Environment Committee on April 17th, 2023

[Chief Allan Adam]

How can the federal government help ACFN? It can push to have the tailings management framework in Alberta overhauled. The Alberta government does not regulate the industry as they said they would. Alberta's tailings management framework was deliberately placed under the Oil Sands Conservation Act to avoid the duty to consult for tailings management in Alberta oil sands. Currently, the TMF has no duty to consult or is triggered...even when the tailings management framework was developed. There's no consideration of impacts or treaty rights under section 35. There's no consideration of cumulative impacts. The lack of management and monitoring of the leakage, air emissions and groundwater contamination narrows the scope, as it does not address safety, air quality or emergency response. There's no consideration for....

Ms. Davies-Flett can speak on those matters.

Go ahead.

[Callie Davies-Flett]

What the chief was trying to say here is that the AER and the Alberta government have established a tailings management framework. That is essentially the root cause of some of the issues coming up right now. He described how the TMF currently has no duty to consult. Eliminating our presence within the room when these decisions are being made is the first wrongdoing we can even consider here. That's just the tip of the iceberg.

If there is a push to, in some way, include us in this management framework, that would be the major solution we can come up with.

[Chief Allan Adam]

Further to the question on what Canada could do, Canada could recommend to the Alberta government, when it comes to major developments, that first nations not give testimony at a hearing but sit on the panel and listen to the questions that industry puts before them on why they want to have their projects on our traditional territories. That's what I'm asking for. I'm asking for a seat at the table to make the decisions. Either we give the green light or we give nothing. Right now, everybody has been given the green light, and the only result we have been getting back is, “We will tell you what kind of country you will have.”

[Heather McPherson, NDP, Edmonton Strathcona, AB]

I'm so sorry, Chief Adam.

Go ahead, Martin.

[Martin Grygar]

I would like to add to that. I think we could ask questions and then have you pass those questions on to Imperial.

Something tells me that the lack of communication around this incident was a bit more orchestrated. It won't be until the public interest investigation is conducted that the truth will come out, because to go on for this long.... A lot of data has been collected, and to say they were going to tell the communities at one point and it was going to be soon means there was a miss within those CBAs. There was a misplaced trust with the industry's ability to self-regulate and be forthcoming with information in a timely manner. “Timely manner” is a very loose term and very subjective, and I think that's where the system has failed.

The AER is proposing solutions to hide this water, because there's so much of it. They want to put it into these large pits, put water on it and wait for a thousand years for these lakes to be real lakes. This is all public knowledge and public information out there based on public reporting, and the ask from all the communities has been to treat this water effectively so it does not continue to contaminate the environment. This is continuous environmental discrimination in that area. To say that we could release it into the Athabaska River and dilution is your solution, or that we could put it in these pits and eventually they treat themselves.... They're not effective treatment options. To leave it, walk away and have it treat itself is not treatment.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Ms. Lepine has her hand up.

Ms. Lepine, would you like to add to that?

[Melody Lepine]

Yes. That's a very important question, Heather.

I think you need to ask the AER what they are going to do to change. What are they going to do to stop these tailings ponds from leaking?

We also can't ignore the fact that the AER regulates based on Alberta policies. What is the Alberta government doing in the update of their lower Athabaska regional plan? What are they doing regarding a tailings risk assessment and tailings management framework to limit growth and these tailings ponds from seeping?

You can ask Imperial why they are not responding to our information request on the sharing of data. We know that, number one, the release—that is, the seepage—going into the groundwater is still happening today. It has been happening for years, yet we do not have groundwater data. We do not have information to understand what PAH is. We do not have federal regulations to limit PAHs, which are carcinogenic. What is Imperial doing to stop the seepage?

They were told in their application that where they were building the tailings ponds was not a good location per the geotechnical information, and they have done nothing to mitigate. The AER allows them to go on developing without mitigation and management responses to stop the leaking of these tailings ponds into our river system and into our food sources.

Those are important questions to ask the AER and Imperial.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you.

Chief Tuccaro, you have the final word on this.

[Chief Billy-Joe Tuccaro]

I'd like to answer some of Heather's questions, or add to them at least.

First of all, what we're asking for, from Mikisew, is some certainty. One thing is the House study. We would really like a commitment from the federal government on that. Also, we would like a full review and assessment of all tailings ponds in the region.

Canada can help the AER to regulate, with guidelines for naphthenic acids, because the current guidelines they use.... There isn't really a guideline; they set their own. We need to have this regulated better so that our people can have adequate information they can work with.

Also, we need Imperial Oil to immediately provide information and make statements that no wildlife was harmed. Will they allow independent federal and Mikisew monitors and wildlife cameras in their area? Also, we ask the AER for an assessment of cumulative impacts in the region.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much.

