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Charter Rights at Issue in Fracking Supreme Court Case

Jessica Ernst's long battle over rights, well contamination reaches highest court Tuesday.

By Andrew Nikiforuk 8 Jan 2016 |

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, was published this fall by Greystone Books.

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

An Alberta woman's landmark eight-year battle over fracking regulation, water contamination and Charter rights will take centre stage in the Supreme Court of Canada Tuesday.

Jessica Ernst claims fracking contaminated the water supply at her homestead near Rosebud, about 110 kilometres east of Calgary. She is seeking $33 million in damages.

Ernst is also taking on the agency that regulates the energy industry in Alberta, claiming it has denied her the right to raise her concerns effectively and is shielded by unconstitutional legislation that bar citizens from suing it for wrongdoing.

The B.C. Civil Liberties Association, the Canadian Civil Liberties Association and the David Asper Centre for Constitutional Law at the University of Toronto have intervened in support of Ernst's position and the lawsuit could change the way the controversial technology of hydraulic fracturing is regulated in Canada.

Ernst's lawyers hope the Supreme Court will eventually rule that the Alberta Energy Regulator violated the Charter of Rights and Freedoms by limiting her ability to communicate with the agency.

Such a decision would punt Ernst's case back into Alberta's courts where it can continue its slow course. Ernst considers the regulator the most at fault in her famous and multi-pronged lawsuit.

"This case raises one of the most fundamental questions about the Charter -- can a government block an individual from seeking a remedy for a breach of their fundamental rights and freedoms?" said Cory Wanless, one of the lawyers representing Ernst. "From the perspective of protecting the rights and freedoms of Canadians, it doesn't get any bigger than this."  

In a "factum" prepared for the Supreme Court, the B.C. Civil Liberties Association argues that immunity clauses for regulators are an affront to government accountability and a licence to abuse power. 

The Charter guarantees Canadians who believe their rights have been infringed the opportunity to seek an "appropriate and just" remedy from a "court of competent jurisdiction," writes the BCCLA.

The Canadian Civil Liberties Association's brief says the Supreme Court "must consider the effect of granting absolute immunity through general statutory provisions, many of which are found in provincial statutes across Canada."

Government bodies responsible for a vast array of functions could potentially be insulated from any valid Charter claim, the association argues.

The Charter of Rights and Freedoms protects Canadians from government rules and acts that violate basic human and democratic rights, including freedom of religion, freedom of association, freedom of expression and peaceful assembly.

An eight-year saga continues

Ernst's pursuit of justice has been long and tortuous. Eight years ago, the oil patch consultant sued Alberta Environment, the Energy Resources Conservation Board (ERCB, which has since become the Alberta Energy Regulator), and Encana -- one of Canada's largest unconventional gas drillers. She argued her well water had been contaminated with hydrocarbons (including methane) from hydraulic fracturing and government agencies had failed to investigate the problems.

Hydraulic fracturing, a controversial technology that injects fluids into the ground to crack rock containing oil and gas, has contaminated groundwater in Pennsylvania, Colorado, Alberta, Texas and Wyoming. The industry has also caused felt earthquakes in Alberta, British Columbia, Ohio, Texas and Oklahoma.

The lawsuit alleges that Encana was negligent and its fracking led to methane water contamination more than a decade ago; that the ERCB breached Ernst's Charter rights by declaring her a "security threat" and ending all communication with her; and that Alberta Environment, the government ministry, performed a problem-plagued investigation in bad faith.

After the Alberta Court of Appeal ruled in 2014 that Ernst could not sue the province's energy regulator because of a protective immunity clause, her lawyers asked the Supreme Court of Canada to review the issue on constitutional grounds. (The lawsuit against Encana and Alberta Environment is slowly proceeding.)

Attorney generals withdraw

According to a court summary, between November 2005 and March 2007 the energy regulator refused "to accept further communications from Ernst 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."

As a result, Ernst alleges 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."

In its 41-page factum, the Alberta Energy Regulator (AER) argues there is no evidence any Charter right was breached, though publicly available evidence shows that the board instructed its staff not to communicate with Ernst and falsely branded her a criminal threat.

Ernst hasn't shown "that the purported exclusion from the [regulator]'s complaints process interfered with her freedom of expression substantially, or at all," according to the AER brief.

Glenn Solomon, the well-known Calgary lawyer acting for the regulator, says in his factum that the immunity clause serves "not to immunize the government from scrutiny for unconstitutional laws or acts, but to promote good governance by shielding a statutory tribunal with purely public duties from being called to account to any particular individual in a claim for private remedies."

