Canadian Claiming Fracking Contaminated Water Can Sue Government, Court Rules

Canadian Claiming Fracking Contaminated Water Can Sue Government, Court Rules by Jeremy Hainsworth, November 19, 2014, Bloomberg NBA

Nov. 14 — A Canadian woman who claims hydraulic fracturing contaminated her groundwater can sue the Alberta government for allegedly failing to properly investigate her claims and fix any issues, a superior court judge ruled.

An Alberta court Nov. 7 ruled that Jessica Ernst—who said she could set fire to her natural gas-contaminated water—could proceed with her C$33 million ($29.1 million) lawsuit against Alberta’s Ministry of Environment.

“This is a big victory for water and for all Albertans,” Ernst said in a Nov. 10 statement. “The decision means that landowners can stand up and hold governments and regulators to account if they fail in their duty to properly investigate environmental contamination.”

Cory Wanless, a member of Ernst’s legal team from the Toronto-based firm Klippensteins, told Bloomberg BNA Nov. 13 that he believes the lawsuit is the first such case in Canada regarding hydraulic fracturing.

“This is in part due to the fact that fracking is relatively new in Canada,” he said. “The first wide-scale fracking in Canada was for coalbed methane near Rosebud, Alberta, were Jessica lives.”

Ernst originally brought action against EnCana, the Energy Resources Conservation Board (now called the Alberta Energy Regulator) and Alberta in [2007].

She alleged EnCana had contaminated her well water and the aquifer of Rosebud, Alberta, where she lives.

Ernst claimed the contamination was from hazardous and toxic chemicals used for hydraulic fracturing from 2001 to 2006, wrote Neil Wittman, chief justice at Court of Queen’s Bench of Alberta, in the Nov. 7 ruling.

The judge said while the claim was novel: “I find there is a reasonable prospect Ernst will succeed in establishing that Alberta owed her a prima facie duty of care.”

Potential ‘Guiding Post’

“Alberta Environment had been arguing that it simply could not be sued because it cannot owe any legal duties to individuals,” Wanless said. “Chief Justice Wittmann disagreed, finding that Alberta Environment can potentially be held liable for engaging in a negligent investigation of environmental contamination.”

Wanless said the key principle from the case—that government regulators and agencies can be sued if they engage in negligent investigations under the legal principle of proximity—would apply not only to Alberta Environment but to other Canadian government agencies and regulators as well.

“This judgment could be used as a guiding post to other courts in Canada,” Wanless said. “The case is the first time a regulator has been sued for negligence investigation.”

Alberta Environment had argued in court that Ernst’s lawsuit should be dismissed, claiming it was without merit and the province didn’t owe a private duty of care to individual landowners when investigating causes of groundwater contamination and polluted wells.

The government also argued that it had statutory immunity under the provincial Water Act and the Environmental Enhancement and Protection Act.

20 Days to Appeal

Furthermore, the province argued, a duty of care could expose Alberta to significant liability.

Wittmann disagreed and ordered the suit to proceed. He said neither act gives the government immunity.

Alberta Ministry of Justice spokeswoman Michelle Davio told Bloomberg BNA Nov. 12 that the government has 20 days from Nov. 7 to decide if it will appeal the ruling. “The allegations made by the complainant have not been proven in court,” Davio said. “We cannot comment further at this stage of the proceedings.”

Neither EnCana nor the Canadian Association of Petroleum Producers would comment on the decision.

Calgary-based environmental lawyer Alan Harvie of the firm Norton Rose Canada told Bloomberg BNA that the ruling itself is of no interest to industry. But he said when the case goes to trial, industry should be paying attention to it.

“I’m not aware of any Canadian getting this far in a fracking suit,” he said. [Emphasis added]

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