Thank you to all the witnesses for some very profound, disturbing and moving testimony.

I know I speak for the entire committee, Chief Adam, when I wish your father-in-law well and your family strength in dealing with his health crisis.

We will break briefly to bring in the next panel. I've put in a request to see if it's possible to add an extra 15 minutes to the next segment. I'll have an answer hopefully shortly.

Thank you to Chief Adam, Mr. Grygar, Ms. Davies-Flett and others who have come here a long way. I've been up to Fort Chipewyan. I know there's no direct flight, but it's a beautiful territory. We really enjoyed our time up there back in 2009. I wish you only the best. Your testimony will serve very well for the questioning of both Imperial Oil and the regulator. Thank you again for coming up.

[Chief Allan Adam]

Thank you again, Mr. Chairman. I thank everybody.

Callie is a member of ACFN, and she works for our nation. Her testimony from the youth perspective gives you examples. They're very concerned in regard to what's going on in our community.

Take everything down for consideration. We came here to find a solution to a problem that continues to happen today as we speak.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you members and witnesses.

We have with us, from the Fort McKay Métis Nation, Margaret Luker and Daniel Stuckless, who are online. They will go first with their testimony.

From the Fort McMurray Métis Local 1935, we have Russell Noseworthy, Timothy Clark and Mr. Martin Grygar.

From the Willow Lake Métis Nation, we have Destiny Martin and Jason McKenzie.

Who will be speaking on behalf of the Fort McKay Métis Nation? Is it Ms. Luker or Mr. Stuckless?

[Daniel Stuckless, Director, Fort McKay Métis Nation]

It will be me.

[The Chair, Liberal, Francis Scarpaleggia]

Go ahead, please.

[Daniel Stuckless]

Good afternoon, Mr. Chair, vice-chairs and members of the committee. Thank you for listening to us today.

Can you hear me okay?

[The Chair, Liberal, Francis Scarpaleggia]

I think so.

I got the thumbs-up from the interpreters, so we're full speed ahead.

[Daniel Stuckless]

That's great.

My name is Dan Stuckless. I'm the interim director of administration for Fort McKay Métis Nation. My colleague, Margaret Luker, who's the interim director for the sustainability centre, is joining me. We'll be available to answer any of your questions. Between the two of us, we have over 30 years of experience working for indigenous communities and with government and industry on oil sands issues, on cumulative effects and, notably, on tailings ponds and tailings issues.

In the view of the Fort McKay Métis Nation, the events that have transpired are negligent. This has been avoidable from the start, and it should not have happened. To date, no one has been held accountable for the incident, and it is unacceptable that individuals or departments that have allowed this incident to occur are still either working on the issue or working in our region.

When we met with the AER CEO, Laurie Pushor, recently, I asked him who had been fired. I still do not have an answer to that question, and I really think it's because of the traditional coddling nature and cozy relationship between the oil sands producers and the executives at the AER. I'm not expecting much change from a captured regulator, to be honest. In fact, the AER's only admission that anything improper had occurred was in terms of the lapse in communication in the original timing of the identified seeps in the overland flooding last spring and the continuous seepage that occurred right up until this time, in early February, when the EPO was issued.

Any normal person can see that this is a clear conflict of interest and that having the AER as both the enforcement and the judge for these projects is improper.

If you're familiar with the AER—and you probably have heard a lot about it by now—it's not until you get mean letters numbers one, two and three from the AER that you actually have to get a file started on a non-compliance, if you're an operator. The AER has zero credibility outside of Calgary's echo chamber, and it actively dismisses and downplays the impacts of the oil sands on communities and their aboriginal and treaty rights.

It is imperative that we have federal oversight on these issues, which impact people, their human rights and their access to clean water, and which, of course, have cumulative impacts on treaty and aboriginal rights.

To date we have not heard from Alberta on this issue. We have heard now from a fourth premier: After Stelmach, Redford and Notley, now Smith says they are going to take action on tailings ponds. This is empty bluster, and shallow follow-through is really getting old for us.

This is how the duty to consult process is supposed to work. Of course, when incidents like these occur—when there are instances that limit the execution of those rights—the duty to accommodate should come in and apply. Without a continuous understanding of when the duty to consult is under way, when issues need to be mitigated—when those infringements that are occurring need to be avoided but can't be avoided or mitigated—they need to be compensated and accommodated, and they have not been. There is still no case in Alberta in which there's been an accommodation for any impacted right, or even recognition of those impacts.

We just wanted to ask the members of the committee, does that make any sense to you?

Alberta is absent. Its processes are broken. Its systems are designed to point perpetually in the other direction, to have your concerns resolved while permits, approvals and leases fly out the door. We have effectively created a two-tier system in Canada for section 35, and Métis members are third-class citizens, after Canadians and even after first nations.

