Letter to Ministers Guilbeault, Miller, and Wilkinson on tailings ponds spill in Treaty 8

Honourable Steven Guilbeault

Minister of Environment and Climate Change

200, boul. Sacré-Coeur

Gatineau QC K1A 0H3

Honourable Marc Miller

Minister of Crown-Indigenous Relations

10 rue Wellington, 21st Floor

Gatineau QC K1A 0H4

Honourable Jonathan Wilkinson

Minister of Natural Resources

580 Booth Street

Ottawa ON K1A 0E4

Dear Honourable Ministers,

We are deeply concerned by reports in the media and information shared by First Nations communities regarding two incidents at Imperial Oil’s Kearl site on Treaty 8 territory in northern Alberta – one, reported as a months-long seepage from toxic tailings ponds beginning in May 2022, and the other a spill from an overflow tailings pond in February of this year. We are writing to ask for more clarity.

Specifically, we would like to request clarification on when, how, and by whom your Ministries were informed of these incidents.

We are also writing to urge you to provide the communities and peoples impacted by the seepage and spill with the resources and tools necessary to address its health and environmental consequences and to conduct an investigation into both the seepage and spill and the actions of all regulatory and governmental bodies involved in the response.

Finally, we ask that you take steps to prevent future seepages and spills of toxic emissions from tailings ponds.

On February 6, 2023, the Alberta Energy Regulator (AER) issued an environmental protection order (EPO) to Imperial Oil Limited (Imperial) in response to containment incidents at Imperial’s Kearl Oil Sands Project on Treaty 8 land in northern Alberta. That order referenced two incidents at the Kearl site – one occurring in 2022 when toxic tailings pond water in four locations both on and outside the boundaries of the Kearl site seeped into the land and water systems within the Athabasca watershed – and one occurring on February 4, 2023, when an estimated 5.3 million litres of toxic tailings pond water spilled from an overflow drainage pond.

We would appreciate any further information that you may be able to provide in answer to the following questions: When did your Ministries learn about the seepage and spill; Was the May 2022 seepage reported to your Ministries by Imperial Oil and/or the AER prior to February 6, 2023? What specific information was reported and on what date? What rules govern notification of toxic seepages and spills to your Ministries? Did the Government of Alberta and the regulator follow the rules governing notification?

In 2020, the AER suspended water monitoring in the oil sands, citing COVID restrictions. In July, media reports indicated that the federal government had done the same, noting that “many federally-run quality monitoring stations suspended their operations… despite … commitments under the Mackenzie River Basin Transboundary Waters Master Agreement.”

When was federal environmental water monitoring in the oil sands suspended? When did it resume? Were federal environmental water monitoring systems in place in 2022? Did federal environmental monitors discover the Kearl Oil Sands project seepage that occurred in 2022? If yes, did the federal government notify impacted communities of the seepage and/or provide instruction to Imperial and/or the AER or Government of Alberta? Finally, what actions did your Ministries once you were made aware of these incidents?

According to the AER, “ On February 7, the AER informed the Athabasca Chipewyan First Nation (ACFN) that the EPO had been issued.” According to the ACFN, this was the first time they learned about the February 4, 2023, incident – the spill of 5.3 million litres of toxic tailings ponds water - and the 2022 seepage.

The AER reported on March 2, 2023, that Imperial is “currently compliant with the requirements of the EPO and has provided specific details on actions taken.” However, the ACFN reported that same day that they had not been provided information by Imperial. According to the ACFN, the AER Issued a Notice of Noncompliance to Imperial in September 2022 for failing to control the ongoing seepage but that this order was kept secret from the public and from the First Nation.

As ACFN Chief Allan Adam stated on March 2, 2023:

"ACFN raised concerns about the tailings dams during the environmental assessment in 2007, but the AER approved them anyway. We were told that this wouldn't happen. And then when it did happen, Imperial didn't inform us, and the AER didn't do anything to protect us. When Imperial advised the AER that toxic tailings were leaking in May 2022, the AER failed to act for months. What's more, when the AER Issued a Notice of Noncompliance to Imperial in September 2022 it did so secretly. Both Imperial and the AER failed to give notice or take action to keep the public and Indigenous communities safe."

