Athabasca Chipewyan First Nation (ACFN) has served the Alberta Energy Regulator (AER) with notice of a lawsuit filed in the Alberta Court of King’s Bench alleging negligence, nuisance, breach of the duty to consult, breach of the Honour of the Crown, breach of fiduciary duty, and unjustified treaty infringement by the AER and Alberta against the ACFN.

The lawsuit is focused on the AER’s failure to inform ACFN about two significant toxic tailings discharges from Imperial Oil’s Kearl facility. The allegedly uncontrolled discharges took place between May 2022 and February 2023. During this time, the AER was allegedly aware of the incidents, but allowed the Kearl project to continue to operate while failing to inform ACFN of the incidents for nine months.

“The AER is supposed to regulate the energy sector in Alberta to ensure safety and environmental responsibility. They have spectacularly failed on this front. The AER has also neglected ACFN’s constitutional right to be consulted and accommodated,” said Chief Allan Adam. “We will always defend our land and Treaty rights. We will see the AER and Alberta in Court to answer for what we say are their unconstitutional, negligent, and reckless actions and decisions.”

ACFN’s lawsuit seeks declarations from the court that the regulatory and policy framework for tailings management in Alberta, which enabled the tailings discharges to occur and to go unreported for months, is deficient and unconstitutional, and that ACFN’s treaty rights have been infringed by the AER and Alberta. ACFN is also seeking compensation for the impacts of the incidents on ACFN members’ ability to exercise their Treaty rights and way of life.

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Timeline of events, according to ACFN

2007 — During Kearl’s Pre-construction Environmental Assessment stage ACFN notifies the regulator that the tailings ponds were likely to leak, because they were going to be built on porous ground.  This advice is ignored and construction is approved by Canada and Alberta, on the condition that a leak containment system is installed.

(2013-Present) — Imperial designs and installs a containment system to collect tailing water that leaks out of the bottom of the tailings ponds and pump it back into the same leaky tailings pond.

May 11, 2022 —  Imperial discovers leaks on four tailings ponds that are escaping the containment system. The tailings water seeps sideways through the constructed berms. This is evidence of failure of the leak containment system. Imperial and AER do not inform ACFN.

May 19, 2022 — Imperial informs ACFN that “discoloured water” has been noted adjacent to tailings pond, but does not inform ACFN that the containment system is failing to contain tailings water.

June 3, 2022 — Imperial notifies the AER that the “discoloured water” is process-effected water from the tailings pond. Imperial and AER do not inform ACFN.

June 28, 2022 — Imperial submits remediation action plan to the AER. Imperial and AER do not inform ACFN.

July 21, 2022 — Imperial and ACFN have regularly-scheduled joint Environmental Monitoring Committee meeting. Imperial does not inform ACFN.

Aug 3, 2022 — Imperial Remediation Action Plan approved by AER. AER do not inform ACFN.

Aug 22, 2022 — In August 2022, Imperial monitoring results confirm that the leaks contain industrial wastewater, and that provincial and regulatory guidelines for the protection of aquatic life were exceeded for several substances (including dissolved iron, total arsenic, F2 hydrocarbons, sulfate, and total sulfide). Imperial and AER do not inform ACFN.

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Sept 2, 2022 — AER issues statement of noncompliance to Imperial for tailings water outside containment system. AER does not post it on the AER’s Compliance Dashboard.

Sept 15, 2022 — Imperial and ACFN have regularly-scheduled joint Environmental Monitoring Committee meeting. Imperial does not inform ACFN.

Oct 3, 2022 — Imperial and ACFN have annual leadership meeting between Chief Adam and Imperial Vice President of oil sands mining. Imperial does not disclose leaks.

Nov 18, 2022 — Imperial and ACFN have regularly-scheduled joint Environmental Monitoring Committee meeting. Imperial does not disclose leaks.

 Dec 22, 2022 — Imperial submits action plan to AER.Imperial and AER do not inform ACFN.

Feb 6, 2023 — Drainage Pond 4 overflows an estimated 5.3 million liters of tailings water (largest oil sands spill in history). Imperial informs ACFN of over land spill but fails to mention the underground leaks going on since May 2022.

Feb 7, 2023 — AER issues an environmental protection order for both the February 6, 2023 tailings spill and the tailings seepage that had been ongoing since at least May 2022.

For further information on this legal action, click here.

Featured image credit: Government of Canada/Travel Alberta

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