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Missing in Action:The Federal Government and

protection of water in the oil sands

New Democrat Report on the Standing Committee Review of the

Impacts of Oil Sands Developments on Water Resources

Map of the Mackenzie River Basin.

Many thanks to Roland Lines of the Pembina Institute for permission to use his Map of the Mackenzie Basin.

Missing in Action

The Federal Government and

protection of water in the oil sands

September, 2010

“Change begins with a sense of stewardship which itself grows out of understanding. The more we seek to know our environment and the history of our relationship with it, the more we will see a much clearer course for change. The concern that grows out of understanding should fuel our desire for concerted action. The time has come for us to make hard and judicious choices that will have a great effect on those who come after us. The care and responsibility we show for our water demonstrates much about our values, including our level of concern for the quality of life for future generations.”

Grant MacEwan

Watershed, Reflections on Water

Newest Press, 2000

Executive Summary

Over the past two years the Standing Committee on Environment and Sustainable Development studied

the impacts of the oils sands developments on water. Testimony at the hearings became a clarion call

for federal action. A compelling case was made about decades of failure by federal authorities to assert

their powers and legislated duties to assess, monitor, regulate and manage the mounting impacts of the

oil sands developments on the Lower Athabasca River Basin and the larger Mackenzie River Basin.

Testimony was heard from over sixty witnesses from the federal, Northwest Territories and First Nation

governments; industry; government and academic scientists; engineers; and, non government

organizations. The Committee toured the oil sands operations and travelled to Fort Chipewyan on Lake

Athabasca to hear first hand from this downstream community.

Government and industry witnesses shared a common view that the oil sands developments were

having no measurable impacts on the environment or human health. Other witnesses, however, shared

strongly differing views.

Aboriginal leaders and elders from across the Mackenzie River Basin voiced a litany of long standing

issues with the oil sands developments including abrogation of treaty rights, diminished health, a

contaminated fishery and water supply. They called on federal authorities to step up efforts on

monitoring, assessment, the long awaited health studies and control of the cumulative impacts on their

traditional way of life.

The Government of the Northwest Territories awakened us to the potential risks posed by the oil sands

sector to the larger Mackenzie River Basin, decried three decades of abdication of federal responsibility

and called for their leadership in delivering the commitments under the languishing Master Agreement.

Scientists reported significant loading of major contaminants by oil sands operations in the Lower

Athabasca, in some cases levels violating federal standards for toxins and fish. They called on federal

authorities to lead intensified efforts to monitor cumulative ecological impacts, impose ecosystem base

flows, enforce environmental protection laws and provide greater transparency and scientific veracity in

their efforts.

Legal experts concurred that despite broad federal powers and strong legislated mandates for fisheries,

transboundary waters, aboriginal peoples and lands, federal lands and toxins, there has been an abject

failure to by the federal government to take action in the oil sands.

Environmental organizations decried the litany of unaddressed environmental risks posed by the oil

sands sector from seeping tailings ponds to impacts on fish and threatened species. They decried the

dragging of heels in prescribing enforceable standards, the failure to require cumulative assessments

and the lack of transparency.

The New Democrat report offers a roadmap for expedited action to assert federal responsibilities to

protect the Mackenzie River Basin.

Table of Contents

Introduction ........................................................................................................... 1

Federal Jurisdiction and Responsibility .................................................................. 4

Key Findings and Recommendations for Federal Action ........................................ 9

Assessing Cumulative Impacts to Prevent Harm ................................................. 9

Regulation of Toxic and Deleterious Substances ............................................... 13

Monitoring, reporting and transparency ........................................................... 15

Inspection and Enforcement ............................................................................. 21

Protection of the Fishery and Fish Habitat ........................................................ 23

Water Management ......................................................................................... 26

First Nations Peoples, Lands and Waters .......................................................... 36

List of Recommendations..................................................................................... 41

Missing in Action: The Federal Government and protection of water in the oil sands

1

Introduction

Oil sands, an unconventional fossil fuel resource, consists of water, sand and bitumen. Alberta oil sands deposits cover approximately 140,000 square kilometers. The Athabasca oil sands region covers about 40,000 square kilometers.1 It is recovered by surface mining, and by in situ by several forms of steam injection. The raw bitumen is processed into synthetic crude oil through hot water extraction and upgrading using heat, pressure and catalysts.2 Approximately 2.0 to 4.5 cubic meters of water are required to produce one cubic meter of synthetic crude oil.3 The sector uses more than a third of the water used annually by the City of Toronto.4 Production has tripled since 1995 to 1.3 million barrels per day,5 forecast to increase to 2 to 3 million barrels per day by 2020. 6 Over 500 square kilometers has been disturbed for bitumen mining and 2,960km2 kilometres cleared for in situ extraction. By 2020 in situ projects will use 25 to 45 million cubic meters of fresh water per day or 90 million cubic meters per year. 7 While the Alberta Government has reported that tailings ponds cover over 50 square kilometers of land, an updated report reveals that the figure is actually about 130 square kilometres.8 While at present oil sands operations are active only in Alberta, Saskatchewan is giving consideration to developing their resource, also located within the Mackenzie River Basin.

