Current Problems


Why this First Nation is Right to Sue the Alberta Energy Regulator over Last Year’s Toxic Tailings Leak

March 8, 2024

NationTalk: Environmental Defence – Last year, one of Imperial Oil’s mines in the tar sands leaked toxic industrial waste into the surrounding environment. Instead of informing downstream communities, the Alberta Energy Regulator (AER) helped Imperial cover up the spill for over nine months.

Now the Athabasca Chipewyan First Nation (ACFN) – one of the downstream Indigenous nations impacted by the toxic spill – is taking the AER to court.

We should celebrate and support the Nation’s brave move to seek justice, and demand permanent changes to the rules in the tar sands so disasters like the Imperial toxic wastewater spill never happen again.

Understanding Imperial Oil’s Toxic Spill and Leak 
A large tailings pond in the Alberta Oilsands. Tailings ponds are used to store the wastewater that results from separating the heavy oil bitumen from the sticky sand mined from around the area.

Oil companies in the tar sands have been storing their industrial wastewater in huge human-made lakes, which they call the tailings “ponds”. They are so large they could cover the City of Vancouver 2.6 times over! These “ponds” contain over 1.4 trillion litres of toxic fluid. The tailings are a toxic cocktail of dangerous chemicals such as mercury, benzene, arsenic and naphthenic acids.

In February 2023, 5.3 million litres of tailings waste spilled from Imperial Oil’s Kearl mine in the tar sands into the surrounding environment. Soon after, the AER issued a public notice about the spill on its website, which also mentioned that separate tailings at the same facility had been leaking toxic waste for at least 9 months.

Shockingly, this was the first time local Indigenous nations, the federal government and the public were informed about the leak! This means community members gathered meat, berries, and medicines from the area without knowing they might be contaminated. These communities already experience high rates of cancer and other devastating health impacts which the community and local physicians link with the contamination coming from the tar sands operations.

To learn more about the Imperial Oil tailings scandal, watch this short video:

When all else fails, sue 

ACFN’s Chief Allan Adam, explained his reasons for the lawsuit: “The AER is supposed to (…) ensure safety and environmental responsibility. They have spectacularly failed on this front. We will always defend our land and Treaty rights. We will see the AER and Alberta in Court.”

A lawsuit was not ACFN’s first attempt at obtaining justice. In fact, the Indigenous communities impacted by tar sands pollution have used every tool one can think of to protect themselves and the environment, including:

  • intervening in countless Federal-Provincial impact assessments when new tar sands mines are proposed;
  • organizing large healing walks for the world to witness the devastation on their territory;
  • travelling to Edmonton, Ottawa and even internationally to deliver their demands directly to those in power.

Instead of responding to these concerns, governments have added to the problem by approving more tar sands mines and tailings. They have failed to put in place rules about how toxic waste should be managed. Where rules do exist, they aren’t enforced.

The community accuses the regulator of violating Indigenous rights 

AFCN’s lawsuit accuses the Alberta Energy Regulator of having taken no steps to inform their community about the toxic leak or lessen its impacts. The Athabasca Chipewyan First Nation has its Indigenous rights protected under Treaty 8. This includes a right to hunt, fish and gather safely. By failing to inform the community about the toxic leak, the lawsuit argues, the regulator failed to protect these guaranteed rights.

ACFN is also arguing that the Imperial Oil incident is not an isolated case. Instead, it is a symptom of deeper issues within Alberta’s legislative and regulatory framework for managing tailings and approving energy projects.

You can learn more about the deep impacts felt by the community by watching Killer Water, a powerful documentary by Metis journalist Brandi Morin.

A win could result in big changes

Through this lawsuit, the AFCN is seeking justice by requesting both public acknowledgement of the harm caused, and monetary compensation. Some key outcomes sought by the community are:

  1. An official declaration from the government that the rules for approving and overseeing tailings ponds in the tar sands are unconstitutional because they do not respect Indigenous rights guaranteed under the Constitution.
  2. Part or all of the $50 million in royalties that the regulator receives from Imperial Oil’s Kearl Mine during the time the leak was being hidden.
  3. Compensation for the damages experienced by the community as a result of the leak, which they estimated at $500 million.

If the ACFN wins the lawsuit, it could lead to major changes in the way Alberta deals with First Nations on resource projects, and would give Indigenous communities impacted by the tar sands a lot more power to put a stop to the toxic contamination they’ve experienced since mining on their land started.

It’s time we find a lasting solution to the tailings pollution problem

On Tuesday, when Chief Allan Adam met with the Alberta Energy Regulator’s CEO, he did not stop at delivering the lawsuit. He stated “Fix the problem. If you can’t do that, it’s time to shut down the oil sands.”

Although the Alberta government and the energy regulator have been particularly complicit in encouraging unchecked production from the tar sands, the federal government is also responsible for allowing the pollution to happen.

Finding lasting solutions to the toxic tailings problem will require the federal and provincial governments to take decisive measures to guarantee:

  1. No more additional tailings. The problem can not be allowed to grow any larger, and the industry must be forced to recycle its water to create no additional volume of waste.
  2. Charges are laid under federal and provincial laws against Imperial Oil and all tar sands companies whose tailings ponds are leaking.
  3. An overhaul of the Alberta Energy Regulator, to create a new regulatory body in which Indigenous nations are involved in a decision-making capacity.
  4. Tar sands operators deposit enough money in trust accounts for cleaning up their waste and environmental remediation.
  5. Develop scientifically credible plans, with timelines, for the full clean-up of the toxic tailings.

Oil production in the tar sands will also need to be phased out in the coming decades, both to put an end to the contamination of nearby communities and to stop accelerating the climate crisis.

You can take action to hold Big Oil and the government accountable. Send a letter to demand immediate action to clean up toxic tailings from Prime Minister Trudeau and Alberta Premier Smith. 

Alienor Rougeot
Program Manager, Climate and Energy