The Last Road to Redemption
We thought we were doing the right thing by not supplying the information.
~ Rob Semeniuk - Spokesman for Alberta Innovates-Technology Futures (formerly Alberta Research Council - ARC)
Landmark Fracking Lawsuit Starts with Twist in Alberta
EnCana Weighs In
Speaking of Cooperation ...
2009 - USA
EPA investigators explained that because they had no idea what to test for, they were relegated to an exhaustive process of scanning water samples for spikes in unidentified compounds and then running those compounds like fingerprints through a criminal database for matches against a vast library of unregulated and understudied substances. That is how they found the adamantanes and 2-BE.
An EnCana representative told the crowd that the company was as concerned about the contamination as the residents were, and pledged to help the EPA in its investigation.
Some people seemed confounded by what they were hearing.
"How in god’s name can the oil industry dump sh*t in our drinking water and not tell us what it is?" shouted Alan Hofer, who lives near the center of the sites being investigated by the EPA.
"If they’d tell us what they were using then you could go out and test for things and it would make it a lot easier, right?" asked Jim Van Dorn, who represents Wyoming Rural Water, a nonprofit that advises utilities and private well owners on water management.
"Exactly," said Luke Chavez, the EPA’s chief Superfund investigator on the project. "That’s our idea too."
Now that the EPA has found a chemical used in fracturing fluids in Pavillion’s drinking water, Chavez said the next step in the research is to ask EnCana for a list of the chemicals it uses and then do more sampling using that list. (An EnCana spokesman told ProPublica the company will supply any information that the EPA requires.) The EPA is also working with area health departments, a toxicologist and a representative from the Centers for Disease Control’s Agency for Toxic Substances and Disease Registry to assess health risks, he said. ... more.
'Yes, We're Doing It Now' - Encana's Testimony to a Parliamentary Committee Stating Their Cooperation in Publicly Disclosing All the Chemicals Used in Fracking
2010 - Canada
MP Nathan Cullen: Mr. Dunn, to bring you back to another conversation, we had one of your competitors up earlier committing publicly to disclose the chemicals used in the fracturing process. Is that something Encana is doing right now or is willing to do in the future?
Mr. Richard Dunn (Vice-President, Canadian Division, Regulatory and Government Relations, Encana Corporation): Yes, we’re doing it now.
MP Nathan Cullen: You’re doing it right now. Again, just to be clear, because this committee has to write a report and recommendations to government to change the regulations to require companies—all of your competitors and Encana—to release information on all of the chemicals used in the fracturing process, I assume you would have no problem with that because it encourages greater public confidence in your operations?
Mr. Richard Dunn: Yes, absolutely, I agree with your comments on increasing public confidence and full disclosure.
US Federal Agency Seeks Full Cooperation and Disclosure in Federal Water Contamination Investigation - EnCana Declines
2011- USA
Throughout its investigation in Wyoming, The EPA was hamstrung by a lack of disclosure about exactly what chemicals had been used to frack the wells near Pavillion. EnCana declined to give federal officials a detailed breakdown of every compound used underground. ... more.
A Look at Encana’s Efforts to Obtain Ms. Ernst’s Cooperation
1986 - Stated in Ernst (Feckley) historical water well record, Gas Present: NO
1998 - Jessica Ernst purchases her property in Rosebud. Water? No problem.
In 2003, at the urging of a neighbor whose water had gone bad after Encana's fracturing, Ms. Ernst decided to have her water tested. At her request, Encana tested the water, including for metals. The report results state the water appearance as clear and below the detection limit for chromium and potassium.
Courtesy Jessica ErnstAs Encana continued to carry out the secret shallow drill and frack program however, things began to dramatically change.
Courtesy Jessica Ernst - from Truth & Consequences of Frac'ingThis letter is in response to questions in your email dated September 11, 2006 related to Encana’s proposed CBM completion in the existing 07-13-027-22 W4M gas well.
Other residents weren't as fortunate to receive a trackable, expired offer.It’s Never Enough
Courtesy Jessica ErnstUnfortunately for Albertans, it seems it doesn’t matter how contaminated or dangerous our water becomes, companies can continue their frenzied drilling and fracking and the ERCB ensures business as usual, but before a company can be approved for a licence to drill, they must abide by specific ERCB regulations.Is a Regulation Really a Regulation if it's Not Enforced?
Courtesy Jessica ErnstThis seems pretty straight forward, if there are questions and concerns about a life-altering experiment about to take place near you, they must be addressed BEFORE a company files their application with the ERCB. Glaringly absent in Encana’s September 2, 2010 letter to Ms. Ernst, however, was the acknowledgement or answers to many of her questions and concerns sent to them in a letter dated and faxed August 17, 2010. 
Numerous ERCB staff have told Albertans, myself included, in public meetings that it is our responsibility to ask questions, get educated, and persist in getting our questions answered and information that we need to protect ourselves, our families and community, businesses and property.The ERCB Responds, Two Weeks Later.
... The ERCB takes all allegations of non-compliance events very seriously.Unaddressed Concerns Remain ...
Board Determines Fate of 'Surface Occupants' After Water Deemed 'Safe' in Alberta Fracking Contamination Cases
The Board decides whether the test under subsection 26(2) is met on a case-by-case basis, taking into account the specific facts and circumstances of each application and any objections received.
