A Government that Owes no Duty of Care to Its Land

by S. Tom Bond on February 14, 2013

Alberta Province

The Canadian Province of Alberta vs. Resident Canadian Jessica Ernst

By S. Thomas Bond, Resident Farmer, Lewis County, WV

Many of the readers of FrackCheckWV will be familiar with the extended legal fight of Canadian Jessica Ernst against the driller Encana and the corporate support from the Energy Resources Conservation Board in Alberta.

It started with a $33,000,000 lawsuit which effectively puts hydraulic fracturing on pubic trial. The suit alleges Encana drilled and fracked shallow wells between 2001 and 2004 near Rosebud, Alberta.

In addition to being a substantial landowner, Ms. Ernst is a petroleum geologist and a long-time employee of the petroleum industry. The claim was originally filed in 2007. Instead of upholding its own policies and investigating the contamination, the ERCB then violated Ernst’s rights under the Canadian Charter of Rights and Freedoms by banishing the landowner from the board’s investigation and complaint process.

The court called for Ernst’s lawyers to rewrite the original claim that Alberta’s two key groundwater regulators, Alberta Environment and the Energy Resources Conservation Board, “failed to follow the investigation and enforcement processes that they had established and publicized.” The judge required Ms. Ernsts lawyers to file a new, briefer claim.

Why the establishment is upset is explained by Murray Klippenstein, her Toronto lawyer. “What the Ernst claim is saying to the Canadian public is that groundwater contamination by shallow hydraulic fracturing happens.” Our readers will understand what that means for the often repeated phrase “There has never been a proven claim that fracking has destroyed well water.”

The current phase of the dispute began January 13. In the course of a conversation Ms. Ernst casually mentioned a terrorist, Lebo Ludwig, so the board marked her a terrorist too, and would not communicate with her over a year. Now the board is saying it owes “no duty of care” to protect groundwater from hydraulic fracturing and that a regulator can violate the basic rights of citizens if it regards them as an “eco-terrorist.” The land and the neighbors are ignored.

Andrew Nikiforuk, in the article here,  relates the following about the case “Neither Encana nor the ERCB have yet filed statements of defence on incidents that took place nine years ago. At the time industry drilled and fracked thousands of shallow wells in a coal formation in central Alberta resulting in scores of groundwater complaints, protests and public meetings.

“Encana, whose CEO Randy Eresman abruptly resigned last week, is no stranger to controversy. The company, which is struggling with debt and an over-reliance on controversial shale gas production, remains the subject of a major U.S. government groundwater study in Pavillion, Wyoming, that has linked hydraulic fracturing to aquifer contamination.

“Michigan authorities are also investigating the company for allegedly colluding with Chesapeake Energy to keep land prices low. Encana, the target of a mysterious bombing campaign in northern B.C. in 2008, also received record fines from Colorado’s Oil and Gas Commission for contaminating water in 2004.”

Further, “Several recent court decisions also show that ERCB has a history of not upholding its own laws. “In 2010 the Royal Society of Canada, the nation’s top scientific organization, criticized the board for 2007 incident in which the regulator spied on landowners and damaged ‘its credibility as independent quasi-judicial board.’”

For a decade Ms. Ernst has been an outspoken opponent of fracking, speaking widely in Canada, the U. S. and Europe, and keeping a blog on the internet, even appearing in National Geographic News. She won the UNANIMA International Woman of Courage award October of 2011. It reads in part “one who embodies those qualities which we believe essential for the advancement of women everywhere – solidarity, a passion for human rights, commitment, and courage in the face of power which threatens life.”

For more you can read here  as well as her blog here .

And see videos here and here. The later is really good, but runs three-quarters of an hour.

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