Judge Rules Landowner May Sue Gov't in Landmark Fracking Case

Decision 'reaffirms the power of the people,' says plaintiff Jessica Ernst.

By Andrew Nikiforuk 11 Nov 2014 |

Andrew Nikiforuk is an award-winning journalist who has been writing about the energy industry for two decades and is a contributing editor to The Tyee. Find his previous stories here.

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A landmark lawsuit that challenges the lax regulation of hydraulic fracturing in Canada has just scored a major victory.

In a lengthy decision, Alberta Chief Justice Neil Wittmann dismissed all key arguments made by the government of Alberta against the lawsuit of Jessica Ernst, including the fear that it may unleash a flood of lawsuits against a government that is heavily dependent on hydrocarbon revenue.

The Alberta government argued that Ernst's $33-million lawsuit had no merit; that the government owed no duty of care to landowners with contaminated water; and that the government had statutory immunity.

But Wittmann's ruling disagreed on all major counts and ordered the lawsuit against the government to proceed.

"While this is a novel claim, I find there is a reasonable prospect Ernst will succeed in establishing that Alberta owed her a prima facie duty of care," Wittmann wrote.

Seven years ago, oil patch consultant and landowner Ernst sued Alberta Environment, the Energy Resources Conservation Board (or ERCB, now known as Alberta Energy Regulator) and Encana, one of Canada's largest unconventional gas drillers, over the contamination of her well water in Rosebud, Alberta and the failure of government authorities to properly investigate the contamination.

The lawsuit alleges that Encana was negligent in the fracking of shallow coal seams near her property, and that the regulator breached Ernst's freedoms by banishing all contact with the landowner on the grounds that Ernst was a terrorist.

Hydraulic fracturing, a brute technology, uses massive amounts of horsepower, water, sand, gases or chemicals to crack open both shallow and deep rock formations often as tight as granite.

In particular, the Ernst lawsuit alleges that Alberta Environment's investigation into the contamination of her well was botched. A legal brief filed by her lawyers details a list of alleged incompetencies.

The Alberta government made an application to strike the entire claim after Wittmann ruled last fall that the lawsuit against Encana and Alberta Environment could proceed, but that the energy regulator was exempt from civil action due to its immunity clause.

But Wittmann's most recent decision firmly denies that application.

In addition, Wittmann argued that legislation governing Alberta Environment's regulatory responsibilities are not the same as the rules for the provincial energy regulator, which successfully claimed immunity.

The laws guiding Alberta Environment only protect individuals but not the government as a whole, and only cover actions made in good faith, Wittmann said.

Ernst's case "alleges bad faith, and the statues only provide protection for actions taken in good faith," Wittmann added in his ruling.

'A very large victory': lawyer

Ernst, something of a folk hero in communities battling fracking from Ireland to Texas -- her website often gets more than 400 hits a day -- called the ruling significant.

"This judgement reaffirms the power of the people. It's a very positive development," said the 57-year-old consultant.

Murray Klippenstein, one of Ernst's legal team and a high-profile Toronto lawyer who spearheaded the 12-year-long Ipperwash lawsuit in Ontario, said the ruling "clarifies the issue of where the government can be sued, which has had legal professors talking for a long time."

The fact that the Alberta government has now failed in three separate applications to stall the lawsuit is also important, he said.

"These kind of tactics and obstacles are used by government and corporations to grind down ordinary people to nothing," said Klippenstein. "Jessica Ernst has not only survived but sailed through. It is invigorating. It is a very large victory in many ways."

Cory Wanless, an Alberta-born member of Ernst's legal team, said it will be interesting to see how the government reacts to the ruling and if it appeals.

"They [the government] wanted immunity and exclusion from private duty of care. But Wittmann says that's not the state of the law."

Ernst, who vows not to settle out of court, has just filed more than 2,000 documents to support allegations made in her lawsuit against Encana, one of the nation's most powerful energy companies.

Encana says on its website that it "has always firmly believed that Ms. Ernst's claims are not supported by the facts and her lawsuit is without merit."

The company has until Dec. 19 to file its documents for the case.

Wittmann's recent judgement follows what Ernst describes as "two heartfelt failures in the courts."

They include Wittmann's decision to exclude the ERCB (the energy regulator) from the case in 2013 on the basis of statutory immunity, and a Court of Appeal ruling last year upholding that decision.

Ernst's lawyers are appealing the Court of Appeal decision to the Supreme Court of Canada this week. It is a long and lengthy process, and only a small percentage of applications are ever heard.

According to Canada's top groundwater expert, John Cherry, no oil and gas jurisdiction in the country has set up a proper monitoring program to protect groundwater from contamination by methane or from toxic fracking fluids.  [Tyee]

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