Special Series: Twelve Canadians

Mano a Mano With Big Oil

By David Kattenburg

This past holiday season, a massive ice storm turned what should have been a joyous occasion into a horrid nightmare for tens of thousands of Torontonians. Family reunions were trashed, fridge-fulls of food spoiled, basements filled with frozen sewage water.

Eventually, power was restored, thanks to the valiant labor of municipal hydro workers. The almost equally squalid task of filing insurance claims now proceeds apace.

Those who viewed Toronto’s ice storm debacle with revulsion and a tinge of schadenfreude (how would Rob Ford acquit himself?) may wish to consider an entirely different, far more personal environmental disaster that continues to unfold:

Imagine what it would be like to have your water supply morph into a fire hazard; to have to haul this most precious of life’s resources from a public tap an hour’s drive from your home, in the dead of winter, because the liquid flowing from your own tap has been contaminated with methane gas and is liable to explode if you light a match.

This is the situation Rosebud, Alberta resident Jessica Ernst faces.

A decade ago, while fracking for coal bed methane in the Horseshoe Canyon formation, just outside the town of Rosebud, an hour’s drive east of Calgary, oil/gas giant Encana Corporation penetrated underground waters flowing into Ernst’s well.

Jessica Ernst demonstrates flammable well water

It took a while for the 56 year-old biologist and former oil industry consultant (Encana was one of her past clients) to make sense of what had happened — the whistling and howling of her water faucets; the burning sensation when she showered; her beloved dogs backing away from their water bowls.

Like other environmental warriors, Ernst dug and dug; she asked irritating questions and did her own research. Then she slipped into gear.

In April 2011, Jessica Ernst filed a whopping $33 million lawsuit against Encana, Alberta Environment, and Alberta’s energy regulatory agency — the Energy Resources Conservation Board at that time; now re-branded as the Alberta Energy Regulator (AER).

In the course of her struggle, Ernst managed to provoke the ire of the AER, which happens to receive 100% of its funding from the oil and gas industry. The AER declared her persona non grata, and refused to receive her correspondence. The AER has violated her rights under the Canadian Charter of Rights and Freedoms, Ernst says.

Jessica Ernst’s fresh water cistern

Jessica Ernst’s lawsuit seems to be a first. Never before has an individual Canadian sued an oil & gas giant, and the provincial authorities vested with the responsibility of protecting the public interest.

On the topic of public interest, in an apparent response to Ernst’s lawsuit, the Province of Alberta has modified its legislation in such a way as to block future lawsuits against the provincial energy regulator. Item 27 of the Responsible Energy Development Act, current as of November 30, 2013 (dubbed the “Ernst Clause” by some), states:

“No action or proceeding may be brought against the Regulator, a director, a hearing commissioner, an officer or an employee of the Regulator, or a person engaged by the Regulator, in respect of any act or thing done or omitted to be done in good faith under this Act or any other enactment.”

Water — possibly wastewater — has been spread on this road.

Upholding this change in legislation, in September 2013, Alberta Chief Justice Neil Wittmann ruled that the AER was immune from civil action. Ernst is appealing this ruling.

(Item 10 of the Act states: “The [Alberta] Public Services Act does not apply to (a) the Regulator, or (b) the directors, hearing commissioners, officers or employees of the Regulator.”)

For a concise and cogent summary of Jessica Ernst’s complex legal case, read this recent piece by Andrew Nikiforuk, Canada’s leading independent authority on Canadian petropolitics and oil/gas development.

Jessica Ernst is definitely one of our Twelve Canadians. Listen to her telling her story herself. Click on the audio button on the top of this page.

Twelve Canadians is a multimedia series about women and men who’ve been devoting their lives to social, economic or environmental justice, and to the healthy development of Canadian communities and the world. Each episode examines a specific issue or situation, through the voices of people who’ve been active in that area. Lots more than just twelve. Thanks to the Social Justice Fund of the Canadian Autoworkers Union for their generous support. Thanks as well to CKUW, University of Winnipeg Radio, and CFUV, at the University of Victoria.