Public Trust in Environmental Decision-Making: A Case Study of Shale Gas Regulation in Kent County, New Brunswick

Context and Background

Shale Gas Development in New Brunswick: Hydraulic fracturing for shale gas in New Brunswick is in early phases compared to other North American regions such as Oklahoma, Texas, Colorado, Pennsylvania, British Columbia, or Alberta. There is a small scale shale gas industry in the south of the province featuring 40 previously fracked wells. Natural gas distribution and consumption is centred in the southern part of the province and not in Kent County. There is some provincial infrastructure in place for a large scale export sector, notably a liquefied natural gas (LNG) terminal in St. John. As part of attempts to expand the industry and participate in the continental growth of the shale gas industry, the New Brunswick government awarded Texas-based SWN Energy Co. licences to search one-fifth of the province for shale gas potential in 2010, including large parts of Kent County [1]. These exploration activities were licensed with minimal oversight (as is traditional in mining regulation – with the expectation that production activities will be regulated more extensively).

Seismic testing took longer than expected because there were public protests. It was not until mid 2014 that SWN began the process to drill four exploratory wells. After a new provincial government was elected in October 2014 and carried out its promise to place a moratorium on hydraulic fracturing in December 2014, SWN stopped its activities. A government appointed commission held hearings across the province throughout 2015 to find out more about the root issues underlying public concern. The commission issued its report in early 2016 [2] and, in May 2016, the government extended the moratorium indefinitely [3].

Kent County: Kent County is a rural area in New Brunswick, Canada, featuring coastal and inland villages and a unique mix of three cultures (Mi’kmaq, Acadian, and Anglophone) (Figure 1). Unemployment is high (16.6%) and so is illiteracy (40% of adults do not have a high school diploma) [4, 5]. Median incomes are low ($24,387). There is no history of oil and gas production in the area and less than 1.5% of population works in mining. Other natural resource sectors—forestry and fishing—are more prominent.

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FIGURE 1.

Kent County, New Brunswick (credit Google Maps).

The social and historical context of the region contributes to residents’ skepticism of shale gas exploration activities. The Mi’kmaq are a First Nations people of the Atlantic provinces of Canada, the Gaspé Peninsula of Quebec, and the northeastern region of Maine in the United States. Indigenous to the land, the Mik’maq first came in contact with French colonists in 1604, who settled in what was known as Acadia throughout the seventeenth and eighteenth centuries and spanned the same region. Their histories are intertwined as the French formed alliances with the Mik’maq and eventually were confronted by British colonists who suspected Acadians of alliance with the French and lead to their expulsion between 1755 and 1764. There is a historical context of expropriation more recently as well (Kouchibigouac National Park in the 1950s), which further made residents skeptical and cautious of shale gas exploration activities. One-tenth of the Kent County population is indigenous. The Elsipogtog First Nation is a Mik’maq First Nations band and is formerly known as the Big Cove Reserve. The Mi’gmaq never ceded territory but rather signed a “Peace and Friendship Treaty” with the British Crown with responsibilities on either side for protection [6]. The symbolic, strategic, and legal importance of this fact to resisting fracking development is important not only to the Elsipogtog community but also to other nonindigenous voices in Kent County who forged new relationships during the blockades and protests of 2013. Violent clashes with the Royal Canadian Mounted Police (RCMP) in October 2013 to evict Mik’maq protestors feature strongly in Kent County resident descriptions of fracking issues. Politically, the region tends to vote liberal, and that is the governing party that instituted a moratorium on fracking.

Findings

Interviews with 20 participants (elected officials, civil society, business leaders, and regulators) and opinion polling revealed a widespread lack of confidence in the ability of regulators to oversee a relatively new technology like hydraulic fracturing to extract shale gas: 59% of those surveyed felt they had low or somewhat low confidence in regulators to enforce environmental regulation (Figure 2) and 65% disagreed with the statement that they trust public authorities to make the right decision (n=500, telephone survey conducted in July 2016, margin of error ± 4.4%, see Table 1 and Cleland et al. [7] for more).

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FIGURE 2.

