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Woman can't sue Alberta regulator in fracking case: Supreme Court

OTTAWA _ The Supreme Court of Canada says an Alberta woman cannot sue the province’s energy regulator as part of her claim that hydraulic fracturing so badly contaminated her well that the water can be set on fire.

In a 5-4 ruling Friday, the high court rejected Jessica Ernst’s argument that a provincial provision shielding the regulator from legal action was unconstitutional.

Ernst began legal action against the regulator and Calgary-based energy company Encana (TSX:ECA) in 2007 and later amended her statement of claim to include Alberta Environment.

She alleges that fracking on her land northeast of Calgary released hazardous amounts of methane and other chemicals into her well and that her concerns were not properly investigated.

Ernst sought damages of $50,000 in claiming the regulator breached her constitutional right to free speech.

She said that from November 2005 to March 2007, the regulator’s compliance branch cut off contact with her, saying she must raise her concerns only with the regulator and not through the media or other public means.

Ernst claimed that infringed her charter right to free speech by restricting her communication _ effectively punishing her for the public criticism and preventing her from speaking out further.

The Alberta courts exempted the Alberta Energy Regulator from the case, citing immunity provisions in provincial law.

Ernst argued at the Supreme Court that the immunity clause in the Energy Resources Conservation Act was unconstitutional because it barred her claim for charter damages.

In the court’s reasons for judgment Friday, Justice Thomas Cromwell said Ernst could have asked a court for judicial review of the regulator’s purported bar on communication with her. If she had established a case, the court could have set aside the regulator’s directive, he wrote.

“While an application for judicial review would not have led to an award of damages, it might well have addressed the breach much sooner and thereby significantly reduced the extent of its impact as well as vindicated Ms. Ernst’s charter right to freedom of expression.”

Cromwell also noted the provincial regulator had the public duty of balancing several potentially competing rights, interests and goals. Allowing people to bring claims for damages against the regulator had the potential to deplete its funds and time.

In addition, Cromwell wrote, it could “chill” the regulator’s ability to carry out its duties in the public interest.