Nova Scotia Mi’kmaq will never support fracking in this province, their representatives say.

The Native Council of Nova Scotia has left no room for misunderstandings. In recent months the province’s expert panel on fracking set up a meeting with the council, which speaks for all Mi’kmaq living off-reserve in Nova Scotia.

The council members arrived with a statement and asked for it to be included, word for word, in the panel’s final report, expected out later this month.

The people they represent “oppose the practice of hydraulic fracturing for oil and gas in Nova Scotia,” said the statement.

Throughout the meeting, they “were clear that the Mi’kmaq are opposed to all activities associated with hydraulic fracturing taking place on their traditional lands,” panel member Constance MacIntosh, a professor at Dalhousie’s Schulich School of Law, wrote in a discussion paper the panel released last month.

With strong land rights among Canada’s First Nations, it’s a near certainty that Mi’kmaq would legally need to be consulted in some depth if Nova Scotia authorities wanted to give a green light to the controversial method of oil and gas extraction.

However those consultations are done, the answer will probably be the same: “We’re against fracking, period,” said one Nova Scotia chief.

And if that answer didn’t stop the process, protests are likely, said Chief Rufus Copage of the Sipekne’katik band, the province’s second-largest, known until recently as the Shubenacadie band.

Many concerns in his community are about the availability of clean drinking water, since fracking requires heavy use of local water, Copage said. The band lives on part of the swath of the province identified as potentially rich in frackable gas.

“Two years ago, we lost every bit of our water here in our community,” Copage said. “We didn’t have one bit of water for almost six months.”

He doesn’t know of anybody within the Sipekne’katik band who is open to the idea, he said.

“I haven’t heard anybody that’s for fracking, other than the people that are trying to get rich off it.”

When it comes to reserve land, the law is in flux right now, but “it seems extremely unlikely that hydraulic fracturing could take place on reserve land without the explicit consent of the affected First Nation,” MacIntosh wrote in the paper.

With the province’s wider obligations to consult Mi’kmaq on activities that could affect them, a firm “no” could prevent fracking entirely, or it could modify a plan to frack, only allowing it in certain areas or with certain restrictions.

The province’s final decision could land it in court if Mi’kmaq rights had not been properly respected along the way.

Nova Scotia Mi’kmaq have an unusual situation: centuries ago, when they reached a political agreement with white settlers, they never gave up their land rights in the process.

Today they maintain that they hold title rights to their traditionally used land, which includes the right to control and profit from the land. For the most part, that claim hasn’t been confirmed in court, wrote MacIntosh.

A similar claim by the Tsilhqot’in First Nation in British Columbia over a 1,750-square-kilometre piece of land was upheld by the Supreme Court of Canada in a July ruling.

In cases in B.C. and Alberta, the Supreme Court of Canada also ruled that aboriginal title rights included ownership of subsurface mineral rights.

Title rights aside, under established Nova Scotia treaty rights — for example, rights to hunt and fish — consultation becomes necessary when a proposal could have a high impact on those activities, wrote MacIntosh.

“A direct impact could arise if a fish spawning ground was harmed by an access road being built near it,” she wrote as an example. “An indirect impact could occur if an increase in noise due to hydraulic fracturing activity resulted in game animals fleeing the area, or if hydraulic fracturing resulted in waters or other aspects of the ecosystem being compromised.”

Mi’kmaq would need to be consulted “if a hydraulic fracturing company asked the province to grant them a permit to withdraw water from a lake where Mi’kmaq people have a right to fish.”

If fracking were allowed, Mi’kmaq would also likely need to be involved in the process of setting up a regime to oversee the industry, she wrote.

“In the big, big picture, it’s hard to imagine them avoiding consultation,” said Jamie Baxter of the Schulich School of Law, another expert in aboriginal law.

“That seems quite clear. But I guess the question is really about, what is the content of the duty at the end of the day? And depending on what kind of activity is going to happen, that’s potentially going to vary.”

The consultation can be less intensive, becoming more of a one-way information session, when a proposal is expected to have a very minimal impact. But those cases are rare, said Naiomi Metallic of Burchells law firm in Halifax.

The vast majority of consultations involve “more than just giving the other side, the First Nations, an opportunity to vent,” Metallic said.

Last year, when protesters in Rexton, N.B., physically stopped shale gas exploration, lawyers for nearby Elsipogtog First Nation argued that New Brunswick hadn’t properly consulted the band.

Molly Peters, a Mi’kmaq woman from Paq’tnkek First Nation in Antigonish County, followed what happened in Rexton, and she said she wouldn’t be surprised to see the same thing if Nova Scotia lifted its moratorium on fracking.

“There’s definitely going to be protests. I can guarantee  based on what we’re seeing in the past,” she said.

Mi’kmaq who protest fracking are defending water and the fish that live in it, she said, “and pretty well our livelihood, because a lot of Mi’kmaq people still rely on hunting and fishing to sustain their families.”

Peters said there’s a perception among many Mi’kmaq that fracking is just “a quick buck.” But there’s also a spiritual element to their opposition.

“Mi’kmaq consider water sacred, so that’s why it’s so important,” she said. “It’s the lifeblood of Mother Earth. It’s the only thing that can sustain us.”

“Our Earth can cleanse itself in many ways, and if we’re not careful of what we do to it, then we might just be cleansed with it. You mess with that balance, there will be consequences, beyond all of our control, really.”