letter to SWN lawyer re Notice Intent to Defend Willi Nolan JaneDoe 13Nov2013

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(Text of letter as sent to SWN lawyer Matthew T. Hayes of McInnes CooperLaw firm 15 November 2013)


November 13, 2013

Via fax: (506) 643-6505

Matthew T. Hayes per McInnes Cooper 1 Germain Street P.O. Box 6370 Saint John NB Canada E2L 4R8

Dear Mr. Hayes,

1. I have seen a copy of the filed Discontinuance of actions against me specifically as named defendant. Thank you for notifying me of it by phone.

2. I had prepared a defense and consider it relevant to the continuing claims against “Jane Doe”, and any cost or future claim against myself for actions known but not yet alleged by your client.

3. Accordingly, I filed a Notice of Intent to Defend by the deadline, in order to give us time to resolve these concerns.

4. I notified the court in my notice in my Notice of Intent as follows:


Defendant is aware of a Discontinuance filed by the plaintiff with respect to actions known by them to have been taken personally by her as named defendant. Plaintiff is proceeding against all protesters (as “Jane Doe”).

As of today, Plaintiff has made no offer, e.g. of indemnification against costs of prior actions, nor of future actions, for either named or un-named defendants (“John Doe”, “Jane Doe”). Nor is the scope of “Jane Doe” clear (active protesters, all protesters, all persons in New Brunswick, all persons affected by SWN's operations, etc.). Nor has any representation come forward to present their concerns or defenses. Counterclaim may be required to resolve these. If so, defendant intends to file same.

Accordingly, it seems appropriate to file a defense at this time despite the discontinuance, as the deadline is imminent and there is no time to resolve these concerns without risk of a default with respect to these future costs or more generic claims.

Even should this be resolved, the defendant would seek to be heard as a friend of the court on the public interest matters, and would seek competent representation to speak for the widely shared public interest concerns of “Jane Doe” and “John Doe”.

5. I am open to any proposal to resolve the concerns raised, including an offer of indemnification against future claims, cost and reimbursement of costs to date. This would resolve issues for me personally.

6. I must also insist that the court identify who represents or has the right to speak for “Jane Doe” as the scope of un-named defendants is unclear and could include any person who spoke in favor of the protest or blockade, or of resistance, destruction of weapons used against human health and the environment, or the (very few) physical self-defense actions taken by persons who perceived a threat to their own safety.

Until we have competent representation for these broader public concerns and the persons your client has (intentionally or not) moved against, I am the sole representative of these public concerns, being not named (any more) but still clearly and undeniably associated with the protest at every other level.

7. If you agree this is of grave concern please consult your client on the wisdom of continuing the “Jane Doe”, John Doe” claims, so that clear representation for the named defendants can be separated from the public interest issues under the usual “friends of the court” process.

8. If the discontinuance indicates an intent to compensate, indemnify, apologize, or negotiate costs and/or counter claim, that obviously is not clear from a discontinuance alone. I would require more assurances before abandoning my defense or right to counter-claim altogether.

9. I see no need to file any affidavit nor disclosure with my defense, whatever its scope, at the moment.

10. As soon as a qualified legal representative is identified for the public and protest participant (“jane Doe”, “John Doe”) concerns, I will gladly cooperate with them and change and/or abandon this lead role in their defense. You can achieve this most readily by simply discontinuing and indemnifying all Jane and John Does against any claim arising from any protest to date.

11. Be informed that SWN has been evicted from all territories subject to First Peoples jurisdiction including all presently named in land claims. No acknowledgment of mineral or water rights regimes has been made by any First Peoples, nor were they consulted formally by government itself. Your client has been named by the government as the agent for any such attempts at consultation to date. Their position on this remains unclear. I would ask you to urge your client to clarify whether they consider their attempts to formally satisfy the Canadian constitutional provision of “duty to consult” to satisfy Canadian law. Also to state clearly their position on how local water rights, native land claims, lack of modern treaties or the UNDRIP can affect their operations. Are they, for instance, relying solely on the NB Cabinet for assurance their permit is legal and enforceable.

12. Without clarity on protester representation (10) and whether new persons can or will be named, on the legitimacy of the “permit” (11) and other matters above we can expect continued protest and confrontation. This will likely be aggravated by any further criminal attacks or intimidating charges against witnesses yet to be heard by the court (as happened on October 17th, 2013, before the first hearing on the injunction merits scheduled October 19th). I call on you as an officer of the court to prevail upon your client to use whatever influence they have on commercial actors (Irving and other subcontractors) and officials (RCMP, Cabinet) to ensure that this matter is heard out in court and not resolved by warfare.

13. Ex-parte interlocutory injunctions based on questionable testimony are no basis for police assault on supposedly “armed” camps, risking life and limb to all concerned. At least one person could have lost a leg due to the actions “justified” by this weak injunction. Seeking it was an unethical act, knowing it would be used in this fashion by the government and the RCMP. To have attacked the persons most likely to appear as witnesses to overturn it the very next day was an unthinkable obstruction of justice and contrary to the RCMP's own undertaking with protesters not to move on the camp until this first hearing on the merits, at least. Accordingly to support any future objections of this kind risks your firms' involvement in broad criminal claims and abuse of process that rise to criminal acts. I warn you against any future intimidation of witnesses, protesters, leaders or spokespeople for First Peoples or Local Service Districts, abusing the legal system as was done with this abusive and abused “injunction”. You are morally bound as a human being, legally as a citizen, and formally as an officer of the court, to prevent any future abuse.

14. I would urge you and your firm and client to support a judicial review of events which transpired in Rexton on October 17th, 2013.

Whether or not you do, I will continue to keep you in my prayers.

Yours in peace and friendship,

All My Relations


Wilhelmina (Willi) Nolan