Confidence in environmental regulators (n = 476 from dual frame (landlines and cellular lines) telephone random survey of residents of Kent County, 18 years of age or older, between August 10th and September 2nd, 2016).

In the discussion below, we draw on survey findings and interviews. Interviews were semistructured, took between 30 minutes and 2 hours and were recorded by audio or written notes depending on the preferences of the interview participants. Interviews were organized by four themes: specifics of project, community context and key values, availability of information, and level of understanding and procedural and engagement issues. Interviews preceded and informed survey design allowing for more informed survey questions and triangulation of results [8]. The overarching research question for the interview phase of the study was “What are the factors that affect satisfaction at the local community level in the energy infrastructure siting process?” and for the survey phase, the overarching research question was “What is the level of local community confidence in the actions of public authorities toward new energy infrastructure?” The interview guide and survey questionnaire are available in the study by Cleland et al. [7].

There are three major reasons that contributed to the lack of confidence and trust in environmental regulatory processes.

• 1. Skepticism over capacity

  There is not a long-standing established process for regulation of a large scale unconventional gas sector in New Brunswick. Policy-makers recognized the need to update existing rules to take into account new technologies. In the meantime, the existing regulatory framework that regulated conventional gas development, as well as water protection and use, was relied on. In May 2012, the government publicly released recommendations for updated rules [9], which were issued in February 2013 [10]. These rules draw on requirements put in place in other jurisdictions, notably Alberta. Both proponents and policy-makers consider them strict. Most of the enforcement is under the jurisdiction of the Department of Environment and Local Government under the authority of EIA regulations.

  However, it is important to note that these actions were taken 2 years after the province issued exploration licences for more than 1 million hectares. As is common in mining regulation, these licences were issued with minimal oversight on proponent exploration activities. The rationale is that there are minimal environmental impacts during exploration and strict rules should kick in when extraction and processing occurs. Although this might have been understandable from the perspective of traditional mining development patterns, it quickly raised concerns that there was no oversight of shale gas development. The lack of a more thorough notification process for exploration activities was problematic and shows a potential lack of understanding of how an essentially unannounced presence in the community mapping out territory would have been received. Additionally, the stringency of regulatory procedures for water protection was a point of concern for citizens concerned about the responsible development of shale resources in their community.

  Following public concerns over potential damage to water quality from a fracking industry, the province put in place new interim requirements on seismic testing in June 2011 [11]. These requirements called for baseline water testing on any wells within 200 m of seismic test and 500 m of drilling sites, and disclosure of chemicals used in fracking.

  It is extremely important to put these new requirements in the context of past promises and outcomes of environmental regulation. The provincial Ombudsman criticized the New Brunswick government in 2014 for failing to implement legislation to classify waterways and initiate steps for protection [12] and several interview respondents spoke of a lack of confidence in the ability of public officials to enforce any environmental regulation (Figure 2). “New Brunswick has good people in civil service but mostly things don’t get enforced because there are not enough people to do it.” (Jim, civil society leader)

  Finally, there was recognition among various actors, including regulators, themselves that the dual role played by the Department of Mines and Energy as both a proponent and regulator of the shale gas industry is problematic. Indigenous voices stressed that the whole trust foundation for regulation was missing. “We know that it is a problem when the department that regulates industry is also promoting it.” (Anonymous 3, Provincial government official)

• 2. Controversies and scandals

  The second factor leading to a lack of confidence in regulators are controversies involving prominent public authority figures.

  Dr. Eilish Cleary, the former Chief Medical Officer of Health in New Brunswick, published a report recommending health impact assessments and rules to promote community well-being prior to unconventional gas development taking place [13]. Many interview participants referred to this case and to her recommendations. She was released from her position in December 2015 in a move widely seen to be in retaliation for her report. The Commission on Hydraulic Fracturing and New Brunswick Medical Society both expressed concern over the way in which Cleary was released [14]. This episode plays an important role in attitudes toward public authorities. “We don’t have a lot of faith in government authorities when people we trust are fired; when a trusted information source is gone.” (Tina, local representative referring to the dismissal of Chief Medical Officer Dr. Eilish Cleary by the provincial government.)

