Victory in water contamination lawsuit

Shannon LeClair
Times Reporter

 

It has been a long-fought battle for Rosebud resident Jessica Ernst, and it’s one that’s not over yet. A former oil patch consultant, Ernst has been tied up in a legal battle against Encana, the Alberta Environment and the Energy Resources Conservation Board (ERCB) now known as the Alberta Energy Regulator (AER), all of which she is suing for different reasons that all lead to the contamination of her groundwater due to hydraulic fracturing.
The water in Ernst’s well, and others in the area, is so full of methane and other unknown contaminants that haven’t been disclosed that she can light her water on fire.
In May it was decided in the courts that Ernst did not have a case against the ERCB because they owe only public duties under the Charter of Rights and Freedom. The ruling is one she will be fighting to appeal in the Supreme Court of Canada.
“If I do win at the Supreme Court then all that it will mean is that I am allowed to sue the energy regulators, so it will send me right back to where I started from seven years ago,” said Ernst.
In court in April of this year, Alberta Environment’s lawyer tried to use the same claim as the ERCB had, stating they didn’t owe a private duty of care to individual landowners when investigating groundwater contamination. Part of the reasoning the case should be struck down, argued Crown Counsel Neil Boyle, was that it would open the floodgates and there could be millions or billions of dollars’ worth of damages.
It was also decided during the April court appearance that Encana should now proceed with the production of documents. Ernst had a deadline of Oct. 31, and Encana’s deadline is this Friday, Dec. 19. She filed her 2,179 documents and is now waiting to see what Encana will produce.
In November Ernst claimed a victory in the battle when it was ruled that she could in fact sue Alberta Environment for failing to investigate, and then remediate the water contamination near Rosebud.
While the Chief Justice Wittmann still said Ernst couldn’t make a claim against the ERCB, he did state that she does have an arguable claim against Alberta Environment and Encana for breaching private duties owed to her, and they may be liable to her for damages.
Wittmann also ruled that the government pay triple Ernst’s legal costs due to the improper manner that her claim was attacked.
Alberta Environment had until Dec. 8 to appeal the decision that they can be taken to court, but chose not to proceed.
“The Crown carefully and thoroughly reviewed the decision of the court to allow this matter to proceed and decided not to pursue an appeal. As this matter is still before the courts (the lawsuit is proceeding) we cannot comment further at this time,” said Michelle Davio with the Alberta Justice and Solicitor General Communications department, by e-mail.
Though the legal wheels are turning a little faster now, it could still be years before the case is before the courts for a final decision.
“One of the problems with lawsuits is they make them so horrible that people just as quickly as somebody offers money they settle out of court and sign a gag order so you never find out about them, and judges will allow these cases to be sealed. They need to be made illegal, these gag orders,” said Ernst
“I knew this case was going to be awful when I started it because it’s big billions of dollars and they do not want to be held responsible for the water contamination.”
Ernst has made it a choice, and her mission, to see those responsible for her water and others in Rosebud, to be held accountable and she will continue to fight until she has exhausted every option.