Courtesy Jessica Ernst
Courtesy Jessica Ernst... In January 2005, the consulting firm concluded that the silt in Kenney’s new water well was related to “inappropriate design.” The high levels of nitrogen found in the water “did not appear to be a result of the stimulation of the 05-14 Gas Well.” Or in plain language: The nitrogen is a freak occurrence, and the dirty water is the water-well driller’s fault. The report dismissed the possibility that nitrogen used in the shallow gas-well fractures had migrated into the groundwater, along with anything else that might have been in the gas well.
A growing gaslandIn our opinion, this is akin to allowing a gang of bullies to assess and explain the injuries of a child they just pulverized. Fearing repercussions, they might rationalize how poor head control resulted in a face that repeatedly landed on the bottom of their boots, similar to a kid in another country suffering a paper cut, but since a life could be at stake, you may want to draw the line at the gang recruits and bring in a specialist to have a look at those internal injuries - preferably one who doesn't play silly buggers, toss or withhold the results, and isn't interested in signing a gag order or being bullied themselves.
Migrating gases send water spewing out of the water well.
This is dangerous and life-threatening. If you witness such an atrocity, get the hell out of there and call 911.
A matter of time ... three men seriously injured and hospitalized when the water well explodes and burns
But, Maybe There's Hope ...
... the plan is to test all wells within a 1-mile radius, EnCana Regulatory and Land Advisor Brenda Linster said. She said as a good neighbor, the company would return the water to its pre-drilling condition if need be.
Landmark Alberta Fracking Lawsuit Resumes in Calgary Court
Alberta’s Key Regulator Argues It Has No Duty of Care to Landowners and Groundwater
Friday Jan. 18 at Court of Queen’s Bench
Suite 705-N, 601 – 5th St SW, Calgary T2P 5P7
10 AM to 4 PM
Jessica Ernst, a 55-year-old oil and gas industry consultant and scientist from Rosebud, Alberta, returns to court this Friday to continue her multi-million dollar lawsuit against EnCana, one of the continent’s largest unconventional gas producers, for negligence causing water contamination.
Her landmark lawsuit also alleges that the Alberta Energy Resources Conservation Board (ERCB), the province’s energy regulator, breached her Charter Rights and failed to “exercise a reasonable standard of care, skill and diligence in taking reasonable and adequate steps to protect her well water from foreseeable contamination caused by drilling for shallow methane gas.”
Recent Court of Appeal decisions show the ERCB has a history of not upholding its own laws and even the Royal Society of Canada chided the agency for a 2007 incident in which the regulator spied on landowners and damaged “its credibility as an independent quasi-judicial board.”
In a court document filed on December 5/2012, the ERCB argues that it is exempt from liability for its actions in the Ernst case and that it owes no “duty of care” to landowners impacted by oil and gas development.
“I suspect that most Albertans will be shocked to learn that the province’s oil and gas regulator is arguing that it is totally immune from legal accountability even if there is gross negligence and incompetence,” says Murray Klippenstein, lawyer for Jessica Ernst.
Last December, an ERCB investigation found a company guilty of “accidentally” perforating above the Base of Groundwater Protection and contaminating groundwater near Grand Prairie but issued no fine saying the incident “posed an insignificant risk to drinking water resources” in a sandstone aquifer. One third of Alberta’s population is dependent on groundwater for drinking purposes.
During the last decade, EnCana intentionally perforated and fractured hundreds of gas wells above the Base of Groundwater Protection at Rosebud. The regulators continue to allow EnCana to do this.
In December 2012, only after about 171,000 energy wells were already fractured in Alberta, did the ERCB release draft regulations. Public input closes the day of this hearing on January 18, 2013.
The $33-million lawsuit effectively puts on trial the practice and regulation of hydraulic fracturing: the controversial blasting of both shallow and deep coal, tight sands, oil and shale formations with toxic chemicals, sand and water.
The poorly studied technology, which can cause earthquakes and methane leaks, has sparked moratoriums, bans, debates and regulatory investigations from New Brunswick to South Africa due to growing concerns about groundwater contamination, property devaluation, air pollution, health impacts and climate change.
Neither EnCana nor the Alberta regulators have yet filed statements of defense on incidents that took place nine years ago that resulted in scores of groundwater complaints.
EnCana, whose CEO abruptly resigned last week, has been the subject of many recent public controversies. It remains the subject of a major US government groundwater study in Pavillion, Wyoming linking hydraulic fracturing to aquifer contamination as well as an ongoing antitrust investigation in Michigan for allegedly colluding with Chesapeake Energy to keep land prices low. A grassroots organization of mothers has also challenged the company’s aggressive fracing operations in Colorado.
EnCana received record fines from Colorado’s Oil and Gas Commission for contaminating water in 2004.
Murray Klippenstein: 1-416-937-8634
Jessica Ernst: 1-403-677-2074 (cell: 403-436-2062) contact@jessicaernst.ca
Background
A 2008 scientific review panel report for Alberta Environment warned that “preliminary data from the Rosebud, Alberta area suggest groundwater gas concentrations are being underestimated by a factor of three.”
