Overhaul it or tank it, Alberta Energy Regulator under fire after latest Kearl mine incident

Athabasca Chipewyan First Nation (ACFN) Chief Allan Adam would like the Alberta Energy Regulator (AER) to “immediately cease” operating.

“They're not credible enough to do anything. And at this point in time, I think the federal government should step in and go with the (Department of Fisheries and Oceans) and regulate this whole regime and do it properly because there are a lot of missing gaps in the AER,” said Adam at a news conference on Nov. 27.

AER is an arms-length regulator of energy development and tasked with quasi judicial powers to enforce relevant Alberta government legislation and policies.

Adam’s remarks were sparked by a Nov. 13 incident at Exxon-Imperial’s Kearl oil sands facility in northeastern Alberta where 670,000 litres of treated water escaped from a settling pond into the Muskeg River. The water contained approximately 140 mg of suspended solids per litre, more than four times the legal limit.

It was the third incident in about 18 months at the facility located upstream of Fort Chipewyan and the First Nation. In 2022, on May 19 and June 3, the AER was notified of seepage in the first event, and overflow from a drainage pond in the second event. However, communities in the region weren’t made aware of either incident until AER issued an environmental protection order on Feb. 6, 2023.

Adam was joined by NDP MLAs Jodi Calahoo Stonehouse, critic for Environment, Parks and Climate Resilience, and Brooks Arcand-Paul, critic for Indigenous Relations and Reconciliation.

Along with slamming Alberta Energy and Minerals Minister Brian Jean, who is also the MLA for the impacted riding, for lack of oversight, Calahoo Stonehouse called for the AER to be “reviewed and overhauled, and a new leadership should be put in place.”

The lack of faith in AER’s abilities are also being echoed at the federal level.

For the second time in seven months, AER CEO Laurie Pushor was called to testify in front of the all-party Standing Committee on Environment and Sustainable Development in Ottawa for its handling of the earlier environmental incidents at the Kearl site.

On Nov. 28, Pushor, who appeared virtually with legal counsel quietly by his side, told the committee he couldn’t share details because the incidents were under active investigation by AER and he needed to “protect the integrity” of that investigation.

When pushed by Liberal MP Adam van Koeverden as to who would be held accountable for what van Koeverden called one of the largest environmental disasters in Alberta history, Pushor said it was “inappropriate” for him to speculate on accountability.

Pushor assured MPs that the results of the investigation would be made public. However, he could not offer a timeframe as to when the investigation would conclude.

Pushor reiterated what he said in April stressing that data collected by a variety of sources, including the Alberta and federal governments, indicated that drinking water in the area remained safe and unaffected by “the events at Kearl.”

“It is the mandate of the AER to ensure the safe, efficient, orderly and environmentally responsible development of Alberta's energy industry and we do this under some of the highest environmental and regulatory standards in the world,” said Pushor.

He also referenced a third-party report undertaken by Deloitte that was released in September.

The scope of the review focused primarily on communications during emergency responses and incidents. It found that while AER followed all existing procedures, there was room for improvement. 

Pushor said AER would begin engagement sessions with Indigenous communities next week on developing specific notification and communication protocols.

Bloc Quebecois MP Jean Denis Garon panned the review for its limited scope. Considering it took nine months to complete, it was only 14 pages in length and was conducted by an organization that AER would deal with in the future.

He questioned AER’s desire to have a “true inquiry where transparency would have gone to the heart of the problem.”

Pushor said AER committed to the “highest level of transparency (that) we can” noting that much of the work it undertook was “quite technical in nature.”

Pushor fought back against Liberal MP Sophie Chatel’s claim that industry’s primary concern was to the shareholders and to earn more profits and because of that it wasn’t necessarily profitable for oil companies to be environmentally friendly in their preventive procedures.

“We have to understand your role (as a regulator) is to protect Canadians and the environment of Canadians and you shouldn’t shy away from that,” said Chatel, who added that the AER has been viewed as “too secretive and too much in the industry’s pockets.”

Pushor denied the claim, saying AER had “rigourous” conflict of interest standards and protocols and that employees had a “genuine passion and commitment for the work we do to ensure the industry operates at the high standards that the government expects them to.”

Pushor found himself and AER constantly criticized for the actions they had taken or the accuracy of the information he had provided. He was also consistently cutoff from fully answering questions.

However, he also refrained from answering multiple questions because of the ongoing investigation.

Laila Goodridge, Conservative MP for the riding, defended both Pushor and the oil industry, pointing out three generations of her family had worked in the oil sands. She accused the Liberals, NDP and Bloc of “throwing bombs at the major industry that provides supports to my community.”

At the end of the nearly two hours of Pushor’s grilling, van Koeverden introduced a motion acknowledging AER as “deficient in protecting the environment and health of communities adjacent to tailings ponds that it regulates…and… (its) ongoing deficiencies in protecting the health and safety of Indigenous communities at risk.” The motion provided direction to both the AER and the Alberta government in how they should interact with industry that operate tailings ponds.

van Koeverden concluded his motion by saying the standing committee would make formal recommendations in its study of freshwater to improve the protection of Canada's freshwater resources from contamination from tailings ponds.

The committee is studying freshwater policies and began its hearings on the topic in October. The goal is to determine the best ways of keeping Canada’s freshwater safe and well-managed.

Conservative MP Gérard Deltell blasted van Koeverden for the Liberals overstepping their boundaries, saying that the federal government could not exercise jurisdiction over the AER or the Alberta government.

Deltell pointed to two recent court decisions where Liberal legislation was cut down. In its Oct. 13 decision, the Supreme Court of Canada said that Ottawa’s Impact Assessment Act (2019) was largely unconstitutional, and earlier this month the federal court ruled that the vast listing of plastics as toxic by Ottawa was “unreasonable and unconstitutional.”

van Koeverden’s motion was not voted on as the standing committee ran out of time.

*******************

SUPPORT US!

Windspeaker is owned and operated by the Aboriginal Multi-Media Society of Alberta, an independent, not-for-profit communications organization.

Each year, Windspeaker.com publishes hundreds of free articles focused on Indigenous peoples, their issues and concerns, and the work they are undertaking to build a better future.

If you support objective, mature and balanced coverage of news relevant to Indigenous peoples, please consider supporting our work. Whatever the amount, it helps keep us going.