Justice Denied for a UI Woman of Courage by UNANIMA, February 1, 2017
The UI family extends a hand of compassion and solidarity this month to our 2011 Woman of Courage, Jessica Ernst. At the time she received the award, Jessica was in the midst of a prolonged legal battle against EnCana, a natural gas producer whose fracking project had contaminated the drinking water in her home community and against the government of Alberta, Canada. She was also in pursuit of legal recourse against the Board of Alberta Energy Regulator (AER), the former government agency (now independent entity) responsible for ensuring the safety, responsibility, and efficiency of energy exploits in her province. Ernst accused the AER of a failure to investigate or address the concerns she presented and of denying her constitutional rights to a judicial pathway for the redress of grievances.
After ten years of litigation that cost over $350,000 on Jessica’s part, the Canadian Supreme Court concluded by 5-4 split decision that, as a government agency, AER is immune to claims of constitutional infringement. Laura Track, counsel with the BC Civil Liberties Association who served as an intervenor in the case, expressed concern for the broader consequences of this verdict. “The [Constitution],” she asserted, “guarantees everyone the right to an appropriate and just remedy if their constitutional rights are violated, but a majority of the Court has now said that, in some circumstances, legislatures may shield certain government administrative decision makers from Charter scrutiny. This decision has worrisome implications for people across the country seeking to hold government-appointed decision makers accountable for egregious unconstitutional actions.”
The next steps for Jessica will be to continue pursuing her claims of negligence against the Alberta government and EnCana through Alberta’s provincial courts. Now more than ever, the UNANIMA community stands behind her in this prolonged battle for corporate and governmental accountability. For a more complete account of the details of the verdict and the case itself see this article.
[Refer also to:
2013 10 13: Alberta Energy Regulator given immunity in frac suit, OK for regulator [which means every regulator in Canada, provincially and federally] to violate constitutional rights of Canadians; ‘I have no choice but to appeal’, says Jessica Ernst
The regulator has immunity by Julie Ali (Edmonton Mum and poet) , October 10, 2013, Reading Children’s Books
here is the road where the signs are mysterious
you are to move forward
for looking back
will cost you
what you have gained
is the only refrain
should you hurt
about the scars
that were given to you
by the government
(the people we trusted
with our children)
do not fret
these are scars
that are to be shown
of the negligence
of the Tories [and Rachel Notley’s NDP]
and their oil industry buddies
will not endure
they will be cut
do not fret
the future is coming fast
you are simply to keep the faith
we believe in you Jessica
and should you falter
because we believe
we no longer believe
in the Tories [and Rachel Notley’s NDP]
at all levels
and we understand
that they have dismissed this case
because the evidence is present
for your case
we see the proof of the corruption
of the judicial system
for we have the evidence
that the water was pure
before they came
to frack Rosebud, Alberta
and so how
will they explain
after the fracking
was done by EnCana?
how did the gas come
to Rosebud wells
without the help of EnCana?
we should ask these questions:
why does the government of Alberta
not protect the children?
why are there no consequences
for the government’s regulatory agency
for harming the citizens?
why do they operate
as above the law of the land?
do we live in China
or Nigeria in Canada?
are we ruled by bitumen masters?
are we then bitumen slaves to be damaged
as they will?
and if so
when will this all end?
here is the road
we are to walk (not run) each day
we are to take each step
as if the road was mined
(which it is)
and holding hands
with us — Jessica
you are to keep going
we are watching them
May 1, 1998: Jessica Ernst takes possession of her property at Rosebud. Water well is excellent producer with soft, high quality water that caused no caustic burns to skin or eyes after bathing. Water well records, including the historic records on file with Alberta Environment, do not state the presence of gas.
2001: Encana begins a secret experimental shallow fracturing natural gas project arond Rosebud, without consulting with the community or landowners in violation of EUB (now AER) Directive (then Guide) 56.
June 2003: Encana’s first un-attenuated compressor installed about 900 metres from Jessica’s home, without consulting her about it, in violation of Guide 56. The noise sounded like a jet engine taking off, 24 hours a day, 7 days a week, worse at night and in winter (noise rises with heat). Encana continues to violate Jessica’s legal right to quiet enjoyment of her home and land.
February 14, 2004: Encana perforated and on March 2, 2004 hydraulically fractured directly and secretly into the drinking water aquifers that supplies the Hamlet of Rosebud, the Ernst water well and others. The regulators, water and energy, engaged in fraud to cover-up what Encana did and the community-wide drinking water contamination.
