Informed nine months after the fact that its hunting territories may have been poisoned by a leaking oil sands tailings pond, the Athabasca Chipewyan First Nation is accusing the Alberta Energy Regulator (AER) and ExxonMobil subsidiary Imperial Oil of environmental racism, as experts urge Ottawa to close regulatory holes that fossil companies can exploit.

On February 6, the AER issued an environmental protection order against Imperial after a breach caused at least 5.3 million litres of toxic tailings to overflow at its Kearl Lake oil sands mine, 140 kilometres north of Fort McMurray.

But this was not the first time that the AER and Imperial Oil had discussed Kearl Lake. Such conversations date back to May 2022, when Imperial first informed the regulator it had found discoloured surface water and vegetation to the north and northeast of the Kearl Lake site, reports the Globe and Mail.

According to Imperial documents obtained by the Globe, the fossil company met with the regulator three times between July and November to “discuss the situation.”

“During that time, Imperial Oil confirmed that the water exceeded environmental guidelines for various pollutants including dissolved iron, arsenic, hydrocarbons, and sulphate,” the news story states. “It also submitted various updates to the regulator, began weekly monitoring of the seepage sites, and was issued with a non-compliance order by the AER.”

Athabasca Chipewyan Chief Allan Adam said neither Imperial nor AER notified the community of the seepage into waterways on traditional hunting lands until after the pond had overflowed.

But the company knew for certain by the end of November that the discoloured vegetation and water it first noticed in May were being caused by a tailings pond leak, according to the Canadian Press. Imperial’s first plan to stop the seepage and clean up the surrounding ecosystem, submitted in December, was turned back by the AER. That’s because it would not have been activated until after the spring melt, when thawing could send the contaminants into the nearby Firebag and Muskeg Rivers. Latest reports suggest that at least small tributaries of these two rivers have been contaminated.

CP says a new plan submitted to the AER February 10 was “supposed to include ways to stop and clean up both the leak and seepage as well as outline a plan to communicate it to the public.”

Communities, NWT Government Kept in the Dark

In their latest public messaging, neither the AER nor Imperial Oil say anything about their failure to keep the First Nation informed. Imperial Oil did tell the community when it first discovered the discoloured vegetation north of the mine, but it did not confirm the source of the spill until the environmental protection order came down in February.

For Adam, whose members hunt and fish downstream of the leaking tailings pond, it smacks of a nine-month coverup, writes CP.

Adam said the First Nation had many meetings with Imperial Oil executives between May, 2022 and this February, 2023, including his own face-to-face meeting with a company vice-president in November. “Each meeting was an opportunity where they could have come clean, but they chose to hide the fact from us over and over again,” he said.

“We have land users in the area that hunt and fish animals that could have been exposed to these deadly toxins,” he added, responding to reassurances from Imperial and the Alberta government that the water and wildlife escaped damage. “We have been eating them for months unaware of the potential danger.”

The AER’s and Imperial’s failure to keep his community informed amounted to “environmental racism,” Adam told the Globe and Mail, adding that both would have responded very differently if the spill had happened near a large city further south.

“But because we are small communities, small First Nations living up north, we’re not considered to be … human, I guess.”`

The Athabasca Chipewyan leadership has warned its community not to eat any fish, game, or plant foods like berries harvested from the affected area after May, 2022.

News of the toxic seepage also came as a surprise to the Government of Northwest Territories, which, like the First Nation, learned of the ongoing leaks only after the major breach, even though immediate disclosure would have been required under the Mackenzie Basin Bilateral Water Management Agreement signed with Alberta in 2015.

An Immediate Duty to Report

“It is the licencee’s responsibility to report fluid releases to affected or potentially affected parties as soon as they become aware of the release,” the AER wrote in a March 2 news release. But this duty likely falls to the regulator, as well, Drew Yewchuk, a master’s student associated with the University of Calgary’s Public Interest Law Clinic, told CP.

Alberta’s Freedom of Information and Protection of Privacy Act states that any public body must inform the public without delay about any “risk of significant harm to the environment or to the health or safety of the public,” or any information “clearly in the public interest,” Yewchuk said. He said he’s asked the provincial information commissioner to investigate why the AER avoided making the Kearl leak public.

The regulator has not yet responded to Yewchuk’s concerns.

Alberta Premier Danielle Smith said she “thinks the regulator did its job by demanding a very quick resolution to this” and that she is “pleased all parties are now coming forward, reports the Toronto Star.

Smith added she expects “radical transparency” from Imperial Oil from now on.

As the company proceeds with a cleanup which it insists is well-advanced, experts are urging the AER and the federal government to fix the regulatory problems revealed by the leak, and by Imperial Oil’s stealthy response. 

Kristen van de Biezenbos, associate professor of energy law at the University of Calgary, told the Globe and Mail there is a lack of coordination between the AER and enforcement at the federal level, despite overlapping authority.

“The result is a system full of holes that companies like Imperial can exploit to the detriment of First Nations and other people living in northern Alberta.”

Alberta and Ottawa are routinely inconsistent in enforcing their own regulations, she added.

“Both levels of government need to think carefully about, ‘What message are you sending to First Nations and rural communities when you refuse to hold companies to their legal obligations?’”