Some of what I've told you might make sense if you're familiar with these types of issues. If you take anything away from what I'm telling you today, it should be that we have a big problem. It is not just an Imperial seepage issue. That is important and why we're talking to you today; however, this is a systemic issue. It's an issue of racial discrimination and government ineptitude, from politics and policy right down to directives, regulations and the lack of enforceability.

This has been happening for decades. We still have other tailings ponds, mainly those belonging to Suncor, that have seeped into the river, and now we are deciding to take action or make note because of the Imperial incident. This needs to be applied across the industry.

I heard my colleague who spoke before mention the lower Athabasca regional plan and that it was challenged and has not changed. Its tailings management framework did not consider the impact on aboriginal and treaty rights. I know this because I asked that question directly and was told. The directives—the standards—around tailings have been lowered and lowered. While this occurs, we are in the middle of co-developing water discharge release criteria and regulations.

Earlier this morning, we were in receipt of a letter from the minister, and we actually support the creation of a working group to continue working on these matters.

That's my opening statement.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you very much, Mr. Stuckless.

I do not know who has been designated to speak on behalf of Fort McMurray Métis Local Council 1935.

Is that you, Mr. Noseworthy? Yes, it is. We are listening.

[Russell Noseworthy, Manager, Government and Industry Relations, Fort McMurray Métis Local 1935]

Thank you very much, Mr. Chair.

My name is Russell Noseworthy. I work for the Fort McMurray Métis community. It's a community of about 800 people. I'm here today representing them on behalf of President Hansen.

The McMurray Métis are a rights-based indigenous community based in Fort McMurray. Our more than 800 members exercise their constitutionally protected rights throughout northeastern Alberta and elsewhere. Crucial to the exercise of those rights is the use of the region’s extensive waterways, and in particular the Athabasca River. It's the most important one.

Our members regularly hunt, fish and trap in the area downstream from the oil sands mines. As such, we are deeply concerned about the cumulative effects of the oil sands operations on our ability to exercise our rights in the region to hunt, fish and trap, as protected in the Constitution.

The incident at Kearl is very concerning for us. The environmental protection order and the incident itself highlight the serious nature of the regulatory problems in Alberta. The communications issues we have in Alberta around incidents like this really do not have processes. They are written on paper, but they're not followed properly. Therefore, we are constantly at risk of being exposed to contaminants and other dangerous substances that would have drastic effects on human health for the people who live in and around the area. We're very concerned.

Recently, the federal government began a process of trying to engage with our communities in the region on the whole idea of tailings. The tailings issue is a big issue in our region. There are tailings ponds everywhere north of where I live in Fort McMurray. We're here today to highlight that and to stress the importance of the Athabasca River watershed for the people who are there.

The Crown-indigenous working group was proposed as a mechanism for collaboration on the development of potential regulations for the release of water, and would be complemented by some sort of discussion about how that might impact our rights as a community and as indigenous people living there on the river. However, we're extremely concerned. We had requested from that group a process to identify how our rights would be impacted by what's happening and by the changes to the Fisheries Act that are being proposed.

We were not approved for that. We don't really understand how we're going to be impacted because we haven't looked at that. We have no cumulative measure of how we've been impacted in the region. We don't know, from the various operators, how all that accumulation of pollution has been counted and how that impacts the right to hunt, fish, trap and live healthy lives in that region. We don't understand.

We need a cumulative effects impact assessment. We need to understand that. That's the first thing we need in the region. To go along with that cumulative effects assessment, we need to understand how our rights have been impacted.

I'm speaking in the first person. I apologize for that.

We also need to do that right now. We should start today. After we leave this meeting, we should start doing this work—now.

The federal government—the Government of Canada—should start doing that work now. Your duty and your responsibility to me, to everybody around this table and to the indigenous communities that live in that area require that you do so. If you don't, people are going to have their health impacted.

Laila is over there. She lives in the region and I knew her dad. We need to work together here to make sure that we're protecting people in our region. In our region, we are protecting Canada. The economic engine of Canada resides in the oil sands. It's not in Ontario anymore; it's in Alberta.

We need to be responsible. We are on the international stage here. We need to set a good example. If we don't, our children are going to hear about it. We need to protect this place for all generations that are going to come. We need a cumulative impacts assessment of what has happened, and we need a rights assessment to go along with that.

Those are my opening statements for today. Thank you very much.

[The Chair, Liberal, Francis Scarpaleggia]

Thank you, Mr. Noseworthy.

We'll go now to Willow Lake Métis Nation.

Ms. Martin, go ahead please.

[Destiny Martin, Sustainability Manager, Willow Lake Métis Nation]

Willow Lake Métis Nation represents the section 35 rights of approximately 90 citizens. The nation’s administrative centre is located at Anzac, Alberta, just south of Fort McMurray.

