Energy regulator stops short of addressing communications breakdown on Kearl tailings seepages

The Alberta Energy Regulator (AER) was before the House of Commons all-party Standing Committee on Environment and Sustainable Development April 24 to discuss Kearl oilsands mine tailing ponds seepages.

When pushed to explain why downstream communities were not notified of the leaks for almost a year, the regulator said investigations prevented them from providing details.

“Not withstanding what the rules are, what the procedures are, it is clear we did not meet communication expectations in this case,” Laurie Pushor did offer, however. He has been head of the AER for the past three years. The AER is a quasi-judicial body and the single regulator of energy development in Alberta.

Imperial Oil, which operates Kearl mine, said it did notify the AER in May 2022 that there were wastewater containment issues at the site. Discoloured surface water was found to the north and northeast outside of the mine site in four locations.

But the incidents only came to the public’s attention after the AER issued an environmental protection order on Feb. 6 when 5.3 million litres of industrial wastewater had overflowed from a tailings pond.

It wasn’t until that order was issued that communities downstream of the site were notified of the seepages. The Alberta, Northwest Territories and federal governments did not become aware of the situation until then either.

An Imperial Oil rep told the standing committee April 20 the company had reported the seeps to Alberta’s Environmental and Dangerous Goods Emergencies (EDGE) hotline, with “the expectation…that when we call to EDGE the fan-out process starts at that point.”

EDGE is meant to “communicates openly with other regulatory agencies, such as the Alberta Energy Regulator (AER), in the event of an emergency or safety-related incident,” reads the EDGE website.

As to why the provincial government wasn’t informed at that time, the Imperial rep said she couldn’t speak for how EDGE is run.

Also on April 20, Imperial CEO Brad Corson told the standing committee, the company followed the communications protocol established in confidential individual impact benefit agreements with Indigenous communities.

He said Imperial informed the environmental committees of those Indigenous communities about the May 2022 concerns, but Corson said Imperial should have followed up with information and kept the communities informed as testing of the seepages went along.

Corson also stressed that Imperial’s testing showed no drinking water had been contaminated.

When asked to confirm the company’s assertions, Pushor said, “It’s all subject to the investigation and it would definitely be inappropriate for me to speculate on any potential wrongdoing or inappropriate behaviour on Imperial’s behalf. That’s a fundamental part of our investigation.”

Pushor said the report would be made public when completed “and/or the prosecution’s office has completed any work they may undertake in relation to potential prosecution.”

As for AER’s responsibility in the communication vacuum, Pushor drew attention to the decision by the AER’s board of directors to hire a third party to investigate aspects of AER’s handling of the Kearl incidents.

Alberta’s information and privacy commissioner Diane McLeod has also launched an investigation into AER’s communication around the seepages. Specifically, she will examine “whether AER had an obligation under Section 32 of the Freedom of Information and Protection of Privacy Act (FOIP) to disclose information to the public or others about the leak.”

Asked what he would do differently upon reflection, Pushor said as there is “significant public interest” in tailing ponds it would be worth revisiting the communications strategy to see about changes as to when, how broadly and how detailed information would be offered.

Pushor also noted that “once we understood what was happening with the Kearl project, we asked all mines to do an assessment of their facilities and determine whether there was any indication anything like this might be happening elsewhere.”

He said that information had been received and experts were now evaluating it.

Gerald Antoine, Dene national chief, and Shane Thompson, minister of environment and climate change for the Northwest Territories, also spoke April 24. Both took issue that their territories weren’t informed of the tailings ponds seepages.

“We are very concerned that the Dene were not informed about this disastrous incident and the obvious health and environmental risk associated with the leaks and also the spills,” said Antoine.

He said Alberta and the federal government, as well as the AER and Imperial, were at fault for not informing the Dene.

“The environmental disasters such as this are an immediate and present reminder that we must constantly be vigilant in protecting Mother Earth, as this is our home. All levels of administrative government need to take immediate and urgent action to protect people and the environment,” said Antoine.

Thompson drew attention to the comprehensive Transboundary Water Agreement signed between Alberta and the N.W.T. in 2015. The agreement, in part, facilitates improved monitoring and reporting of upstream affects from development. 

Carmen Wells, director of lands and regulatory management for the Fort Chipewyan Métis Nation Association, said that issues with AER, which she called a “poor regulatory system,” went beyond lack of communication.

“These decades of poor regulation require change and an overhaul…where (Fort Chipewyan Métis) are not at the mercy of the decisions of Alberta’s policy makers who are willing to sacrifice northeastern Alberta,” she said.  

Canada needs to be involved, she said, in perhaps a co-management approach with Alberta.

“There’ll need to be some very big changes within the regulatory system,” said Wells, saying it needs to be more collaborative with the communities.

“It is the communities’ land and it’s the communities’ land that they’re going to end up with after everyone has left,” she said.

Wells comments about changes needed to the AER were also voiced April 17 when representatives from the First Nations of Fort McKay, Fort McMurray, Athabasca Chipewyan and Mikisew Cree, as well as the Métis Nations of Fort McMurray, Fort McKay and Willow Lake, addressed the standing committee.

Before Pushor began speaking, he was asked by NDP Edmonton Strathcona MP Heather McPherson to swear an oath that he would tell the truth. While he agreed to do as was requested, it wasn’t without the Conservative MPs on the standing committee taking exception to Pushor being the only witness in three days of testimony having to take that action.

Also raising the ire of Conservative MPs was the introduction of a motion by Liberal N.W.T. MP Michael McLeod, who called the testimony by Imperial Oil and AER insufficient and requested them to return to the committee in October with documents supporting actions both Imperial and AER had taken between now and then.

Edmonton-Westaskiwin Conservative MP Mike Lake said the motion was in “bad faith” as it had been drafted prior to Pushor’s testimony.

Battle River-Crowfoot Conservative MP Damien Kurek said that while Conservatives were making a “pretty solid effort” to understand what had happened, everybody else was “playing politics.”

Chair Francis Scarpaleggia, a Liberal MP from Lac-Saint-Louis, Que., moved further discussion on the McLeod’s motion to Thursday because of time restrictions.

Yesterday marked the final scheduled day of testimony on seepages from the Kearl’s oilsands mine tailings ponds.

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