Environment Committee on May 13th, 2009

[Simon Dyer]

That's correct, yes.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Can you comment, based on that several decades of experience in directly intervening and observing the role of the federal government, what has been the role of the federal government over time in the scrutiny of the projects and prescribing mitigation measures, and enforcing and in turn requiring improved mitigation measures, particularly for water?

[Simon Dyer]

Unfortunately, it's been a sort of mixed approach, and I think it's been declining through time.

About a decade ago, much fanfare was made about setting up CEMA, the Cumulative Environmental Management Association, which was going to set environmental limits and ensure that oil sands development would proceed responsibly. At the time, the federal government played a pretty active role in helping set up that process. In many ways, that's a way of handing off responsibility to another group, CEMA.

Since then I think we've seen continued declines in involvement from the federal government, and we've seen clear examples where although there seems to be some evidence of good work behind the scenes.... A particular example would be the DFO science that went into the phase one framework. I think there's a clear paper trail that said the DFO scientists did the right thing in identifying an ecosystem base flow that would have protected the river. Then the federal government seemed to capitulate and then that disappeared in a later draft.

There's certainly evidence that the federal government participates in hearings and seems to ask questions as another stakeholder, good technical questions, but we don't see leadership in terms of ensuring management frameworks are in place.

A classic example would be woodland caribou. Alberta's woodland caribou are in the worst shape of any herds in the entire country. The science shows that every herd in the oil sands region is on the route to extirpation, and the federal government has not identified critical habitat that would protect caribou. There are many issues like this that give you a sense of....

[Linda Duncan, NDP, Edmonton Strathcona, AB]

You mentioned RAMP at the outset. I think you were here to hear the two industry panels who were lauding the values of RAMP. I think Pembina also used to be part of CEMA.

I'm wondering if you could comment a little bit more on why Pembina has withdrawn from those and whether or not you think those are still potential avenues to do better science. Or do you have a framework to recommend another alternative way?

[Simon Dyer]

Sure, yes. The Pembina Institute was one of the founding members of CEMA, the Cumulative Environmental Management Association. We participated in CEMA for eight years and invested a significant amount of time in a number of working groups and on the management committee of CEMA.

We felt that, unfortunately, the approval process continued to undermine the work of CEMA. This was a group that was supposed to set the rules about oil sands development, but the federal and provincial regulators showed they were willing to approve project after project before those rules were in place. CEMA became a parking lot for contentious issues, and it's in many ways a convenient whipping boy to place the blame on the lack of environmental management while they're letting the Alberta and federal governments off the hook.

We felt that continuing to participate in CEMA, until those rules were in place, was actually just exacerbating the situation, so we recommended that if CEMA's going to be allowed to do its work there needs to be a pause on new approvals until CEMA's work is done. The idea of doing the research and talking about environmental management in one room while rubber-stamping project approvals in the other room is not effective oil sands management.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

Thanks.

Mr. Robinson, I understand your organization has brought a number of court actions involving oil sands activities, but in most cases against the Government of Canada. Can you outline why your clients felt it necessary to take the federal government to court?

[Barry Robinson]

Thank you for your question.

The first case was the Kearl case, where the joint review panel had indicated that for Imperial Oil's Kearl project, the emission of greenhouse gases—the equivalent to 800,000 vehicles—was not a significant impact. Our client in that case, the Oil Sands Environmental Coalition and others, just felt that was an unreasonable decision. So that was challenged in Federal Court. The Federal Court agreed that the panel had an obligation to give some reasons for its decision, so in that case the fisheries permit was temporarily revoked and then re-issued.

The other one is related to January of this year, and most people would be familiar with an incident at the Syncrude tailings pond in which 1,600 ducks died after landing on the pond. We attempted to discuss that with federal and provincial investigators and the crown in the fall of 2008, and were stonewalled on that. So through a resident of Alberta and the Sierra Club, we brought a private prosecution for that action.

The reason for our actions? Either we thought a decision was unreasonable, or we thought the government was not taking action it should have been taking.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

There's clearly a lot of controversy around the tar ponds leaking and the tailings ponds leaking. Are they not leaking?

I'm wondering, Dr. Dyer, if you could recommend to this committee, or to the Government of Canada, how this matter could be addressed.

[Simon Dyer]

First of all, we need to see the data. I think it needs to be clearly demonstrated what the leakage rate from these ponds actually is. There is some data being collected individually by companies and by the Government of Alberta, but we have no sense of what that looks like cumulatively.

I think at the very least, the Government of Canada should provide publicly available information and synthesis on how significant this issue is. In the interim, I think we need to stop approving these tailings lakes. Industries talk about phasing out tailings lakes and looking for solutions, but they all have proposals on their books currently, and they're going to actually expand these lakes. It's not a solution to reclamation. Tailings have never demonstrated that these areas can be reclaimed. So I think we need to get a handle on how significant this issue is, first of all, before we make more mistakes and give ourselves a bigger issue we have to deal with.

[Linda Duncan, NDP, Edmonton Strathcona, AB]

I had asked the previous industry panels this question, and I'd be interested if anybody on the panel would speak to this.

