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The site of a drainage pond that breached at Imperial Oil's Kearl oil sands project that spilled 5.3 million litres of tainted water. Imperial's remediation efforts (seen in the foreground) included chopping down the trees, and removing the topsoil.Nicholas Vardy/Handout

Alberta failed to notify the federal government that toxic water from the Kearl oil sands project was seeping for months into the environment and that a drainage pond breach at the site spilled 5.3 million litres of water, Environment and Climate Change Canada says.

Federal Environment Minister Steven Guilbeault says Canada failed Indigenous communities in the Kearl leak, because of “inadequate” provincial and federal systems that must be improved.

Water tainted with dangerous levels of arsenic, dissolved metals and hydrocarbons has been leaking off the Kearl project onto Crown lands since May. But local Indigenous communities and the public at large were kept in the dark until after the February incident in which millions of litres of polluted water spilled from a drainage pond at the site north of Fort McMurray, Alta.

ECCC spokesperson Gabrielle Lamontagne told The Globe in an e-mail that regulations that govern how provinces and territories report environmental emergencies are part of the Canadian Environmental Protection Act and the Fisheries Act.

Most jurisdictions, including Alberta, have a 24-hour phone number to call – a system developed to avoid duplication of records. Information about the environmental issue is then transferred back to the federal Environment department.

But a timeline of notification events provided by Ms. Lamontagne says ECCC first became aware of the problems at Kearl on Feb. 7, after concerned First Nations contacted the department and the Alberta Energy Regulator (AER) posted an environmental protection order against Imperial Oil Resources Ltd. on its website.

Imperial Oil told The Globe and Mail Wednesday that its initial notifications of the seepage issue “were made in accordance with regulatory requirements under applicable legislation for incident reporting requirements.”

University of Calgary environmental law professor Martin Olszynski said the situation at Kearl is “a failure of the regulatory regime.” And because “there is no functional relationship between the provincial and federal regulators,” he said, “this is a chronic issue.”

“It’s not acceptable, because when situations like this arise, it calls into question the effectiveness of the whole system.”

Imperial Oil, the AER and the Alberta government have repeated that no water from the continuing seepage or the February spill has entered waterways.

However, both the oil company and regulator have acknowledged that the affected area is in proximity to a fish-bearing waterbody and tributaries that feed the Firebag and Muskeg Rivers. And on Sept. 2, 2022, the AER issued a non-compliance notice to Imperial Oil for releasing industrial wastewater into the watershed surrounding Kearl.

The AER, an arm’s-length body which is responsible for regulating all energy projects in the province throughout their lifecycle, did not return a request for comment before deadline.

Prof. Olszynski said the argument that there’s no imminent threat to fish because the problem affected groundwater is bunk, because “the groundwater and the freshwater in this area are intimately connected. It’s a huge problem.”

Mr. Guilbeault acknowledged that “the systems we have right now are not working.”

“We’ve failed Indigenous communities and nations, and we need to do better. And it’s not just me saying it – I think you’ve heard the Premier of Alberta say things that are very similar to that.”

Mr. Guilbeault said he is talking with various federal departments “to see how, on our end, we can do better.” He has also spoken with two Indigenous communities downstream from Kearl, Athabasca Chipewyan First Nation and Mikisew Cree First Nation.

“There’s a real sense of of emergency and even panic,” Mr. Guilbeault said.

The chiefs from both communities told The Globe on Wednesday that the situation at Kearl and the fact they were kept in the dark until after the February spill have broken their trust in the company and the AER.

Imperial Oil said this week it always intended to inform affected communities about the seepage once it knew what was causing it and had a plan to fix it, though it had submitted plans to deal with the issue to the AER on Dec. 22, 2022.

Mikisew Chief Billy-Joe Tuccaro and members of his council visited Kearl this week.

Mr. Tuccaro said in an interview that Imperial has granted permission for environmental monitors from his community to take readings from Kearl.

“They still aren’t giving us the full information that we’re requiring for us to be satisfied on our end,” he said.

“Until this situation is remediated, all the trust is broken.”

He and Athabasca Chipewyan Chief Allan Adam both want Imperial Oil to shut off the Kearl oil sands operation until it deals with the seepage and cleans up the contamination.

“How long is the investigation going to take?” Mr. Tuccaro said.

He added that even “a couple of cups” of contaminated water seeping into the environment should have been cause to notify the First Nation. “There should be a remediation plan to mitigate the problem as soon as possible, because people have got to understand that a lot of my people still rely on a diet from the traditional foods.”

Leadership from Athabasca Chipewyan met with the AER Tuesday and will visit Kearl on Friday, Mr. Adam said in an interview.

Meanwhile, he’s calling for an independent federal inquiry into the incidents.

“We want to know what [the regulator and Imperial Oil] are going to do to fix these problems,” he said.

With a report from Marieke Walsh

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