The Athabasca Chipewyan First Nation says it is suing the Alberta Energy Regulator (AER) for its alleged failure to regulate Imperial Oil’s Kearl oilsands facility.
In a statement of claim filed on Tuesday at the Court of King’s Bench in Edmonton, the ACFN accused the AER of being aware of the uncontrolled discharges at the Kearl oilsands facility from May 2022 to February 2023 but failed to inform the First Nation about them. The facility is located on the traditional land of the ACFN near waterbodies that feed into the Firebag and Athabasca rivers.
The ACFN said the tailings are a mix of naphthenic acids, salts and heavy metals including arsenic, lead, mercury, additional chemicals and residual bitumen.
According to the statement of claim, the ACFN said the AER “took no steps” to inform members about the ongoing contamination of ACFN land and waters where members exercise their treaty rights. The ACFN also said the AER failed to consult the First Nation about how to address the issue and to mitigate further impacts on members’ rights and way of life.
The ACFN also said the AER failed to regulate or monitor the situation when it was first known. The First Nation said the AER had a duty of care to warn the ACFN about the discharge of the tailings but failed to exercise the duty and harmed the nation’s ability to exercise its Treaty 8 rights as a result. The ACFN called the omissions by the AER “unlawful, negligent and reckless” and said they amount to “bad faith.”
In addition to the AER’s alleged failings, the ACFN also said the incident highlights the lack of proper regulations and procedures related to energy and industrial projects in Alberta, including the lack of consultation or consideration of the ACFN’s treaty rights and traditional land. Section 35 of the Constitution Act of 1982 recognizes the existing treaty rights of Indigenous Peoples and says First Nations, Métis and Inuit communities must be consulted if established treaty rights may be adversely affected.
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The ACFN said this lack of regulations infringes on the nation’s rights and must be declared unconstitutional. The province has the power to manage and regulate oilsands facilities, as well as the power to create the regulatory structures for the AER, the ACFN said. The statement of claim also says the province is responsible for upholding the Crown’s treaty promises to the ACFN and ensuring the nation can exercise those rights and way of life on its traditional territories, including hunting, fishing and gathering downstream from the Kearl facility.
The ACFN added that the Alberta government continued to receive royalties at the rate of $50 million a month from the Kearl facility from May 2022 to February 2023.
In the statement of claim, the ACFN said members were fearful of the extent of the contamination and warned resource users to stop using the lands and water downstream of the Kearl facility to exercise their treaty rights.
The toxic components in the tailings will have long-lasting effects on plants and wildlife that the ACFN depends on for its way of life, the statement of claim said.
The uncontrolled discharges also had significant psychological, social and cultural harms to the ACFN, which further impacted members’ abilities to exercise their treaty rights. The statement of claim noted many members were anxious and fearful due to mistrust of the water sources. It also noted that uncontrolled discharges prevented the nation from exercising Dene law, which includes accessing the land to transmit cultural knowledge and protecting access to clean and healthy food and water.
The claims have not been proven in court.
“The AER is supposed to regulate the energy sector in Alberta to ensure safety and environmental responsibility. They have spectacularly failed on this front,” Chief Allan Adam said in a statement.
“The AER has also neglected the ACFN’s constitutional right to be consulted and accommodated.
“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.”
The ACFN said it wants the court to declare that the regulatory and policy framework for tailings management in Alberta enabled the tailings discharges to occur and go unreported for months, which meant the policies are “deficient and unconstitutional.”
The ACFN also wants the court to declare its treaty rights have been infringed by the AER and Alberta.
The ACFN is also seeking compensation for the impacts of the incidents on ACFN members’ ability to exercise their treaty rights and way of life.
In an emailed statement to Global News, AER spokesperson Renato Gandia said, “We appreciate the opportunity to visit Fort Chipewyan and to meet and speak with the community. AER employees were provided with a document and the AER will be seeking legal advice.”
Ryan Fournier, press secretary of Alberta’s Environment Ministry, said the province is unable to comment on the matter because the issue is before the courts.
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