The province's Court of Queen's Bench dismissed Aaron Sock's application for an injunction, saying there was no evidence that plans by SWN Resources to proceed in its search for shale gas would amount to a degree of harm to Elsipogtog.
"It's a small step backwards," said Sock as he left the courthouse.
"We will regroup and come back with other options."
The lawyer for Elsipogtog had argued Friday that the provincial government failed to properly consult with First Nations before granting exploration licences to SWN Resources.
In his application for the injunction, T.J. Burke also said there is a risk of the type of violent clash that erupted last month between police and protesters near Rexton if exploration is allowed to continue.
But Judge Judy Clendening said there is no evidence that the behaviour of the respondents could be the basis for possible civil unrest. She added that given that Elsipogtog had delegated responsibility for the consultation process to the Assembly of First Nations Chiefs of New Brunswick, any dispute between those two sides should be resolved at a trial.
Clendening also said it is apparent that SWN Resources is suffering monetary losses as a result of protests over shale gas development.
Sock said he hopes protests remain peaceful but he couldn't guarantee they would.
"I'm just one man and I can't really commit to anything," he said.
Burke said the fight with the provincial government over what he described as a lack of consultation is far from over.
"Fighting for aboriginal rights and treaty rights is never a waste of time," he said. "They are constitutionally protected rights."
The company's lawyer, Matt Hayes, declined comment Monday. But on Friday, he said granting an injunction would cause the company to lose about $54,000 for each day crews and trucks are not able to do their work.
The lawyer for the provincial government also declined comment Monday. But Premier David Alward has said his government has had more discussions with First Nations on shale gas development than any past government in the province and will continue to hold those consultations if a shale gas industry develops.
An anti-shale gas protest near Rexton, N.B., turned violent last month when police enforced an injunction to halt the blockade of a compound where SWN had stored equipment. Forty people were arrested and six police vehicles burned.
Last week, one woman was arrested and police say a vehicle and some equipment were vandalized during a protest on Highway 11 near Laketon, N.B.
Judie Acquin-Miksovsky of the St. Mary's First Nation attended Monday's court decision. She said she was worried for the safety of young men from her community who have travelled to Laketon to join the protest.
"We just want to make sure that they stay safe," she said.