WE DEMAND IMMEDIATE ACTION AND POLICY CHANGE TO PROTECT THE ENVIRONMENT AND RESPECT THE RIGHTS OF INDIGENOUS PEOPLES.
The decades-long contamination of Treaty 8 land, air, and water by pollution from oil sands extraction has poisoned wildlife and constitutes state-sanctioned environmental racism against Indigenous peoples. The trillions of litres of toxic waste precariously stored near rivers and their tributaries are a catastrophe-in-waiting.
The costs of cleaning up this mess are growing, while the polluters are permitted to push these liabilities down the road. While oil sands companies and Alberta governments continue to downplay the harms and risks created by oil sands operations, the Indigenous communities in the region and downstream know these harms and fears all too well.
We agree with Indigenous Climate Action’s executive director, and member of the Athabasca Chipewyan First Nation, Eriel Tchekwie Deranger, that: “If this happened in Vancouver or Toronto or any other urban center, the people responsible would be held accountable. Our communities deserve the same justice.”
Coming together from all sectors of Alberta society, in solidarity with the Indigenous nations of Treaty 8, we demand immediate action to stop these harms and end the threats posed by the tailings lakes.
We call on the federal and provincial governments to exercise all powers available to them to take the following actions:
- The provincial government must remove barriers to Indigenous communities’ access to all oil sands leases to conduct their own environmental monitoring.
- The government of Alberta must place an immediate moratorium on any further expansion of oil sands mining.
- Stop all mining and drilling in areas that do not have completed Regional Land Use Plans (and any associated sub-plans) under the Alberta Land Stewardship Act.
- Charge Imperial Oil and other oil sands operators whose tailings ponds are leaking under the federal Fisheries Act.
- Federal Minister of ECCC should issue a Fisheries Act section 37(1) order to each oil sands operator to submit its environmental management system (EMS) for review.
Legislative and Regulatory Reforms
- Secure from oil sands operators adequate security deposits in trust accounts to implement tailings lakes clean-up plans, finance the environmental remediation of mine sites, and fully decommission and remediate abandoned and orphaned oil and gas wells.
- Increase the fines for violations of environmental regulations by oil sands companies.
- Amend the Alberta Responsible Energy Development Act so that Indigenous communities will select representatives to half of the seats on the AER Board.
- There must be full public disclosure of the findings of the Alberta Information Commissioner’s investigation into whether the AER violated the law by failing to inform affected communities and the public of the seepage from the Imperial Oil Kearl oil sands mine tailings lakes.
- The Alberta Government must pass a species at risk law that protects the critical habitat of species at risk from being lost or degraded.
- While the federal minister of Environment and Climate Change Canada (ECCC) has pledged to review the communication procedures among the Alberta Ministry of Environment and Parks, the AER, and his ministry, trust in Alberta regulators has been completely eroded. ECCC must ensure that all environmental incidents are reported to it directly, as well as monitoring data collected by the companies or the AER.
- Likewise, federal Fisheries Act regulations must be amended to remove Alberta Environment and Parks as the first point of contact for the reporting of a “deposit out of the normal course of events regulations.”
Policy Commitments to Decolonize Alberta’s Laws
- Establish an Indigenous/GoA working group to co-develop provincial implementing legislation for the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP).
- Create working groups co-convened by the Government of Alberta and Treaty 6, 7, and 8 First Nations, with mutually agreed upon terms of reference, to consider the implications of the Yahey (Blueberry River) decision of the BC Supreme Court for Alberta.
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In May 2022, Imperial Oil reported to the AER and to the Mikisew Cree First Nation that it had observed “discoloured surface water” at four locations bordering its lease area. But it did not subsequently inform any First Nation of the findings that the surface water was contaminated with industrial waste, with levels of multiple compounds exceeding provincial limits (including iron, arsenic, F2 hydrocarbons (kerosene, creosote, diesel), sulfate, and total sulfide). The “impacted area” was described by the AER as encompassing muskeg and forested public lands inhabited by various species of wildlife and being in proximity to a fish-bearing water body and tributaries that feed the Firebag and Muskeg Rivers. The quantity of the wastewater that has escaped containment through seepage has not yet been determined.
The AER says it issued a noncompliance notice to Imperial Oil in September but did not publish the notice or inform First Nations of the situation. In December 2022–six months after initial detection of the seepage–Imperial Oil began to install additional seepage interception wells along the perimeter of the site but told the AER that the work could not be completed before the spring snow melt. (This delay would increase the likelihood of contaminated ground water entering nearby water bodies and rivers.) During this six-month period, neither Imperial Oil nor the AER informed affected First Nations, the federal Ministry of Environment and Climate Change, or the Ministry of Environment of the Northwest Territories of these developments.
