Indigenous leaders say lack of oversight on tailings spills a danger to water rights

The chief of the Athabasca Chipewyan First Nation says new research on how the Alberta Energy Regulator (AER) oversees oilsands spills puts weight behind a negligence lawsuit the First Nation has filed against the regulator.

"We've always speculated that there was something wrong in regards to the AER [and] raised concerns that were alarming to the nation and the community of Fort Chip from the development upstream," said Chief Allan Adam.

"This report justifies the community's concerns."

Research published earlier this month in the Environmental Monitoring and Assessment journal says the "AER's stated policy of 'routine inspections' following tailings spills is not supported by the evidence."

After reviewing a decade worth of spill reports, Edmonton-based ecologist Kevin Timoney found only a fraction of spills — roughly three per cent — were inspected and, in the vast majority of cases, the regulator relied on information provided by oil companies instead of doing its own inspections. Five per cent of the spills had no inspection data at all.

Timoney concluded the regulator's claim of total recovery in three-quarters of spills were not credible.

"What I found raised a lot of red flags. The data were too good to be true," said Timoney.

He added two major recent leaks, which took place between May 2022 and February 2023 at Imperial Oil's Kearl facility, were notably absent from the data he reviewed.

Report backs up negligence claims against AER, says chief

Adam said the report amplifies the lawsuit Athabasca Chipewyan First Nation (ACFN) filed against the AER in March 2024. The lawsuit alleges negligence, nuisance, breach of the duty to consult and treaty infringements over the AER's failure to inform the First Nation for nine months about leak at Imperial Oil's Kearl facility.

Community harvesters continued to hunt, trap and fish with no warning of potential contaminants upstream as 5.3 million litres of tailings and 670,000 litres of other contaminated water seeped into the water and land, said Adam. 

"The Alberta government who's in charge of the regulatory system brags that this is the way of the future," said Adam. "It failed terribly."

For years, Fort Chipewyan residents have expressed concern that high levels of cancer in the community are linked to poor water quality and the oilsands.

Adam said the lack of oversight in the oilsands is a threat to his community, and people downstream in the N.W.T. 

"My dad taught me how to hunt, fish and trap out in the bush to live off the land," he said. "It is a good life, and the sad case scenario is that we slowly watch it die."

'Outright public deception'

Keepers of the Water executive director Jesse Cardinal said Timoney's research exposes "outright public deception" in the Alberta Energy Regulator's public data. 

"There have been massive oil spills in our traditional territory," said Cardinal.

Keepers of the Water formed in 2006 as a coalition of First Nations, Metis and Inuit, working alongside environmental groups to monitor ongoing water rights issues on their territories. The group opposes ongoing federal and Alberta government efforts to allow the release of treated tailings into the watershed.

"We've known for a long time that the companies and the AER are deceiving people, and the Alberta government is ultimately responsible because they are allowing it to happen," she said.

Cardinal said the AER is not a "world-class monitoring system" because its board has industry representatives and little distance from the Alberta government, which is pushing oilsands expansion. 

"What is being allowed to happen greatly impacts the Northern communities," she said. 

"Policy change is not going to fix this issue. This is a broken, corrupt system and it needs to go ... It doesn't need just a new board, it doesn't need a new CEO. It needs a complete dismantling."

Timoney said any release of treated tailings should be monitored by a different entity "independent of any interference by the provincial government, the industries or the other energy regulator." 

"The most relevant finding of this work in relation to the proposal to release treated tailings is that you cannot and you must not depend upon the provincial government or the Alberta Energy Regulator to provide any monitoring of the situation," he said. 

Regulator charges AER over Kearl

On Jan. 17, the regulator laid nine charges against Imperial Oil for the 2023 Kearl spill, charging the company with releasing a substance into the environment that caused or may have caused significant adverse effects, and for failing to immediately report the spill.

Imperial Oil is charged with failing to remediate the area to prevent further adverse effects and contravening its approvals for releasing substances into a surrounding watershed. 

In an email to CBC, AER spokesperson Renato Gandia said oil companies are responsible for reporting, assessing and managing impacts and to perform clean-ups. 

The AER "routinely conducts inspections to ensure that releases have been cleaned up and remediated in accordance with the regulations," said Gandia. 

If companies fail to meet their responsibilities, the AER has compliance and enforcement tools like orders, sanctions, fees and even prosecution. 

The AER previously fined Imperial $50,000 for the Kearl incident, an amount Cardinal and Adam say is insufficient. 

Adam questioned the AER's ability to monitor oilsands production, amid public promises by Alberta Premier Danielle Smith to double oil production to support U.S. energy security and affordability.

"What does that mean for our area? Is it more development, more contamination? What does it mean for the North?" Adam said.

"Look out the window. Where does that water run?"