Here is a warning for Canadians, if ever there was one.
The immunity of the oil and gas companies in Alberta, as spelt out in this court decision, is appalling – – more evidence that we have a “petro-state”, not a democracy.
The legislation that made this possible was fought unsuccessfully; now we have the consequences:
(Alberta ERCB = Energy Resources Conservation Board)
the court found that the Alberta government had granted complete immunity to the ERCB for all legal claims, including for breaches of constitutional rights.
Chief Justice Wittmann ruled the ERCB does not owe any legally enforceable duties to protect individual landowners from the harmful effects of fraccing (INSERT: fracturing – explained below), after the ERCB argued in court it had total immunity for “not only negligence, but gross negligence, bad faith and even deliberate acts,” and therefore Albertans simply could not sue the ERCB, no matter how badly they were harmed by the ERCB’s acts.
Bless Jessica Ernst for her tireless and expensive efforts to educate and to launch legal action against fracking.
—– Original Message —–
UPDATE / October 9, 2013
(French translation of advisory: http://www.ernstversusencana.ca/the-lawsuit)
Chief Justice rejects Alberta government’s attack on Rosebud water contamination case – but dismisses case against Alberta’s key energy regulator, the ERCB.
The practice of hydraulic fracturing – injecting fluids (gases or liquids, sand and toxic chemicals) under high pressure to shatter deep and shallow rock to stimulate hydrocarbons to flow – has raised serious economic, political, legal, health and environmental issues around the world.
In a judgment recently released by the Alberta Court of Queen’s bench, Chief Justice Neil Wittmann ruled on the first skirmishes in a landmark multi-million dollar claim by Jessica Ernst against EnCana, Alberta Environment and the Energy Resources Conservation Board (ERCB) regarding water contamination caused by fraccing.
Key parts of the judgment include:
The court rejected the Government of Alberta’s attempt to attack portions of the lawsuit, thereby paving the way for the claim against the Government of Alberta to proceed.
Justice Wittmann agreed there were valid claims asserted against the ERCB for breaching Ms. Ernst’s fundamental and constitutional right to freedom of expression. The court also found “the ERCB cannot rely on its argument on the Weibo eco-terrorism claim, in the total absence of evidence. There is none.” However, the court found that the Alberta government had granted complete immunity to the ERCB for all legal claims, including for breaches of constitutional rights.
Chief Justice Wittmann ruled the ERCB does not owe any legally enforceable duties to protect individual landowners from the harmful effects of fraccing, after the ERCB argued in court it had total immunity for “not only negligence, but gross negligence, bad faith and even deliberate acts,” and therefore Albertans simply could not sue the ERCB, no matter how badly they were harmed by the ERCB’s acts. Ms. Ernst was ordered to pay the ERCB’s costs.
Ms. Ernst has instructed her legal counsel to appeal the decision to dismiss the lawsuit against the ERCB.
“I think Albertans will be disturbed to learn that their energy regulator has total and blanket immunity, even in cases where the regulator has breached the fundamental and constitutional free speech rights of a landowner,” said Murray Klippenstein, lead legal counsel for Ms. Ernst.
“It is very worrying that citizens are unable to hold the energy regulator accountable for failing to protect citizens from the harmful impacts of fraccing,” said Cory Wanless, co-counsel for Ms. Ernst. “If the energy regulator won’t protect citizens, who will?”
For more information, including Encana’s Statement of Defence, refer below:
Klippensteins Barristers & Solicitors:
(416) 598-0288 or (416) 937-8634
(416) 598-0288 or (647) 886-1914
Jessica Ernst: 1-403-677-2074
contact AT jessicaernst.ca
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France upholds constitution (fracking ban):
Alberta spits on it:
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Alberta Energy Regulator Given Immunity in Landmark Fracking Suit http://thetyee.ca/News/2013/10/09/AB-Regulator-Fracking-Suit/
‘I have no choice but to appeal’, says plaintiff Jessica Ernst, who alleges industry polluted her water.
By Andrew Nikiforuk, October 9, 2013, TheTyee.ca
Alberta’s chief justice has ruled that a landmark lawsuit against the Alberta government and the energy giant Encana Corporation over groundwater contamination from hydraulic fracking can finally proceed to court.
But in the same lengthy 41-page ruling, Justice Neil Wittman also struck the province’s energy regulator from the lawsuit.
His decision found that the Alberta government had granted statutory immunity to the Energy Resources Conservation Board (ERCB) from all legal claims.
In other words, the board cannot be sued when oil and gas activities regulated by the agency poison livestock, devalue property, sicken landowners or contaminate ground or surface waters.
The lawsuit, filed by oil patch environmental consultant Jessica Ernst, alleges that Encana drilled and fracked shallow coal bed methane wells directly in the local groundwater supply between 2001 and 2004 near Rosebud, Alberta, polluting Ernst’s water well with enough toxic chemicals and methane to make it flammable.
In addition, Ernst’s claim details how Alberta’s energy regulators — the ERCB (now called the Alberta Energy Regulator) and Alberta Environment — “failed to follow the investigation and enforcement processes that they had established and publicized” despite direct evidence of industry-caused pollution and public admissions that shallow fracturing puts groundwater at risk.
The regulator is 100 per cent funded by industry and directed by a former oil lobbyist and Encana vice president, Gerard Protti. Landowners generally regard the AER as a reactive agency that works for an industry-friendly government and that now garners one-third of its revenue from the extraction of hydrocarbons.
Encana Files Defence in Lawsuit with Fracking Folk Hero http://thetyee.ca/News/2013/09/20/Encana-Fracking-Lawsuit/
Landmark case could change how shale gas industry is regulated in Canada.Alberta’s Top Judge to Hear High Profile Fracking Case http://thetyee.ca/News/2013/03/29/Alberta-Fracking-Case/
Flaming tap water lawsuit by Jessica Ernst faced delay after previous judge promoted. Fracking: Feds Throw Wrench in High Profile Lawsuit http://thetyee.ca/News/2013/02/22/BC-Fracking-Lawsuit/Judge suddenly promoted; plaintiff Ernst sees strategy to ‘delay and exhaust.’