This article was published by The Energy Mix on March 14, 2024.
By Gaye Taylor
Alleging “unconstitutional, negligent, and reckless actions,” the Athabasca Chipewyan First Nation is suing the Alberta’s Energy Regulator after it took nine months to inform the community about toxic tailings pond discharges into their territorial watershed at Kearl Lake.
Filed with the Alberta Court of King’s Bench, the lawsuit alleges “negligence, nuisance, breach of the duty to consult, breach of the Honour of the Crown, breach of fiduciary duty, and unjustified treaty infringement” by the AER, the Athabasca Chipewyan First Nation (ACFN) states [pdf] in a release.
Records show that Imperial Oil, the company that owns the Kearl oil sands mine, first informed the regulator about tailings leaking in May, 2022. But it would be another nine months before the ACFN learned of any problems, when a separate, massive tailings breach of at least 5.3 million litres of toxic water on February 6, 2023, led the AER to issue an immediate environmental protection order against the oil major.
The First Nation says it met repeatedly with the AER between May 2022 and February 2023. “Each meeting was an opportunity where they could have come clean, but they chose to hide the fact from us over and over again,” Athabasca Chipewyan chief Allan Adam told The Canadian Press at the time.
Leaking tailing ponds are not the only threat facing the Kearl Lake watershed. In September 2020, 20 months before the tailing seepage began, the mine went into temporary shutdown after a leak was discovered in a pipeline that supplies a diluent to thin out the sticky bitumen, allowing it to flow through other pipelines. “New booms have been deployed and wildlife containment measures taken,” an AER spokesperson told Bloomberg News at the time.
While the precise constituents of diluents vary, the liquid is often some kind of ultra-light crude / naphtha, and frequently contains benzene, a carcinogen.
Located in the northeast corner of Alberta, the ACFN says the AER’s failure to consult immediately and transparently with its membership after it learned from Imperial that the Kearl Lake watershed had been contaminated with oil sands effluent—laden with arsenic and other toxins—was part of a larger and “unconstitutional” pattern of managing tailing waste.
“The AER is supposed to regulate the energy sector in Alberta to ensure safety and environmental responsibility,” Adam said in the release. “They have spectacularly failed on this front.”
“The AER has also neglected ACFN’s constitutional right to be consulted and accommodated,” he added. “We will see the AER and Alberta in court to answer for what we say are their unconstitutional, negligent, and reckless actions and decisions.”
The decision to go to court has been a long time coming, the chief noted in a recent interview with the Globe and Mail. “They’ve always walked a fine line,” Adam said of the regulator. “This time, they stepped over the line.”
The ACFN will be asking the court to formally declare that the AER and Alberta infringed on the nation’s rights, and that Alberta’s regulatory policy framework for tailings management—which allegedly let the tailings discharges occur and go unreported for months—is deficient and unconstitutional. It will also be seeking a portion of the royalties Alberta earned from the Kearl Lake mine whilst the unacknowledged toxic seepage was going on, as well as C$500-million in damages, reports the Globe.
While the AER has maintained it had no responsibility to inform the First Nation about the tailings pond leak—arguing that this task fell to Imperial Oil itself—the regulator did commission a third-party review of its response to the incident.
Conducted by Deloitte, the review cleared AER staff of wrongdoing, but was critical of the regulator’s policies and procedures. Responding to the review, Indigenous leaders said it “did not go far enough in addressing problems that led to the incidents and kept people in the region largely uninformed about them,” writes the Globe.
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