We hope you found this article interesting, enough to read to the bottom. Help us publish more in 2022.

Thanks for coming by The Tyee and reading one of many original articles we’ll post today. Our team works hard to publish in-depth stories on topics that matter on a daily basis. Our motto is: No junk. Just good journalism.

Just as we care about the quality of our reporting, we care about making our stories accessible to all who want to read them and provide a pleasant reading experience. No intrusive ads to distract you. No paywall locking you out of an article you want to read. No clickbait to trick you into reading a sensational article.

There’s a reason why our site is unique and why we don’t have to rely on those tactics — our Tyee Builders program. Tyee Builders are readers who chip in a bit of money each month (or one-time) to our editorial budget. This amazing program allows us to pay our writers fairly, keep our focus on quality over quantity of articles, and provide a pleasant reading experience for those who visit our site.

In the past two years, we’ve been able to double our staff team and boost our reporting. We invest all of the revenue we receive into producing more and better journalism. We want to keep growing, but we need your support to do it.

We’re on a mission to add 650 new monthly supporters to our ranks to help us have another year of impactful journalism – will you join us?

If you appreciate what The Tyee publishes and want to help us do more, please sign up to be a Tyee Builder today. You pick the amount, and you can cancel any time.

Help us hit our year-end target of 650 new monthly supporters and join Tyee Builders today.
We’re looking for 650 new monthly supporters to fund our newsroom – are you one of them?

Small independent news media are having a moment – we’re gaining supporters, winning awards, and publishing more impactful journalism than ever. We’re starting to see glimmers of a hopeful future for independent journalism in Canada.

The Tyee works for our readers, because we are funded by you. We don’t lock our articles behind a paywall, and we focus all of our energy into publishing original, in-depth journalism that you won’t read anywhere else. It’s our full-time job because readers pay us to do it.

Over the last two years, we’ve been able to double our staff team and publish more than ever. We’re gearing up for another year and we need to know how much we are working with. Thousands of Tyee readers have signed up to support our independent newsroom through our Tyee Builders program, and we’re inviting you to join.

From now until Dec. 31, we’re aiming to bring aboard 650 new monthly supporters to The Tyee to help us do even more in 2022.

If you appreciate what The Tyee publishes and want to help us do more, please sign up to be a Tyee Builder today. You pick the amount, and you can cancel any time.

Help us hit our year-end target of 650 new monthly supporters and join Tyee Builders today.
We value: Our readers.
Our independence. Our region.
The power of real journalism.
We're reader supported.
Get our newsletter free.
Help pay for our reporting.

Landmark Fracking Case Gets a Supreme Court Hearing

Oil patch consultant Jessica Ernst alleges Alberta has intimidated landowners.

By Andrew Nikiforuk 30 Apr 2015 | TheTyee.ca

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.

Nikiforuk's book on hydraulic fracturing and the Ernst case, Slick Water, will be published this fall by Greystone Books.

This coverage of Canadian national issues is made possible because of generous financial support from our Tyee Builders.

The Supreme Court of Canada said today that it will hear the landmark case of Jessica Ernst, which squarely challenges how the Alberta government has treated landowners and regulated hydraulic fracturing.

The decision both stunned and exhilarated the 57-year-old Ernst.

"I've always known my case was important for water and all Canadians, that's why I am taking this legal stand," said Ernst who lives in Rosebud, Alberta.   

"The court will now hear my appeal that provincial energy regulators not be legally immune from violating the Canadian Charter of Rights and Freedoms when trying to intimidate citizens harmed by fracking," added Ernst. Her stand against the industry and the Alberta government has made her a folk hero throughout North America and parts of Europe.

However, a win at the Supreme Court does not mean that she will win her lawsuit, explained Ernst to the Tyee. "It means I would be sent back to the lower court in Alberta to begin my lawsuit against the Alberta Energy Regulator. It means still a very long, hard, expensive journey."

The Supreme Court only hears about four per cent of all civil Charter claims brought to its doorstep.

Eight years ago, oil patch consultant Ernst sued Alberta Environment, the Energy Resources Conservation Board (ERCB) and Encana, one of Canada's largest unconventional gas drillers, over the contamination of her well water with hydrocarbons and the failure of government authorities to properly investigate the fouling of groundwater.

The $33-million lawsuit alleges that Encana negligently fractured into fresh water zones more than a decade ago; that the ERCB breached Ernst's freedoms under the Charter of Rights and Freedoms; and that Alberta Environment performed a problem-plagued investigation in bad faith.

After the Alberta Court of Appeal ruled last year that Ernst could not sue the province's energy regulator (the lawsuit against Encana and Alberta Environment is slowly proceeding) because of a protective immunity clause, her lawyers asked the Supreme Court to consider reviewing the matter on constitutional grounds.   

Ernst's case raises a number of critical national issues that involve the Canada's Charter of Rights and Freedoms.

The basic question the Supreme Court must now consider boils down to this: Can a provincial law allow a powerful energy regulator to violate the nation's Charter of Rights and Freedoms by banishing citizens and falsely branding them as a security threats?  

National issues at stake

Cory Wanless, one of Ernst's Toronto lawyers with the well-known Klippensteins firm, said today's Supreme Court decision to hear the case merely reinforces its national importance. 

"This case is about whether a government regulator can be held accountable for breaching fundamental and constitutional free speech rights of a landowner. Equally fundamentally, this case is about whether governments can pass legislation which gives them a 'free pass' to infringe fundamental rights and freedoms without judicial oversight," said Wanless. 

On its website the Supreme Court has summarized Ernst's case succinctly.

Between November 2005 and March 2007, Ernst alleges that the ERCB (now known as the Alberta Energy Regulator) refused "to accept further communications from her through the usual channels for public communication until she agreed to raise her concerns only with the Board and not publicly through the media or through communications with other citizens," said a court summary.

As a result, Ernst alleges that the energy regulator infringed her "Charter rights both by restricting her communication with it and by using those restrictions to punish her for past public criticisms and prevent her making future public criticisms of the respondent."

The Supreme Court decision to hear the case means there will be a hearing on the matter over the next six months and that citizens and other parties can intervene and introduce arguments on the matter at hand.

If Ernst is successful at the Supreme Court, the oil patch consultant will be able to reintroduce the energy regulator back into her celebrated lawsuit and it will have to file a statement of defence.

Ernst regards the energy regulator as the guilty party in the lawsuit as well as the institution with the most data on the impacts of hydraulic fracturing on groundwater.

The case has the potential to bring to a national stage the rights of landowners affected by fracking. Study after study has shown that industry cannot always control how the injection of fluids or gases will fracture already cracked and pressurized rocks underground. As a result, the technology has gone out of the targeted zone and connected into freshwater aquifers and other oil and gas wells. It has also caused methane to stray into paths of least resistance and rise to surface.

The highly controversial technology, which has rattled thousands of landowners and spawned hundreds of lawsuits, has also triggered felt earthquakes in Alberta, Colorado, British Columbia, Texas, Ohio, and Oklahoma.   [Tyee]

Share this article

The Tyee is supported by readers like you

Join us and grow independent media in Canada

Facts matter. Get The Tyee's in-depth journalism delivered to your inbox for free


The Barometer

Tyee Poll: Are You Preparing for the Next Climate Disaster?

Take this week's poll