A 2008 presentation to the International Wellbore Intergrity Network in Paris, France, co-authored by the ERCB, admitted “high pressure fracturing” increased the potential to create pathways to groundwater, and “the likelihood that gas, due to migration through shallow zones, can accumulate in buildings.”
A 2009 paper also co-authored by the ERCB on gas migration being a chronic problem reports that “high buildup pressures may potentially force gas into underground water aquifers” and that the factors affecting gas leakage and migration “can be generalized and applied to other basins and/or jurisdictions.” ... more.
How Alberta Will Fight Fracking Folk Hero Jessica Ernst
In famous flaming water case, regulator to argue 'no duty of care' to landowners or groundwater.
Photo - Colin Smith
By Andrew Nikiforuk, 16 Jan 2013, TheTyee.ca
Alberta's main oil and gas regulator will argue in an Alberta court this Friday that it owes "no duty of care" to protect groundwater from hydraulic fracturing and that a regulator can violate the basic rights of citizens if it regards them as an "eco-terrorist."
In a landmark case that has attracted global attention, Jessica Ernst, a 55-year-old scientist and oil patch consultant is suing the Energy Resources Conservation Board (ERCB), the Alberta Environment and Encana for contaminating her water well with methane and other chemicals nearly a decade ago.
The $33-million lawsuit, which has attracted media attention around the world, effectively puts the practice of hydraulic fracturing on public trial.
The high-pressured injection of large amounts of water, sand and chemicals to shatter hydrocarbon-bearing rock formations can cause earthquakes, contaminate groundwater and result in significant releases of methane into the atmosphere.
Originally filed in 2007, the Ernst lawsuit alleges that Encana drilled and fracked gas wells into the local groundwater supply between 2001 and 2004 near Rosebud, Alberta and polluted her water well.
'Implications for many jurisdictions'
Instead of upholding its own policies and investigating the contamination, the ERCB then violated Ernst's rights under the Canadian Charter of Rights and Freedoms by banishing the landowner from the board's investigation and complaint process, adds the claim.
"What the Ernst claim is saying to the Canadian public is that groundwater contamination by shallow hydraulic fracturing happens," says Murray Klippenstein, the Toronto lawyer representing the landowner.
"The claim says that it happened to her and this injustice should be recognized and properly redressed in the public interest. The power and carefulness of the courts shall be the solution here. Her case has implications for many jurisdictions."
Neither Encana nor the ERCB have yet filed statements of defence on incidents that took place nine years ago. At the time industry drilled and fracked thousands of shallow wells in a coal formation in central Alberta resulting in scores of groundwater complaints, protests and public meetings.
Encana, whose CEO Randy Eresman abruptly resigned last week, is no stranger to controversy. The company, which is struggling with debt and an over-reliance on controversial shale gas production, remains the subject of a major U.S. government groundwater study in Pavillion, Wyoming, that has linked hydraulic fracturing to aquifer contamination.
Michigan authorities are also investigating the company for allegedly colluding with Chesapeake Energy to keep land prices low. Encana, the target of a mysterious bombing campaign in northern B.C. in 2008, also received record fines from Colorado's Oil and Gas Commission for contaminating water in 2004.
Energy board's 'duty of care' stops where?
A common complaint among Alberta landowners is that the ERCB reacts slowly to public concerns. It was one of the continent's last oil and gas regulators, for example, to table regulations on hydraulic fracturing.
Several recent court decisions also show that ERCB has a history of not upholding its own laws.
In 2010 the Royal Society of Canada, the nation's top scientific organization, criticized the board for 2007 incident in which the regulator spied on landowners and damaged "its credibility as independent quasi-judicial board."
In a court document filed on Dec. 5, 2012 lawyers representing the ERCB argue that a regulator charged to develop oil and gas resources in the public interest owes no duty of care to protect a citizen's groundwater.
Furthermore the Ernst lawsuit does "not indicate omissions on the part of the ERCB but a failure of the ERCB to act in accordance with the Plaintiff's expectations."
Klippenstein says the ERCB's arguments are both unusual and unorthodox.
"I'm taken aback by the position that the ERCB is openly arguing before the court. I think most Albertans would not be comfortable with a regulator that says it is basically immune from legal accountability in a democracy no matter how incompetent and negligent they are. That's a very unusual position for a regulator."
A mine regulator owes a duty of care to miners to ensure their workplace is safe and municipalities owe a duty of care to their residents to ensure building codes are enforced, adds Klippenstein. Why should an oil and gas regulator not be held accountable for "negligent failure to comply with established government policy?" he asks.
Plaintiff rejects energy board's 'ecoterrorist' accusation
In addition the board argues that its governing statutes provide immunity not only "for negligence but gross negligence, bad faith and even deliberate acts."
"If indeed the legislature wishes to grant such sweeping and total immunity to a government agency that has such an important role in the lives of rural Albertans, it must do so specifically and with clear wording," replies an Ernst legal brief. "It has not. The legislature has failed to include omissions."
The ERCB legal defense brief also portrays Ernst as an "ecoterrorist" and says it ceased all communication with her out of concern of violence in 2004 after Ernst made an offhand comment about "the Wiebo Way."
