11/18/2013 10:20 EST | Updated 01/23/2014 06:58 EST

Elsipogtog loses bid to suspend N.B. shale gas exploration

Elsipogtog First Nation has lost its emergency bid have all shale gas exploration near its territory suspended, with a New Brunswick Court of Queen’s Bench judge ruling Monday in favour of the province and the energy company doing the work.

The band had been pushing for the suspension of all oil and gas licences and permits issued to SWN Resources Canada for exploration in the Signitog District of Mi'kmaki — an area that covers south of the Miramichi River and a portion of Nova Scotia near the New Brunswick border.

Elsipogtog lawyers argued the province hadn’t properly consulted the band and that "outside radical elements" threatened to produce clashes between protesters and police, similar to what happened last month in Rexton, N.B.

But in her decision Monday, Justice Judy Clendening said it was an "odd request" for the First Nation to seek an injunction against SWN due the risk of violent protests.

If outside elements pose a problem, she said, it’s up to the company and the province to seek an injunction against them.

She also said there’s evidence of "some type of consultation" between Elsipogtog, the province and the company.

And while the band’s claims need to be "carefully considered," that is a matter for trial, not an urgent injunction.

Her decision comes after arguments were made in court on Friday.

SWN's shale gas exploration has resulted in heated protests. Last week, Highway 11 near Laketon, N.B., was the site of demonstrations and one arrest. Police are also investigating vandalism.

On Oct. 17, dozens of protesters were arrested and six RCMP vehicles destroyed by fire in a clash on the protest line near Rexton.

Protesters had prevented SWN from accessing its exploration equipment for almost three weeks and the company had obtained a court injunction ordering an end to the blockade.

Last week, Premier David Alward again said that testing for shale gas development potential is low-impact and said SWN will comply with a higher standard of consultation if it finds enough shale gas to develop.

"There will be a very significant consultation process that will be required to be undertaken by them," said Alward.

But Elsipogtog argues it's not SWN Resources Canada, but the province that has to consult. And since positive tests would lead inevitably to development, Elsipogtog's lawyers argued the province has already failed in its duty to consult and testing should stop now.