First Nations appeal Alberta Energy Regulator decision to suspend monitoring requirements

First Nations in northern Alberta have filed an appeal against the Alberta Energy Regulator after it issued sweeping decisions last month to suspend a number of environmental monitoring requirements across the oil and gas industry. 

The Athabasca Chipewyan, Fort McKay and Mikisew Cree First Nations say the two decisions, made without consultation, have clear consequences on the regulator's ability to identify and mitigate impacts to their traditional territory. 

"The decisions to suspend environmental monitoring were made unilaterally. We were not notified — in fact, we would have had no idea this had occurred if it had not been revealed in the press," Fort McKay Chief Mel Grandjamb stated in a news release.

"Consultation would have enabled us to inform the regulator how its monitoring decisions impact our Nations."

The regulator issued the decisions under the justification of COVID-19, after oil companies raised concerns about their ability to follow public health orders and fulfil some of their environmental obligations.

In the appeal, the First Nations say environmental monitoring is a required condition of any oil project's approval intended to help protect the human health of Indigenous communities.

When the AER issues decisions at the behest of oil companies without public consultation, the appeal argues, the regulator "undermines the integrity of the entire statutory regime for energy development in the province."

"A significant part of our concern is the lack of due process," Chief Archie Waquan of the Mikisew Cree First Nation said in a statement. "Industry should not be able to petition its own regulator to relax approval conditions with virtually no oversight." 

AER did not respond Sunday to a request for comment about the appeal. 

The suspensions, granted at a time when the province was beginning to loosen public health orders, do not specify which orders cannot be followed or why. The appeal argues there is nothing in the orders that would require a blanket prohibition on monitoring activities. 

"Indeed, many of the activities captured by the decisions are automated, conducted remotely or create fewer risks of transmitting COVID-19 than activities the AER continued to authorize," according to the appeal. 

The First Nations also criticized the lack of clarity in the decisions. For example, the AER suspended some surface water quality testing and analysis, but it's unclear whether that applies to tailings and industrial ponds, the appeal states.

As part of the listed suspensions, companies no longer need to monitor for fumes released by burning or conducting programs to detect and repair leaks of methane, a potent greenhouse gas.

The decision also suspended soil and groundwater monitoring until Sept. 30, except for "any monitoring that is necessary to protect human health and ecological receptors." 

When the decisions were issued, AER interim vice president Martin Foy said the suspensions were only provided for low-risk monitoring activities found to pose a COVID-19 health concern.

While Foy said the regulator would lift the suspension when it's safe to do so, the First Nations' appeal states that it would have been logical to tie the decision to the end of the public health emergency. 

Premier Jason Kenney announced in question period at the end of May that his cabinet would not renew the 90-day order-in-council declared under the Public Health Act when it expires on June 15. 

CBC News has asked the AER to provide copies of the oil companies' requests to suspend monitoring, however the regulator has said it did not keep a list of the requests.

A spokesperson said the requests, with varying levels of detail, were made to multiple staff through email or phone conversations.