Wiebo Ludwig was a northern Alberta landowner who orchestrated a unprecedented campaign of industrial sabotage against the oil and gas industry in the late 1990s after five years of civil complaints and little regulatory response. Since then hundreds of landowners in Alberta and British Columbia have made comments about "the Wiebo Way."
A legal brief submitted by Ernst's lawyers argue that the ERCB's allegations are not supported by public evidence and amount to character assassination.
A transcript of a taped conversation with an ERCB lawyer read and heard by this reporter seems to contradict the contents of this ERCB brief. In 2006 a board lawyer admitted to Ernst and a witness that the agency had no real safety concerns with Ernst, but disliked her public criticism of the board because it had become "humiliating."
"The ERCB takes the prejudicial, vexatious, unsupported and wholly unsupportable position that the 'expression' the Plaintiff seeks to protect was a 'threat of violence' and that the ERCB ceased communication with Ms. Ernst 'in order to protect its staff, the Alberta public and the Alberta oil and gas industry from further acts of eco-terrorism.' This is a prejudicial and irresponsible accusation that is entirely without foundation."
Adds the brief: "If the ERCB wishes to advance its patently absurd and irresponsible theory that Ms. Ernst's offhand reference to Wiebo Ludwig was somehow a 'threat of violence,' and that an appropriate response to 'protect against further acts of eco-terrorism' was to cease communication with the Plaintiff, it must do so by forwarding cogent evidence. The ERCB has not, and frankly cannot, put forward such evidence."
Government wants words struck from plaintiff's brief
Last year the RCMP charged a mother of three children in central Alberta, Kim Mildenstein, for writing a threat against an oil and gas company after a dangerous volume of fracking traffic threatened the safety of children at a local school.
Louis Frank and two other women from the Blood Nation Reserve were also arrested for blockading a fracking vehicle in southern Alberta in 2011.
Mildenstein pleaded guilty and was sentenced to a year of probation while the Crown dropped all charges against Frank last year.
In contrast Ernst has never been arrested or charged with uttering threats of any kind.
Lawyers representing Alberta Environment are asking for the removal of more than a dozen paragraphs from Ernst's amended statement of claim. In particular the government wants any mention of other landowners and other water wells struck from Ernst's claim such as the following sentence:
"By mid 2005 Alberta Environment knew that a number of landowners had made complaints regarding suspected contamination of the Rosebud Aquifer potentially caused by oil and gas development."
Government lawyers say such statements are irrelevant and improper because the government might have to respond to "similar fact evidence." The government also argues that the use of words such as "hazardous" and "pollutants" to describe groundwater contamination are "argumentative and should be struck."
A 2004 study by the U.S. Environmental Protection Agency on the fracking of coal formations warned that the practice could contaminate aquifers and well waters: "If fracturing fluids have been injected to a point outside of the well's capture zone, they will not be recovered through production pumping and, if mobile, may be available to migrate through an aquifer."
Water that combusts
A New York Times investigation found evidence of groundwater contamination by fracking as early as 1987 in coal formations. It also found that industry routinely covered up evidence of groundwater contamination by writing landowners a large cheque and then demand they sign confidentiality agreements.
A peer reviewed 2011 study by Karlis Muelenbachs, a world expert on identifying oil and gas drilling pollution, found extensive contamination of water wells in the Rosebud area due to cumulative oil and gas drilling and fracking combined with leaking wellbores. "Years of intensive resource exploitation in agricultural areas have left an impact on some domestic water wells," concluded the study.
The Ernst lawsuit has dragged on now for years. Both industry and government first argued for a shorter statement claim. Then they petitioned to have the court case moved from rural Alberta (Drumheller) to Calgary, where fewer people are directly impacted by hydraulic fracturing.
"This kind of determined legal battling goes on frequently whenever someone challenges government or corporations who have lots of resources to fight with," explains Klippenstein, one of Canada's top litigation lawyers.
Prior to extensive CBM fracking in central Alberta, only four of 2,300 historic water well records within a 50-kilometre radius of Rosebud showed any presence of methane.
But after Encana fracked the region, Ernst reported so much methane flowing from her kitchen tap that it whistled like a freight train and could be set on fire. Bathing burned her skin.
Her lawsuit, the first of its kind in Canada, has given Ernst, a shy and private researcher, folk hero status throughout rural communities in Ireland, New York, Michigan, New Brunswick, Quebec, Nova Scotia and Western Canada.
Tyee contributing editor Andrew Nikiforuk has been writing about this case since 2004. Find his previous Tyee articles here.
Fracking: Feds Throw Wrench in High Profile Lawsuit
Judge suddenly promoted; plaintiff Ernst sees strategy to 'delay and exhaust.'
By Andrew Nikiforuk, 22 Feb 2013, TheTyee.ca
In a stunning move the Harper government has thrown another hurdle before a high profile Alberta lawsuit that seeks to put the regulation of hydraulic fracturing on public trial.
Last week the Department of Justice appointed Honourable Barbara L. Veldhuis, a Court of Queen's Bench judge presiding over the landmark case, to the Court of Appeal of Alberta. The promotion effectively removes Veldhuis from the multi-million dollar lawsuit.