Over a two year period from 2009 to 2010 the Standing Committee on Environment and Sustainable Development completed a review of the impacts of oil sands developments on water. The review served two purposes. It informed Members of Parliament on cumulative and transboundary environmental and human health impacts of the oil sands sector on the Lower Athabasca watershed and to a lesser extent, on the larger Mackenzie River Basin. Most importantly, it shed light on a saga of failures by this and previous federal governments to assert their powers and responsibilities by requiring actions to prevent or address significant environmental and human health impacts of oil sands developments.

Complaints have been expressed about the Committee’s failure to issue a consensus report on its findings and recommendations, the common practice of Parliamentary committees at the

1 Alberta Energy. 2008. Oil Sands. www.energy.gov.ab.ca/oilsands/

oilsands.asp. 2 Government of Alberta (2008) Environmental Management of Alberta’s Oil sands (Oil Sands Management

Division, Government of Alberta, Alberta, Canada). 3 Griffiths, M., A. Taylor, and D. Woynillowicz. 2006. “Troubled Waters, Troubling Trends”. Edmonton: The

oilsands.asp. 2 Government of Alberta (2008) Environmental Management of Alberta’s Oil sands (Oil Sands Management

Division, Government of Alberta, Alberta, Canada). 3 Griffiths, M., A. Taylor, and D. Woynillowicz. 2006. “Troubled Waters, Troubling Trends”. Edmonton: The

Pembina Institute. 4 Greg Stringham, CAPP, May 13, 2009

5 Energy Resources Conservation Board (2005) Alberta’s Reserves 2004 and Supply/Demand Outlook 2005-2014,

ST98-2005, www.ercb.ca/docs/products/sts/st98-2005.pdf 6 Canadian Association of Petroleum Producers Crude Oil Forecast, Markets and Pipleine expansions (2009 CAPP)

,http://issuu.com/capp/docs/www.capp.ca 7 Stuart Lunn, Imperial Oil, May 13, 2009.

8 Supra n. 2; http://www.ercb.ca/docs/new/newsrel/2008/nr2008-14.pdf.


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close of their reviews. The failure to issue a consensus report with recommendations for improvement is disappointing. However, far more egregious is the failure by successive federal governments to assert their powers and duties to govern this sector given the long standing knowledge of associated rising impacts and liabilities. It is understandable that Canadians expect their government to regulate the development of the oil sands not merely cajole the sector for dragging their heels or mount public relations campaigns berating those who raise concerns.9 The legislated mandates of the federal ministers responsible for environment, health, fisheries and Indian Affairs do not include seeking expanded markets for bitumen. Canadians expect and deserve environmental governance.10

Testimony by federal, Northwest Territories and First Nation government leaders, elders and officials; First Nation and Métis peoples; industry; scientists; technical experts; medical doctors; legal experts; and, environmental advocates provided a compelling case for strong and timely federal intervention. What is apparent from the testimony is that oil sands development is impacting areas far beyond the lower Athabasca watershed. Concerns were expressed by downstream and upwind governments and Aboriginal communities throughout the Mackenzie River Basin. Aboriginal communities are bearing the brunt of the impacts, including those still relying on a traditional harvest, their Constitutional right.

Federal officials have hosted or participated in numerous review processes recommending action, with meager results. The Mackenzie River Basin Board recommended in their 2003 report on the State of the Aquatic Ecosystem that increased monitoring and research was needed to resolve discrepancies between reported water quality monitoring data and traditional knowledge sources. The 2007 Standing Committee on Natural Resources recommended action on cumulative impacts on water resources and the fishery, reducing emissions, and clean up of the tailings ponds.11 They called for federal compliance with the principles of sustainable development and “Polluter Pays Principle.” The 2006 Government of Alberta led Oil Sands Consultation involving federal officials issued detailed recommendations for action.12 Federal officials are participants in the Cumulative Environmental Management Association (CEMA) process, which has called for action on ecological water levels and

9 “Clean up your act, oilsands: Environment Minister Prentice”, by Jason Fekete, Calgary Herald, FEBRUARY 1, 2010

10 Nanos: Canadians on having a debate on the Environment. Random Telephone survey of 1,203 Canadians.

http://www.cbc.ca/canada/story/2006/11/08/environment-poll.html AND http://www.cbc.ca/canada/story/2008/09/07/full-poll.html; Angus Reid Public Opinion Methodology: Online interviews with 1,009 Canadian adults, 1,002 American adults and 2,011 British adults, conducted from Jul. 1 to Jul. 9, 2010. Margins of error are 3.1 per cent (CAN and USA) and 2.2 per cent (BRI). http://www.visioncritical.com/wp-content/uploads/2010/07/2010.07.19_Environment.pdf 11

THE OIL SANDS: TOWARD SUSTAINABLE DEVELOPMENT, Report of the Standing Committee on Natural Resources, March 2007, 39th PARLIAMENT, 1st SESSION 12

Oil Sands Consultation, Stakeholder Committee Final Report, 2007, http://www.energy.alberta.ca/OilSands/pdfs/FinalReport_2007_OS_MSC.pdf

http://www.cbc.ca/canada/story/2006/11/08/environment-poll.html

http://www.cbc.ca/canada/story/2008/09/07/full-poll.html


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protection of species at risk.13 The litany of calls for action voiced over many decades of energy board hearings on oil sands developments remain largely unaddressed.

