Jessica Ernst near the Rosebud River. photo by Colin Smith, used with permission.
Rosebud resident Jessica Ernst has taken her fight against hydraulic fracking to Canada’s highest court.
Ernst’s lawyers filed an appeal with the Supreme Court of Canada on November 13. Ernst is appealing a decision of the Court of Appeal of Alberta from September this year.
The Supreme Court appeal is challenging the immunity of the Alberta Energy Resources Conservation Board (ERCB), now named the Alberta Energy Regulator, from any legal action, and whether that immunity is a breach of person's rights under Canada’s Charter of Rights and Freedoms.
The filing states the Alberta appeal’s court decision differs from an appeal court ruling in Ontario thereby “creating significant uncertainty in the law across Canada.”
“The issues raised by this appeal impact all Canadians. General “protection from action” clauses similar to section 43 of the Energy Resources Conservation Act are found in dozens of statutes across Canada, and in each and every province in Canada. The Supreme Court’s guidance on whether such statutes can bar actions brought pursuant to section 24(1) of the Charter will benefit all Canadians,” Ernst’s lawyers contend.
Ernst’s position is Encana Corporation”s fracking for hydrocarbon extraction in the Rosebud area caused water contamination, and the former ERCB failed to act on repeated and documented violations of the law during the fracking by Encana.
The lawsuit by Ernst is alleging her Charter rights of free expression were trampled on by the ERCB branding her a criminal, accusing her of making threats, and then stopping all communication with her.
Ernst said it could take up to four months for the Supreme Court to decide whether they will hear her case, and that only one in twenty cases are actually heard by the Supreme Court of Canada.
Ernst won a judgement in a Court of Queen’s Bench ruling November 7 that now opens the door for a lawsuit against Alberta Environment.
Ernst’s lawyer, Klippensteins, said Chief Justice Wittman ruled in favour of Ernst in all key points to have the ability to sue Alberta Environment for Ernst's contention as they failed to properly investigate and remediate water contamination of Ernst's well and the Rosebud aquifer.
The lawyer said Alberta Environment’s argument was that individual landowners couldn’t try to hold the government legally responsible for negligent investigations of environmental contamination, even if the investigations were flawed.
The Court disagreed, and in addition to the ruling ordered the government to pay triple the amount of Ms. Ernst’s hearing costs.
“Ernst was wholly successful in responding to this Application. … These arguments could have been raised as part of Alberta’s first application, but were not. Ernst was put to the time and expense of two applications, not one. … As a result of these considerations Ernst shall have her costs against Alberta fixed at triple [the regular rate],” the Court ruled.
Ernst said she first filed papers in court regarding Encana’s fracking in Rosebud in December 2003.