Moreover, Veldhuis was about to rule on whether or not Alberta's energy regulator could be sued by a landowner for failing to uphold provincial rules, protect groundwater and respect the constitutional rights of Canadians.
The Harper government's appointment now means another judge will have to be appointed to hear the case, which has attracted global attention including the United States, Australia, Poland and Ireland.
'Another attempt to delay and exhaust': Ernst
Both industry and government have repeatedly tried to bog down the lawsuit with a variety of tactics including the withholding of freedom of information requests as well as an order to draft and submit a shorter statement of claim.
Veldhuis' abrupt departure could mean considerable added delay as well as additional costs of tens of thousands of dollars for landowner Jessica Ernst. The oil patch consultant has been waging her battle since 2005.
"This reappointment is not justice but another attempt to delay and exhaust the plaintiff," Ernst told The Tyee. "But I will not be dissuaded. Most people would give up now. But I'm defending truth and the future of water in this province and I will not quit."
"I've been bullied. My constitutional rights have been violated. The regulator even banished me. I've had the RCMP on my doorstep. But I won't be intimidated by the abuse of power," says Ernst.
Members of industry have verbally harassed and threatened Ernst. Someone threw one of her dogs under a train.
The practice of hydraulic fracturing, the injection of large volumes of water and chemicals into hydrocarbon bearing formations miles underground, has been the subject of global controversies due to lax groundwater protection, inadequate science and captive regulators.
Quebec has placed a moratorium on the practice while rural communities in South Africa and Australia have locked their gates to shale gas fracking operations to defend groundwater and livestock.
What Ernst lawsuit is about
The $33-million lawsuit alleges that Encana, one of Canada's largest natural gas producers, drilled and fracked shallow coal bed methane wells directly in the local groundwater supply between 2001 and 2004 near Rosebud, Alberta and thereby polluted Ernst's water well with enough toxic chemicals and methane to make it flammable.
In addition the claim details how Alberta's energy regulators, the Energy Resources Conservation Board and Alberta Environment "failed to follow the investigation and enforcement processes that they had established and publicized" despite direct evidence of industry-caused pollution and public admissions that shallow fracturing puts groundwater at risk.
Just last month Justice Veldhuis presided over a hearing of the landmark lawsuit in a Calgary court room where more than 80 citizens including a dozen from Rosebud, Alberta showed up to support Ernst.
Ernst, however, did not attend. She showed up at the Drumheller courthouse where, by law, her case would ordinarily be heard.
However, lawyers for government and EnCana successfully argued to move the case to Calgary where fewer people are directly affected by oil and gas drilling.
During last month's hearing lawyers representing Alberta's ERCB argued that the regulator can't be sued and that it owed "no duty of care" to landowners or groundwater, a public resource.
Ernst lawyer Murray Klippenstein replied that regulators do owe a duty of care to public resources like groundwater because contamination travels and impacts other citizens. Moreover a regulator cannot enact laws or make decisions that violate the basic constitutional rights of citizens especially when they ask the regulators to uphold the law in the public interest.
To date Encana, the Alberta government and ERCB have not yet filed statements of defence on incidents that took place nine years ago. At the time industry drilled and fracked thousands of shallow wells in a coal formation in central Alberta resulting in scores of groundwater complaints, protests and public meetings.
Fracking coal bed seams was so experimental at the time that even industry workers referred to the practice as "Hail Mary Fracks."
According to Canada's Auditor General more than 200,000 wells have been hydraulically fractured in western Canada since the 1950s. Another 7500 high volume, and multi-stage fracking operations, some of the largest in the world, have taken place in British Columbia since 2005.
Yet neither Environment Canada nor Health Canada have a full understanding "of the substances contained in hydraulic fracturing fluid and the risks associated with the hydraulic fracturing process." Proper risk assessments have not been done on many fracking chemicals.
Recent scientific studies have conclusively found that multi-stage, high volume hydraulic fracturing can cause earthquakes, compromise wellbores, penetrate other oil and gas wells and contaminate both shallow and deep groundwater especially in landscapes that have previously witnessed high volumes of conventional drilling.
In addition methane leakage from intensively fracked gas fields can be as high as nine per cent -- a fact that makes shale gas operations a greater climate threat than coal analysts have calculated.
A 2012 study by master's student Virginia Palacios found more than 60 cases of groundwater contamination being investigated by the Texas Groundwater Protection Committee after extensive hydraulic fracturing in the Texas Eagle Ford play. It also found that neither regulators nor the industry kept adequate baseline groundwater quality data "to assess potential groundwater contamination from oil and gas exploration in the Eagle Ford shale region."
Encana's former CEO, Gwyn Morgan, has raised money for the federal Conservatives in the past and once advised the government of Stephen Harper. The retired executive now advises BC Liberal Leader Christy Clark.
A note on Encana's website says the company "has always firmly believed that Ms. Ernst's claims are not supported by the facts and her lawsuit is without merit."
Alberta's Top Judge to Hear High Profile Fracking Case
Chief Justice Neil Wittmann volunteered to take over the case after the Harper government promoted Honourable Barbara L. Veldhuis, a Court of Queen's Bench judge presiding over the landmark case, to the Court of Appeal of Alberta last month.