It is time to stop talking and assert federal powers. A world recognized watershed that has nurtured communities for centuries is at risk.14 Given widening concerns about the environmental and climate impacts of the oil sands and broader fossil fuels sector, continued government inaction could also place the future of oil sands bitumen exports at risk. 15

Rather than merely reiterating the litany of failures of the past, this report offers a roadmap for urgent federal action in response to the evidence and testimony presented to our Committee, measures recommended by other reviews, and updated evidence.

13

See Steven A. Kennett, “Next Steps for Cumulative Effects Management in Alberta’s Athabasca Oil Sands Region”, Resources, No. 96, 2006-2007, Canadian Institute of Resources Law; testimony by Simon Dyer, May 13, 2009. 14

The Peace-Athabasca Delta in a UNESCO world heritage site. 15

“U.S. EPA seeks delay of Keystone pipeline, Agency wants more data on emissions”, Trish Audette, Edmonton Journal, July 22, 2010, “Foreign investors avoid Canada: UN report”, Carl Meyer, Embassy, July 28, 2010,.


4

Federal Jurisdiction and Responsibility

It is important at the outset to recognize that the federal government has extensive jurisdiction and responsibility to address potential environmental and human health impacts of oil sands developments, including impacts to water. 16 Yet while increasing attention is being given to the mounting cumulative and far reaching impacts of the sector, far less attention has been paid to the role of federal authorities. Many witnesses raised concerns with a long standing pattern of failure by federal authorities to assert their powers and responsibilities. 17 Concerns with this litany of failed interventions mirrors the records of proceedings for the 2005 provincial oil sands review18 and numerous interventions on oil sands development applications before joint Alberta Energy and Resources Conservation Board (ERCB, formerly EUB) and Canadian Environmental Assessment review panels.

The Parliament of Canada is granted exclusive jurisdiction over some matters and shared jurisdiction with the province for others. Key federal powers, of relevance to the oil sands, include jurisdiction over Indians and lands reserved for Indians,19 inland fisheries, criminal law, trade and commerce, navigation and peace, order and good government, inclusive of matters of national concern. The latter area has been held to include the environment, including interprovincial waters, toxic substances and transboundary air pollution. 20 The federal government also has jurisdiction and responsibility for federal lands and waters.

As some federal powers overlap with provincial areas of responsibility, coordination is needed. Examples include health or shared water ways. Considerable effort has been made to coordinate efforts and to avoid duplication and overlap over past decades, particularly in the areas of environmental impact assessment, inspection and enforcement. Numerous federal-provincial agreements address potential overlaps or conflicts, while some deem the “best situated” government should take the lead. 21 The most directly related agreement of note is the Mackenzie River Basin Master Agreement signed by federal, provincial and territorial governments. 22 It appears logical and appropriate that the federal government show leadership in encouraging and enabling cooperative action for water management in the basin and assert its powers to ensure the objectives of the agreement are met. These include assessing and addressing potentially significant impacts on fisheries, aboriginal peoples and

16

As testified to by Cynthia Wright, Acting ADM Environmental Stewardship Branch, Environment Canada, March 12, 2009 at pp 1-2; testimony Barry Robinson Ecojustice Legal Counsel and submitted Brief by Ecojustice Legal Counsel Karin Buss, May 13, 2009, pp 30-31. 17

Testimony Ecojustice and brief by Karin Buss, Ecojustice; Hon. Deputy Premier Michael Miltenberger; and, Owen Saunders, CIRL, Arlene Kwasniuk Faculty of Law, University of Calgary, as an individual; First Nation witnesses, May 12, 2009. 18

Supra n.13, see for example intervention by Sierra Club of Canada. 19

This includes the duty to consult and accommodate aboriginal interest and concerns (Mikisew Cree SCC decision. 20

R. v. Crown Zellerbach Canada Ltd. (1988), 49 D.L.R. (4th

) 166; R. vs. Hydro-Quebec 91997), 151 D.L.R. (4th

)151 (S.C.C.) at 102; Interprovincial Co-operatives Ltd. V Dryden Chemicals Ltd., [1975] S.C.J. No 42, [1976] 1 S.C.R. 477 (S.C.C.); Energy Probe v. Canada (Attorney General), [1994] O.J. No. 553, 14 C.E.L.R. (N.S.) 245 (Ont. Gen. Div.) 21

Canada-Wide Accord on Environmental Harmonization (http://www.ccme.ca/assets/pdf/accord_harmonization_e.pdf) 22


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their lands, migratory species and transboundary effects. It should also be kept in mind that where any clear conflict arises between federal and provincial laws or powers, federal jurisdiction is paramount.

