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Tailings samples being tested during a tour of Imperial's oil sands research centre in Calgary, on Tuesday, Aug. 28, 2018. Alberta's watchdog is trying to determine if the province's energy regulator had a legal obligation to disclose recent leaks of toxic tailings from northern Alberta oilsands mines.Jeff McIntosh/The Canadian Press

Alberta’s information and privacy watchdog has launched an investigation into the province’s energy regulator, over whether it had a legal obligation to disclose information about a continuing leak from the Kearl oil sands project.

Water tainted with dangerous levels of arsenic, dissolved metals and hydrocarbons has been seeping off the project onto Crown lands north of Fort McMurray, Alta., since May, including next to a small fish-bearing lake and tributaries to the Firebag and Muskeg rivers. The federal government, local Indigenous communities and the public at large were not informed of the leak until months afterward, when a separate incident at Kearl spilled 5.3 million litres of wastewater.

The Alberta Energy Regulator (AER) has maintained that the duty to inform the public was that of Imperial Oil Resources Ltd. IMO-T alone.

But a staff lawyer with the University of Calgary’s public interest law clinic, Drew Yewchuk, disagrees.

In a March 6 letter to Information and Privacy Commissioner Diane McLeod, he argued that under Alberta’s Freedom of Information and Protection of Privacy (FOIP) Act, public bodies have a statutory obligation to disclose to the public any information about risks of significant harm to the environment or human health.

The continuing leak of toxic tailings-tainted water into the environment presented a “clear and compelling reason” to disclose to the public what was going on, he wrote.

Further, he said, Section 32 of the FOIP Act specifically precludes public bodies from delegating the responsibility of public disclosure to private operators (in this case, Imperial Oil).

Ms. McLeod’s office announced on Wednesday that the commissioner had launched an investigation into the AER specific to Section 32 of the Act.

The investigation will examine whether the regulator had an obligation to disclose information “that is clearly in the public interest” about the tailings pond leak from Imperial’s Kearl oil sands project, and whether it did so.

The commissioner’s office did not provide any further details – including a timeline – as it is an open investigation.

The AER did not immediately return a request for comment.

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