Alberta's Court of Queen's Bench has ruled
that the Energy Resources Conservation Board (ERCB) has statutory immunity to a claim by a landowner that it was
negligent in protecting the landowner's water supply from hydraulic
fracturing. The ERCB, or the Alberta
Energy Regulator as it is now known, is responsible for regulating Alberta's
oil and gas industry.
Jessica Ernst, an activist well known in
Canada for opposing hydraulic fracturing, alleged that between 2001 and 2006 oil
and gas company undertook shallow drilling to extract coal bed methane and, in
doing so, used hydraulic fracturing, which included the use of toxic chemicals
resulting in contamination of a local aquifer and Ernst's water well. Ernst brought her suit against the ERCB, the
Province of Alberta and the company.
The claim against the ERCB alleges that the
ERCB was negligent in that it failed to respond to Ernst's concern about water
contamination from the drilling, that it knew that the oil and gas company had
drilled into and fractured the aquifer from which she withdrew her drinking
water and that it failed to take reasonable steps to protect her water
supply. The claim also alleged that, by its
conduct, the ERCB breached the Canadian
Charter of Rights and Freedoms by barring Ernst from communicating with the
ERCB through the usual public channels, and thereafter ignored her for a period
of time until she agreed to communicate with the ERCB directly only, and not
publically through the media or through communications with other citizens.
The ERCB applied for Summary Judgment
dismissing the case against it.
The Court found that the ERCB did not owe
Ernst a private duty of care in the circumstances of this case but did owe her
a public duty derived from the Energy
Resources Conservation Act (ERC Act). However, as section 43 of
the ERC Act expressly provides that no
proceedings may be brought against the ERCB in respect of any act or thing done
by it under the ERC Act, the Court
ordered the allegations of negligence against the ERCB in the Statement of
Claim struck out.
This post was written by Alan Harvie (alan.harvie@nortonrosefulbright.com or +1 403.267.9411) from Norton Rose Fulbright's Calgary Energy Practice Group.