  Dr. Louis Lapierre was appointed by the government in 2012 to chair an initiative travelling the province to promote and receive input on a discussion document termed Responsible Environmental Management of Oil and Gas Activities. At the end of the scheduled consultations Dr. LaPierre produced a list of recommendations for a ‘path forward’ including formal risk assessment and phased approach to exploration. LaPierre was subsequently appointed as the head of a newly established NB Energy Institute that the government set up to follow up on his recommendations and provide a third party source of information that was hoped to be perceived as relatively neutral and credible. The initiative was derailed when Dr. LaPierre was revealed to have falsified information about his academic accreditations [15].

  Finally, it is important to comment on the violent clash that took place in October 2013 in Kent County. It features strongly in resident descriptions of fracking issues. It is also important in understanding the broader community lack of confidence in public authorities. The confrontation tested the limits of government’s monopoly authority on the use of force. Trust was eroded among some community members who feel the RCMP (Royal Canadian Mountain Police) acted badly (for more see [16]). Some seriously believe the burning of police cars seen on national news was set up by police. There is an active civilian complaints commission inquiry ongoing [17].

• 3. Indigenous epistemologies and representation

  Regulators hoping to put in place and implement rules for shale gas development come up against First Nation ways of knowing (epistemologies) that are often challenging to align with a regulatory rationale that sanctions extractive activities. Some indigenous voices expressed a deeply held value that allowing fracking would not be respecting past and future generations. “The land is not ours to sell, we are caretakers. … We honour our ancestors for the sacrifices they made for our people, our children and grandchildren to come.” (Mousie, Elder, former Elsipogtog Councillor)“There is no trust. Status quo doesn’t work. No amount of regulation will help with that.” (Mousie, Elder, former Elsipogtog Band councillor)

These comments echo points made in the environmental impact assessment literature. Booth and Skelton [18] suggest that poor relations between governments and First Nation communities and the fact that environmental regulatory often fails to take First Nations concerns seriously are major reasons why environmental assessment processes fail. While there are ongoing efforts to incorporate indigenous ways of knowing into environmental assessment and regulation in Canada—often under the rubric of Traditional Ecological Knowledge (TEK)—these efforts face ethical and practical challenges [19, 20].

Elsipogtog officials also spoke of problematic moves from the provincial government, which made the mistake of selling exploration leases to Elsipogtog reserve lands near the city of Moncton—to them, this was not the province’s land to include when issuing licences to search. Again this contributes to distrust. Less than 30% of the indigenous residents in Kent County agreed with the statement that authorities respected indigenous communities in the decision process, and more than three-quarters indicated distrust in authorities making decisions about energy projects (Table 1).

The duty to consult and accommodate with aboriginal peoples is a constitutional duty in Canada that applies when decisions or actions by the Crown may adversely impact potential or established aboriginal or Treaty rights. The impact of seismic testing on the rights of the Elsipogtog was not clearly identified early on in the process. A further difficulty was a regulatory process that promoted engagement with First Nation representatives who appeared to not represent accurately or adequately the Elsipogtog community leading to issues around representation. Most of the consultation carried out by the proponent SWN was done under the auspices of the Association of First Nations Chiefs of New Brunswick. The approach of engaging the local First Nation through the New Brunswick First Nation umbrella organization may have blinded the proponent to a sizeable and powerful constituency within the Elsipogtog community whose interests were not represented at these engagements. The conventional procedure of approaching the provincial level body of the AFNCNB to meet requirements to consult with indigenous representatives appears to have bypassed a thorough understanding of local Elsipogtog residents’ position on shale exploration within their traditional territory. (Note that our 2016 survey found opposition levels to shale gas development in the region reach 80% for indigenous residents). The alleged failure of the AFNCNB to represent Elsipogtog interests in discussions with SWN led the newly elected Chief of the Elsipogtog nation to withdraw from the AFNCNB. The consequences of these complicated questions of representation were far-reaching and contributed to the blockade and violent incident in October 2013.