Matters of National Significance or Transboundary Impacts

Where any project or activity may cause impacts across provincial or territorial boundaries, the federal government has the power to intervene.23 It may choose to take unilateral action or provide leadership in resolving interprovincial interests or disputes. It could be deemed that the protection of the Mackenzie River Basin is a matter of national significance warranting federal intervention. As both the federal and Alberta governments have repeatedly voiced that the oil sands operations, as a source of revenue and secure supply of oil, are nationally significant, and because it is important to balance development and environmental interests, arguably the case has been already made for a federal role.

It may be noted that federal assessment law requires that federal authorities ensure that any projects not cause significant adverse environmental effects in jurisdictions outside of where the projects are carried out.24

Federal Lands and Waters

The federal government has the power and duty to take action to protect federal waters or any activities that may impact those waters. Within the Mackenzie River Basin, this includes for example, the stretch of the Athabasca River flowing through Wood Buffalo National Park and all water resources in the Northwest Territories, including the Slave and Mackenzie Rivers and their tributaries.

It should also be noted that when Canada transferred jurisdiction over natural resources to Alberta, it reserved the right to determine and secure sufficient flows within the rivers and streams that feed into Wood Buffalo National Park to protect its “scenic beauties.”25

Indians and Indian Lands

The federal government has constitutional authority over Indians and Indian lands. The Constitution Act, 1982 recognizes three distinct groups of aboriginal peoples: Indians, Inuit and Métis. This includes protection of aboriginal lands, water and health. Responsibility within the federal government for protection of aboriginal water sources is shared amongst Environment Canada (protection of source waters, control of toxins; migratory birds; endangered species); Health Canada (safe drinking water, health); Department of Fisheries and Oceans (protection of

23

Peggy Holroyd et al, The Waters That Bind Us: Transboundary Implications of Oil Sands Development, Pembina Institute, Feb. 2009 24

Canadian Environmental Assessment Act, 1992, C. 37, as am, section 4 (1) (c ). 25

Natural Resources Transfer Act, Constitution Act 1930, Schedule 2 section 16.


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fish and fish habitat, treaty harvest rights); and, the Department of Indian Affairs (aboriginal treaties and rights, northern waters).

Protection of Fisheries

The federal government is granted unilateral constitutional authority over fisheries. The federal Fisheries Act empowers federal authorities to act to protect fish, fish habitat and man’s use of fish. The act prohibits unauthorized impacts on fish habitat and prohibits any release of substances that may be deleterious to fish or man’s use of fish. By extension, this requires action to maintain flow levels, temperatures, water quality and fish passage.

The Department of Fisheries and Oceans is granted the authority under the act to prohibit, authorize or impose conditions necessary to prevent or mitigate harm to a fishery or its habitat. They are also granted broad powers to study or examine potential impacts to a fishery or its habitat. Environment Canada is assigned administrative responsibility under the act for enforcing the prohibition against depositing deleterious substances into waters frequented by fish. The Supreme Court of Canada has held26 that this includes the seepage of deleterious substances directly or indirectly into water that contains fish. The act provides clear federal power to prevent or mitigate impacts from any direct releases or seepage from tailings ponds, mine sites and air emissions.

Protection of Migratory Birds and Endangered Species

The federal government has clear authority and responsibility to protect migratory birds27 and endangered species. 28 The federal government is responsible for protecting the constitutional and treaty harvest rights of aboriginal peoples. Where any measures are taken to address species or their habitat that may impact First Nation rights or interests, the federal government must consult and accommodate those interests and concerns.29 The Migratory Birds Convention Act prohibits the direct or indirect deposit of any substance harmful to migratory birds or in an area frequented by them.30

26

R. v. Crown Zellerbach Canada Ltd. (1988), 49 D.L.R. (4th

) 166 27

Migratory Birds Convention Act, S.C. 1994, c. 22 28

Species at Risk Act, S.C. 2002, c. 29 29

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 30

Supra n.27, section 5.1 (1).


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Environmental Impact Assessment

Federal jurisdiction over assessing the impacts of developments has been upheld by the Supreme Court of Canada.31 The Canadian Environmental Assessment Act (CEAA) empowers federal authorities to assess and ensure mitigation of any environmental impacts in a manner that protects both the environment and human health and is consistent with the “Precautionary Principle.” It may be noted there is no prescription in law to balance environmental impacts with economic development objectives. To the contrary, the act precisely states that Canada seeks to achieve sustainable development by conserving and enhancing environmental quality and by encouraging and promoting economic development that conserves and enhances environmental quality.32 The purpose of the act is to ensure projects are considered in a careful, precautionary manner to ensure no significant adverse environmental impacts are caused. 33

Federal assessment is required where the federal government is empowered to issue a permit, license or approval.34 For example, CEAA requires a federal environmental assessment of proposed oil sands projects that require federal approvals such as harmful alteration, disruption or destruction (HADD) of fisheries permits. While federal assessment is required where federal financial assistance is provided, the act exempts tax concessions, the very form of support granted to oil sands developers.35

Navigation

The federal government is empowered under the Navigable Waters Protection Act36 to take action to protect rights to navigate water ways. However the original broad duties to protect navigation and to assess potential impacts were significantly weakened by recent amendments to the law.37