The nation emerged during the fur trade era between the Athabasca River and the Clearwater River, in what is now Alberta, and Lac La Loche in Saskatchewan. Historically, Willow Lake was connected through kinship and economic ties to Fort Chipewyan and Lake Athabasca to the north and Lac La Biche to the south. These connections continue today.

Willow Lake Métis Nation citizens hunt, fish, trap and collect berries and medicines on the lands used by their ancestors. These lands include traplines like those of Vice-President McKenzie, which have been in his family for several generations. Harvested resources are shared to provide for families and the community, and most citizens continue to consume traditional foods and use traditional medicines.

Willow Lake Métis Nation, like other nations in the oil sands region, has experienced and continues to experience extensive impacts from oil and gas, forestry and other developments. Willow Lake Métis Nation was first notified regarding the tailings ponds leaks by Imperial Oil's Kearl Lake site by email from the Alberta Energy Regulator on February 7, 2023. We then met with AER staff on March 8, 2023, to receive an update.

Imperial Oil also contacted us by email on March 8, 2023, with a link to the company’s updates on the environmental protection order. Willow Lake Métis Nation provided a response letter to Imperial Oil on March 17, 2023, outlining the nation’s concerns and information requests. As of April 13, we have not received a response from Imperial Oil. This does not align with statements on Imperial’s website that indicate the company is engaging with affected indigenous communities.

Willow Lake Métis Nation citizens harvest in areas upstream and downstream of the Kearl site and are very concerned about the impacts of the leaks on water and other aquatic resources, plants and wildlife. Willow Lake Métis Nation continues to be connected to other nations in this region and engages in sharing harvesting activities and the sharing of traditional foods and medicines. Certainty regarding the safety of traditionally harvested foods is critical to supporting land use, the sharing of harvested resources and the continuation of rights and culture.

Ongoing clarification and updates regarding the impacts of these spills on the environment and harvested plant and animal resources are required to support future land use. The leaks and the delayed notifications are deeply concerning to Willow Lake Métis Nation. Willow Lake Métis Nation is in a very vulnerable position right now, as we are waiting for recognition of the nation’s section 35 rights through Alberta’s credible assertion process, and experiences inconsistent consultation from government and industry.

The leaks highlight the risk for any indigenous nation that these incidents can go unreported, but this risk is especially high for nations in Willow Lake’s position. It is apparent that Imperial Oil and the AER shared the responsibility for communicating these incidents much sooner. While we appreciate that the AER contacted the nation, met with us in March and continues to update us, this incident has affected the nation's ability to trust both industry and the AER.

Willow Lake Métis Nation is interested in meaningful solutions that will re-establish that trust through co-operation, comanagement and most importantly co-reclamation to ensure truly sustainable oil sands operations. Willow Lake Métis Nation desires to find ways to address the gaps highlighted by these incidents. Immediate solutions include discussions with Imperial to ensure nation involvement in incident response and monitoring, as well as further discussions with the AER to ensure that Willow Lake receives timely notification regarding incidents within the nation’s territory.

Willow Lake also recommends a human health assessment to ensure there is no risk from the leaks to traditionally harvested resources, including water, plants and animals. More broadly, these incidents have emphasized cumulative impacts to indigenous rights in the oil sands region. A deeper understanding of those impacts needs to be achieved through a regional assessment of the oil sands, including cumulative impacts and impacts to section 35 rights.

On behalf of Willow Lake Métis Nation and its citizens, I would like to thank you for your time and consideration of our concerns. We sincerely appreciate the invitation to be here today.

[The Chair, Liberal, Francis Scarpaleggia]

It is we who thank you for travelling so far to testify before us.

I'll now turn to Ms. Goodridge, who will begin the first round.

[Laila Goodridge, Conservative, Fort McMurray—Cold Lake, AB]

Thank you to everyone for being here.

I expected to see more of you guys on my flight yesterday morning, bright and early, but it looks like you might have had a better flight path than I had.

In the previous round of testimony, I asked each first nation about the date they were contacted by Imperial, not about the initial seepage but about the leak.

Perhaps I will ask Mr. Noseworthy of McMurray Métis, who was a very dear friend of my late father, to start us off. When were you guys first alerted by Imperial or the AER about the second incident?

[Russell Noseworthy]

We have a relationship with Imperial Oil, and we respect that relationship. We have an agreement with them about confiding certain things that are important to us. Today, my comments will be coloured by that agreement.

We were and we have been working with Imperial Oil to understand what happened since it happened in May. We've received from Imperial an update that an incident occurred in May, and they were working on it. They were preparing themselves to come and give us a full debrief when the incident occurred, and the environmental protection order was provided.

That's the truth of it. I don't know what else to say, Laila.