I remain troubled that it appears that the focus of the decision is about loss of water, particularly to the Athabasca River, but I know that there are other rivers, like Muskeg and others, that are drawn down. I wonder if someone could speak to me about whether you think there is adequate consideration being given to the water loss to the watershed surrounding the Peace-Athabasca Delta, as opposed to just the straight withdrawal, and whether you think there's adequate attention being given to it. Does it come up in the hearings? Do any of the regulatory authorities responsible for source water address that, DFO or Environment Canada, along with Alberta Environment?

[Barry Robinson]

I would just comment again on the point I made earlier, that the HAB permits are issued for the destruction of the actual stream beds and stream areas, and then we have this concept of compensation lakes, which restores the fish habitat, but I am not aware of any science that is looking at the impact of having disrupted these tributary streams on future flows.

Perhaps Mr. Maas is more familiar.

[Tony Maas]

My perspective is about the same, but it's a critically important point.

When you think about something like the P2FC, the phase two management framework, it is scoped around the lower Athabasca River. That's appropriate because it was a scoped stakeholder engagement approach. But in fact there are, as we mine these areas, whole tributaries in some cases being lost, and the contribution of those tributaries in terms of water is one thing to consider, but also in terms of habitat, spawning area for fish species. In some respects it could be a small contribution of total flow to a very significant river in the Athabasca, but in terms of habitat for aquatic species and the people who rely on those species, it's significant.

[The Vice-Chair, Liberal, Francis Scarpaleggia]

Thank you.

We'll move now to the government side. Please go ahead, Mr. Warawa.

[Mark Warawa, Conservative, Langley, BC]

Thank you, Chair, and thank you to the witnesses for being here.

I also want to thank Mr. Dyer for having Pembina forward your press release that you issued this morning. It uses very similar language in saying that the federal government has been missing in action, the same terms used by Mr. Robinson. It says “The federal government has been missing in action in terms of regulating the oil sands industry, and its absence has come at the expense of the environment and the long-term interests of Canadians”, and “Their failure to act has created severe risks, ranging from contamination by leaking tailings lakes to the collapse of fisheries”.

We have a natural resource that is second only to Saudi Arabia's. If the clock could be turned back, would you have supported the development of that resource?

[Simon Dyer]

Yes. The Pembina Institute has always held the position that oil sands development could proceed responsibly.

The key thing is that we should have planned first before we developed it. We should have set environmental rules. We should have dealt with greenhouse gases. We should have protected the Athabasca River. We should have established a land use plan. We should have prohibited tailings and said that you can do it once you can demonstrate that you can get this out of the ground without creating this liability that we don't know how to deal with.

Pembina Institute has never held the perspective that we're anti-oil-sands--

[Mark Warawa, Conservative, Langley, BC]

That answers my question.

You've shared with us this morning that we should stop any more tailings ponds, and we have heard you use the term “tailings lakes”. In situ is the technology being used to develop.... About 80% of the resource will be using in situ technology. Do you support in situ?

[Simon Dyer]

Based on time constraints, I didn't include in situ in my presentation today. I know you got a lot of information yesterday about groundwater concerns in situ from my former colleague, Mary Griffiths.

We often get asked if in situ is a more environmentally friendly way of doing oil sands than mining. It's a mixed bag. The greenhouse gas emissions are more significant with in situ than with mining. Although there is less water use on a per-barrel basis, we still have an underlying concern about the cumulative withdrawals from in situ projects. We can imagine having many straws in a milk shake, and we don't really know the size of what's available underground for those withdrawals.

We're also concerned about the disposal of in situ waste and the movement of that material underground in the subsurface channels. We need to do a lot more exploration around in situ oil sands development as well.

[Mark Warawa, Conservative, Langley, BC]

You support the development of the resource, and the technologies we have now are actually changing very quickly, including the management of tailings ponds. If you don't support in situ and you don't support surface mining, yet you support development of that resource, what technology would you support using?

[Simon Dyer]

We're not prescriptive about technologies. As Canadians we need to be concerned about the environmental outcomes, and if we can demonstrate we can develop the resource in a responsible way, that is the key question that we have to ask. I think it's--

[Mark Warawa, Conservative, Langley, BC]

I'm sorry to break you off, but my time is limited.

Are you saying there is no technology that you would support at this time, but that in principle you do support developing the resource if it can be done in a sustainable way?

[Simon Dyer]

Our perspective is that there should be no approvals, no new expansion of the existing projects, until we fix some of the existing problems. We are not talking about those existing projects; we're talking about not approving new projects that use these old technologies.

[Mark Warawa, Conservative, Langley, BC]

We are not going to be able to turn back the clock, so let's be careful with what we have now.

[Simon Dyer]

Absolutely.

[Mark Warawa, Conservative, Langley, BC]

There was a peer review of the RAMP program in 2003, and in 2003 you withdrew from RAMP. Was that before or after the peer review?

[Simon Dyer]

We stopped participating before the results of that peer review appeared. The report was published in 2004, I believe.