By Andrew Nikiforuk, 29 Mar 2013, TheTyee.ca
Alberta's top judge will be the new case manager for a celebrated multi-million lawsuit on the groundwater impacts of shallow hydraulic fracturing by scientist Jessica Ernst against Encana and Alberta regulators.
Chief Justice Neil Wittmann volunteered to take over the case after the Harper government promoted Honourable Barbara L. Veldhuis, a Court of Queen's Bench judge presiding over the landmark case, to the Court of Appeal of Alberta last month.
The promotion effectively removed Veldhuis from the celebrated lawsuit and threatened months of delay and additional cost for the plaintiff.
Moreover Justice Velduis was about to rule on whether or not Alberta's energy regulator could be sued by a landowner for failing to uphold provincial rules, protect groundwater and respect the constitutional rights of Canadians.
A lawyer representing the Energy Resources Conservation Board, Alberta's oil and gas regulator, had argued that it owed "no duty of care" to groundwater systems that sustain surface waters or to individual landowners.
Murray Klippenstein, the Toronto-based lawyer representing Jessica Ernst, welcomed the new judge to the case.
"The fact that the chief justice of Alberta's Court of Queen's Bench will be the case management judge in this case is indicative of the importance of the issues raised by Jessica Ernst's lawsuit," Klippenstein told The Tyee.
"We hope that the case can now move forward without unnecessary delay. Albertans are entitled to know what really happened in Rosebud." (Rosebud is a pretty hamlet north of Calgary where Encana has done extensive shallow drilling for coal bed methane.)
Rural Albertans' resolution wants stricter regulations
The practice of hydraulic fracturing, the injection of large volumes of water and chemicals into hydrocarbon bearing formations miles underground, has been the subject of global controversies due to lax groundwater protection, inadequate science and captive regulators.
Quebec, Germany, Bulgaria and New York state have placed a moratoriums on the practice while rural communities in South Africa and Australia have locked their gates to shale gas fracking operations to defend groundwater and livestock.
On March 19 the Alberta Association of Municipal Districts and Counties (AAMDC), which represents much of rural Alberta, voted overwhelmingly in favor of a resolution calling for stricter regulation of hydraulic fracturing and higher levels of protection for groundwater in the province.
The resolution calls on the Alberta government to directly map all groundwater and its contents; perform pre and post seismic testing on frack jobs; and "Protect surface and groundwater supply by imposing a minimum wellbore casing depth below aquifer zones."
In addition the AAMDC called for "the cessation of the use of fresh water to the oil and gas industry for the hydro-fracking and water injection process in all areas of Alberta as fresh water is required for human consumption."
Wheatland County Councillor Brenda Knight, who is not opposed to oil and gas development done right, says she introduced the resolution after gathering evidence on several hydraulic fracturing incidents in her county.
They included groundwater contamination, water well losses, improper well casing, and large openings that have appeared unexpectedly in the ground. In one case a farmer "lost his tractor in a spring that opened up."
The practice of hydraulic fracking has been around for a long time says Knight. "But it used to be a Model-T, now it's a Lamborghini" in terms of horsepower deployed to shatter oil and gas formations.
"We have to stay ahead of oil and gas companies. We can't stay idle. They've changed their technology and maybe its time to change some of our regulations."
Protecting landowners and the environment is not exactly "a rocket science," adds Knight. "Groundwater is the source of life for our household and our cattle. We can't ruin that."
Ernst's long, $33 million battle
Jessica Ernst is a resident of Wheatland County, a large area east of Calgary that has witnessed heavy drilling and fracking for coal bed methane and tight gas in recent years.
Her $33 million lawsuit alleges that Encana, one of Canada's largest natural gas producers, drilled and fracked shallow coal bed methane wells directly in the local groundwater supply between 2001 and 2004 near Rosebud, Alberta and thereby polluted Ernst's water well with enough toxic chemicals and methane to make it flammable.
In addition the claim details how Alberta's energy regulators, the Energy Resources Conservation Board and Alberta Environment "failed to follow the investigation and enforcement processes that they had established and publicized" despite direct evidence of industry-caused pollution and public admissions that shallow fracturing puts groundwater at risk.
To date Encana, the Alberta government and ERCB have not yet filed statements of defense on incidents that took place nine years ago. At the time industry drilled and fracked thousands of shallow wells in a coal formation in central Alberta resulting in scores of groundwater complaints, protests and public meetings.
A statement on Encana's website says it has been "safely and responsibly producing natural gas" and that Ernst's claim "is without merit."
The ERCB moved to strike the case last year. Its lawyers have argued that the regulator, an agency that landowners largely distrust throughout the province, is immune from lawsuits. The board's legal representatives have also written that the regulator owes "no duty of care" to citizens complaining about groundwater contamination because such a finding would create " a flood litigation."
Justice Wittmann will consider how best to re-hear arguments presented in a crowded Calgary court room last January. He will either read the transcripts or require a rehearing of the arguments.
Prior to his appointment as chief justice three years ago Wittmann served as a popular Calgary judge and prior to that he worked as partner for the law firm Code Hunter Wittmann for 27 years.
Wittmann also co-authored a book about environmental liabilities and damages titled Western Canadian Hazardous Waste Management & Liability in the 1990s. It was published by the Canadian Institute in 1989.
