April 23rd, 2017

A missed opportunity for justice


By Letter to the Editor on January 17, 2017.

After nearly 10 years of her life, many thousands of dollars and other incredible personal sacrifices to pursue justice, Jessica Ernst was denied the right to sue the Alberta Energy Regulator on Friday by the Supreme Court’s 5-4 decision. Historically, the regulator has been an agency with a revolving door between it and the oil industry.

In part, the Supreme Court ruled that governmental bodies are immune from lawsuits. What that ruling conveys is that such bodies are above the law. For a nation that is supposed to be governed in part by laws, that democratic principle has been voided, thrown out and citizens can go to hell with a pile of debts.

And to cover its decision, the Court said that Ms. Ernst should have pursued a judicial review of how the regulator handled her complaints about fracking. That’s a cop-out by the court, especially given that the regulator returned her letters … unopened.

The abuse of power by corporations and government bureaucracies are two of the major weaknesses of democratic systems. That abuse was a major underlying force in the United Kingdom’s vote to exit from the European Union. Similarly, that abuse was a primary force in the alienation of United States voters in their recent federal election.

Is it any wonder that voters are disenchanted and turned off with governments, especially when honourable citizens sacrifice so much for a public cause? Jessica Ernst has sacrificed more in the past 10 years than most citizens do in a lifetime. Yet, the courts which are intended to provide justice, fairness, equity and other balances in a society that highly favours the powerful institutions – governments and corporation – have blown an opportunity to fulfill a meaningful role in Canada.

What was the basic issue in Ms. Ernst’s lawsuit? The well water on her farm near Rosebud was allegedly contaminated as a result of fracking by a multi-billion-dollar energy company.

Shame on the Supreme Court of Canada. You missed an opportunity to provide justice for an aggrieved citizen. Shame!

Al Barnhill

Lethbridge

21 Responses to “A missed opportunity for justice”

  1. phlushie says:

    Mr, Barnhill, I second your views. Good letter, I have always maintained that large corporation do not abide by social conscience but are driven by pure greed and will defend their right to this greed with vigor and high priced lawyers.

  2. already extinct says:

    Thanks for stating Jessicas plight so well Al.

    If this is a Canadian value people chirp constantly about and try to ram down throats…. well let me just say, when news of Jessica Ernsts’ defeat at the hands of the regime was first broadcast, I didn’t sleep well that night and have been thinking constantly of this wonderful woman since. I can’t shake the travesty of it!

    Now I worry even more for the sorry state we find ourselves mired in especially after she and her legal team failed to get justice not only for her but anyone, who at any time could find themselves in the same predicament, feeling as devastated, broke, dealing with a totalitarian system, a broken life, a broken livelihood – alone – trying to fight the beast involuntarily paid for by you and me!!!

    Canadians I hope you’re proud!

    And as for those Canadian women like our own transition allowance laden former Conservative MLA,, burning up the carbon in their protest march on Washington Saturday, shouldn’t they all be participating in something useful on this side of the border – marching on Parliament Hill for Jessica?

  3. manby says:

    Couldn’t agree more.

  4. biff says:

    well said – our top court has been consistently rendering decisions of late that have reduced the power of the human citizen while giving top priority to the corporate entity. i am left to wonder if there ever will be, and what ever might be, the spark that awakens the masses to what is happening to our country.

  5. GHG says:

    “And to cover its decision, the Court said that Ms. Ernst should have pursued a judicial review of how the regulator handled her complaints about fracking. That’s a cop-out by the court, especially given that the regulator returned her letters … unopened.”

    That’s exactly why a judicial review was the right step to take. Instead she tries to end-run a well established process. Plus she hasn’t lost the ability to sue the companies involved.

    Have at ‘er.

  6. chinook says:

    5 of the 9 Justices used the immunity clause to get AER off the hook. Also they were afraid that a win for
    Jessica (& justice) would set a precedent & with that could start all kinds of law suits. So their decision
    was rooted in fear. I find that irresponsible & cowardly. No way AER should be above the law.

  7. biff says:

    her water is ruined. this is not some accident of nature. there is a long history of fracking destroying fresh water sources (not to mention the waste of and destruction of fresh underground waters) and the regulator should have been aware of this. by allowing the fracking that took place, the regulator must be responsible as the regulator is all we have to keep the peace between the human citizen and the corporate entity in such instances. the regulator failed to protect the human citizen and should therefore be held to account. the regulator should then be able to go after the corporate entity to further recover costs.

