Imperial Oil faces federal probe over northern Alberta tailings leaks

Imperial Oil is officially under investigation to determine whether the company broke federal law with recent tailings leaks from its Kearl oilsands mine in northern Alberta.

Environment Minister Steven Guilbeault announced the development Thursday afternoon but said he could not comment on the active investigation.

Environment and Climate Change Canada enforcement officers are investigating whether Imperial Oil violated a section of the federal Fisheries Act and should be charged. The law prohibits the deposit of a harmful substance — like the toxic chemicals that make up oilsands tailings — into water frequented by fish or any place where the substance could feasibly enter fish-bearing waters. A violation isn’t determined by whether fish are harmed by the deposit — just whether it entered or could have entered the waters where they live.

In early February, Imperial Oil reported a leak of 5.3 million litres from one of its tailings storage ponds on the Kearl site. It was one of the largest tailings leaks in Alberta’s history. When the provincial energy regulator issued an environmental protection order on Feb. 6, communities downstream of the Kearl site, the federal government and the Northwest Territories learned for the first time that Imperial had also detected tailings seepage at multiple locations on the Kearl site last May. Outrage ensued, and Indigenous leaders and MPs eventually questioned Imperial Oil executives and the Alberta Energy Regulator about why it took nine months for them to notify communities and governments of the spill, despite a variety of intergovernmental and impact benefit agreements that require swift communication of such issues.

“Imperial understands that Environment and Climate Change Canada is seeking additional information and we are cooperating with the department,” spokeswoman Lisa Schmidt said in an email to Canada’s National Observer.

"We have been providing information on the situation at Kearl and have hosted regulatory officials for tours and testing at our site," Schmidt said. She cited measures to prevent possible downstream impacts including collecting shallow groundwater with a vacuum system and “enhanced monitoring.”

The decision to launch a full investigation into the spills means officers will determine whether charges are warranted for non-compliance with the federal Fisheries Act, Guilbeault explained at the press conference.

“It means the process is underway to hold the company to account,” he said.

The move was quickly applauded by Environmental Defence, which, alongside Indigenous communities downstream of the oilsands, has regularly called for polluting oilsands companies to be charged under this federal law.

“Imperial Oil must be held accountable for the irreparable harm to the environment and Indigenous communities caused by the toxic leak from its Kearl mine,” Aliénor Rougeot, climate and energy program manager at Environmental Defence, said in a news release.

“We expect Imperial Oil to be prosecuted to the fullest extent of the law for the damage caused.”

On March 10, ECCC enforcement officers issued a directive to Imperial Oil to stop the leaks. On Thursday, ECCC said it will continue to monitor whether the company is complying with that order.

The investigation will encompass everything related to the Kearl site, including both tailings leaks, an ECCC spokesperson told Canada’s National Observer.

“We need to study the risks from the tailing ponds and the oilsands and the risk to human health so that we can better understand the gravity of the problem and identify the right course of action,” said Guilbeault. “I won't rest until we find solutions.”

Local Indigenous communities have long called for studies that look at the cumulative health impacts of living downstream of Alberta’s oilsands operations. The leaks at Kearl exemplify the looming threat of more than 1.4 trillion litres of toxic tailings stored in massive human-made ponds, many of which are perched alongside the Athabasca River.

“We need to see the company reclamation plans for these tailings ponds, and how this reclamation will be done in a way that considers the Indigenous communities that live on the land,” said Guilbeault. He once again said it is very disappointing that neither the provincial regulator nor the company notified Indigenous communities or the federal government of the initial leak.

“Internal analysis conducted by my department has revealed serious gaps in reporting and notification of these incidents,” said Guilbeault, adding the department has formed a working group and is co-developing — with Indigenous communities, Alberta and the Northwest Territories — new measures to strengthen notification and monitoring systems.

“I think we all recognize that the situation right now is untenable, and we can't continue going on this way, which is why we're proposing to change the way we do things,” said Guilbeault.

Conservative MP Greg McLean said the Alberta Energy Regulator failed to communicate with communities about water quality after the spill and pointed to decades-long troubles within the regulator.

“At some point in time here, we're gonna have to put some accountability on this body, and the buck has to stop somewhere,” he told reporters, adding that the regulator’s CEO, Laurie Pushor, “understands where that is at this point in time because his organization clearly failed in getting the public good done in this case.”

According to Imperial Oil’s testing, the leaks did not cause any adverse impacts to drinking water or wildlife.

McLean also questioned how a working group Guilbeault formed in the wake of the tailings leaks will proceed, given Alberta recently created the Fort Chipewyan Working Group group. That group is intended to serve as an information-sharing forum and “ensure community perspectives are reflected in government plans” for additional downstream monitoring to keep drinking water safe and secure.

“The last thing we need is more diffused responsibility about informing people of the quality of their water,” said McLean.

Over the years, Imperial Oil has been handed fines under various provincial and federal laws. In 2005, the company was fined $300,000 under the same Fisheries Act provision it is currently being investigated for after its petroleum refinery in Sarnia, Ont., discharged 85,700 kilograms of hydrocarbons into the St. Clair River in 2004.

Imperial Oil’s handling of the tailings leaks recently garnered criticism from one of Canada’s largest pension fund managers. On April 30, the Globe and Mail reported that British Columbia Investment Management Corp. voted against two directors up for re-election at the company, one of whom is Imperial CEO Brad Corson. The pension fund manager cited “a lack of risk oversight that led to major controversies.”

While this investigation “is a step in the right direction to hold Imperial Oil accountable,” NDP MP Heather McPherson says the Liberals “should vote for the NDP amendment to add the word tailing ponds back into [Canada’s main environmental protection law].” This will allow Ottawa “to take a more active role in oilsands environmental oversight” to show they are serious about protecting Canadians’ health and the environment, she said.

Natasha Bulowski / Local Journalism Initiative / Canada’s National Observer