Toxins and Health

A number of federal laws have been enacted to regulate toxic substances and their potential impacts to environment and human health. The Canadian Environmental Protection Act (CEPA) empowers Environment Canada and Health Canada to research and regulate toxic substances.38 CEPA imposes a mandatory duty on the federal Minister of Health to conduct research related

31

Friends of the Old Man River Dam Society v. Canada (1992), 88 D.L.R. (4th

) (S.C.C.); (1992) 1 S.C.R.3 32

Supra n. 24, Preamble 33

Section 4 (1). 34

Section 4 (2). 35

Section 5. 36

Navigable Waters Protection Act, N-22 37

The 2009 Budget Implementation Act included amendments this act to exempt any impacts caused by infrastructure projects funded by the federal government. 38

S.C. 1999, c.33


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to the role of substances on illness and health and to collect and publish such data.39 The Department of Health Act mandates Health Canada to take action to protect against risks to health and to research and investigate public health concerns.40 No federal laws have yet been enacted to provide a legal framework for protection of aboriginal safe drinking water.41

CEPA imposes a mandatory duty on the federal Minister of Environment to establish and maintain a system for monitoring environmental quality and to detect damage to the ecosystem; to conduct research into environmental contamination and ecosystem damage; and, to formulate plans to abate pollution.42 While Part 9 specifically provides for intervention to protect federal and Aboriginal lands, little action has ever been taken to assert these powers. Similarly there has been little action under Part 4, Pollution Prevention, which empowers the Minister to require pollution prevention plans for any listed toxin. As will be discussed later, part of the problem is the federal government failure to regulate many of the critical contaminants emitted by oil sands operations, thereby potentially limiting their powers to intervene in a timely manner.43

39

Section 45. 40

S.C. 1996, c.8 41

Bill S-11, An Act respecting the safety of drinking water on first nation lands, was tabled May 26, 2009 in the Senate. ; for a summary of related issues see Report of the Expert Panel on Safe Drinking Water for First Nations, Volumes I and II (Ottawa: Indian and Northern Affairs, Nov 2006) www.ainc-inac.gc.ca 42

Section 44. 43

Section 209.


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Key Findings and Recommendations for Federal Action

Assessing Cumulative Impacts to Prevent Harm

The Supreme Court of Canada has upheld the federal legal mandate to assess and take action to prevent or mitigate potential cumulative environmental impacts.44 Federal officials testified that for the past four applications they have recommended that joint review panels consider cumulative environmental impacts,45 yet as the sector has expanded, federal authorities have significantly reduced – not expanded –the scope of environmental assessments. Despite a clear federal duty to address harm to fisheries, transboundary waters, aboriginal peoples and lands, environment or health by toxins, migratory birds and endangered species, successive federal governments have deferred much of their role in addressing impacts of the oil sands to the provincial government.46 The public has repeatedly taken the federal government to court to force compliance with duties to assess and mitigate broader harmful impacts.47

The federal response to a court ruling upholding their duty to require cumulative project assessments was to amend the law to grant discretion to the federal Minister of the Environment to narrow the scope of any future assessments.48 The move not only prevents any future court challenges, it could impact the duty to consider the more far reaching cumulative impacts of this sector. Some have expressed dismay at the decision by the United States Environmental Protection Agency to push for consideration of the potential cumulative impacts, including impacts on the Ogallala aquifer and greenhouse gas emissions, of a proposed oil sands bitumen pipeline, yet the assessment process mirrors that required under Canadian federal law.49 It just isn’t followed.

Impacts on water quality and quantity in the basin are widely documented in the testimony, project applications and assessments, and independent reports. They include: deforestation; drainage of lakes and marshes for mines, tailing ponds and upgrader facilities; air emissions from upgraders; non returned water diversions from surface and ground water sources; and, contamination of surface and ground water from pond leakage and bitumen processing. Considerable testimony was heard that mining and in situ processes impact both water quality and quantity.

The dearth of cumulative impact consideration is seated in key limitations of the approval process. First, impacts of the sector are considered on a project by project basis. 50 Second,

44

; MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 45

Testimony by Ian Matheson, DFO, March 5, 2009 46

Testimony, Arlene Kwasniuk & Owen Saunders, May 12, 2009. 47

Environmental Resource Centre v. Canada (Minister of the Environment), [2001] FCT 1423, Prairie Acid Rain Coalition v. Canada (Minister for Fisheries and Oceans), [2004] FC 1265, [2006] FCA 31, Pembina Institute v. Canada (Attorney General ), [2008] FC 302, Imperial Oil v. Minister of Fisheries and Oceans (Canada), [2008] FC 598, Mining Watch v. Canada (Fisheries and Oceans), [2010] SCC 2 48

Jobs and Economic Growth Act, S.C. 2010, c.12, part 20, section 2155 49

Letter from Cynthia Giles, USEPA to Jose Fernandez and Kerri-Ann Jones, US Department of State, July 16, 2010 50

Testimony by Ian Matheson, Department of Fisheries and Oceans, March 5, 2009.


