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Supreme Court ruling in Ernst fracking case poses threat to Charter rights

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Today the Supreme Court of Canada rejected Alberta landowner Jessica Ernst's legal challenge to sue the Alberta Energy Regulator (AER) for denying her right to freedom of expression under the Canadian Charter of Rights and Freedoms. The court said that Ernst should have launched a judicial review of how the AER handled and defended the immunity clauses that shield government bodies from lawsuits. 

In 2007, Ernst launched a multimillion-dollar suit against the regulator, Alberta Environment and Calgary-based energy company Encana for negligence that contaminated her well water. Similar to cases in Josh Fox's documentary Gasland, her well is so contaminated with methane that she can light the water on fire.

Lawyer Laura Track told CBC News, "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, government actors may be immune from charter scrutiny...This decision has extremely concerning implications for people across the country seeking to hold governments accountable for potentially unconstitutional action." 

The Tyee reports, "The split ruling Friday -- five justices rejected her claim, with four supporting it -- is a setback for the protection of groundwater and the rights of landowners dealing with provincial energy regulators, often funded or captured by industry interests, say many critics and lawyers...The five justices in the Supreme Court majority concluded that immunity clauses are in the interests of 'good governance.'"

Ernst told the Tyee, "All Canadians have lost in this decision...Whenever any Canadian is harmed by pipelines or fracking and they present evidence of harm to a regulator and then that regulator ignores or denies that evidence, citizens can no longer sue for justice."

But Ernst is determined to continue to seek justice and says she will continue the battle. 
In Alberta, farmers and landowners are up in arms over the impact fracking is having on their drinking water, health, crops and farms. There are growing concerns of public safety with the fracking-induced earthquakes experienced in Fox Creek one year ago. A Western University expert has warned that earthquakes will be come "more frequent and stronger." 

In 2014, the Liberal Party of Canada (NWT) passed a resolution proposing a National Environmental Assessment of Fracking but no mention has been made by the Trudeau government since it came into power in 2015.

While a National Environmental Assessment of Fracking is critical to water protection, climate stability and public health, the Council of Canadians urges the Trudeau government to support communities' demands for a stop to fracking. The Council of Canadians calls for a ban on fracking to protect drinking water, people's health and public safety and to curb climate change.

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Image: Colin Smith

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