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Alberta Energy Regulator’s Response to Ernst Case ‘Inaccurate and Misleading’, Say Professors

Agency misrepresents Supreme Court ruling on right to sue over alleged Charter violations, they say.

By Andrew Nikiforuk 19 Jan 2017 |

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. His award-winning book Slick Water, documents the Ernst case and the history of fracking. Find his previous stories here.

Two University of Calgary law professors have demanded Alberta’s energy regulator withdraw its “inaccurate and misleading” statement on a Supreme Court of Canada ruling that a landowner couldn’t sue it for alleged rights violations.

The court ruled Friday, in a split decision, that Jessica Ernst couldn’t sue the oil and gas regulator for allegedly violating her Charter rights.

The Alberta Energy Regulator posted a statement on its website in response to the highly technical ruling.

“The Court did not find there was a breach of Ms. Ernst’s Charter rights, and made no findings of negligence on the part of the AER or its predecessor the ERCB,” declared the statement.

But law professors Shaun Fluker and Sharon Mascher have written in a popular legal blog that the regulator’s claim isn’t true.

“The AER Public Statement is inaccurate and misleading, and is not the sort of action we would expect a quasi-judicial tribunal to consider appropriate,” they write. “The Supreme Court made no finding at all on a breach of the Charter in the Ernst decision.”

In 2007, Jessica Ernst, an oil patch environmental consultant, sued the Alberta government, Encana and the regulator for negligence over contamination of local aquifers near her Rosebud home allegedly caused by the hydraulic fracturing of shallow gas wells in 2004.

After Alberta courts ruled that Ernst could sue the government but not the regulator due to an immunity clause passed by the legislature, Ernst took her case to the Supreme Court.

Her lawyers and the BC Civil Liberties Association argued that an immunity clause should not prevent a citizen from suing for violations of Charter rights.

Ernst’s lawsuit claimed the AER breached her rights by branding her a security threat in 2005 and refusing to communicate with her unless she stopped criticizing the board publicly.

In a split ruling, five members of the Supreme Court dismissed Ernst’s Charter claim based on the immunity claim and the argument that she should have sought a judicial review of the regulator’s actions — something that lawyers familiar with Alberta courts say is almost impossible.

Fluker and Mascher question the Alberta Energy Regulator’s judgment in posting the response to the case.

“The Ernst proceedings are, at their core, allegations that the AER acted punitively,” they note. “One might think that a quasi-judicial tribunal, accused of acting like a bully, would be happy to let these sort of proceedings end quietly in its favour. But apparently not.”

“This Public Statement on the Ernst decision is long on self-vindication and short on facts,” they wrote. “Most problematic is that the AER incorrectly states the Supreme Court has cleared it of wrongdoing in its dealings with Jessica Ernst.”

The regulator’s statement said the Supreme Court “made no findings of negligence on the part of the AER or its predecessor the ERCB” (Energy Resources Conservation Board).

But the issue before the court wasn’t negligence but the constitutionality of the immunity clause, Fluker and Mascher note. “To suggest that the Court made no findings of negligence suggests that it made a finding of ‘no negligence’” they wrote.

The AER is responsible for overseeing the lifecycle of nearly 400,000 active and inactive well sites as well as bitumen mines, pipelines, coal plants and gas processing facilities. Its comprehensive activities affect groundwater, farmland, air quality, land prices, provincial revenues and First Nation rights.

But critics say the adversarial agency works for the oil patch and is now chaired by Gerard Protti, a former energy lobbyist, and is largely funded by industry.  

Among landowners the AER has a checkered history. In 2007, the regulator was caught spying on citizens opposed to a power line.

First Nations and environmentalists have also repeatedly criticized the board for restricting access to public hearings.

One 2014 review concluded “the institutionalized processes of participation have been restricted to the point of nullifying the possibility of effective, democratic control over the expansion of the tar sands.”

Although the AER is supposed to arbitrate disputes between landowners and oil and gas companies over pollution, land devaluation and public health impacts, it rarely performs that function, said Fluker in an interview.

“Any landowner who has a problem with industry has to go to the AER,” said Fluker who runs a public clinic to help rural citizens impacted by energy developers. “But they are not going to get a fair shake. The AER is there to look after industry and that’s a big problem.”

Diana Daunheimer, a landowner suing Bellatrix Exploration over pollution near her land in Didsbury, said the regulator is entirely captured by industry interests.

“The AER does everything in its power — which by the way is totalitarian — to discredit or disregard Albertans harmed by oil and gas operations,” she said. “The AER has no public interest or public health mandate. How can the AER purport to protect public safety, when they have no mandate to protect public health?”

When mother and landowner Kimberly Mildenstein raised questions about traffic congestion caused by fracking trucks in central Alberta between 2011 and 2012, she says the AER did nothing.

“Basically the AER listens to community complaints very well and then ignores them very well,” said Mildenstein. “As citizens residing in fractured communities, we are lured to believe regulation for our safety exists.” It doesn’t, she said. Mildenstein and her family eventually moved to Vancouver Island due to regulatory inaction on fracking abuses.

Some members of the legal community have expressed dismay over the Supreme Court ruling.

“The Charter guarantees everyone the right to an appropriate and just remedy if their constitutional rights are violated, but a majority of the Court has now said that in some circumstances, legislatures may shield certain government administrative decision makers from Charter scrutiny,” noted Laura Track of the BC Civil Liberties Association.

“This decision has worrisome implications for people across the country seeking to hold government-appointed decision makers accountable for egregious unconstitutional actions.”

Ernst’s landmark lawsuit against the Alberta government and Encana over groundwater contamination caused by shallow gas fracking has now been before the courts for 10 years.

Not one piece of evidence has yet seen the light of day in court. 

In an email, the Alberta Energy Regulator’s senior public advisor Ryan Bartlett said the board welcomed comment from “all stakeholders” but “stands by its statement.”  [Tyee]

Read more: Energy, Environment

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