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federal assessments have in many instances been narrowly scoped to omit impacts to water resources with little or no consideration given to the much broader cumulative impacts of associated infrastructure. Testimony was heard on impacts to rivers and tributaries, within Alberta and into Saskatchewan and the Northwest Territories. For the most part, potential impacts of the oil sands sector on water sources by affiliated infrastructure including coal-fired electricity supply, upgraders outside the Athabasca River Basin and bitumen pipelines crossing water bodies were not discussed at Committee.51

The Deputy Premier of the Northwest Territories and First Nation and Métis leaders and elders from Alberta, Saskatchewan and the Northwest Territories testified to concerns with transboundary threats to the larger Mackenzie River Basin.52 Finally, the Committee focused its study on the oil sands developments in Alberta giving little consideration to slated expansion into water- rich northern Saskatchewan.53

Government agencies have also short circuited cumulative impact assessment duties by diverting up front consideration of potentially significant impacts to the provincially led Canadian Environmental Management Association (CEMA) process established in 2000. The intent of CEMA was to use an adaptive approach to cumulative effects management based on environmental capacity guidelines, thresholds, management actions and monitoring and evaluation. The committee was advised that while the federal government played a key role in establishing CEMA, its engagement has substantially diminished.54 In other instances valuable science by federal scientists has been ignored. The effect has been to avoid or delay imposing binding conditions to authorizations or approvals. While aboriginal and environmental organization participants in CEMA were initially supportive of this consensus based process, many key members have since resigned. They testified that insufficient resources, critical flaws in the design of CEMA, delayed action on recommendation reports and little legislative power, have all contributed to CEMA’s failure to set critical air, water and land thresholds.

Concerns were expressed that rather than approaching approvals in a holistic fashion, CEMA has instead continued to segregate issues, and has pitted competing interests against each other.55 Many are troubled that while the CEMA process was supposed to provide a forum to establish rules to address impacts, it has merely become a parking lot for contentious issues and a handy excuse for inaction by government authorities. A key concern is that projects continue to be approved without any determination by CEMA. 56 It was recommended that new approvals be held up until after CEMA’s work is complete and regulatory action taken in

51

See for example, Mary Griffiths, Simon Dyer, Upgrader Alley, Oil Sands Fever Strikes Edmonton, Pembina Institute, June 2008. 52

Testimony by Sam Gargan, Dehcho First Nation, May 12, 2009 53

During testimony May 12, 2009 , Chief Albert Mercredi, Fond du Lac First Nation raised some concerns in this regard. 54

Testimony, Simon Dyer, May 13, 2009 55

Simon Dyer, Director Oil Sands Program, Pembina Institute; Stephen A. Kennett, “Next Steps for Cumulative Effects Management in Alberta’s Athabasca Oil Sands Region”, Resources, Number 96-2006-2007 (Canadian Institute of Resources Law) 56

Testimony, Simon Dyer, May 13, 2009.


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response. 57 The Alberta Energy and Utilities Board (ERCB, formerly EUB) has echoed these concerns by observing that the slow progress in CEMA delivering management frameworks has impacted its statutory duty to ensure orderly development of the oil sands and to determine whether projects are in the public interest.58 The Board has expressed support for government action on CEMA reports, including enforceable timelines through regulatory backstops. 59 It is noteworthy that senior Environment Canada officials testified that the purpose of CEMA is to advise the Government of Alberta and that federal participation is limited to offering technical advice.60

In 2007 the Standing Committee on Natural Resources recommended that the federal government work with the Government of Alberta to undertake a comprehensive assessment of the socio economic and environmental cumulative impacts of projects already underway and planned for the future. No action has been taken. Nor has any action been taken on their recommendation to observe the “Polluter Pays Principle.” The current Federal Water Policy commits the federal government to observing this principle. Furthermore, their recommendations that the federal government apply CEAA in a more comprehensive manner to address transboundary air pollution, greenhouse gas emissions and harm to waterways and fisheries have not been implemented.

Recommendation: Amend the Canadian Environmental Assessment Act to provide a framework for delivering cumulative impact assessments and require that the long overdue cumulative effects assessment of the current and potential environmental impacts of oil sands operations be undertaken within an expedited timeline, cost shared by governments and the sector, with terms of reference set by the federal government following consultation with First Nations and public through an open and transparent process.

Recommendation: The long overdue cumulative assessment of current and projected potential impacts of oil sands developments should be undertaken within an expedited timeframe, paid for by the sector, and pursuant to terms of reference set by the government based on consultations with First Nations, Métis, academic and government scientists and other concerned parties, through an open and transparent process.

Recommendation: Strengthen federal environmental assessments of oil sands developments by requiring the identification of cumulative effects of the project and combined oil sands activities on the Lower Athabasca River basin and its tributaries, the larger Mackenzie River Basin and any other waters potentially impacted. No further federal approvals or authorizations

57

Ibid. 58

Kennett, supra n.55. 59

EUB, Suncor Energy Inc., Application for Expansion of an Oil sands Mine (North Steepbank Mine extension) and a Bitumen Upgrading facility (Voyageur Upgrader) in the Fort McMurray Area, EUB Decision 2006-112, 14 November 2006. 60

Testimony by Cynthia Wright Acting ADM, Environment Canada, March 12, 2009.