On January 31, 2023, there was an overflow of an estimated 5.3 million litres of contaminated water from one of the tailings lakes, affecting the same area. This “spill” was reported to the AER, and on February 6 the AER issued an environmental protection order (EPO) to Imperial Oil related to both the long-term seepage contamination and the January 2023 “spill.” This order gave Imperial Oil four days to submit a plan for intercepting and containing the effluent “prior to spring freshet” and a month to submit an updated plan. The company was also ordered to submit plans for monitoring impacts on wildlife and for remediation of the affected sites. Since this time, Imperial Oil has removed the snow and ice from the affected area and put it back into the tailings lakes.
It was not until the EPO was posted to AER’s publicly accessible “dashboard” that First Nations learned of the contamination by the Kearl mine’s effluents. For nine months, neither the AER nor Imperial Oil had revealed this information to them. Nor had the other governments been informed. During this time, chiefs of both the ACFN and the MCFN had met with Imperial Oil executives, but no information about the contamination had been given to them.
The AER has claimed that it is the company’s responsibility to inform the FNs of pollution incidents. (Imperial Oil also has agreements with the FNs regarding information sharing, which it violated by not reporting these incidents of seepage and overflow.) The Alberta Minister of Environment and Protected Areas says she was not briefed by the AER. Imperial Oil is not obligated to report to the federal government. As a result of this reporting system–described by one energy law expert as being “full of holes”–it was possible for Imperial Oil and the AER to keep FNs and the public in the dark about the contamination.
When these developments became public, Imperial Oil said “it always intended to inform affected communities about the seepage once it knew what was causing it and had a plan to fix it, though it had submitted plans to deal with the issue to the AER on Dec. 22, 2022.” The Alberta Minister of Environment and Protected Areas said the government did not inform its counterpart in the NWT because “under the bilateral agreement, notification is only required if there is evidence of ecological impact. ‘Our evidence said that nothing reached the waterways, so our officials interpreted that we didn’t need to give notification.’” The government of the NWT contests this interpretation of the bilateral agreement on watershed governance. Environmental law expert Drew Yewchuk argues that the AER may be in violation of the Freedom of Information and Protection of Privacy Act, which requires public authorities to inform the public about any “risk of significant harm to the environment or to the health or safety of the public.”
Alberta Premier Danielle Smith echoed Imperial Oil’s claims that the seepage and spill had had “no effect on waterways or wildlife.” She further suggested that environmental concerns had been “overblown, fuelled by misinformation in the media.” However, this assurance has not been substantiated. Harms to wildlife–as well as to people who have consumed medicines, fish, or game from the affected areas–may not be immediately manifested, and the Athabasca Chipewyan First Nation (ACFN) has already testified that foods from this area have been “shared throughout our community.” ACFN Chief Allan Adam has accused Imperial Oil and the UCP government of conducting a “cover-up” of the seriousness of this pollution, and of trying to minimize the possible harms.
On March 9, the federal minister of Environment and Climate Change, Steven Guilbeault, said: “Our systems are failing Indigenous peoples, clearly. And we need to find solutions.” On March 10, the ECCC issued a Fisheries Act “direction” to Imperial Oil on the finding that tailings had contaminated a fish-bearing water body and ordering a stop to the seepage.
March 10, Dene National Chief Gerald Antoine, Hereditary Chief Sydney Halcrow, and Grand Chief Arthur Noskey of the First Nations of Treaty 8 Alberta, issued a joint statement demanding “accountability for the frequent and unprecedented failures of tailings dams, toxic tailing leaks and spills at the Kearl mine site.”
March 15, at a meeting with his Alberta counterpart, Sonya Savage, Minister Guilbeault “introduced the idea of a joint federal-provincial-Indigenous working group, with participation from the oil companies, to address the immediate concerns around the Kearl Oil Sands Mine situation to restore trust and give transparency to all parties involved. This would include meeting on a regular basis to discuss remediation and containment plans, and improvements to the notification systems for ongoing incidents of spill or seepage.”
March 22, the Dene Nation, Inuvialuit Regional Corporation, and NWT Métis Nation issued a joint statement calling for an investigation of oil sands’ effect on water and air quality, aquatic ecosystems and human health, incorporating traditional knowledge and western science. They further demanded that all governments “engage with Indigenous governments as full partners on regulatory development and reform efforts for tailings management.