Fight on to recover damages from fracking

CTV Calgary: Kevin Green on a lawsuit An Alberta woman has launched a lawsuit against the province and ERCB

A landmark lawsuit in which an Alberta woman says fracking destroyed her water supply is mired in constitutional arguments before it even starts.

Jessica Ernst says fracking by Encana near her Rosebud home caused methane to seep into her home and she is suing the energy giant, the Alberta government and the Energy Resource Conservation Board.

Fracking involves injecting a highly pressurized solution into shale formations to extract natural gas and other resources.

Ernst says that the regulators were negligent in not passing any rules to restrict the fracking activity once they knew there was a problem.

The argument centres around whether Alberta's Energy Resource Conservaton Board can actually be sued for anything it does.

The ERCB says under provincial law it can't be sued for anything it does and that its name should be taken off the lawsuit.

Ernst’s lawyer, Murray Klippenstein, contends that her right to free expression was violated because the ERCB ignored her complaints and even returned her letters unopened.

Klippenstein says that the Charter of Rights trumps the ERCB’s provincial immunity.

“Miss Ernst is arguing in court that her freedom of expression under the Charter, which is fundamental to the operation of a democratic society, should have allowed her to at least be heard in a minimal way at least by the ERCB. The ERCB didn’t like her criticisms of the board and for more than a year said we are not going to communicate with you at all,” said Klippenstien.

Klippenstein says freedom of expression requires a government or a government agency not to slam the door in her face and to at least receive her communications.

“The ERCB is claiming that the legislature has made it legally immune from law suits no matter what it does or what its motive. But what Miss Ernst is pointing out is that the Charter of Rights are constitutional and they override provincial legislation,” said Klippenstein.

A lawyer for the resource board says that provincial immunity extends to anything the ERCB does including negligence.

The fifteenth floor courtroom was packed with rural landowners on Friday, who say the outcome of the case will affect property rights across the province.

Jan Slomp represents the Alberta section of the National Farmers Union and says the results of the hearing may have an impact on future cases.

“Jessica is not alone. Jessica is the first one that has pursued it this far and so extensive, so well documented her case but she represents a lot of land owners, a lot of people in Alberta that feel step-by-step left out in terms of justice, in terms of equal playing fields with the energy exploration,” said Slomp.

Slomp says he hopes the government will use the information to better regulate all sectors of energy exploration.

Ernst is seeking $11.7 million in damages from Encana and $10.7 million in damages each from  the province and the ERCB.

The case has not yet gone to trial and none of her allegations have been proven