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should be granted until a cumulative assessment is completed, publicly reviewed and impacts addressed.

Recommendation: Rescind the 2010 amendments to CEAA empowering the Minister of Environment to narrow the scope of a federal environmental assessment and ensure that future federal assessments consider all potential environmental impacts subject to federal laws and areas of responsibility.

Recommendation: Federal authorities should refrain from participating in and/or relying on the CEMA process until the significant concerns raised by current and past members are addressed to their satisfaction, including greater transparency in the process; ending the deferral of regulatory duties; committing to timely action on recommendations; and, ensuring greater credence is given to scientific determinations.

Recommendation: Strengthen federal engagement in oil sands project assessments and reviews to ensure that all potential impacts within federal areas of jurisdiction including federal lands, fisheries, aboriginal peoples and lands, transboundary impacts, toxic emissions, migratory birds, endangered species, and climate are considered and addressed.

Recommendation: The federal government, under the mantle of the Mackenzie River Basin Board, should undertake a study, in cooperation with relevant territorial, provincial and First Nation governments, on the potential cumulative impacts of the oil sands sector within the larger Mackenzie River basin to ensure adequate consideration to necessary federal regulations and approvals.


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Regulation of Toxic and Deleterious Substances

The Committee was presented with a litany of concerns about the failure of federal authorities to regulate or respond to harmful air emissions and effluent emitted or released by the oil sands sector. This delayed regulatory action has created a perverse financial incentive for rapid expansion of the sector. Federal officials admitted to having clear jurisdiction and legal authority to regulate harmful toxins under a number of federal laws, including the Canadian Environmental Protection Act (CEPA), and the federal Fisheries Act. Despite this, few legally binding standards have been imposed for this sector, including for significant carcinogens and heavy metals emitted by the sector and reported to be accumulating in the watershed.61 While the federal government has set standards for other major sectors, such as pulp and paper, no similar regulatory action has been taken for the oil sands sector. Government officials testified that there was no need to establish regulatory standards, since Alberta has a zero-discharge policy and any discharges are naturally occurring.62 Information provided to the Committee and published studies issued since the hearings suggest that significant volumes of contaminants emitted by the sector are, in fact, entering the environment.63

The oil sands sector produces and emits significant volumes of contaminants through its processes. The process of separating oil from the sands produces contaminated waste water and tailings, licensed to be stored in tailings ponds. Environment Canada, through the National Pollutants Release Inventory (NPRI) database reports that oil sands produce 10% of mine tailings in Canada. This is all the more critical given the toxicity of the liquid tailings stored in ponds covering about 130 square kilometers and containing oil and grease, naphthenic acids, cyanide, arsenic, hydrogen sulphide, phenols and a litany of measurable heavy metals including mercury, chromium, vanadium and cadmium.

An estimated 720 million cubic meters of impounded liquid tailings are stored. Over 40 years of operation no areas containing tailings ponds have been certified as reclaimed. Concern was raised with risks of seepage, catastrophic discharge and long term fate of the toxic tailings.64 While industry testified that there is no unrecovered seepage, others suggested a conservative estimate of tailings seepage is in the order of 11 million litres per day, forecast to double.65 Concern was similarly raised whether federal authorities have asked for, collected or analyzed cumulative seepage data.

61

Testimony, Dr David Schindler, May 12, 2009 and March 30, 2010. NPRI, Preliminary NPRI Tailings and Waste Rock (TWR) Data for 2006-2009, http://www.ec.gc.ca/inrp-npri/default.asp?lang=en&n=CE124285-1 62

Testimony, Fred Wrona, Environment Canada, and Cynthia Wright, Acting ADM Environment Canada March 12, 2009. 63

Erin N. Kelly, et al, “Oil sands development contributes polycyclic aromatic compounds to the Athabasca River and its tributaries”, pnas.org/cgi/doi/10.1073/pnas.09.0912050106; Erin N. Kelly, et al, "Oil sands development contributes polycyclic aromatic compounds to the Athabasca River and its tributaries”, pnas.org/cgi/doi/10.1073/pnas.09.0912050106; Kevin Timoney and Peter Lee, “Does the Tar Sands Industry Pollute? The Scientific Evidence”, The Open Conservation Biology Journal, 2009, 3, 65-81. 64

Ibid. 65

Ibid.