In 2018, the Governments of Alberta and Canada signed an Oil Sands Monitoring Program letter of agreement and operational framework agreement with Indigenous governments (modified in 2021).

Did the Imperial Oil violate Treaty Rights by not informing First Nations of the months-long seepage at the Kearl site in 2022 and by not informing or involving First Nations in their plans to control and remediate the seepage and 2023 spill? Did the Government of Alberta violate Treaty Rights by not informing First Nations of the months-long seepage at the Kearl site in 2022?

On March 6, Alberta Premier Danielle Smith stated that a leak that would affect tributaries of the Athabasca watershed “did not occur.” However, Environment and Climate Change Canada has stated:

“Based on information enforcement officers have to date, the seep is believed to be deleterious, or harmful, to fish. As a result, on March 10, 2023, enforcement officers issued a Fisheries Act direction to Imperial Oil.” Do your Ministries concur with Premier Smith that the two incidents at the Kearl site – the 2022 seepage and the 2023 spill – do not affect tributaries of the Athabasca watershed?

We urge your Ministries to provide the communities and peoples impacted by the seepage and spill with the resources and tools necessary to address its health and environmental consequences. Treaty 8 First Nations are requesting urgent action to ensure safe drinking water in Fort Chipewyan, enhanced information sharing and collaboration on actions to address the seepage and spill, funding for a Fort Chipewyan health study, a federal-Indigenous audit of risks for all tailings facilities in northern Alberta, support for Indigenous-led monitoring and training, and real solutions for the growing tailings pond crisis that respect Treaty rights.

Details of these requests include:

The Government of Canada (GOC) take all necessary actions to ensure safe drinking water on reserve and in Fort Chipewyan, including federal funding to move the Fort Chipewyan water intake to a safer location and immediate support for enhanced monitoring of drinking water and source water. The GOC ensure timely & complete information sharing and collaboration on current monitoring and assessment of data. Canada consult and collaborate with First Nations on the corrective actions that Canada will require Imperial to take to address this specific crisis. GOC funding for a Fort Chipewyan health study in light of the exposure pathways from oil sands including support for the proposal that First Nations brought forward in 2019. The GOC conduct a joint federal-Indigenous audit of risks for all tailings facilities in the region. GOC support for enhanced Indigenous-led monitoring and training. This situation has exposed gaps in monitoring and capacity that must be proactively resolved. GOC immediately establish a process with Indigenous communities to find solutions to the harm that tailings cause to areas of federal jurisdiction, including Treaty rights. This must take place before the development of industry’s lowest cost proposal, effluent regulations

We fully support these requests and ask that you do everything possible to fulfill them.

The Imperial Kearl site incidents, including the lack of oversight and reporting by Imperial and the Government of Alberta, demand a thorough investigation. First Nations and the public have a right to know what happened, how it was reported, and why they were not informed.

We would also like to bring to your attention and express our disappointment that the Liberal members at the meeting for the Standing Committee on Environment and Sustainable Development on January 30, 2023, voted along with the Conservatives to remove the words tailings ponds from Bill S-5, on the Canadian Environmental Protection Act. The line that they removed referred to the Minister being informed with relevant states of tailings ponds. It is deeply concerning that because of this vote, there is now no mention of tailings ponds in the Canadian Environmental Protection Act.

It appears that the current system, whereby Environment and Climate Change Canada delegates environmental oversight to provincial governments, has failed in these incidents. However, we don’t know how much damage has been done to Treaty 8 land and waters, fish and wildlife, and the Indigenous people who live there, how far this damage will spread, and for how long the impacts will be felt.

We urge you to take steps to prevent future seepages and spills of toxic emissions from tailings ponds by revamping the environmental oversight system. Specifically, we would like to see Environment and Climate Change Canada take a more active role in oil sands environmental oversight.

We look forward to your timely response to these requests and questions.

Respectfully,

Heather McPherson

Member of Parliament for Edmonton Strathcona

Laurel Collins

Member of Parliament for Victoria

NDP Critic for Environment and Climate Change

Blake Desjarlais

Member of Parliament for Edmonton Griesbach