August 2004: Jessica finds out Encana lied to her and her community about a blanket approval document the company was pressuring area landowners and homeowners to sign. Jessica resigns in writing, from Encana.
January 2005: The Hydrogeological Consultants Ltd. report is completed for Encana with copies submitted to Alberta Environment, some affected Rosebud citizens and reportedly the EUB. The report carefully details that Encana fractured the Rosebud drinking water aquifers.
January 2005: The Rosebud Water Tower blows up in an explosion seriously injuring a Wheatland County worker sending him to hospital. It was reported that an investigation determined the explosion was apparently caused by “an accumulation of gases.”
March 16, 2005: Ernst letter to Neil McCrank, CEO of the EUB (now AER):
Our client is currently facing many negative, mostly unmitigated, impacts due to gas development, including Coal Bed Methane (CBM), as listed below:
a negative change to Ms. Ernst’s water well – her taps have begun to wheeze, whistle and sing, and the quality of her ground water has changed;
roads that Ms. Ernst uses and pays taxes to maintain have fallen into terrible states of disrepair due to the massive influx of heavy, speeding petroleum industry traffic;
compressor noise that Ms. Ernst has had to put up with for over a year;
dangerous, speeding and reckless driving by workers on all roads in the counties where Ms. Ernst travels – fatalities have already occurred due to unsafe oil and gas related driving;
trespassers using industry’s lease roads to access private property;
loss of privacy;
loss of quiet enjoyment of Ms. Ernst’s property; receiving consultation from the main proponent in her area (i.e. EnCana) in the form of lies, and repeat misrepresented information;
loss of Ms. Ernst’s time trying to uncover the truth from EnCana about whether CBM is planned for the Rosebud area or not and how EnCana proposes to minimize cumulative impacts and risks to aquifers – time that is not recoverable;
negative visual impacts;
negative environmental impacts;
negative noise impacts;
negative impacts to air quality (e.g. flaring and compression by products – the dust was so bad this past summer that furniture would be covered in dust less than a day after a full house cleaning);
negative impacts to wildlife;
weed problems; and
stress and anxiety because of Ms. Ernst’s inability to get playground signs installed in Rosebud on Highway 840 adjacent to Rosebud’s playground to protect citizens from speeding petroleum related traffic – blanket approval comes first so as to speed up down-spacing applications for industry and the EUB; safety of Alberta’s children is made to wait a year or two and comes last.
Our client is of the view that CBM remains an unknown at this time. In order to protect Alberta and its citizens, it is imperative that CBM is regulated responsibly, slowly and with caution.
November 24, 2005 (received by Ernst on December 3, 2005): EUB (then ERCB, now AER) letter by Jim Reid to Ernst, judging Ernst a criminal, copied to the Royal Canadian Mounted Police and Alberta Attorney General, without any evidence, no due process, no charges laid, no arrest, no fingerprints taken by the police, no trial, banishing Ernst – excluded her and her dangerously contaminated water well from energy regulation.
December 6, 2005: Ernst letter to Jim Reid at the the EUB, requesting clarification of the regulator judging her making criminal threats and banishing her. Ernst sent her letter via xpresspost to track it.
December 13, 2005: Canada Post returns Ernst’s December 6, 2005 letter to Reid, envelop stamped “refused by addressee”
December 13, 2005: On the same day as Ernst gets her letter back from the EUB, refusing even her registered mail, Ernst’s contaminated water is featured on the Front Page of the Edmonton Journal (interview and photos of the explosive water on December 6, 2005). Alberta Environment suggested bacteria were to blame.
February 28, 2006: Minister of Environment Guy Boutilier states in the Legislature that all affected families will be provided safe alternate water deliveries: “now and into the future” and “because this is a very important issue to this family and to many other families that have been impacted, be it by the natural flow or because of what is being asserted relative to what is taking place in the water supply.”
March 3, 2006: Alberta Environment tests the Ernst water well and advises her that they cannot provide her water tanks for their promised alternate safe water delivery because “industry has all the tanks.”
Without seeing the results first, Alberta Environment water well tester Al Straus blamed Ernst for the dangerous methane contamination in her water because she does not run cattle and thus does not use enough water. He also advised Ernst there was a serious problems with the water production in her well but refused to include this data in the test results. The Office of the Privacy and Information Commissioner’s Office later (in 2008) advised Ernst that Al Straus threw these data away because of no control on the water well (enabling the regulator to withhold vital investigation data from Ernst).
