Chief Justice rejects Alberta government’s attack on Rosebud water contamination case – but dismisses case against Alberta’s key energy regulator, the ERCB.
October 9, 2013 – 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:
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CONTACT:
Klippensteins Barristers & Solicitors:
Murray Klippenstein
(416) 598-0288 or (416) 937-8634
Cory Wanless
(416) 598-0288 or (647) 886-1914
Jessica Ernst: 1-403-677-2074
contact@jessicaernst.ca