  8. Mike says:

    The original letter is seriously flawed with unsubstantiated leaps of logic. With one exception the critics pile the buffalo chips higher than ever. Much of the underground water is salty and unusable. Fracking can contaminate shallow aquifers, only when the fracking is shallow. Most fracking takes place well below impermeable rock and over a mile beneath the potable water.
    Some shallow water wells are contaminated without any activity by man.
    The lobbyists return but the truth does not.

  9. annie57 says:

    An excellent letter Mr. Barnhill.

    “The abuse of power by corporations and government bureaucracies are two of the major weaknesses of democratic systems.”

    I would argue that this abuse of power extends all the way up to Canada’s Supreme Court as well.

    After reading the judgment, I think some of Justice Abella’s reasons for decision are alarming to say the least, especially considering she was the swing judge.

    As I understand it, Justice Abella wrongly and inappropriately labels Ms. Ernst as a vexatious litigant, and applies it to the reason Ms. Ernst was banished by the regulator: “When the Board made the decision to stop communicating with E, in essence finding her to be a vexatious litigant, it was exercising its discretionary authority under its enabling legislation.”

    But later, Justice Abella admits that Ms. Ernst was not a litigant at all when the regulator banished her (never mind a “vexatious” one): “Rather than seeking judicial review of the Board’s decision to stop communicating with her when she was first informed of this in November 2005, Ms. Ernst waited two years and then filed a statement of claim on December 3, 2007, an amended statement of claim on April 21, 2011, and a second amended statement of claim on February 7, 2012.”

    Perhaps Justice Abella will one day read Andrew Nikiforuk’s award-winning book Slick Water, on frac’ing and the Ernst case. So that she may be informed of, and understand the facts – clearly – as to why it took Ms. Ernst so long to find a lawyer willing to sue the behemoth Encana and government water and energy regulators – for law violations, water contamination, and fraud by all of them – in trying to cover it up. And why this important case has required amended statements of claim – as allowed by Alberta’s Rules of Court. And how, during such time, Ms. Ernst was not “waiting” for anything. On top of the challenge of finding legal representation in Alberta; Ms. Ernst was struggling to live with, and fully understand, the horrific industry impacts and abuses that had been forced upon her by the company and their government enablers. And the industry frac frenzy had only just begun.

    Interestingly, Justice Cromwell makes no mention of the label “vexatious litigant,” and Chief Justice McLachlin rebuts it: “Our colleague Abella J. suggests that the Board, in deciding to stop communicating with Ms. Ernst, ‘in essence f[ound] her to be a vexatious litigant’ (para. 64). We see no basis for our colleague’s characterization.”

    I find it deeply disturbing that the use of such derogatory labels and untruths have found their way to our Supreme Court – and into the decisions of justices overseeing issues of such immense public importance.

    I expect and understand this type of twisted garbage coming from industry, government, regulators, synergy groups, and greedy, uneducated (about industry’s impacts) community members – I do not expect or understand this coming from our Supreme Court. So I think the obvious question is WHY?

    If Justice Abella is confident in her reasons for decision against Ms. Ernst, why is it necessary to inject a falsehood and defame Ms. Ernst, in what appears to me to be an attempt to justify the regulator’s actions? What is the purpose of this?

    I think what Ms. Ernst’s case clearly shows us; is that there will never be justice – as long as the abuse of power continues.

    “What was the basic issue in Ms. Ernst’s lawsuit? The well water on her farm near Rosebud was allegedly contaminated as a result of fracking by a multi-billion-dollar energy company.”

    Stunning, isn’t it. But now, coupled with the atrocious Supreme Court decision, it’s an even more powerful incentive for frac-targeted communities to fight against and ban oil and gas extraction. Why would Canadians put themselves in the way of MORE harm and abuse? Better to sidestep it altogether.

  10. annie57 says:

    Mike,

    “Fracking can contaminate shallow aquifers, only when the fracking is shallow.”

    When you say “shallow,” do you mean like the coal bed methane fracs where a company injects over 18 million litres of frac fluid directly into a community’s fresh water zones, as happened in Ms. Ernst’s community?

