Environment Committee on Nov. 28th, 2023

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Ms. Chatel, you have the floor.

[Sophie Chatel, Liberal, Pontiac, QC]

Thank you, Chair.

I yield my time to Mr. Weiler.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Thank you, Chair.

Thank you, Mr. Pushor, for joining our committee again today.

The motion for this study was first launched, as Ms. Goodridge mentioned, some months ago. We were seeking answers to a lot of the questions that we have. Unfortunately, at the first meeting we had, there were a lot of answers that the regulator wasn't willing to come forward with because of the ongoing investigations that you mentioned were taking place, and you didn't want to jeopardize the integrity of those.

First, when can we expect the investigation into the two events at the Kearl oil sands spill to be completed?

[Laurie Pushor]

Whether the investigators are at the AER or any other similar agency, or the enforcement arm of a police force, they are very independent. They will conclude their investigation when they believe they have concluded all of the work they need to do. The determinations will be released at that time.

There is a formal clock in the AER structure that says it must be completed within two years. We're a few months away from the start of this, so we can expect that it will be somewhere in the next 12 to 16 months.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

One report we do have that was made public was at the end of September. It was commissioned by the AER for Deloitte to investigate the communications failure that took place. As part of that, I understand there was a second report, a “what we heard” document that captured the indigenous concerns, but it wasn't made public.

Furthermore, we've been informed by indigenous communities that their input wasn't included in the recommendations of the report. Given that you paid for your own review of these events, why were the indigenous voices silenced as part of this report?

[Laurie Pushor]

The Deloitte study was undertaken and managed by the board at the AER, not management directly. As part of those discussions, as I've been told, Deloitte came back and said that they had heard a lot of interesting comments from the communities that they had engaged with. As such, they had not, when they did those interviews, advised the communities that that information would be released, so they felt an obligation to go back to those communities and ask permission to release it. The last information I received suggested they had not, at least at this time, received an okay from all of the communities to release that.

That's what I understand the situation to be there.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

In your testimony on April 24, 2023, you mentioned that you had asked all mines to do an assessment of their facilities to determine if there was any indication that anything like this would be happening elsewhere.

We understand that the way the tailings pond is constructed is quite similar to a lot of the other tailings ponds throughout the region.

I'm curious. On what date did you ask these other companies to do that assessment? Would you be able to show us that request?

[Laurie Pushor]

I certainly can. My understanding is that we received all of that information from the other mines across the region and it has and continues to be reviewed by our subject matter experts.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Could you submit those assessments to this committee?

[Laurie Pushor]

I believe there's no impediment to doing that. If we haven't already made them publicly available, we'll certainly be pleased to do that.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

At this point, what companies have completed that assessment?

[Laurie Pushor]

All of the companies.

[Patrick Weiler, Liberal, West Vancouver—Sunshine Coast—Sea to Sky Country, BC]

Since the meeting we had, we've found out that in spite of concerns that have been brought forward in response to the Suncor facility, there have been plans accepted to build a tailings pond in a wetland by building a deep structure to separate these tailing ponds from the wetland.

I was hoping you would be able to explain why these plans have been approved to go forward, in spite of these very real concerns that have been brought forward, which were not brought forward when it was initially looked at.

[Laurie Pushor]

First of all, to the chair, I was asked to come here to discuss the Kearl incident, so I haven't prepared in any detail to talk about other mine sites.

I can speak briefly to this one.

When the Suncor mine was approved by a joint federal panel, it approved the mining into the region that you're discussing and talking about. It is to mine that region and not to build a tailings pond there is my understanding.

What was recently approved was the operational plan by which they would mine that area. We were asked to review and reconsider whether that was a sound decision in terms of the operational plan. Independent statutory decision-makers at the AER reviewed, again, the information that was provided requesting the review, as well as their original decision.

These were different decision-makers than the original decision-makers and considered that, given that the area was approved to be mined by the joint federal-provincial panel, the operational plan was sound and so did not proceed with the review.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Mr. Garon, you have the floor.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Thank you, Chair.

Good morning, Mr. Pushor.

When you appeared before this committee last April, you told us that a third party had been commissioned to conduct an independent investigation. Nine months on, the report has, of course, been published. It’s a fairly short report, 14 pages long, and it only examined the communication processes relating to the incident. The mandate was quite narrow. It wasn’t a broad mandate. In addition, Deloitte was unable to question employees of Alberta’s energy regulator to find out where these problems began.