June 8, 2006: EUB lawyer Rick McKee interrogates Ernst; tries to get evidence after the fact and bully her into only speaking with the regulator and not the press, public, or even her friends, and asked her what it will take to get her to leave Alberta. Ernst replied she will gladly leave Alberta as soon as the regulator starts to do its job.
December 3, 2007: Ernst statement of claim filed in Drumheller court of Queen’s Bench
December 3, 2008: Legal papers served on the defendants
February 12, 2009: “Undercover” Royal Canadian Mounted Police with Canada’s anti-terrorist squad arrive warrant-less at Ernst’s home to interrogate.
April 27, 2011: Ernst goes public with her lawsuit
May 3, 2011: Ernst presents on her case, invited by UNANIMA, at the UN in NYC
September 10, 2011: POWERSFrackAlberta Workshop with keynote presentations by Andrew Nikiforuk and Jessica Ernst
October 1, 2011: UNANIMA International presents Jessica Ernst with Woman of Courage Award at the UN Church Center in New York City.
April 26, 2012: First hearing in Drumheller Court of Queen’s Bench. Justice Veldhuis requests shorter statement of claim and volunteers as case manager. ERCB lawyer Glenn Solomon demands the original statement of claim is removed from the court and public record. Denied.
October 1, 2012: Defendants demand the case is moved to Calgary during a case management call with Justice Veldhuis (moving the case was not on the agenda).
From the call transcripts, lawyer representing the Alberta Government:
“It clearly tips in favour of the defendants’ position, that it ought to be in Calgary and not in Drumheller.”
Justice Veldhuis advised that according to Chief Justice Wittmann, the case is to be heard in Drumheller.
Encana lawyer advised they will not drive to Drumheller.
The case is subsequently moved to Calgary by Justice Wittmann.
January 18, 2013: Second court hearing, in Calgary. The court room is packed, not enough seats, some attendees were directed to an incorrect room, some left.
Encana did not argue to have the case struck even though the company website states that the case has no merit.
February 8, 2013: Harper Government promotes Justice Veldhuis to Alberta Court of Appeal Ruling on arguments Justice Veldhuis heard on the Ernst case “Not an option.”
February 15, 2013: In a case management call with Justice Veldhuis, it was relayed that Alberta Court of Queen’s Bench Neil Wittmann volunteered to take over the case. The other option offered was to allow the three defendants and plaintiff to choose a new judge which would have been a long drawn out, unjust, expensive process for Ernst.
March 5, 2013: University of Lethbridge announces honourary degree for Justice Neil Wittmann
April 13, 2013: Alberta Government appoints Encana/Cenovus/Canadian Association of Petroleum Producers multi-year Executive Gerard Protti to Chair the new Alberta Energy Regulator (100% funded by industry and now controls all of Alberta’s fresh and saline water)
September 19, 2013: Justice Wittmann’s ruling on the hearing he did not hear, Rules Ernst has valid Charter claim but gives the ERCB complete immunity, even for violating Ernst’s Canadian Charter of Rights and Freedoms; rules there is no evidence that Ernst is a terrorist; denies the Alberta Government’s attempts to get the word “contamination” removed from the statement of claim, or paragraphs mentioning the other contaminated water wells at Rosebud.
January 13, 2014: Case management call. After three years, Justice Wittmann grants the Alberta government another chance to try to get my case thrown out. Hearing set for April 16, 2014. Case is moved back from Calgary to Drumheller, where by law, the case belongs.
February 3, 2014: Ernst Appeal Factum filed in Alberta Court of Appeals, hearing set for May 8, 2014 in Calgary.
February 18, 2014: Alberta Government files Application to Strike [Copying the AER’s arguments that got the energy regulator out of the Ernst lawsuit]
The Canadian Charter of Rights and Freedoms (Charter) was enacted in 1984….the Charter enhances the protections provided to Canadians by increasing the number and the extent of our rights and freedoms. In addition, the Charter now forms part of our Constitution, making it difficult for future governments to decrease or limit the rights and freedoms we currently enjoy. It applies when the government tries to infringe upon the rights of Canadians. …
Because the Charter is part of the constitution, no part of it can be changed by a federal or provincial government. The House of Commons, the Senate, and two thirds of the provinces representing over 50 percent of Canadians must approve any changes to the Charter or any part of the constitution.What is the Canadian Charter of Rights and Freedoms?