    “Canadian Association of Petroleum Producers (CAPP): Past operations have contaminated water resources:

    CAPP’s Alex Ferguson says many worries about water quality are based on past operations involving coal-bed methane — shallow deposits in closer proximity to groundwater. These did occasionally contaminate water resources, he says. In some of the more infamous instances, affected landowners could light their well water on fire.”

    ernstversusencana.ca/the-lawsuit

    “Some of the same toxic contaminants found in sampling by the EPA at Pavilion were found by Alberta Environment in groundwater at Rosebud, and were dismissed, ignored or reported incorrectly by the Alberta Research Council. The wholly owned government agency was notified of the errors and omissions, but did not correct them as is required to maintain laboratory accreditation in Canada.

    The contaminants include: diesel range organics, benzene, toluene, ethylbenzene, xylenes, phthalates, and tert-butyl alcohol which is used in hydraulic fracturing and not expected to occur naturally in groundwater; tert-butyl alcohol (TBA) is a known breakdown product of methyl tert-butyl ether (MTBE, a fuel additive), also used in hydraulic fracturing and not expected to occur naturally in fresh groundwater.”

    frackingcanada.ca/industrys-gas-migration

    Or do you mean “shallow” like the oil fracs near Ponoka, where industry admitted they “blew the cap rock to hell?”

    “Ronalie Campbell comment: ‘At a hearing with a local oil company and government official present, the oil rep blurted out “it wasn’t us, it was Encana, CNRL, and all those others before us that blew the cap rock to hell.”‘”

    ernstversusencana.ca/aer-albertas-new-energy-regulator-seeks-the-worlds-trust-as-albertas-caprock-is-fracd-to-hell

    “‘Oil wells on the Campbell property have caused gas from 1,757 metres to enter their aquifer,’ said Muehlenbachs, a world expert on the fingerprinting of stray oilfield gases.

    A separate 2011 study by J.D. Mollard and Associates concluded that bedrock fractures or natural faults might have created ‘enhanced permeability pathways’ for hydrocarbons to move into local aquifers.

    If the regulator permitted hydraulic fracturing in an area already made insecure by natural fractures, ‘then they are in fact negligent’ and would be liable for water contamination, added Muehlenbachs.”

    thetyee.ca/News/2013/10/18/Alberta-Energy-Regulator-Dispute/

    Or do you mean “shallow” like the tar sands fracs where, again, industry blew the cap rock to hell?

    “Steam Injection Fracking Caused Major Alberta Bitumen Leak

    Review finds fractures spread like cracks on a frozen lake, resulting in uncontrolled seepage.

    A new independent technical review on the cause of a large and costly 2013 bitumen leak in northern Alberta found a form of hydraulic fracturing that injects steam into the ground to be the main culprit.

    The panel, appointed by Canadian Natural Resources Ltd. to review its initial findings on the cause of the leak at its Primrose facility, also documented that industry frack jobs, contrary to industry claims, can break cap rock, shoot out of zone, link to natural fractures and penetrate into groundwater.

    Fractures made by CNRL, one of the country’s largest bitumen extractors, not only connected to natural fractures in the area, but also cracked their way through several non-targeted formations.

    These industry-induced fractures then penetrated ‘generally impermeable shales’ and passed through groundwater before erupting to surface more than 500 metres from the original targeted zone in the Cold Lake oilsands region of Alberta.

    … At CNRL’s Primrose operation, the company injected an ‘excessive fluid volume’ into the formation that lifted the ground by nearly a foot, fractured the protective shale cap rock, and created ‘vertical hydraulically induced fractures’ through several different formations way above the zone containing bitumen.

    … ‘Uncontrollable enabling conditions’ for the incident included the tendency for hydraulic fractures to move vertically in one formation and then to connect to natural fractures and faults in the next. The report suggested that neither industry nor the provincial regulator sufficiently understand all the operational risks and geological hazards …

    … the technical review, written by four engineers with more than 120 years of experience in the industry, argues that industry activity can connect to natural fractures, impact groundwater, fracture beyond target zones, and induce uncontrollable reactions underground.”

    thetyee.ca/News/2014/07/24/CNRL-Seepage-Review/

    Or do you mean “shallow” like the shale gas fracs that are causing frac quakes and deformed well bores?

    Unfortunately, as the senior petroleum geologist for the BC OGC pointed out; aquifer contamination is not the only threat residents will be dealing with.

    “A recent presentation by Dan Walker, senior petroleum geologist for the BC Oil and Gas Commission, identified public safety, property damage, well bore integrity (the shaking can cause wells to leak methane) and aquifer contamination as genuine hazards from industry quakes.

