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A Right to Security - Without Fracking

Despite provincial moratorium, New Brunswick group's Charter challenge on hydraulic fracking pushes forward

by Miles Howe

NBASGA's Section 7 charter challenge aims to be a precedent-setter, to be used against pipelines, tar sands, etc. [Photo: Miles Howe]
NBASGA's Section 7 charter challenge aims to be a precedent-setter, to be used against pipelines, tar sands, etc. [Photo: Miles Howe]

KJIPUKTUK (Halifax) – One of the most interesting legal phoenixes to surface from the ashes of New Brunswick's multi-year, pitched battle against hydraulic fracturing is the “science suit”. The suit, mounted by the New Brunswick Anti-Shale Gas Alliance (NBASGA), aims to make a Charter challenge, using Section 7 of the Canadian Charter of Rights and Freedoms, against the New Brunswick provincial government. Section 7 of the Charter states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The Charter, says NBASGA coordinator Roy Ries, is the legal tool for the job of permanently taking down fracking in New Brunswick, because his group has the scientific, peer-reviewed, data to prove that hydraulic fracturing is damaging to public health, the environment and climate change; all of which impact the constitutional rights of all people to security. And, according to Ries, that's an area where the government, industry and 'bought-and-paid-for scientists' simply come up lacking.

“We've got hundreds of documents,” says Ries. “We've completed the 'affidavited' documents and have submitted it to the government. We've got an overwhelming number of peer-reviewed data related to the impacts of hydraulic fracturing. Industry cannot provide data as to safety. The New Brunswick government did no research and the New Brunswick Energy Institute was an abject failure.”

While industry and government spin relies on tired rhetoric, slight of hand statements and ignores the millions of corporate dollars in settlements that have been paid out to victims of hydraulic fracturing – with gag orders attached - much of the peer-reviewed documentation that NBASGA relies upon is now centrally located on the web, thanks to the work of the 'Concerned Health Professionals of New York'. The 'Health Professionals' effort was part of a much larger movement which recently paid off when New York State Governor Andrew Cuomo banned hydraulic fracturing, despite the fact that much of New York State sits atop the highly-coveted Marcellus Shale, the mother lode of shale gas deposits in the United States.

New Brunswick, is, of course, riding the wave of new political leadership. Liberal leader Brian Gallant strode into office in late September in an election that was largely focused on the issue of shale gas. Gallant, on an otherwise rocky economic platform, promised a moratorium on shale gas exploration in the province.

While not yet in the provincial legislature, the Liberals' announced moratorium rests on five key pillars, one of which includes: “clear and credible information on the impacts on air, health and water”. With this in mind, if Gallant's Liberals stick to their electoral platform – in which they promised that the province's shale gas course would be halted and only moved based on recommendations from the province's Chief Medical Officer – Ries thinks that the province is looking at a permanent ban.

Remember, in September of 2012, New Brunswick's Chief Medical Officer Eilish Cleary's report had wide-sweeping recommendations against proceeding full-steam ahead with hydraulic fracturing in the province, citing numerous health concerns and data unknowns.

“If they do those two things, then it's a win,” says Ries. “But we haven't seen the legislation yet and it needs to reflect those two promises. We know that if Cleary's recommendations are put in there and it has to be based on peer-reviewed scientific evidence, then we've won. But he has to keep those promises. As far as I'm concerned, that's a nail in the coffin of fracking.”

With the potential of a strong provincial moratorium in place, some might argue against the time and money required to mount a Charter Challenge; Ries estimates the “science suit” process will take five years before it gets to the Supreme Court of Canada, and the group is actively fundraising for hundreds of thousands of dollars in legal fees. On the other hand, says Ries, the challenge isn't just about taking on the issue of hydraulic fracturing in New Brunswick. Without a Canadian Environmental Bill of Rights, Ries sees a Section 7 challenge against an arm of the resource-extraction industry as a potential precedent-setter.

Historical Bill C-469, which has come forward more recently as Bill C-634, 'An Act to establish a Canadian Environmental Bill of Rights', is viewed as a tentative step in the right direction towards embedding the right to a healthy and diverse environment into the Canadian Charter. But a private members' bill takes time before it becomes law, if ever. The “science suit” provides an interesting alternative that uses already-existent constitutional rights towards the same effect.

“We want this decision referenced,” says Ries. “If we can say that you can't make a political decision that's going to be harmful to public health and the environment, then you can start applying that to any subsequent decision. For instance, the west-east pipeline (Energy East). The expansion of the Alberta tar sands. Everybody knows that's the worst possible thing that we can be doing in light of climate change, and it's absolutely immoral what Canada is doing about that.”

You can follow Miles Howe on twitter: @MilesHowe

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