Ernst Argues Alberta’s Energy Regulator Not Immune to Charter, Court hears appeal as part of landowner’s ongoing fracking lawsuit by Andrew Nikiforuk, May 9, 2014, TheTyee.ca
In a blindingly white and ultra-modern courtroom on the 26th floor of the TransCanada Pipeline Tower in downtown Calgary, three Court of Appeal justices heard arguments yesterday on whether government regulators or officials are protected from violating the nation’s Charter of Rights due to immunity clauses.
In particular, the lawsuit alleges that the ERCB violated Ernst’s right to free expression under the Charter by banishing her from contact with the board while she was dealing with the pollution issues on her property.
Last year, Chief Justice Neil Wittmann ruled that the case against Encana and Alberta Environment could proceed to trial, but he dismissed the claim against the energy regulator on the grounds that a statutory immunity clause excepted it from civil action and Charter claims.
Ernst’s lawyer Murray Klippenstein argued yesterday that no government or province can legislate themselves out of the fundamental rights guaranteed by the Charter of Rights, on which Ernst’s claim is based. He called the Charter “the supreme law of the land.”
He argued that Ernst’s right to freedom of expression was breached in 2005 when the regulator sent her a letter accusing her of making “criminal threats.” It informed her that regulator staff had been told “to avoid any further contact” with Ernst.
A letter by Ernst seeking clarification on that decision and what basis it was made was refused by the board and returned unopened.
In a taped conversation in June 2005 with ERCB lawyer Rick McKee, McKee said that “criminal threats” were never an issue, but that the board was upset with the landowner for airing her grievances in public and therefore embarrassing the regulator.
“What you are doing is, hey, I don’t want to make it sound like people are a bunch of sensitive, you know, but at the end of the day, you are, you seem to be, attempting to humiliate the organization. And if that is your intention good on you, but don’t expect us to help you,” McKee told Ernst.
(The Tyee has heard the recording, read the transcripts and checked with actual witnesses. The incident is detailed in the original statement of claim.)
“Jessica is fighting for the welfare of the public in general,” said Shawn Campbell, a semi-retired 65-year-old rancher from Ponoka, Alberta. “To me, the issue is government transparency, and we have none of it. They’re in the deepest closet they can find.”
Don Bester, a rancher and president of the Alberta Surface Rights Group, said the court’s decision will have ramifications throughout the province.
“If the ERCB doesn’t have any liability or accountability for projects they have approved, then they will have no right to make any approvals on my land.”
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Ernst’s December 6, 2005 letter to EUB Operations Group Manager Mr. Jim Reid was sent XPRESSPOST, requiring signature on delivery. The unopened letter, stamped by Canada Post “Refused by addressee,” arrived back in Ernst’s mailbox the day her contaminated water made Front Page of the Edmonton Journal.
The XPRESSPOST remains sealed and was photographed today, May 9, 2014. It will remain sealed until entered into evidence, if the Charter violation is ever allowed to go to trial.
Le gouvernement doit-il se soumettre à la Charte des Droits et Libertés? translation by Amie du Richelieu, May 9, 2014
Est-ce que la régie de l’énergie de l’Alberta soumise à la Charte?
La cour entend les différents argumentaires faisant parti de la poursuite enclenchée par Jessica Ernst sur la fracturation
Ma traduction libre du reportage d’Andrew Nikiforuk publié aujourd’hui dans le quotidien The Tyee.
It is hard to imagine a more stupid or more dangerous way of making decisions than by putting those decisions in the hands of people who pay no price for being wrong.