Alberta fracking case could go to Supreme Court

2014 09 15 630 CHED Top Stories snap

Alberta fracking case could go to Supreme Court by Brenton Driedger, September 15, 2014, 630 CHED
A legal fight over contaminated water and hydraulic fracturing could wind up before the Supreme Court.

Jessica Ernst has lost an appeal to sue the Alberta energy regulator over fracking on her property northeast of Calgary. But she still says her charter rights have been violated, and she plans to take that fight to the Supreme Court. She says all Canadians should be concerned about this.

“It is our water and it is the big picture that’s being violated, it is the public interest that the fracking companies are harming,” says Ernst. “The health care costs of treating the workers alone that are getting sick will be massive, never mind the families.”

Last fall an Alberta Court of Queen’s Bench judge ruled that Ernst can’t sue the energy regulator because it is immune from private legal claims. On Monday, the Alberta Court of Appeal upheld that ruling.

Ernst says her water is so contaminated that it burns skin. She plans to continue her lawsuit against the province and Encana, claiming they are responsible for chemicals getting into her water supply, because of fracking.

“I wouldn’t be doing this lawsuit if it was just my water well,” says Ernst. “That would be a total waste of time because our legal system is so against an ordinary person with a lawsuit in this country. I’m doing it because people’s drinking water is being contaminated everywhere they’re fracking. My case isn’t the only one.”

Ernst has 60 days to file for leave to appeal to the Supreme Court. Her lawyers have told her maybe one in ten cases are actually heard by the Supreme Court, but she wants to go ahead. (The Canadian Press, bd)

2006 05 09 Bruce Jack in Alberta hospital contaminated water well explosion

Bruce Jack, Spirit River Alberta, May 2006, after his methane and ethane contaminated well water exploded. Two industry gas-in-water testers were also hospitalized with serious injuries.

Alberta Court of Appeal rules that Alberta’s key energy regulator cannot be sued by citizens – even if it breaches constitutional rights

ROSEBUD, ALBERTA–(September 15, 2014) The Alberta Court of Appeal ruled today that Alberta’s key energy regulator cannot be sued by citizens – even if it breaches constitutional rights. In a judgment released today in a landmark lawsuit by Jessica Ernst against EnCana, Alberta Environment and the Energy Resources Conservation Board (ERCB, now AER) regarding water contamination caused by fracing, the Alberta Court of Appeal ruled that the Alberta government had granted complete and total legal immunity to Alberta’s key regulator, the ERCB, against all legal claims, including for violations of constitutional rights.

The Court also ruled that the ERCB does not owe any legally enforceable duties to protect individual landowners from the harmful effects of fracing, after the ERCB argued in court that it had total immunity for “not only negligence, but gross negligence, bad faith and even deliberate acts,” and therefore Albertans simply could not sue the ERCB, no matter how badly they were harmed by the ERCB’s acts or failures to act.

Ms. Ernst will seek leave to appeal the decision to the Supreme Court of Canada.

“I think Albertans will be disturbed to learn that their energy regulator has total and blanket legal immunity, even in cases where the regulator has breached the fundamental and constitutional free speech rights of a landowner,” said Murray Klippenstein, lead legal counsel for Ms. Ernst.

“I’ll be seeking leave to appeal this decision to the Supreme Court. These are critical issues that affect all Canadians,” said Jessica Ernst. “I will continue to fight for what’s right.” 

The lawsuit against Alberta Environment and Encana continues.

Appeal court set to rule on ERCB’s charter immunity at centre of fracking lawsuit by Jeremy Lyle, Edmonton, AB, Canada, 630 CHEDSeptember 15, 2014

Ernst tells 630CHED’s Brenton Driedger she’s appealing a previous court ruling that an immunity clause exempted the ERCB from claims of breaching the Charter of Rights and Freedoms. …

In its attempt to shut down the lawsuit earlier this year, the Alberta government argued the lawsuit could expose the province to billions of dollars in litigation claims.

201409 15 CHED interviews Jessica Ernst ahead of Court of Appeal of Alberta ruling ERCB now AER

Court of Appeal of Alberta announced on September 12, 2014 that their Ernst v Alberta (Energy Resources Conservation Board), 2014 ABCA 285 (Reserved Judgment) ruling will be posted Monday September 15, 2014 at 10:05 AM

Australian Petroleum Association: Coal seam damage to water inevitable by The Sydney Morning Herald, August 3, 2011.

The coal seam gas industry has conceded that extraction will inevitably contaminate aquifers. “Drilling will, to varying degrees, impact on adjoining aquifers,” said the spokesman, Ross Dunn. “The intent of saying that is to make it clear that we have never shied away from the fact that there will be impacts on aquifers,” Mr Dunn said.

Canadian Association of Petroleum Producers: Coal bed methane operations contaminate water resources by The Calgary Herald, August 28, 2014

Yet CAPP’s Alex Ferguson says many worries about water quality are based on past operations involving coal-bed methane — shallow deposits in closer proximity to groundwater. These did occasionally contaminate water resources, he says. In some of the more infamous instances, affected landowners could light their well water on fire.

Alex Ferguson was appointed Commissioner and CEO of the BC Oil and Gas Commission from 2007-2011

“That’s actually fairly common.”

EnCana VP, Mr. Gerard Protti (appointed Chair of the AER by the government in 2013) in a 2006 interview about Ernst’s water.

Alberta woman loses fracking case appeal, wants to take case to Supreme Court by The Canadian Press, September 15, 2014, Calgary Herald

Last fall an Alberta Court of Queen’s Bench judge ruled that Ernst can’t sue the energy regulator because it is immune from private legal claims. The Alberta Court of Appeal has upheld that ruling.

Ernst says she will continue her lawsuit against the province and Encana.

“Protecting administrative tribunals and their members from liability for damages is constitutionally legitimate,” the panel of appeal court judges said in the ruling released Monday. … Ernst said she plans to seek leave to appeal Monday’s ruling to the Supreme Court of Canada.

[Refer also to:

2013: Pennsylvania Supreme Court Says It’s Unconstitutional For Gas Companies To Frack Wherever They Want; Act 13, Gas Industry Takeover Law thrown out by State’s Highest Court

“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”

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