Alberta Fracking. Jessica Ernst Versus The Corporate/Government Enemy.(A Case For History.)
When the stakes are high enough, then the corrupt alliance – the Corporation/Government/Court enemy will do … anything. Watch them.
By Robin Mathews, April 12, 2013, The Straight Goods
Take off the gloves. Take off the rose-tinted glasses. This is (as they say) for real. Alberta is after Jessica Ernst. And Alberta knows how to do it, has known for a long time. Alberta (you might say) means business (pun intended).
Almost no one in the ordinary population of Alberta (and fewer in the rest of Canada) understands the importance of the Jessica Ernst “fracking case” against Encana Corporation and the Alberta regulators (and against the Stephen Harper government as an active silent partner of the two others).
To win against someone fighting for the community, fighting for their own good and the good of others, Alberta knows there are steps to take. Alberta knows them all. There are six steps. The last one is the most important, the least visible … the most painful.
Step One: manoeuvre judges until the right one is in place. Alberta and Stephen Harper just did that. They manoeuvred Justice Barbara Veldhuis off the Jessica Ernst case against Encana Corporation and Alberta regulators. They manoeuvred Neil Wittmann, Chief Justice of the Alberta Court of Queen’s bench, onto the case. Step One achieved.
They’ve known how to do that part of it for a long time. In the 1960s case for false arrest and malicious prosecution against then mayor of Edmonton William Hawrelak, the City Solicitor, and the Edmonton Chief of Police they did it. We had a sure case. We (the inexperienced plaintiffs) were moved from judge to judge to judge (being, as they say, ‘remanded’, for as many reasons as there were judges) until the last one.
Nice lawyers told us “he’s been waiting to get you”, waiting till enough remands put him on our case. Then? Well … then … I was convinced the case was carefully, embarrassingly rehearsed. Almost every witness for the Defence, I was certain, carefully perjured himself with the able assistance of the presiding judge … and our careless and inattentive lawyer. Rehearsed perjury. Almost everyone helping. Smooth as silk. We lost the case.
In the Kelly Marie Richard recent dental malpractice case in Calgary I believe judges were set up and changed whenever it was necessary to defeat Ms. Richard. She tells the story. Go to
http://www.therichardtriggcase.com/summary.htm
The BC Rail Scandal trial is the poster case for judge-changing. After almost three years on the case, immersed in its complexities, Justice Elizabeth Bennett was lifted out by Stephen Harper in 2010 and replaced with Justice Anne MacKenzie – and the whole trial lurched out of shape, as - I am sure - it was intended to do. Gordon Campbell, long-time premier of B.C. and alleged king-pin in the corrupt transfer of BC Rail to the CNR, was moved seamlessly by a Stephen Harper appointment to the position of Canadian High Commissioner in London, where he remains.
Step One: manoeuvre the judges to get the right one(s) in place. Step Two: manufacture, obstruct, or erase evidence as required. Step Three: Delay.
Even four hundred years ago, Shakespeare wrote (in Hamlet) about “the law’s delay, the insolence of office”. Alberta learned fast … about delay. Delay – as Jessica Ernst will no doubt tell you – is about bankrupting the claimant, dragging her, him, or them through expensive, unnecessary, time-consuming, stressful, unpredicted and unpredictable, destabilizing … delay. [Like the removal of Barbara Veldhuis and the waiting…and waiting…and waiting for prima donna Neil Wittmann …. ] Delay is about getting the person or persons fighting for self and community so worn down and bankrupted they quit. Simple.
When the stakes are high, when the claimant won’t quit - that’s not all. Few in Alberta, fewer in the rest of Canada, know just how high the stakes are in the case Jessica Ernst is taking against Encana Corporation and the Alberta Regulators. (And against the Stephen Harper government as an active silent partner of the two others.)
When the stakes are high enough, then the corrupt alliance – the Corporation/Government/Court enemy will do … anything. Watch them.
Step Four: change the regulator, re-name government bodies, appoint brazenly odious agents to head up regulation, write new legislation to stop the next Jessica Ernst. In short, do real and public relations things to block, confuse, and mask the issue. In response to the appointment of Gerald Protti to head Alberta’s new Energy Regulator, Mike Hudema of Greenpeace Canada was dumbfounded. Amazed. Wrongly. The appointment of Protti is – I believe - intended: both a threat and a promise of jackboot response to resistance.
Five: Threaten. The RCMP has already carefully questioned Jessica Ernst but has questioned none of the defendants.
Sometimes the threats get worse. In the 1960s Edmonton case against the mayor and others, ‘they’ threatened my life and the lives of our children. On the phone. Real people. Several times. A pleasant experience everyone should have. In Kelly Marie Richard’s recent Calgary malpractice case, Defence (with RCMP help) tried to get Ms. Richard (sharp, intelligent, capable) named mentally incompetent to act in court, threatened to force her into (quack?) psychological examination. That was only one of the threats used against her.
Step Six is the least visible, and the most important. It’s very simple. Destroy the person or persons taking the case.
