This article originally appeared on The Tyee.

Two University of Calgary law professors have demanded Alberta’s energy regulator withdraw its “inaccurate and misleading” statement on a Supreme Court of Canada ruling that a landowner couldn’t sue it for alleged rights violations.

The court ruled Friday, in a split decision, that Jessica Ernst couldn’t sue the oil and gas regulator for allegedly violating her Charter rights.

The Alberta Energy Regulator posted a statement on its website in response to the highly technical ruling.

“The Court did not find there was a breach of Ms. Ernst’s Charter rights, and made no findings of negligence on the part of the AER or its predecessor the ERCB,” declared the statement.

But law professors Shaun Fluker and Sharon Mascher have written in a popular legal blog that the regulator’s claim isn’t true.

“The AER Public Statement is inaccurate and misleading, and is not the sort of action we would expect a quasi-judicial tribunal to consider appropriate,” they write. “The Supreme Court made no finding at all on a breach of the Charter in the Ernst decision.”

In 2007, Jessica Ernst, an oil patch environmental consultant, sued the Alberta government, Encana and the regulator for negligence over contamination of local aquifers near her Rosebud home allegedly caused by the hydraulic fracturing of shallow gas wells in 2004.

After Alberta courts ruled that Ernst could sue the government but not the regulator due to an immunity clause passed by the legislature, Ernst took her case to the Supreme Court.

Her lawyers and the BC Civil Liberties Association argued that an immunity clause should not prevent a citizen from suing for violations of Charter rights.

Ernst’s lawsuit claimed the AER breached her rights by branding her a security threat in 2005 and refusing to communicate with her unless she stopped criticizing the board publicly.

In a split ruling, five members of the Supreme Court dismissed Ernst’s Charter claim based on the immunity claim and the argument that she should have sought a judicial review of the regulator’s actions — something that lawyers familiar with Alberta courts say is almost impossible.

Fluker and Mascher question the Alberta Energy Regulator’s judgment in posting the response to the case.

“The Ernst proceedings are, at their core, allegations that the AER acted punitively,” they note. “One might think that a quasi-judicial tribunal, accused of acting like a bully, would be happy to let these sort of proceedings end quietly in its favour. But apparently not.”

“This Public Statement on the Ernst decision is long on self-vindication and short on facts,” they wrote. “Most problematic is that the AER incorrectly states the Supreme Court has cleared it of wrongdoing in its dealings with Jessica Ernst.”

The regulator’s statement said the Supreme Court “made no findings of negligence on the part of the AER or its predecessor the ERCB” (Energy Resources Conservation Board).

But the issue before the court wasn’t negligence but the constitutionality of the immunity clause, Fluker and Mascher note. “To suggest that the Court made no findings of negligence suggests that it made a finding of ‘no negligence’” they wrote.

The AER is responsible for overseeing the lifecycle of nearly 400,000 active and inactive well sites as well as bitumen mines, pipelines, coal plants and gas processing facilities. Its comprehensive activities affect groundwater, farmland, air quality, land prices, provincial revenues and First Nation rights.

But critics say the adversarial agency works for the oil patch and is now chaired by Gerard Protti, a former energy lobbyist, and is largely funded by industry.  

Among landowners the AER has a checkered history. In 2007, the regulator was caught spying on citizens opposed to a power line.

First Nations and environmentalists have also repeatedly criticized the board for restricting access to public hearings.

One 2014 review concluded “the institutionalized processes of participation have been restricted to the point of nullifying the possibility of effective, democratic control over the expansion of the tar sands.”

Although the AER is supposed to arbitrate disputes between landowners and oil and gas companies over pollution, land devaluation and public health impacts, it rarely performs that function, said Fluker in an interview.

“Any landowner who has a problem with industry has to go to the AER,” said Fluker who runs a public clinic to help rural citizens impacted by energy developers. “But they are not going to get a fair shake. The AER is there to look after industry and that’s a big problem.”

Diana Daunheimer, a landowner suing Bellatrix Exploration over pollution near her land in Didsbury, said the regulator is entirely captured by industry interests.

“The AER does everything in its power — which by the way is totalitarian — to discredit or disregard Albertans harmed by oil and gas operations,” she said. “The AER has no public interest or public health mandate. How can the AER purport to protect public safety, when they have no mandate to protect public health?”

When mother and landowner Kimberly Mildenstein raised questions about traffic congestion caused by fracking trucks in central Alberta between 2011 and 2012, she says the AER did nothing.

“Basically the AER listens to community complaints very well and then ignores them very well,” said Mildenstein. “As citizens residing in fractured communities, we are lured to believe regulation for our safety exists.” It doesn’t, she said. Mildenstein and her family eventually moved to Vancouver Island due to regulatory inaction on fracking abuses.

Some members of the legal community have expressed dismay over the Supreme Court ruling.

“The Charter 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,” noted Laura Track of the BC Civil Liberties Association.

