IN THE COURT OF BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF FREDERICTON NOTICE OF PRELIMINARY MOTION (FORM 3713) BETWEEN: ELSIPOGTOG FIRST NATION Applicant ATTORNEY GENERAL OF NEW MINISTER OF ENERGY AND SWN RESOURCES CANADA INC. and THE ASSEMBLY OF FIRST CHIEFS IN NEW BRUNSWICK Respondents BY: ELSIPOGTOG FIRST NATION Under Rule 40.02, 40.04 and 40.05 of the Rules of Court of New Brunswick TO: Ex Parte The Applicant, Elsipogtog First Nation, will apply to the Court at Fredericton, New Brunswick, on the of November 2013 at for an order that: ORDER SOUGHT .fi' __T-gu - I Court File No./No du dossier COUR DU BANC DE LA REINE DIVISION CIRCONSCRIPTION JUDICIAIRE DE AVIS DE MOTION PRELIMINAIRE (FORMULE 3713) AUTEUR En application de la regle procedure. des R?glcs de DESTINATAIRE: demandera a la Cour a (lieu pr?cis) le 2013_, a h, d'ordonner (indiquier1'ordonna.nce demandee, les motifs 51 discuter et les renvois aux dispositions l?gislatives Ou regles qui seront invoqu?es#q_a H.I ., . 1. Pursuant to Rules 40.02, 40.04 and 40.05 of the Rules 0fC0urz' 0fNew Brunswick, N.B. Reg. 82-73 and section 2, 26 and 33 of the Judicature Act, R.S.N.B., c. J-2, the Applicant seeks an order in the nature of an interlocutory injunction in the form hereto attached as Schedule against the Defendant the Minister of Energy and Mines and the Defendant SWN Resources Inc.) suspending all operations pursuant to New Brunswick oil and gas licenses and permits conferred on SWN Resources for shale gas exploration in the Signitog District of Mi'kmaki; Pursuant to Rules 3704 (2) and (3), 40.01 and 40.02 (1), the Applicant also seeks such relief ex parte on an extremely urgent interim basis and to avoid serious consequences, upon the undertaking of the Applicant to commence the proceeding without delay; Pursuant to Rule 40.04, dispensing the Applicant from undertaking to be liable for damages arising from the order sought; Pursuant to Rule 37.04 (2) and (3), issue the order of the Court ex parte without service. Costs awarded against the Respondents Attorney General of New Brunswick, Minister of Energy and New Brunswick and Such further and other relief as this Honourable Court deems just. GROUNDS TO BE ARGUED The order in the nature of an interlocutory injunction, and for relief ex parte on an extremely urgent interim basis, is sought on the following grounds: 1. As detailed hereinafter, the Applicant is entitled to the order it seeks, in accordance with the criteria set in RJR--MacDonald Inc. v. Canada (Attorney General), [1994] S.C.R. 31 1, provided that further to Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, par. 12-15, the test an interlocutory injunction should not be applied in a way that effectively denies the Applicant its conditionally protected rights under the Constitution Act, 1982, including the Crown duty of consultation and accommodation, before they can be addressed on the merits. Urgent interim ex parte to preserve civil peace 2. New circumstances have arisen whereby the Applicant is constrained to seek, ex parte on an extremely urgent interim basis and to avoid serious consequences, an order suspending all operations pursuant to New Brunswick oil and gas licenses and permits conferred on 'Respondent SWN for shale gas exploration and development in the Signitog District of Mi'krnaki. Such an ex parte order of the Court is urgently required to preserve civil peace and the Rule of Law, so that the rights of the Applicant to be addressed through appropriate negotiations or through adjudication on the merits. 10. ll. 12. 13. Specifically, only such an order, granted ex parre on an extremely urgent basis, can preserve the peace and the rights of the Applicant in the face of the collision of opposing intentions and actions that is once again taking shape. On the one hand, the Government if New Brunswick, as represented by the Respondent Attorney General and by the Respondent Minister of Energy and Mines is engaging in what amounts to impermissible self-help that is inconsistent with the requirement of honourable conduct. This behaviour, in violation of the supreme law of Canada, takes the form of unrelenting and uncompromising Crown affirmation of the rights it purported to grant to SWN, without regard for the rights of the Applicant. The behaviour of the Crown in turn provides support to the Respondent SWN in its insistence on exercising those rights in the coming days, without regard for the need for negotiation or judicial determination of the rights of the Applicant. On the other hand, there is credible evidence that outside radical elements are converging in significant numbers on New Brunswick and the vicinity of the shale gas exploration work that the Respondent SWN proposes to recommence. As of Wednesday, November 13, 2013, the Respondent SWN was positioning its equipment and protesters were beginning to gather, but still in relatively small numbers. These circumstances combine to create a very real danger that, as active seismic exploration is recommenced in the coming hours and days, outside radical elements, the Respondent SWN and the RCMP, other police and even military forces, all interact so as to cause a repeat or escalation of the unacceptable and dangerous events that took place in Rexton on October 17, 2013. The Court of Queen's Bench, in its role as a superior court with compendious powers in law and in equity, possesses the inherent power and responsibility to protect civil peace, uphold the Rule of Law and the Constitution of Canada and control its process, all in such a way that the rights of the Applicant and the Respondents can be properly determined on the merits. It is within the power of the Court and an appropriate exercise of this judicial authority to issue, on an extremely urgent ex parte basis, the order sought by the Applicant herein. In summary terms, the Applicant seeks an order in the nature of an interlocutory injunction against the Respondent Minister of Energy and Mines and the Respondent SWN suspending all work pursuant to New Brunswick oil and gas licenses and permits conferred on Respondent SWN for shale gas exploration in the Signitog District of Mi'kmaki. 14. It is just and convenient to issue, on an extremely urgent ex parte basis, an order in the nature of an interlocutory injunction in the form hereto attached as Schedule as there is a serious issue to be tried, the Applicant has and will continue to suffer irreparable harm as a result of the actions and failures to act of the Respondents and the balance of convenience and the public interest weigh in favour of granting the order sought. Serious issue 15. There is a serious issue to be tried regarding the constitutionally protected fundamental rights of the Applicant; the claim of the Applicant is certainly not vexatious or frivolous. 16. Notably, pursuant to Haida Nation 12. British Columbia (Minister ofF0rests), [2004] 3 S.C.R. 511, and subsequent decisions, the Crown has a duty to meaningfully consult Elsipogtog and accommodate their interests prior to decisions that may affect their rights, lands, waters and resources. 17. The Applicant has inherent Aboriginal rights and title and Treaty rights in and to lands, waters and resources of the Signitog District of Mi'l