Recent leaks of toxic tailings from northern Alberta oilsands mines have revealed serious flaws in how Canada and Alberta take care of the environment, observers say.
Some accuse the federal government of abandoning the province. Others point to what they call a captive provincial regulator. All agree that there’s no way a leak from Imperial Oil’s Kearl tailings ponds must have gone unreported for nine months to each Ottawa and Edmonton, in addition to the individuals who live near it.
“We’ve never taken this issue seriously,” said Martin Olszynski, a University of Calgary resource law professor and former federal regulatory lawyer. “They’ve never taken these risks and these threats seriously.”
Imperial discovered “brown sludge” near one in every of its Kearl tailings ponds in May and it became clear over the summer the issue was significant.
Nonetheless, the Alberta Energy Regulator didn’t update First Nations or inform federal and provincial environment ministers concerning the issue until Feb. 7, when it issued a protection order after a second Kearl release of 5.3 million litres of tailings from a catchment pond. Federal laws requires Environment Canada to be notified of such leaks inside 24 hours.
“The largest learning from that is that the province has oversight and control over what information the federal government is receiving,” said Mandy Olsgard, a toxicologist who has worked on regulatory issues for the Alberta Energy Regulator and Indigenous groups.
Ottawa joins within the review panels that assess projects then mostly back away, Olsgard said.
“They only hand it off to the province.”
After which the province hands it off to a regulator that many consider too near the industry it’s alleged to oversee.
“This regulator has all the time considered its relationship being bilateral, between itself and industry,” said Nigel Bankes, a retired professor of resource law on the University of Calgary. “Never triangular, never a three-legged stool involving the general public.
“For me, this (Kearl release) just confirmed all of that.”
That attitude is pervasive within the provincial government, Bankes said.
“It’s a general message of don’t rock the boat,” he said. “It permeates the department of energy and it permeates Alberta Environment.”
Gabrielle Lamontagne, an Environment and Climate Change Canada spokesperson, said in an email the department continues to be determining what information Imperial reported to Alberta EDGE, in an effort to determine if the discharge met the triggers that might require the report back to be forwarded to ECCC.
EDGE, which stands for Environmental and Dangerous Goods Emergencies, manages transportation of dangerous goods emergency calls in Alberta and assesses the severity of dangerous goods incidents. Its website says it “communicates openly with other regulatory agencies, corresponding to the Alberta Energy Regulator (AER), within the event of an emergency or safety-related incident.”
A survey conducted in 2021 for Alberta Environment found greater than 85 per cent of Albertans had little confidence within the regulator’s ability to manipulate industry, in that case coal. The survey also reported Albertans found the agency reluctant to release information and was not very transparent.
Each federal Environment Minister Steven Guilbeault and his Alberta counterpart Sonya Savage have acknowledged things need to vary.
“We want to take a step back and say ‘What are the processes? Were they followed? And do we’d like to boost them?’” Savage said this week. “We’re committed to taking the step to enhancing all of those processes.”
“We want to search out higher mechanisms,” said Guilbeault.
But Marlin Schmidt, the Alberta Recent Democrat’s environment critic, is skeptical.
He said the province and the regulator have already refused to inform him the scope and timeline for the investigation of the leak. Savage wouldn’t commit to creating the outcomes of the investigation public, Schmidt said, nor would she promise to release results from an internal investigation into whether the regulator followed notification rules.
“There’s no investigation into what process led to the failure, nor any commitment to improving,” he said. “We’re just shrugging our shoulders and hoping next time things work out higher.”
The Kearl situation shows it may well be a mistake for the federal government to “harmonize” regulations with the provinces and delegate oversight to them, Olszynski said.
“Given the sort of politics on this province, we could have seen that coming,” he said. “We must always have known that these folks aren’t talking thoroughly together, so it is advisable to rethink these arrangements that rely upon them talking together.”
Olszynski said oilsands operators should now be required to report spills or every other unscheduled releases on to the federal government.
“I feel it’s time for Environment Canada to take a rather more proactive role in tailings management,” he said.
The Kearl situation has made one thing clear, said Olsgard.
“It’s made it obvious to the general public that there usually are not good processes between the provinces and the feds.”
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