“This decision has worrisome implications for people across the country seeking to hold government-appointed decision makers accountable for egregious unconstitutional actions.”

Ernst’s landmark lawsuit against the Alberta government and Encana over groundwater contamination caused by shallow gas fracking has now been before the courts for 10 years.

Not one piece of evidence has yet seen the light of day in court. 

In an email, the Alberta Energy Regulator’s senior public advisor Ryan Bartlett said the board welcomed comment from “all stakeholders” but “stands by its statement."

Image: Mysterious foamy water collected after heavy rainfall near a fracking site. Joshua B. Pribanic/Public Herald.

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This is a guest post by Ben Parfitt, resource policy analyst with the Canadian Centre for Policy Alternatives. It orginially appeared on policynote.ca.

Well, I won’t back down No, I won’t back down You can stand me up at the gates of hell But I won’t back down

— Jeff Lynne, Tom Petty

In the mid 1960s, the world’s two superpowers hit on a novel idea to try to coax more oil and natural gas from the ground. In what they hoped would prompt the release of “endless fountains of fossil fuels,” first the Union of Soviet Socialist Republics and then the United States of America detonated nuclear bombs belowground.

The hoped-for geysers of fuel never materialized. Instead, nearby oil and gas wells became contaminated with radioactive gases that in some cases later broke to the surface and swept over the homes of unsuspecting residents. Groundwater was polluted. And giant subterranean craters filled with cancer-inducing gases that no public power utility in its right mind would touch.

The failed experiments of a half-century ago were not, however, a surprise to those who were familiar with mining the earth’s depths for oil and natural gas. If anything, the nuclear detonations were simply part of a continuum that traced back to the mid 1860s in Pennsylvania. Flummoxed by the rapid decline in production from the world’s first intensively drilled oil field, wildcatters embraced the ideas of a Civil War veteran who sent torpedoes underground to stimulate oil flows.

The new technology, the magazine Scientific American enthused, “would fracture the rock, and clear the closed passages or make artificial ones reaching the oil veins.”

Many people would subsequently be blown to bits during well-torpedoing events and later with the use of nitroglycerin as a brute-force mining technology. But more oil flowed, and the era of hydraulic fracturing or fracking was born.

For Andrew Nikiforuk, the brutal antecedents to today’s fracking operations are critical to understanding what is going on now. Contemporary fracking involves pumping massive amounts of water, cancer-causing chemicals, fine-grained sands or artificial “proppants” belowground to fracture gas-bearing rock or coal formations. But the objective is no different than it was back when the industry and government played with nuclear bombs. Brute force is harnessed to fracture rock in an effort to make it let go of the oil and gas it stubbornly holds. And no amount of computer modeling has yet to make sense of how far those cracks or fractures will go or in what direction. “Chaos” reigns. And human life, human health, water, the environment, our climate be damned.

Slick Water: Fracking and One Insider’s Stand Against the World’s Most Powerful Industry, captures like never before how fossil fuel companies must do more and more to coax oil and gas from the ground. And how that each time more effort is made, the social and environmental costs mount. The publication of Nikiforuk’s most recent book could not be more fortuitous, as the B.C. government continues to woo energy industry giants to build liquefied natural gas plants on the province’s coastline: processing facilities that would link via new pipelines to the northeast interior of the province where B.C.’s largest natural gas deposits are located. The book should be required reading for every MLA.

Given the tricky geology where some of B.C.’s natural gas is found, unprecedented volumes of water would be required to “stimulate” gas production. To date, those stimulations or fracks in the northeast of the province have caused lake levels to drop dangerously low, triggered clusters of earthquakes, and led to “failures” or leaks at sites where highly toxic wastewater from fracking operations was allegedly safely stored. All of this and more occurred when drilling and fracking activities were a tiny fraction of what they would be were just one LNG facility to be built.

No one who has paid even modest attention to the controversies associated with fracking will have escaped noticing the many ways in which governments and oil and gas companies defend modern-day extraction techniques:

We drill and frack at such great depths that there’s no possibility of contaminating drinking water.

We pour cement around our wellbores to protect groundwater from gas leaks.

Household water that can be lit on fire and water wells that are filled with methane gas has nothing to do with us. Mother Nature is responsible.

In each case, Nikiforuk debunks such assertions with a wealth of data that will leave readers shaking their heads and questioning how, if at all, fracking operations can be conducted safely. But it is the human story — that of Jessica Ernst, a one-time energy industry consultant whose well water became heavily contaminated after Encana conducted numerous fracking operations in the aquifer that supplied her and other residents in and around Rosebud, Alberta, with their water — that is the most compelling, heart-breaking and anger-inducing.

And not just because of the shoddy, dismissive attitude that the energy company had when it came to what impacts its operations might have on peace and quiet and on water quality. More troubling by far is the almost complete lack of meaningful action, incompetence and acts of overt hostility and intimidation visited on Ernst by members of the Energy and Utilities Board (EUB), Alberta’s then energy industry regulator, provincial environmental officials, and the RCMP.

