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In Supreme Court, a Battle Over Fracking and Citizens' Rights

Jessica Ernst's long fight to challenge legislation putting energy regulator above the law reaches top court.

By Andrew Nikiforuk 13 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 considering joining.

After years of legal wrangling, Jessica Ernst and Alberta's powerful energy regulator finally squared off in the Supreme Court of Canada yesterday.

For almost two hours, all nine justices questioned lawyers from both sides in a case that will determine if legislation can grant government agencies blanket immunity from lawsuits based on the Charter of Rights and Freedoms.

At times the debate was so bogged down in legal jargon and little known cases that it felt as though the participants were holding a conversation in a foreign language.

But the heart of the matter remained simple: Can a regulator prevent a citizen from suing it for damages when the citizen feels their charter rights have been violated?

Ernst alleges the Alberta Energy Regulator violated her rights by characterizing her as a "criminal threat" and barring all communication with her.

The claims are part of her multipronged lawsuit related to the regulation of fracking. She says fracking contaminated aquifers near her homestead near Rosebud, about 110 kilometres east of Calgary, and is seeking $33 million in damages.

The Supreme Court hearing dealt with Ernst's allegation that the provincial energy regulator denied her the right to raise her concerns about groundwater contamination. She argues that the legislation shielding the regulator from citizen's lawsuits should not bar charter claims.

Lawyers for Ernst, the BC Civil Liberties Association and the David Asper Centre for Constitutional Rights all argued that the Alberta Energy Regulator's immunity clause undermined the spirit of Canada's charter, which is designed to protect citizens from government abuses of power.

It is patently unfair to allow a government to violate a citizen's basic freedoms and then deny them an appropriate remedy in the courts, especially when the charter itself grants that right, they argued.

"This is all about getting your foot in the door," said Cory Wanless, the lawyer representing Ernst.

Glenn Solomon, a high-profile Calgary lawyer representing the energy regulator, argued the Ernst case didn't deserve such attention because her problems were largely administrative and should have been addressed with a judicial review. Furthermore, the immunity clause barred a charter claim.

But under questioning, Solomon later said the court must look at each charter breach "case by case" and that the Alberta regulator's immunity clause shouldn't be read as a total ban on all charter claims -- just ones involving money or damages.

Making legal history

Eight years ago, Ernst sued Alberta Environment, the Energy Resources Conservation Board (which has since become the Alberta Energy Regulator) and Encana, one of Canada's largest unconventional gas drillers. She claimed her well water had been contaminated by fracking and government agencies had failed to investigate the problems.

But the regulator argued that it couldn't be sued because it had an immunity clause that protected it from civil action.

After an Alberta Court of Appeal agreed, Ernst's lawyers appealed the matter to the Supreme Court in 2014.

Initially three provincial governments and the federal government announced their intention to intervene in the case.

"But once they looked at the arguments, they withdrew," said Murray Klippenstein, another of Ernst's lawyers, after yesterday's hearing.

"So there was no government here to support the argument of the [regulator]," added Klippenstein. "It kind of shows in a common sense sort of way how ridiculous the position is."

The case made legal history, too. "This is the first time the Supreme Court has heard a case about human rights with an environmental context," noted Lynda Collins, a professor of law at the University of Ottawa's Centre for Environmental Law and Global Studies.

She said the case concerns the right of a citizen to pinpoint environmental wrongs, such as groundwater contamination, without being penalized by a regulatory body.

Whenever a regulator allegedly takes punitive measures against a citizen addressing key environmental issues in the public interest, "you have a serious allegation," added Collins.

'It is about how a citizen can push back'

Wanless, one of Ernst's lawyers, told The Tyee that the core issue in today's hearing was "whether governments can legislate themselves out of charter enforcement."

"It is about how a citizen can push back when their charter rights have been infringed. We say the court has to be open to these challenges because if they aren't, no one is," added Wanless.

Raj Anand, former chief commissioner of the Ontario Human Rights Commission and human rights expert with the law firm WeirFoulds, also addressed the court and said the issue was a simple one.

"It would be improper for a government or a legislature which are subject to the charter to exempt themselves with blanket immunity clauses," he said after the hearing.

He compared it to a newspaper enacting rules barring its reporters from any oversight by the Press Council.

Anand explained that there were probably 500 laws that gave immunity of one kind or another to government bodies or agencies across Canada.

But very few were as restrictive as the Alberta Energy Regulator's clause. In fact, most immunity clauses say the government agencies must act in "good faith."

Citizens travelled from as far away as Alberta and Quebec to hear the case.

Linnet Fawcett, a childhood friend of Ernst and concerned citizen from Montreal, said she didn't understand all the legal jargon but appreciated what Ernst was fighting for.

"I find it despicable that a regulatory body has the power to stop a citizen from having their day in court. Jessica always said that she knew that this case was going to be one big battle."

The case is being closely watched by Canada's oil and gas industry. In 2014, Borden Ladner Gervais, Canada's largest national full-service law firm, included the Ernst case in a top 10 list of important judicial decisions affecting the energy industry.

"The Ernst case has brought into focus the potential for regulator or provincial liability arising out of oil and gas operations.... If Ernst proceeds to trial, it will likely provide more guidance on the scope of the duty of care and the standard of care required by the province and the oil and gas operator to discharge their duties in the context of hydraulic fracturing."

The fracking industry has been the subject of scores of lawsuits across North America. Landowners have sued over property damage and personal injury related to industry-caused earthquakes, air pollution and the contamination of groundwater.

In one major Texas case, a jury awarded one family $3 million. The verdict found that Aruba Petroleum "intentionally created a private nuisance" though its drilling, fracking and production activities at 21 gas wells near the Parrs' Wise County home over a three-year period between 2008 and 2011.

The Supreme Court will likely make a ruling on the Ernst case within four to six months.  [Tyee]


Join The Tyee and acclaimed energy journalist and author Andrew Nikiforuk for a special evening on fracking. Nikiforuk will survey the latest energy battleground and discuss his new book, Slick Water, which centres around Jessica Ernst's landmark case. The event takes place Jan. 28 in Vancouver. Find further details and ticket information here.


Shortly after the Supreme Court hearing on the Ernst case, a magnitude 4.8 earthquake rattled the community of Fox Creek, Alberta, where fracking has caused hundreds of earthquake swarms for the last two years.

The ground shook hundreds of miles away, and the incident may count among the largest earthquakes ever caused by hydraulic fracking. Industry-induced quakes have rocked so far three different parts of Alberta, including Rocky Mountain House, southern Alberta and Fox Creek.

The controversial practice of injecting fluids underground to crack low-grade rock containing small amounts of oil and gas has resulted in groundwater contamination, gas migration and unprecedented seismic activity that has unsettled regulators in Texas, Oklahoma, Alberta and B.C.

Last December, the BC Oil and Gas Commission confirmed that a magnitude 4.6 seismic event on Aug. 17, 2015 in northeast B.C. was caused by fluid injection during hydraulic fracturing by Petronas.

In recent years, hydraulic fracturing and wastewater injection have triggered hundreds of earthquakes in the province and changed seismic patterns.

–- Andrew Nikiforuk

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