    … 
In addition to the need for comprehensive seismic monitoring and event reporting, Walker said one of the key lessons learned to date was that ‘areas considered to be high risk for induced seismicity should be considered for exclusion from development.'”

    thetyee.ca/News/2015/07/21/Fracking-Industry-Changed-Earthquake-Patterns/

    “A recent talk by Usman Ahmed, the vice president of Baker Hughes, a major fracking company, highlighted the chaotic and non-linear nature of cracking shale rocks which are already under high stress.

    Ahmed said that 70 per cent of unconventional wells in the U.S., even with fracking, do not meet their production targets; that 60 per cent of all fracture stages are ineffective; and that 73 per cent of operators say they do not know enough about the subsurface, let alone where the faults are.

    He ended his talk by asking that the industry ‘avoid faults and geohazards.'”

    thetyee.ca/News/2015/02/02/Fracking-Quakes-Study-Required/

    And seems frac’ing faults doesn’t just get things moving and shaking. According to industry, these faults may provide pathways for frac toxics to our groundwater … an “undesirable consequence,” of course.

    “The public concern about connections from the treatment zone to groundwater aquifers can be answered with these data. From the perspective of fault activation, often this is an undesirable consequence of hydraulic stimulation if these faults provide pathways for fluid to escape formation. Again, being able to position these faults with respect to the reservoir stimulation is of prime concern.”

    geoconvention.com/archives/2013/284_GC2013_Felt_Seismicity_Related_to_Hydraulic_Fracturing.pdf

    “Fracking can contaminate shallow aquifers, only when the fracking is shallow.”

    Would you mind providing your definition of “shallow?” Thanks.

  11. phlushie says:

    @annie57. Well put. May be our Minister of Environment should read this and divert some of the carbon tax to straighten these things out. After all it is the petroleum people that are doing this environmental contamination.

  12. already extinct says:

    Annie57 – how is it possible to tell you that your research and depth of knowledge, although lost on “industry, government regulators, synergy groups, & greedy, uneducated community members” is so valued in this lingering discussion – Thank You Thank You Thank you.

    I too highly recommend Nikaforuk’s “Slick water” not only for the SC judge, but for anyone who may desire a quick education so they might weigh in to this discussion with some deeper background than what they learn from 30 second sound bites on radio or TV! In my opinion the Ernst case will not be better summarized in fewer words that what Andrew accomplishes in that book.

    Also of note – an often overlooked common denominator, in the thousands of cases like Jessicas, worldwide that end in a money exchanging ceremony involving a landowner and the energy company who has buggered up their life, is the greed & the travesty of the “buy off”. This is where a powerhouse like Encana worth tens of Billions, dispatches a troop often with suitcases of money, plop it down on the table, get a signature, and depart – end of problem landowner, fouled water, and public scrutiny.

    This is how energy companies ,and government regulators et al are able to obfuscate and indoctrinate the “uneducated” sheeple with falsehoods like – “there’s never been a case proven where hydraulic fracturing compromised the water table” . These magicians of manipulation, and deception more often than not move into a community and not only initially bugger up & foul private land (?) we grow our food and forage our cattle, but they worm themselves, endear themselves into the hearts, minds and pockets of the “community” – buying something you can’t see, feel or touch – silence.

    EnCana did just that in Rosebud when they wrote a check to that communities largest industry and asset the – Rosebud Theater – a sum of money ( $100,000- I believe it was) that would have taken that little theater company years to turn on their own. That blood money effectively bought them and that small community – the intended consequence – turning them against Ms.Ernst.

    Of course with the “gifting” comes the gag order. GAG ORDER – the only reason we have a discussion today – Jessica Ernst, refused the buyout, the bate, the greed, the lust for money – she’s not only one of the most principled women ever in the history of landowners entanglements with energy companies and reckless government’s allowing the destructions, but she’s also one dam lonely and broke fighter, making the near ultimate sacrifice for something the rest of us flush our toilets with, water our lawns with, make our morning coffee with and put out for the dog with not a thought about how precious it really is – clean drinking water.

  13. Mike says:

    Thanks for the facts. Can we expect all activities to be zero risk. What percentage of sites contaminate their surroundings?

    • phlushie says:

      @Mike, Normally the risk taker pays the price of failure or damage. But this does not hold with big corporation. It is the innocent people that pay the price of risk failure. If I step into the street and get hit by a car, I suffer the consequences. If a corporate vehicle hits me crossing on a green light in a cross walk;their lawyers will prove that I was at fault.