Wouldn’t it be easier, you say, to take Jessica Ernst into a corner and say: “Get off our backs. Leave us alone. We’ll give you a lot of money – not $33 million, but a lot of money. Sign a note of confidentiality, keeping the agreement secret. End the bad publicity for us – and live happily ever after.” Jessica Ernst has already said she won’t go that secret route. Ever.
Encana Corporation and the Alberta regulators won’t go that route either. You may be sure. That would be to lose. They have to win, they think ... no matter how they use lawyers and judges and RCMP to violate and trample the Canadian judicial system. I believe, they think they have to do everything they can to destroy Jessica Ernst. They believe they dare not lose.
After years of Kelly Marie Richard’s tenacious struggle wouldn’t it have been easier for the insurance company to take her aside and say “we’ll give you a lot of money, out of court, with a secrecy agreement? Just go away.” They wouldn’t do it. In their heads, I believe, they couldn’t do it. In their heads they didn’t dare lose – no matter how they had to use lawyers and judges and RCMP to violate and trample the Canadian judicial system.
Her case was based upon scientifically evidenced orthodontic malpractice. She couldn’t lose her case. And so it never really started. But it’s over. Completed, you might say, though it never was permitted to begin as a normal trial in court.
All the five steps were taken against Kelly Marie Richard and her sons in a long Case Management court battle in which (then) Associate Chief Justice of the Alberta Court of Queen’s Bench Neil Wittmann was in charge of assigning judges, of manipulating (Kelly Marie Richard alleges) Case Management, and being deaf to pleas of improper behaviour. Richard’s absolutely clear, scientifically foolproof evidence of dental malpractice was never permitted to be presented in a fair trial!
Think about that. Kelly Marie Richard’s foolproof, scientific evidence was not permitted to be presented in fair trial in a case that ran six or seven years! That must be a record. Even for Neil Wittmann. Her “summary” [referenced here] only covers four years of Case Management, but her court torture went on … and on.
ING was the insurer for dental malpractice. CGI was the contracted corporation to supply court/legal services. McLeod Dixon was the law firm engaged against her.
In any honest court I am certain Kelly Marie Richard’s case could not receive a judgement in the insurance company’s favour. Period. And so she had to be destroyed. Kelly Marie Richard and her two sons ended up penniless, ruined, and in need of important, expensive care for the damage done by their orthodontic “treatment”. Their incontrovertible evidence was never seen by a trial judge or a jury.
Step Six: destroy the claimant. A fair, real trial taking place, won openly and publicly for the claimant is the same as an out-of-court settlement with a confidential, secret agreement. BOTH are a signal to other injured parties to act. Both show that genuinely wronged ordinary people facing huge corporations can get justice from Canadian courts. That idea had to be killed. I believe the present odious alliance of Alberta government, corporations, and the higher court (with Stephen Harper’s assistance) intend to kill - if they can – the possibility of justice in the Jessica Ernst case.
During the Kelly Marie Richard case she received a message from an expert telling her that if she won, her victory would be impetus for other, genuinely injured parties to undertake cases. And so she had to be destroyed. If she was carefully and completely destroyed financially, socially, and in every other way possible, the message to others would be “DON’T TRY. No matter how badly you have been injured and no matter how badly the public has been injured, DON”T TRY. Look what we did to Kelly Marie Richard and her sons. We’ll do it to you, too. SO DON”T TRY.”
Think of Jessica Ernst. Think of the increasing number of recorded injuries done to water quality, to water table levels, to agricultural operations, to property and to persons by hydraulic fracking in Alberta alone, as well as elsewhere in Canada, in Australia and other countries around the world. Think how Jessica Ernst’s victory will echo and echo around Alberta, around the rest of Canada, and around the world.
Think how quickly it will turn the corporation/government alliance to reform, to repair, to pass proper legislation, to set up genuine and meaningful oversight of operations … and more. Think of the number of payouts Encana Corporation, the Alberta regulators - and their counterparts around the world – will have to pay out to genuinely injured people. Just think….
You may be sure that is what Alison Redford, Stephen Harper, Encana Corporation*, the Alberta regulators, Neil Wittmann, and Gerald Protti, for instance, are thinking about every day. That is why I believe their intention is to destroy Jessica Ernst. Five of the six steps to stop people like her have already been set in motion. The sixth step is: Destroy Her.
Canadians must say – with growing and aggressive determination - “Jessica Ernst must win”. Canadians must be absolutely determined that Jessica Ernst will win – that the Corporate/Alberta government/higher court/Stephen Harper corrupt alliance will not be able to destroy her but will be forced to serve justice and Canadian democracy.
Jessica Ernst HAS to win her case – for herself, for Canadians, for Canada, for the Rule of Law, for democracy in Canada, for the world. Canadians can make sure Jessica Ernst has a full and fair trial. They must insert themselves into the conflict in whatever ways are necessary to assure she gets justice … to assure we all get justice in the matter. Something that will stop Step Six is an angry and informed public ... and the public exposure of every dirty trick undertaken by the corrupt alliance.
*Encana Corporation Annual Shareholders Meeting, Tuesday, April 23, 2:00 p.m., Hotel Arts, Spectrum Ballroom, 119 – 12 Avenue Southwest, Calgary, Alberta.
Be there.
Got Questions?
This is important to all Canadians, it's not about what one community member will never be able to regain ... but what we all stand to lose.