Essentially, what stands out in the report is what it fails to mention. We understand from it that there were no procedures in place to determine whether it was an incident or an emergency, that there was no clear communications protocol, and that things were done in a somewhat haphazard, if not ad hoc, manner. Deloitte concluded in its report that Alberta’s energy regulator complied with its requirements, but compliance was easily achieved, since requirements were minimal.

Hiring a third party like Deloitte, a company that will do business with you again and is not independent, suggests that you were not prepared to accept the results of a real investigation, where transparency and rigour would have been essential to get to the root of the problem.

Why did you decide to give Deloitte such a highly circumscribed and narrow mandate? Why didn’t you choose to mandate a retired judge or a quasi-judicial commission, for example? Why mandate a company with which you will, in all likelihood, do business again?

[Laurie Pushor]

First of all, I would remind the panel that the board of the AER conducted this review. They used an open, public request for proposals process and selected the vendor they believed best met their interests and criteria. The board advised me that their interest was in ensuring that we looked at, through this study, our processes and procedures around communication and incident management. That was the scope of the proposal that I mentioned in April. It's included in very public documents around the RFP and the terms of reference and so on.

What Deloitte does in a matter like this is not unlike independently contracting an audit.

I would respectfully challenge you, someone who sits as part of a government that uses Deloitte extensively, that I'm sure we can be confident in Deloitte's integrity. They conducted a thorough review, including all of our documented policies and procedures, including interviewing internal staff at the AER, as well as going beyond that to talk to the communities to ensure they understood what the community expectations were.

[Jean-Denis Garon, Bloc, Mirabel, QC]

With all due respect, Mr. Pushor, I must point out that I am not part of the government, and I assure you that the Bloc Québécois does not do business with Deloitte.

I recently heard an interview with Martin Olszynski, a professor of environmental law at the University of Calgary. He’s not a very political person, and he knows what he’s talking about. He said that this inquiry should have been entrusted to a quasi-judicial body, that the inquiry lacked credibility because of this, and that this could erode public confidence. In that respect, I think parliamentarians are members of the public.

Do you think Professor Olszynski is wrong?

[Laurie Pushor]

I'm sorry. I missed the question. Could you repeat the question, please?

[Jean-Denis Garon, Bloc, Mirabel, QC]

Mr. Chair, I’d like for the speaking time I just lost to be given back to me. Thank you.

Mr. Pushor, I was pointing out that the Bloc Québécois does not do business with Deloitte. I’m not part of the government, so I have no trust relationship with Deloitte, and vice versa.

In a recent interview with Martin Olszynski, an environmental law professor at the University of Calgary who specializes in such matters, Olszynski argued that Alberta’s energy regulator should have referred this investigation to a quasi-judicial body. That could have been a retired judge, for example. He also said that the fact that you proceeded this way, meaning by hiring Deloitte, had discredited the investigation and that, ultimately, it had potentially undermined both public and parliamentary confidence in the investigation.

Do you fully disagree with the comments made by Mr. Olszynski, professor of environmental law?

[Laurie Pushor]

The professor you mention often comments on the work of the AER. Sometimes we agree, and sometimes we disagree. In this matter, it isn't a matter of agreeing or disagreeing, we are interested in moving diligently to enhance our communications protocols and incident management protocols, and we will move diligently to do that.

The proof will be in whether or not we meet community expectations, including all of you.

[Jean-Denis Garon, Bloc, Mirabel, QC]

How much time do I have left, Chair?

[The Chair, Liberal, Francis Scarpaleggia]

You still have one minute and a half.

[Jean-Denis Garon, Bloc, Mirabel, QC]

Mr. Pushor, I’d like to come back to Mr. Weiler’s earlier question.

You stated that your organization was committed to improving relations and communications with First Nations. However, we know that a third report entitled “What We Heard,” which reflects the concerns of the affected Indigenous communities, was produced but has not been made public. It also appears that the comments received were not included in the report’s recommendations.

Why did you decide not to publish this report?

[Laurie Pushor]

As I mentioned earlier, what I've been advised at least is that Deloitte initially did not make it clear with communities that they would summarize their comments and release them. Upon completion of their work, they felt there was some important commentary there, which has been provided to us, but before it being released publicly, the board and Deloitte felt it was appropriate to seek approval from those communities to release that information. I've been advised—