It is a document that protects the interests of Canadians and provides a way to challenge perceived abuses of basic rights and freedoms through our court system. … A right is a legal, moral, or social expectation that Canadians are entitled to from the government. For example, a person accused of committing an offence is entitled to a lawyer and a fair trial within a reasonable amount of time. A freedom is a right to live your life without interference from the government unless you impinge on the freedoms of others.
Fundamental Freedoms: Section 2
- Freedom of conscience and religion
- Freedom of thought, belief, and expression
- Freedom of peaceful assembly
- Freedom of association
Rights and freedoms are not without limits. Sometimes they have to be limited in order to protect the rights and freedoms of others. For example, prisoners have some of their rights and freedoms taken away because they have broken the law.
Legal Rights: Section 7-14
Everyone has the right to be secure against unreasonable search and seizure. The police must have reasonable grounds for searching you or your home and any evidence that is unlawfully obtained may be excluded at trial. …
Everyone has the right to a fair trial within a reasonable time.
Everyone is innocent until proven guilty beyond a reasonable doubt. Crown counsel must present evidence to an unbiased judge or jury in an open court to prove the accused’s guilt. The accused does not have to prove anything or call any evidence. … Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [Emphasis added]
April 18, 2014: Justice Wittmann hears Alberta Environment’s third attack on Ernst’s lawsuit in Drumheller Court. Alberta Environment copies AER’s arguments, arguing their immunity clause protects them from lawsuits just like the AER’s and adding this new argument:
An Alberta government lawyer argued in court this week that Jessica Ernst’s lawsuit on hydraulic fracturing and groundwater contamination should be struck down on the grounds that it would open a floodgate of litigation against the province.
“There could be millions or billions of dollars worth of damages,” argued Crown counsel Neil Boyle.
May 8, 2014: Court of Appeal of Alberta hears Ernst’s arguments trying to keep AER in her lawsuit. The three justices said nothing when AER’s outside counsel, Glenn Solomon, repeatedly yelled out and interrupted Ernst’s lawyer, Cory Wanless while he was presenting his arguments.
September 2014: Court of Appeal of Alberta rules AER can violate the Charter rights of Albertans with impunity, owes no Alberta harmed by the oil and gas industry any duty of care, and is legally immune even for acts in bad faith and gross negligence.
November 13, 2014: Ernst appeals to the Supreme Court of Canada
January 12, 2016: Supreme Court of Canada hears the Ernst vs AER case in Ottawa
January 13, 2017: After a year and a day of waiting (on average, the Supreme Court releases rulings within six months), the Supreme Court of Canada releases their decision, rules governments can legislate regulators (and themselves?) above the constitution, and dismisses Ernst’s appeal, letting the most guilty party in the Ernst lawsuit off the hook and damaging Canada’s Charter of Rights and Freedoms.
January 17, 2017: Letter from Chief Justice Neil C Wittmann to Ernst and the defendants, announcing his retirement May 1, 2017 and offering that all parties consent to a list of replacement justices for him to pick from.
Should the parties wish a new case management judge, I would request they provide me with a list of four or five justices names by consent and I will reassign this file to one of those persons to continue case management.
Should the parties be unable to agree on a short list and still desire case management, I will appoint someone without the benefit of the parties’ agreement.
2017 01 27: Alberta Justice letter to Chief Justice Neil C. Wittmann, listing their six preferred justices to replace case management judge in Ernst vs Encana:
The six justices chosen by Alberta Justice and agreed to by Encana are:
1. Justice B.E.C. Romaine
2. Justice R.E. Nation
3. Justice G.H. Poelman
4. Justice R.A. Neufeld
5. Justice J.T. Eamon
6. Justice K.D. Yamauchi
2017 01 29: Ernst letter to Chief Justice Neil C. Wittmann declining case management because it’s not in her interest, and declining to participate in new judge selection:
Our client believes that case management is not in her interest and therefore requests that the matter no longer be subject to case management.
Our client also does not believe that it is appropriate for the parties to play a role in selecting a case management judge. Should the court determine that case management will still proceed, our client requests that the court assign a judge without the input of the parties.
2017 05 01: Chief Justice Neil C Wittmann (appointed by Stephen Harper to go from Alberta Court of Appeal to Court of Queen’s Bench) to retire.
Is there access to justice for ordinary civil Canadians?