According to Ernst's lawyer Wanless, all attorney generals in Canada had the right to make submissions to the court. Canada, British Columbia and Saskatchewan all withdrew from the case in December. Only Quebec remains, and its argument on the case is ambiguous.

"It suggests to me, that in the end, most governments in Canada do not have a problem with Jessica's argument, and might actually agree with it," said Wanless. "Out of 11 attorneys general, 10 declined to do so. This fact alone is telling."

The Harper government, which battled the Charter on a number of fronts, declared its intention to intervene in the Ernst case prior to the 2015 election.

But Attorney General Jody Wilson-Raybould withdrew that intervention after receiving a mandate letter from Prime Minister Justin Trudeau.

The letter instructed the attorney general to ensure "that our work demonstrates the greatest possible commitment to respecting the Charter of Rights and Freedoms."

Alberta's NDP government has taken no position on the case.

Wanless and Murray Klippenstein, Ernst's Toronto-based lawyers, argue in their final brief that there is only one issue before the court: "Can a government, through legislation, block an individual from applying to a superior court seeking a remedy for a breach of her Charter rights."

"Ms. Ernst's claim is a straightforward freedom of expression claim alleging that the AER intentionally punished Ms. Ernst for past speech and attempted to restrict and control her future speech by banning her from engaging with the compliance and enforcement branch of the AER until she stopped publicly criticizing the AER," her lawyers maintain.

Residents register support

In a petition to the Supreme Court, Rosebud residents added their voices "to an urgent call to allow the AER to be held accountable for any damages incurred to our water source and reservoir as a result of fracking operations by Encana."

A majority of the town's nearly 100 residents signed the petition.

Several other landowners tried to intervene in the case on behalf of Ernst's position, but the court rejected their applications.

Rupert Goodhart, a landowner near Cochrane, Alberta who worked in the international oil and gas business, wrote in his motion for intervention that "absolute immunity" had allowed a deep rot to overcome the energy regulator.

In well-drilled Alberta, Canada's oil friendly Texas, many landowners regard the AER as a conflicted and dysfunctional energy regulator with no legislative mandate to operate in the public interest.

The agency is 100 per cent funded by industry and is now chaired by Gerard Protti, a former energy lobbyist and Encana vice-president.

"I'm relieved Canada's Supreme Court recognizes that a valid Charter claim against an oil and gas regulator is important to Canadians, and has granted this hearing," Ernst said.

Since 2011, hundreds of Canadians have donated nearly $40,000 to support the democratic and environmental issues raised by her case.

To date, Ernst has spent more than $300,000 on legal fees in what she regards as a basic effort to hold regulators and government accountable for their actions.

"I shouldn't be doing this case. The Attorney General of Alberta should be doing this case," she said.  [Tyee]

Read more: Energy, Environment


From a legal brief submitted to the Supreme Court of Alberta:

"Oil and gas development in Rosebud, Alberta, has left a litany of harms including groundwater that is so contaminated with methane that water from household faucets can be lit on fire.

"In that context, the Appellant Jessica Ernst became an outspoken and effective critic of the oil and gas industry and of the energy regulator, the AER (Alberta Energy Regulator). She spoke publicly about the harms caused by oil and gas development in her community and the regulator's failure to stop these harms.

"The AER did not take to Ms. Ernst's criticisms kindly. As set out in the pleadings, Ms. Ernst's 'public criticisms brought public attention to the [AER] in a way that was unwanted by the [AER] and caused embarrassment within the organization.'

"As pleaded, as a result of and in response to her public criticisms, the AER seized on her offhand reference to a comment someone else made about Wiebo Ludwig, and used it as an excuse to restrict her speech by prohibiting Ms. Ernst from communicating with the AER through the usual channels for public communication. These serious restrictions greatly limited her ability to lodge complaints, register concerns and to engage with the AER's compliance and enforcement mechanism.

"As pleaded, Richard McKee, a senior lawyer with the AER, later confirmed that the AER had specifically decided to stop communicating with Ms. Ernst, and would not 're-open regular communication until Ms. Ernst agreed to raise her concerns only with the [AER] and not publicly through the media or through communication with other citizens.' In other words, the AER attempted to control Ms. Ernst's speech by withholding regular government services from her unless and until she agreed to stop criticizing the AER publicly. Ms. Ernst did not and would never agree to such a restriction."

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