There’s no telling if the 220 square-kilometres of unlined tailings ponds in the Alberta oilsands are leaking contaminated waste into nearby water sources, according to the government of Canada.
That claim was made in an official response to NAFTA’s Commission for Environmental Cooperation despite strong scientific evidence suggesting a clear linkage between the oilsands’ 1.3 trillion litres of fluid tailings and the contamination of local waterways.
The response comes after a June 2017 submission by two environmental organizations and a Dene man alleging the federal government was failing to enforce a section of the Fisheries Act that prohibits the release of a “deleterious substance” into fish-frequented waters.
The NAFTA commission has 120 working days to determine whether the case has merit in light of Canada’s latest claims.
While Ottawa acknowledged in its response that nearby waters had a higher-than-average rate of contamination, it maintained that proving its source is “scientifically and technically challenging as methods for their analysis have not been available.”
Creating a sense doubt about the facts is a “flimsy” defence, Dale Marshall, national program manager with Environmental Defence, one of the environmental organizations bringing the case, told DeSmog Canada.
“The evidence is pretty strong that these are coming from tailings.”
Multiple Studies Conducted by Federal Scientists Detect Tailings Leakage
Many studies have indeed been done to assess the impacts of tailings waste on nearby waters.
An internal memo delivered to then-natural resources minister Joe Oliver and obtained in 2013 by investigative reporter Mike De Souza shows that federal scientists had discovered a clear presence of tailings toxins in local water sources.
The memo described that “the studies have, for the first time, detected potentially harmful, mining-related organic acid contaminants in the groundwater outside a long-established out-of-pit tailings pond.”
These findings weren’t the first.
A 2008 study commissioned by Environmental Defence pegged the number of tailings leakage at 11 million litres a day, potentially reaching 72 million litres per day by 2012.
Then, in 2010, a journal article co-authored by limnologist David Schindler pointed to “tailings pond leakage or discharge as sources” of toxic pollutants in the Athabasca River. That was confirmed in 2014, again by federal scientists, with an entry in the journal Environmental Science and Technology that identified a “chemical fingerprint” distinct from natural rates.
“They found also not only are those tailings ponds leaking, but it looks like it is flowing pretty much from those tailings ponds, through the ground and into the Athabasca River,” oilsands advisory committee member and environmental scientist Bill Donahue told the CBC in an interview.
Marshall added oilsands companies documents have also indicated that tailings ponds leak and estimate the leakage expected to occur over time.
This has resulted in growing concerns in nearby Indigenous communities, including Fort Chipewyan where anomalous cancer rates have plagued the small community. But a lack of meaningful research has meant the community has been left without answers or recourse.
“The fact of the matter is that there are increasing levels of contaminants,” Melody Lepine, member of Mikisew Cree First Nation and co-chair of the Oil Sands Advisory Group, told DeSmog Canada. “They’re very dangerous.
“My community downstream has significant concerns about their health, the health of the ecosystem, impacts to birds and wildlife,” she added.
“It’s troubling to know after 50 years there’s still not enough data and research and management of tailings ponds.”
‘Precautionary Principle’ Means Government Must Act in Absence of Definite Proof
Environment and Climate Change Canada is committed to applying the “precautionary principle.”
As described by the federal department, that means that “where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”
Those concerned about tailings leakage say the issue appears to be a perfect example of when that principle ought to be applied.
“Let’s just say the evidence is not as strong as it is,” Marshall said. “Even then — and I would call the contamination of Alberta’s rivers and increased cancer rates in downstream Indigenous communities serious environmental issues — the government’s stated principle is it’s not going to let uncertainty prevent them for acting to address those serious concerns.”
But the federal government has not taken that approach.
In 2013, Environment and Climate Change Canada decided there wasn’t enough evidence to prove violations of the “pollution prevention provisions” of the Fisheries Act and eliminated the on-site inspections of seven tailings ponds.
While inspectors still respond to specific complaints, they no longer proactively monitor the area for violations of the law.
In its recent response to NAFTA the government explained that “officers were not able to establish that a person deposited or permitted the deposit of a deleterious substance” due to an unavailability of scientific tools.
— DeSmog Canada (@DeSmogCanada) November 17, 2017
Federal Government Ultimately Responsible for Violation of Federal Laws
Canada told the NAFTA environment committee the government is managing the tailings ponds in “a manner consistent with its domestic laws” and that it was justified in reallocating investigators to other issues deemed to have “a greater impact on the environment.
The federal submission claimed, “Canada’s enforcement actions are effective.”
The federal Liberal government pledged in its 2015 election platform to “treat our freshwater as a precious resource that deserves protection and careful stewardship.”
Lepine, who was raised in Fort Chipewyan, one of the communities most affected by oilsands developments, said she is disappointed the position of government on the tailings issue hasn’t changed — despite a change in leadership at both the provincial and federal levels.
“I was optimistic we had these changes in government,” Lepine said. “But really, nothing has changed since both of them have taken office. I’m not convinced they take this issue very seriously.”
Behind the scenes, a jurisdictional tug-of-war is at play, Lepine said. “They’re pointing fingers at each other.”
Yet enforcement of the Fisheries Act is ultimately the responsibility of the federal government.
If the province isn’t regulating in a way that prevents violations of federal laws, then it’s the responsibility of Ottawa to intervene, Marshall said.
“Yes, there are agreements made between the federal government and provinces. But that doesn’t mean the federal government can just wash its hand of it,” he said.
“[The federal government] is still the last stop between environmental degradation and the violation of federal laws.”
Environmental Tribunal Has 120 Days to Decide Next Steps
NAFTA’s Commission for Environmental Cooperation has 120 working days to review Canada’s submission and the merits of the original case.
Following that, the commission has 60 working days to schedule a vote between the environment ministers of Canada, the U.S. and Mexico.
If two-thirds of the countries vote to advance the case, a “factual record” of the issue will be prepared. A factual record has no binding legal consequences and would simply serve as a “name and shame” document on the public record.
Lepine said in the past Canada has taken action in response to international scrutiny.
On Wednesday, the International Union for Conservation of Nature declared the Wood Buffalo National Park — located just north of the oilsands — as one of the most threatened World Heritage Sites in North America.
“We wouldn’t have to do all these things if we thought Canada and Alberta were taking our concerns seriously,” Lepine said. “I’m hopefully that through this international forum they get that extra push. But we’ll see.”