  14. Mike says:

    I don’t agree with your example. If you are wearing a headset and using your cellphone when you enter the crosswalk, a good lawyer and a reasonable judge might find you partially responsible for the accident.
    My question remains: How many incidents of groundwater contamination have been proven, beyond reasonable doubt, to have been caused by fracking?
    Are you also aware that the Taber area is home to a large number of old well sites that are used to dump fracking waste? Take a trip north of Taber and see for yourself. Have any of them caused a problem? I really don’t know but I need more than theoretical studies to make a case. Please give us proof.

  15. annie57 says:

    already extinct,

    You’re welcome. And excellent points!

  16. annie57 says:

    Mike,

    “My question remains: How many incidents of groundwater contamination have been proven, beyond reasonable doubt, to have been caused by fracking?”

    Probably the best people to ask would be the lawyers who are drawing up the gag orders. As already extinct so astutely pointed out, gag orders are the go-to for an industry trying to keep their contamination a secret. And basically, there are some things the industry doesn’t need to know (or want you to know), rather, they need you, your family, and every other water-dependent human to “shut-up,” so they can “do it again” to your family, friends and neighbours “down the street.”

    I think the AER’s lead counsel does a bang-up job explaining how that works:

    Glenn Solomon, lead counsel for AER – “Okay, we damaged your water well. We’ll just set you up with potable water through a tank system forever, because, you know, we just spent a million dollars drilling this well that we made a hundred million on. And it’s costing us an extra three hundred thousand. We’re okay.

    You know, we don’t need to litigate with you, we don’t even need to know that it was our fault. We’re just happy to pay you. And by the way by doing that you shut up, the regulators stay off our back, we get to do it again down the street. And so that’s the oil company approach on these (things).”

    youtube.com/watch?v=LKuCR3hHmf4

    And then there’s the Alberta Government’s lead counsel. He seems to think it’s not looking good.

    “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.”

    thetyee.ca/News/2014/04/18/Anti-Fracking-Suit/

    “Are you also aware that the Taber area is home to a large number of old well sites that are used to dump fracking waste?”

    What do you mean “dump?” Injection wells?

  17. biff says:

    annie, i fully appreciate the thought, knowledge and effort you put into your incredible responses. phlushie thank you for your intelligent support. al ex, strong and intelligent input. i do not know this woman but i know the drill, so to speak. if you or i were to poison water or the environment to just a fraction of the degree these fracking rats are permitted, we would be successfully sued and likely jailed. bobbleheads run our society for the biggest dirtmongers on the planet. the terrible thing is we put them there with our illiterate x each “election”. doesn’t seem to matter the party name, it always is the same party for the big money cartels. meanwhile, if we ever really needed something as reverent as a god, it should be fresh, clean water.

  18. already extinct says:

    Before we close on this lets once again thank Al Barnhill for raising the issue of Jessica’s saga.

    There are a ton of people who actually think they know what goes on in these circles but very few actually do, and if they did they would be appalled and parading in the streets like they will in the states tomorrow (over nothing) ,in denunciation of the travesty this sector represents – and they don’t give one dam who they destroy, if they are unsuccessful buying them out.

    Curiously we here nothing from Spiller up north, about how all his “oil friends” and “banker” buddies feel about this life altering debacle. He’s irreverent anyway!

    But one more thought from me. About 1985, a friend of mine got caught up in Alberta environmental BS. This guy had been changing the oil in his vehicles for years – tossing the used oil on his driveway to keep the road dust down. He lived in a rural area, on a dead end road, 8 miles from the nearest town.

    One day a do-gooder came to buy some eggs, noticed the oiled road, bought the eggs and on the way home dropped into the town office to register a complaint – environmental contamination.

    This one act rightly or wrongly cost this man a fortune, by the time the provincials got through with him, and of course he ceased the road oiling project.

    The irony of this is that one half mile up the road the government yearly oiled the road for 8 miles to keep dust down, but that had approval.

    The energy companies drop one hell of a lot more oil into our environment, each year, and they dodge the bullet, thanks to a toothless AER and now to the supreme court of Canada. These anarchists can now foul a water supply and there is absolutely nothing in law that will prevent them from doing so. The people have been defeated – for the moment!

  19. annie57 says:

    biff, phlushie and already extinct,

    Thanks guys. Good talk 😉


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