From the moment that the energy company began experimenting with extracting gas from shallow, thin coal seams in and around Rosebud in the early years of the last decade, Ernst was in constant touch with the company and provincial agencies. First about the horrendous noise associated with compressors that the company had installed near her home to push gas to the surface. (Imagine a jet engine roaring constantly not far from your backyard fence.) And then, about her water. Water that came from a well that had been given a clean bill of health with no gas present before the frackers arrived, and that after the frackers left was so contaminated with methane that the water pouring from Ernst’s taps and showerhead could be lit on fire.

But if the company and regulators thought that Ernst would roll over like so many had before her, they were wrong, although precedent was clearly on their side.

Over and over again, landowners who got angry enough and rattled the cages of the fracking companies long and hard enough eventually got a cheque. The cheque covered the cost of their house and land if they were lucky, and they moved on. But there was always a catch. Landowners had to first sign papers that amounted to gag orders. They got the money in exchange for their silence. The silence even extended in some cases to the written record itself. If a landowner had filed a claim against a company in court, the court records were sometimes sealed under a “protective order.”

It was clear whose interests were thus protected. But Ernst wasn’t — and to this day still isn’t — rolling over. Instead, three years after Encana encroached on the unsuspecting citizens of Rosebud and began what amounted to a giant experiment to frack and extract methane gas from shallow coal seams, Ernst sued Encana, the EUB and Alberta Environment.

“Gag orders erased history, Ernst realized, and allowed regulators to claim there had been no proof of contamination in the first place. To her way of thinking, the courts were participating in ‘criminal activity’ by allowing the gag orders. She had compassion for families who signed to protect the health of their children but only contempt for the authorities that willfully covered up industry’s dangerous methane liabilities.”

Eleven years after Ernst’s problems first began and nearly eight years after lawyers filed her lawsuit, Ernst is still awaiting justice. The slug-like pace of the legal proceedings coupled with the drying up of all opportunities for her to work in the oil patch means that Ernst is draining her life’s savings in the fight. But she is not backing down. Blessed with an encyclopedic memory and a willingness to go to the wall to extract information from a government that holds onto it about as stubbornly as a shale rock formation holds onto its trapped gas, Ernst has armed her lawyers with a wealth of information that may one day set a precedent that tens of thousands of other landowners living in harm’s way will thank her for. She has also become a folk heroine in the process, speaking on the dangers of fracking to audiences in Ireland, England, the United States and Canada.

Fourteen years ago, Nikiforuk wrote Saboteurs. Subtitled Wiebo Ludwig’s War Against Big Oil, the book recounted the horrors visited upon numerous rural landowners by encroaching natural gas operations, and in particular the toxic legacy of “sour” gas. Sour gas contains hydrogen sulphide, a neurotoxin that can be lethal at high enough concentrations and that has killed scores of workers in the oil patch. Farmers and ranches living in proximity to gas flares or gas lines, wells and other infrastructure that may leak such gas, frequently report that their cattle spontaneously abort. And then there are the miscarriages that have happened in farmers’ and ranchers’ homes . . .

Saboteurs went on to win a Governor General’s Award for non-fiction. In its first hardcover incarnation it featured a cover that looked like a stand-in for a still from a Quentin Tarantino film: a low-angle shot, of a thickly bearded Wiebo Ludwig, clutching a rifle. A light shines on Ludwig’s face, warming it and setting it off from the ominous gray sky behind him. He stares directly and somewhat impassively down into the camera. Behind him, a sign emblazoned in red and black block letters warns of the dangers to the local community of gas wells and orders the gas industry to abandon further operations.

Ludwig was eventually found guilty of sabotaging a string of oil and gas wells and infrastructure in northern Alberta. As the dispute between him and the industry intensified prompting one of the most expensive and bizarre police investigations in Alberta history, one company and one man in particular would become Ludwig’s primary adversary. That man was Gwyn Morgan, then president of Alberta Energy Company, which later merged with PanCanadian Energy Corporation to become Encana, a company that Morgan would go on to head and that would move aggressively into mining numerous “unconventional” gas reservoirs. Including, of course, those in and around Rosebud.

Ludwig was eventually stopped. Although another raft of sabotaging activity would subsequently occur in northern B.C., showing that for some “The Weibo Way” was the only way to deal with gas-drilling operations encroaching on their lands. The Weibo Way also factors into the Ernst story but in ways that one would not expect and that will leave readers shaking their heads at the levels to which vested interests will stoop to discredit those who seek justice.

Fourteen years into her battle with Encana and the Alberta government, Ernst is still very much on her own lonely path, continuing to remain strong in the face of government and industry adversity. She shows no signs of stopping. And there isn’t a shotgun in sight.

The Narwhal’s reporters are telling environment stories you won’t read about anywhere else. Stay in the loop by signing up for our free weekly dose of independent journalism.