As SWN breaks Oil and Natural Gas Act, the honour of the Crown is brought into doubt.

by Miles Howe

FREDERICTON, NEW BRUNSWICK – As reported by APTN on November, 18th, several unfilled 'shot holes' have been discovered along a seismic testing line completed by SWN Resources Canada in late July, 2013.

These shot holes, located in the backwoods of New Brunswick, appear to have pierced a near-surface aquifer. Upon first-hand verification I could see water flowing unabated from the holes. Some kind of mechanical fluid had mixed with the water and had made a sloppy, likely toxic, mess of the surrounding forest floor. It is unclear whether the aquifer broke in July, when the shot holes were blasted, or more recently.

Shot holes, for the uninitiated, are seismic testing holes that are done in more rugged conditions, such as dirt roads and the forest, where seismic testing trucks – or 'thumpers' – cannot go. The process involves drilling a hole into the earth, usually about 10 meters in depth, laying an explosive charge, detonating it, and recording the ensuing seismic vibrations to check for shale gas deposits, or whatever you happen to be looking for.

The environmental risks of such a procedure are potentially higher than highway-side 'thumping', and the procedural steps to take if an aquifer is ever pierced are well documented within the New Brunswick Oil and Natural Gas Act. In fact, there's whole sub-sections related to what to do, as an industrial player, if you should so happen to blast your way through an aquifer and water starts spilling all over the place.

Here's what industry - in this case SWN Resources Canada - should have done:

“SCHEDULE C

Water Flowing from Shotholes or Testholes

Requirements when water comes to surface or flows from shotholes or testholes

1(1)If water is released from an aquifer or stratum while drilling a shothole or testhole and comes to the surface or flows from the shothole or testhole, the permittee shall, without undue delay, notify the Minister and ensure that all drilling on the flowing hole is discontinued, that no explosive charge is loaded into the shothole and that the flow of water is confined to the aquifer or original stratum in accordance with section 2 of this Schedule or in a manner proposed by the permittee and approved by the Minister.

1(2)If water is released from an aquifer or stratum and comes to the surface or flows from a shothole or testhole following the drilling of the testhole or the drilling or detonation of the shothole, the permittee shall, without undue delay, notify the Minister and ensure that the flow of water is confined to the aquifer or original stratum in accordance with section 2 of this Schedule or in a manner proposed by the permittee and approved by the Minister.

1(3)If a shothole is flowing before an explosive charge is detonated, the permittee shall ensure that the charge is detonated.

1(4)Without undue delay, the geophysical licensee shall submit to the Minister a report, on a form provided by the Minister, with respect to each flowing shothole or testhole

(a)after the flow of water has been confined to the aquifer or original stratum under subsections (1) and

(2), or (b)after reasonable attempts have been made to confine the flow of water to the aquifer or original stratum under subsections (1) and (2).

1(5)If, after reasonable attempts have been made, the flow of water from a shothole or testhole cannot be confined in accordance with section 2 of this Schedule, the geophysical licensee shall, as soon as possible, submit to the Minister for his or her approval a plan for the control and management of the flow of water.

1(6)If water flows from a shothole or testhole when drilling operations are in progress, the permittee shall ensure that the process referred to in subsection 2(2) of this Schedule is complied with when any subsequent shotholes or testholes in the sequence are drilled.”

Very clear, no?

Now, we can be fairly sure that SWN Resources Canada didn't do any of these things, because after the APTN article aired the New Brunswick Department of Natural Resources began to telephone anyone related to producing the article, asking where the broken aquifer was located.

So, while the 'toughest regulations in North America' – as the New Brunswick government is so proud of publicly lauding – are all well and good on paper, when industry regulates industry it can result in a fairly significant environmental disaster.

Even at the testing phase.

Of course, aside from breaking the Oil and Natural Gas Act – which, if tough talking Natural Resources Minister Bruce Northrup has his way, will result in heavy fines of up to $1,00,000 (gasp!) - SWN's destruction of an aquifer and subsequent laissez faire attitude about it may well have brought the Crown into dishonour.

SWN's 2013 2D Seismic Testing Plan was brought before the Aboriginal Affairs Secretariat (AAS), which happens to be conveniently ministered by none other than Premier David Alward.

Alward's AAS, in a Final Determination on the Duty to Consult, in May of 2013, determined that SWN's plan, based upon information provided by the company no less, would have a negligible impact upon Aboriginal use of the project area for traditional purposes.

Not being an expert in traditional purposes myself, I can't personally tell if traditional medicines will continue to grow on a flooded forest floor covered in machinery fluid, or if animals will continue to frequent such a now-polluted area, or whether they'll get sick if they drink machinery fluid mixed with water.

In all seriousness though, negligible is a 'grey area' word that the Crown will necessarily have the final word on.

What should be closely examined in the coming days is the exact method by which Alward's AAS determined, in their 'Duty to Consult', that the impact would be negligible.

Was it solely based upon SWN's information?

Was it related to information provided by the Assembly of First Nations Chiefs of New Brunswick, specifically their Indigenous Knowledge expert – and once anti-hydraulic fracturing – Cecilia Brooks?

Did the Final Determination include actual scientific analysis of SWN's information, or was this a 'just trust me' thing?

If scientists were actually involved, were they actually scientists, or school teachers masquerading as scientists (Remember Louis Lapierre)?

What was the level of incursion of government upon this theoretical scientific work (Remember Fred Metallic)?

Other questions related to Alward's determination, as well as to the Honour of the Crown in the case of resource development in New Brunswick, include:

Does the province have any environmental monitoring plan in place whatsoever, or is the extent of their environmental monitoring – in terms of people on the ground – limited to SWN sub-contracted employees?

Will the province fine SWN Resources for this destruction of an aquifer and it's failure to notify the province, and if so, will Natural Resouces Bruce Northrup make good on his brave words of getting tough on industry?

New Brunswick 'Duty to Consult Policy' does not include a matrix along the lines of that of the province of Saskatchewan, where resource development has been significant, but not approached in this apparently 'East Coast helter-skelter' fashion.

So when Alward determines that the impacts will be negligible, even more importantly now that they are potentially not, what are the steps by which this decision reached?

The Honour of the Crown would appear to have been triggered.