Alberta Landowner Appeals Constitutional Issue in Fracking Case

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May 20, 2012
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Can provincial legislation protect the state and "block an individual from seeking a remedy for breach" of her fundamental rights and freedoms under the nation's Charter of Rights?

That's the question that lawyers representing Alberta oil patch consultant Jessica Ernst have now posed to the Supreme Court of Canada in a special legal filing known as application for leave.

Murray Klippenstein and Cory Wanless, Ernst's Toronto-based legal team, are hoping that the court will agree to hear their arguments that the Alberta Court of Appeal erred this year when it ruled against their client.


The Court of Appeal found that the province's energy regulator can violate a citizen's fundamental freedoms because a provincial immunity clause protects it from civil actions from citizens.


But Ernst's landmark lawsuit, which challenges the regulation of hydraulic fracturing, is multi-sided.

It alleges that Encana, a pioneer of hydraulic fracturing, drilled and fractured 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 lawsuit alleges that the ERCB ceased all communication with the oil patch consultant and falsely accused her of making "criminal threats," thereby violating her fundamental Charter rights to free expression.


This week, Ernst won a legal victory when Chief Justice Neil Wittmann struck down the last of three attempts by the Alberta government to quash the case by ruling that Alberta Environment can be sued when it acts in bad faith.


An editorial in the Edmonton Journal hailed the decision, calling it a ''victory for the little guy.''




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Alberta Landowner Appeals Constitutional Issue in Fracking Case | The Tyee