|Thursday, 11 March 2010 23:59|
Rob Somerville, farmer from the Lake Sullivan area near Endiang did a masterful performance when he represented himself in Small Claims Court in Stettler on March 4, 2010. He was suing Canadian Natural Resources Ltd. (CNRL) for $25,000 in damages to restore his water source after he alleged seismic activity in the area ruined his water well.
Facing off against Somerville was CNRL’s Calgary corporate lawyer, their hired trial lawyer, Shannon Kelly, and witnesses from CNRL, the Alberta Government Department of Sustainable Resources, the Farmer’s Advocate Director, Jim Kiss, and an owner of a well drilling company.
Aside from the trial, which details are contained in a separate article in this issue (page ----), the shenanigans that go on in a courtroom regretfully leaves little hope for the little guy.
Now, don’t get me wrong, Judge J.D. Holmes was a fair judge. He assisted Somerville with the rules of small claims court, helped lead him through his testimony with good questions and explained why when he overruled him.
The Judge even made some poignant observations. Once when he Defence was arguing that the other wells in the area closer to the blasting weren’t effected, he suggested that argument wouldn’t hold much weight with him given that pictures from earthquake zones can show a completely demolished house sitting right beside a perfectly intact house.
I thought, however, the Judge should have admonished the Calgary trial lawyer just a little. Small claim courts aren’t run like regular trials. You can introduce new evidence and surprise witnesses without telling the other side. Mr. Somerville had prepared three tabbed binders, one for the judge, one for the Defence and one for himself so that his testimony could be organized. I thought it was quite brilliant for a layman.
However, Defence lawyer Ms. Kelly was in an obvious flap, flipping through the binder, sniffing and snorting and bitterly complaining to the judge on numerous occasions that some of these documents she had never seen before. The judge awarded her a 15-minute recess to look at all the new data, which as it turned out wasn’t more than five to 10 new pages.
Now when it was Kelly’s turn to take the floor, she introduced at least one or two new documents with each new witness. The size of the pile that accumulated on Somerville’s desk had to be in excess of 200 pages when done, and then Kelly sprang a surprise witness at the end of the day. Non-lawyer Somerville took all the additional evidence in stride, didn’t huff and puff and didn’t seek a recess to review. He did question the partiality of witness #4, Miles Lewis, owner/operator of Lousana Water Wells. Lewis had worked for both himself and CNRL. The judge overruled his objection.
Will Somerville win? Do cows fly? He has to prove without a shadow of a doubt that CNRL caused his water well to go dry.
Yet our government representatives can make subjective call when they decide whether a well has been affected by energy company activity. "There’s rust in the water." "The well is 30 years old." "The energy company, with ERCB’s blessing, says that blasting 180 metres or farther from a water well is perfectly safe". "That the well should have been flushed egularly" (last time was four years ago). And so on and so on. And these subjective observations are made by a guy with a Fish and Wildlife diploma and two years learning on the job about "water wells", and underground formations.
Three of the four witnesses for the Defence as they testified prefaced most of their "expert" comments with "typical" or "depends". The energy/government side get away with qualified "expert" statements loaded with waffle words. Yet the farmer, Mr. Somerville, is held to a much higher standard of proof – absolute proof.
Finally, look at the cost to we, the taxpayer. There are two civil servants wasting a whole day of work to testify on behalf of an energy company. The Judge and Clerk will cost taxpayers more than one day of work. h yeah, and then there’s that sheriff who spent the morning sitting in the back row sleeping, waking up only when the other sheriff came in to sit with him.
Yet farmers continue to vote for a government that quite franky ocks them by putting a Fish & Wildlife-trained guy into a position of deciding hether an energy company is responsible for water well damages from seismic dynamite blasts. Go figure!