wheeler and the panel he leads—at the behest of the provincial government—are due to give their final report later this month, but Nova Scotians got a taste during a two-week public-meetings roadshow that ended July 29 in Whycocomagh.
Fans of “the good ol’ Canadian government study” were not left disappointed: true to the genre, Wheeler’s is a study calling for more study.
Study of community attitudes; study of health impacts and environmental risks; study to learn where the resources are and how much they’re worth—as Wheeler told a raucous crowd of three hundred at the Halifax consultation, a “significant period of learning and dialogue” is the panel’s prescription.
Here’s what we know we don’t know about fracking in Nova Scotia. We know we don’t know whether Nova Scotian communities have enough water to frack without going thirsty.
The Wheeler panel thinks we do, stating that “water use for hydraulic fracturing would likely not lead to issues of water demand for the majority of the province.”
Meanwhile, a team of Dalhousie scientists are mid-way through a project to fix the fact we know dick all about our provincial surface water supplies.
Just this spring, the researchers and the provincial government published the Nova Scotia Watershed Atlas, calling it the first high-level assessment of the health and stressors of the province’s watersheds. Dubbed the Nova Scotia Watershed Assessment Program (NSWAP), they’ve been working together since 2010 to fill knowledge gaps about the status of watersheds: which are the most at-risk, and what patterns are happening at the provincial-scale, and so on. What they’ve now completed—the first of two planned stages—is the mapping and risk-factor ranking for about 250 watersheds.
What they’ve found is some of the watersheds with the highest potential to be harmed are in Colchester, Pictou and Cumberland counties—the same areas that are currently being explored for conventional fossil fuels, and have been marked as being potentially frackable.
Summarizing their work in an article recently accepted by the peer-reviewed Journal of Hydrology, the researchers specifically call out Wheeler’s review of shale gas development in discussing the limited knowledge surrounding our surface water.
The NSWAP researchers say there is a “critical need” for water budgets in Nova Scotia—essentially hydrological cash flow statements, accounting for water entering, leaving and staying in a watershed.
Until we have that, we can’t actually know how much water there is in an area, and we can’t be sure, as Wheeler and friends are, that there’s little risk of withdrawing too much.
“Without this information it is not possible to conduct a comprehensive evaluation of the potential risks to surface water supplies due to large-scale water withdrawal projects,” says the NSWAP.
The researchers also note that Nova Scotia is unique for having a bunch of small watersheds draining to the coast, instead of being dominated by a few large ones—like, say, New Brunswick. “If you include all the islands and all the small coastal watersheds, there’s over 2,500 across the province ,” says Kevin Garroway, a water monitoring expert with Nova Scotia Environment, and a lead scientist on the project.
That means that not only is it misleading to think of the province as having 40-some large watersheds, as conventionally is done, but also that, due to their often small size, Nova Scotia’s watersheds could be more delicate than we think. Just as a drop of poison in a glass is more potent than one in a vat.
“In a smaller watershed a potential impact could have a more detrimental effect to that watershed as a whole, because there’s less ability for that watershed to be buffered against a potential impact,” says Garroway.
Wheeler and friends are also suggesting that the province watch the example of fracking New Brunswick, which presents its own host of unknowns.
In the McCully Fields around Penobsquis, near Sussex in the province’s south, the 30 wells there make up about two-thirds of the province’s total. But, says Dr. Brad Walters, a professor of environmental studies at Mount Allison University, most of those are drilled into “tight sand” deposits—a different beast from fracking in shale, because gas is locked in low-porosity sand instead of bubbles within the rock.
Plus, underground wells from the local potash mine existed before and during natural gas development in the Penobsquis area, making it hard to disentangle the effects of the mine from the effects of the fracking. And there have been effects aplenty.
“I believe some dozen households lost their water, just like that. Literally overnight, water wells dried up, and what was likely happening was that it was emptying out into the mine, because the mine was flooding,” says Walters.
There were also reports of sewage leaking into the ground around homes, and of houses slowly sinking into the ground. This led to Penobsquis residents filing a legal complaint against the company, Saskatchewan-based PotashCorp, seeking damages.
This is tied to another unique problem with fracking in the Maritimes. As Walters explains in his written submission to the Wheeler panel, the geography of Atlantic Canada is such that shale gas deposits often co-exist with populated areas. Unlike in Northern B.C. or Texas, people here would be living much closer to fracking operations.
“All these things were happening to these people and to put it bluntly, the government just didn’t give a shit, and they had to basically hire a lawyer and force the government to the table,” Walters says. More than two years into that legal battle, most of those residents abruptly withdrew from the proceedings in 2012, with some citing an unfair disadvantage and a broken process.
“There’s your Lesson Number One,” says Walters. “It’s that all this talk about having regulations in place and how the government is going to protect people’s interests; the Penobsquis case is clear illustration that that is just nonsense.
“When push came to shove it was clear where the province placed its allegiance.”
The very starting point for considering fracking is the notion that it’s more efficient and more effective than other means of harvesting energy. That’s the root of the much-heralded “golden age of gas,” and of that ever-tantalizing carrot—job creation.
It’s why “yes, but” can still follow the list of fracking’s potential harms—methane in the air, chemicals in the groundwater, mysterious ailments of nearby residents.
But fracking isn’t even as economical as many think. When considering “energy returned on energy invested” (how much you get for how much you put in), fracking doesn’t size up all that well.
Though it’s highly situational, and the field of study is fairly new, the average EROEI for shale gas is five-to-one. That’s a few points lower than the ratio championed by industry, and about on par with the tar sands, and of course far below the EROEI of a conventional oil play (25-to-one).
The efficiency of the whole process gives one pause, too. The resources are often concentrated in “sweet spots”, which are the first to be developed. When the wells are bored and the fracturing releases the gas, the gas comes out fast (many wells see bumper production in the first few years), followed by fast and steady decline.
To think that the United States has become a golden land of cheap, fracked gas would also be inaccurate. While there are about 30 shale plays across the country, 88 per cent of the country’s production comes from just six of them. About a third of the country’s wells are in decline, and another third have flat production.
To paraphrase Donald Rumsfeld, these are just known unknowns. What riches Nova Scotia will gain from the controversial process, and what we all could potentially lose, are still frustratingly vague. As Nova Scotians have made clear, that uncertainty isn’t good enough.
“I’m terrified,” says Eleanor Kure, who attended the volatile Wheeler panel meeting in Halifax. “[The panel is] basically just saying ‘Don’t worry about it. It’s going to be all right. We’ll be careful,’ and unfortunately there is not a way to be careful with something that’s so dangerous.” [Emphasis added]
[Refer also to: