Toxic tailings leak ongoing concern for First Nation in northern Alberta

‘Is this environmental racism’ asks Athabasca Fort Chipewyan Chief about tailings pond leaks

Athabasca Fort Chipewyan First Nation’s (ACFN) Chief Allen Adam says all work at the Kearl tarsands mine must stop until a full investigation is held into the ongoing tailings pond leaks.

“I am very dismayed over the failure of Imperial [Oil] and the Alberta regulator to inform us of the ongoing and uncontained leaks from the tailings facilities at the Kearl lake project,” said Adam at a news conference Thursday.

“The news that these leaks have been ongoing for nine months has caused great anxiety amongst our people.”

The nation has a population of 1,200 registered members and about 290 members living on-reserve.

Adam is also criticizing the Alberta Energy Regulator (AER) and Imperial Oil for their slow response. Adam said his nation was not aware of the problem under a tailings pond over flow.

Imperial Oil’s Kearl oilsands facility has been leaking wastewater from toxic tailings ponds for almost a year.

The AER’s monitoring has shown that dangerous levels of chemicals including arsenic, hydrocarbons, and sulphides have been leaking into the nearby groundwater at Kearl oilsand mine.

The mine is in a remote area more than 130 km from Fort McMurray which is near the Athabasca Fort Chipewyan First Nation.

APTN News previously reported on an Indigenous environmental group, Keepers of the Water, raising concerns about the tailings pond leaks.

Adam pointed to a study from the University of Manitoba that showed an estimated 78 per cent of people who live in the community harvest food from the territory.

“We have land users in the area that hunt and fish and harvest animals that could have been exposed to these deadly toxins,” said Adams

According to an order written by AER, the regulator is concerned that Imperial Oil’s remediation plan fails to address toxic seepage from the wastewater.

An overland spill is what first brought the ongoing tailings pond leaks to the attention of the ACFN. The leak was an estimated 5.4 million litres, or enough to fill two Olympic size swimming pools. Imperial Oil reported this to the AER on February 4.

Athabasca Chipewyan leadership has advised their members to not consume any fish or wildlife harvested from the land or water after May 2022. The nation will provide testing to concerned members if desired.

Adam said that the nation is now considering legal action against the company and AER over the contamination and lack of notice.

The only notification from the company appears to have been a notice that there was discoloured surface water and vegetation in May 2022.

Adam told reporters that he had had ongoing conversation, including a meeting in November 2022 in which Imperial Oil did not raise the issue of tailings pond leaks.

Adam told APTN that he wants other First Nations and Métis communities to be alert to any contamination issues from resource extraction in their communities.

“They have to have it within their agreements, making sure that accountability is in place. We may have an agreement with Imperial, but we do not have an agreement with the AER so they’re accountable to nobody but themselves,” said Adam.

Environmental racism

“When you look at the whole thing… if this was the city of Edmonton or Calgary that this happened they would notify the public right away,” said Adam.

“For them, dealing with the Indian problem is to poison us and get rid of us eventually,” said Adam

He also said when he considers the fact that  there’s been a lack of concern for First Nations communities when it comes to oil and gas projects he asks himself “is this environmental racism?”

The term “environmental racism” emerged in the 1980s  in the United States. A 2020 United Nations special rapporteur report on Canada found that there was a systemic disregard for Indigenous people in particular:

“The prevalence of discrimination in Canada’s laws and policies regarding hazardous substances and wastes is clear. There exists a pattern in Canada where marginalized groups, and Indigenous peoples in particular, find themselves on the wrong side of a toxic divide, subject to conditions that would not be acceptable elsewhere in Canada. A natural environment conducive to the highest attainable standard of health is not treated as a right, but unfortunately for many in Canada today an elusive privilege.”

Regulator action

In Alberta, the Environmental Protection and Enhancement legislation governs the requirements for reporting any spills or emergency release of hazardous wastewater from oilsands mines.

In response to the spills the regulator has issued a non-compliance order and an environmental protection order over the incidents.

The regulator’s letter said that the leak “is causing, or may cause an adverse effect,” but that no impacts to wildlife have been reported.

There are also regulatory rules that state that anyone who is affected by the tailings pond leaks must be notified, but it is not clear that requirement was followed for the early leaks.

In a guideline document that explains the Environmental Protection and Enhancement Act it is clear that reporting should be done in any situation where a spill or emergency release of wastewater may have an “adverse affect to the environment”.

An adverse affect is anything that may cause harm to a human health, safety or property.

The guideline notes, “As an adverse effect may be difficult to determine, depending on the chemical and physical characteristics of the substance released and where it was released, if you are uncertain about the potential for adverse effects it is recommended that you report the release.”

The Release Reporting regulation further explains that not only must a report be sent you your employer or the owner of the site, but also “any other person who the person reporting knows or ought to know may be directly affected by the release.”

The Order from the AER does indicate that Imperial Oil was given until Feb. 10, 2023 to put together a communications plan and notify everyone who was potentially affected.

The AER did not respond directly to APTN’s questions about the lack of notification to Adam and his nation but they did post a news release on their website which read in part: “[n]otices of noncompliance (as were issued to Imperial) are not enforcement decisions and therefore are not publicly posted. Regulator notification procedures were followed in this case. In addition, the AER posted a public statement on February 7, 2023, the day after the [environmental protection order] was issued to Imperial.”

The ACFN says that the AER did not post the leaks in their compliance dashboard, which should have been done back in September of 2022.

“We work hard to maintain transparent communication with our communities, and we recognize the communities’ concerns about delays in receiving additional information. As mentioned by Chief Adam, we have expressed to him directly our regret that our communications did not meet the expectations of the ACFN community, we further committed to him that we are taking the necessary steps to improve our communications so this does not happen again in the future,” said Jamie Long, Imperial vice-president of oil sands mining in an email statement.

Callie Davies Flett, the regulatory advisor for Dene lands and resource management says that the mitigations in place have not worked.

The current plan includes pumping any leaked water back into the tailings pond when it leaks out.

“This is like baling out the front of the boat by dumping water in the back of the boat,” said Flett.

Previous assessment warned of water contamination

During a joint federal-provincial environmental assessment, Imperial Oil noted the permeability of the ground in the area and said that monitoring and mitigation would be in place to prevent groundwater contamination.

The report from the joint panel said “seepage will likely impact surface water bodies to the north, specifically the Firebag River and its three tributaries, and that groundwater and surface water quality could degrade.”

APTN has reached out to Environment and Climate Change Canada for comment on how it is monitoring the situation but did not hear back by publication.

The AFCN has received a new containment plan which it is reviewing. They say they are relying on their own internal monitoring processes rather than Imperial Oil or the AER.



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