First Nation sues Alberta Energy Regulator over tailings leaks from oilsands mine
A First Nation in northern Alberta has filed a lawsuit against the Alberta Energy Regulator (AER) alleging negligence and a failure to live up to Treaty obligations in the wake of multiple tailings leaks at Imperial Oil’s Kearl facility.
In a news release issued Tuesday, the Athabasca Chipewyan First Nation (ACFN) said the lawsuit, filed in the Alberta Court of Kings Bench, is based on two major leaks from the oilsands mine’s tailings ponds, which took place between May 2022 and February 2023.
The ACFN claims the regulator failed to inform the First Nation about the leaks. The lawsuit alleges “negligence, nuisance, breach of the duty to consult, breach of the Honour of the Crown, breach of fiduciary duty and unjustified Treaty infringement,” the news release states.
Documents filed by Imperial Oil Ltd. show the company and energy regulator knew the Kearl oilsands mine was seeping tailings into groundwater years before a pool of contaminated fluid was reported on the surface.
“The AER is supposed to regulate the energy sector in Alberta to ensure safety and environmental responsibility. They have spectacularly failed on this front,” ACFN Chief Allan Adam said in the news release.
He added that the First Nation has a Constitutional right to be “consulted and accommodated.”
Imperial Oil reported to the Alberta Energy Regulator in May 2022 that it had found some brown sludge outside the boundaries of the company’s Kearl site, located about 70 kilometres north of Fort McMurray.
The spill of over 5.3 million litres of toxic chemicals and the failures of four tailings ponds was revealed in early 2023, when the regulator issued environmental protection orders against Imperial.
Chiefs from First Nations in the area were furious that members had harvested in the area for nine months without being told about possible contamination.
According to the statement of claim, there were three major leaks from May 2022 to November 2023. The lawsuit alleges the AER took no steps over the nine-month period to notify the First Nation about the leaks.
It alleges the leak could have impacted resources, including groundwater, and left members of the First Nation fearful of contamination.
None of the allegations have been proven in court.
Papers served during community meeting
Adam served the lawsuit notice to regulator CEO Laurie Pushor during a Tuesday night meeting between ACFN members and representatives of the AER held at a community hall in Fort Chipewyan. The meeting including a video conference link for media.
“We’ve had enough,” Adam told Pushor during the meeting. “No more of these dirty dealings are going to … continue on our traditional territories.”
Those in attendance burst into cheers and applause as Pushor received the papers.
Pushor said the agency would “do what is right and appropriate in response to this and work our way through it.”
An independent report commissioned by the Alberta Energy Regulator says the body did nothing wrong in not alerting the nearby Athabasca Chipewyan First Nation that a tailings pond leaked industrial wastewater containing arsenic, dissolved iron and sulphate upstream from its water supply.
During the meeting, some members called for the Kearl mine to be shut down; others said the regulator had lost trust of the First Nation by failing to inform them about the tailings leaks.
Kendrick Cardinal, president of the Fort Chipewyan Métis Nation, told CBC News after the meeting that the relationship between the AER and the community “is no good.”
He said Tuesday’s meeting was an important part of bridging the gap between the energy regulator, industry and First Nations in the area.
“This is a step forward, in my opinion,” he said.
Cardinal said the AER committed to quarterly, in-person meetings with the First Nation and to consider community concerns.
“I hope that Alberta Energy Regulator really sticks to their comments tonight and holds the industry accountable,” he said.
According to the statement of claim, the First Nation is seeking a declaration that the AER’s regulatory framework around the regulation of tailings facilities is unconstitutional and infringes on ACFN rights.
The First Nation is also seeking a declaration that the Crown failed to honour its obligations under Treaty 8 and has asked to be paid all or part of the royalties generated by the Kearl Project during the time of the leaks.
The ACFN also wants an order for the AER to remediate damages caused by the leaks and take “all reasonable and necessary steps” to prevent further instances.
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