14

In response to a court order, Environment Canada now requires reporting of contaminant concentrations in the tailings ponds. A preliminary summary based on 2006-2009 data reports arsenic and lead levels have increased by 26 percent. Complete data is yet to be revealed by the sector. Furthermore, data requirements for the 2006, 2007 and 2008 reporting years were less stringent than those required in 2009, so the picture is even more incomplete. While concern has focused on threats posed by contaminant leaching or breach of the tailing ponds, recent scientific studies indicate air emissions from bitumen processing are also impacting the watershed and fishery and if unmitigated could threaten the larger Mackenzie River Basin.66 Information67 tabled at Committee coupled with more recent government68 and independent field data provides clear evidence that air borne contaminant loading from oil sands operations is greater than previously understood and may already be causing harm.69 The NPRI reports that the sector last year released over 70,000 tonnes of volatile organic compounds and 111, 661 tonnes of sulphur dioxide. Emissions of acenaphthene increased 42 percent in 4 years. 70 Independent monitoring has revealed elevated levels of polycyclic aromatic hydrocarbons at levels likely toxic to fish embryos.71

In 2007, the Standing Committee on Natural Resources recommended accelerating treatment of toxic waste water in the ponds, with industry taking the lead for accelerating research and action in land reclamation vis a vis toxicity of tailings and water. 72 While the Alberta Energy Resources Conservation Board has directed that the tailings be reclaimed by specified dates, concerns have been raised with the granting of exemptions. 73 According to a 2003 Mackenzie River report:

“Over 70% of the sulphur dioxide and nitrogen oxides emitted by Alberta oil sands operations are deposited in Saskatchewan and there is concern that these acidifying emissions could lead to acidification of lakes in north central Saskatchewan, and recent data for forest soils gathered for the Canadian Council of Ministers of Environment suggests that Saskatchewan’s north is the most acid sensitive region in Canada.” 74

66

Testimony, Dr. David Schindler; Dr Kevin Timoney, Ibid. 67

Erin N. Kelly, et al, “Oil sands development contributes polycyclic aromatic compounds to the Athabasca River and its tributaries”, http://www.pnas.org/content/106/52/22346.short 68

Preliminary NPRI Tailings and Waste Rock (TWR) Data for 2006-2009, http://www.ec.gc.ca/inrp-npri/default.asp?lang=en&n=CE124285-1 69

Scientists have advised that AOSERP studies in the late 1970s to early 1980s identified contaminant metals in snow samples 25 kilometers from upgraders. 70

NPRI, supra n. 61. 71

Erin N. Kelly et al,” Oil sands development contributes polycyclic aromatic compounds to the Athabasca River and its tributaries”, Environmental Sciences (www.pnas.org/cgi/doi.10.1073/pnas.0912050106) 72

Report of the Standing Committee on Natural Resources, The Oil Sands: Toward Sustainable Development, March 2007, 39

th Parliament, 1

st session.

73 ERCB Directive 074:Tailings Performance Criteria and Requirements for Oil Sands Mining Schemes; Terra

Simieritsch et al, Tailings Plan Review: An Assessment of Oil Sands Company Submissions for Compliance with ERCB Directive 074: Tailings Performance Criteria and Requirements for Oil Sands Mining Schemes, Pembina Institute, December 2009 74

Peter Prebble et al., CARBON COPY: Preventing Oil Sands Fever in Saskatchewan, Pembina Institute, August 2009.

http://www.pnas.org/search?author1=Erin+N.+Kelly&sortspec=date&submit=Submit

http://www.pnas.org/content/106/52/22346.short


15

The Government of the Northwest Territories expressed concerns about the impacts in their territory of airborne emissions of napthenic acids, polycyclic aromatic hyrdocarbons, bitumen, mercury and heavy metals from the oil sands sector.75 Clear calls for regulatory intervention by both federal and provincial governments came from First Nation leaders to cap and diminish the licensed volumes of water available to oil sands operators.76 They argued this would provide the needed trigger for industry investment in improved technology and extraction technologies for more efficient and less wasteful use of water. Similarly, concern was expressed that despite forty years of operating there are no proven viable reclamation plans for tailings ponds.

The federal Environment Minister has voiced the need for “the highest possible environmental standards”77 for the oil sands. While the Minister has the power to promulgate those standards, the majority of contaminants remain unregulated.

Recommendation: The Department of Fisheries and Oceans should impose legally binding conditions through regulations, permits and authorizations to address potential contamination of fish, or waters frequented by fish, through spills, run off and leakage of deleterious substances from tailing ponds and land clearance activities and emissions or effluent from bitumen processing.

Recommendation: Environment Canada should immediately gazette, for public review and comment, enforceable regulatory standards under the Canadian Environmental Protection Act (CEPA) for toxic substances released or emitted in extraction, processing or containment of oil sands tailings and processing wastes including but not limited to Napthenic acids, Polycyclic Aromatic Hydrocarbons and heavy metals.

Recommendation: Federal authorities should be directly engaged with Alberta Government authorities responsible for establishing criteria for certification of reclamation of oil sands mine or tailings ponds operations and for certifying reclamation to ensure that federal standards will be met, laws complied with and federal responsibilities delivered.

Recommendation: The federal should government deliver the promised comprehensive review and revision of all federal laws and policies governing the development of unconventional sources of oil and gas, including oil sands, through a transparent process and the broadest possible consultation with interested stakeholders to ensure the strongest possible environmental and safety rules.78

Monitoring, reporting and transparency

Federal authorities advised that their efforts at water monitoring were adequate despite the fact the only remaining federal monitoring site was reported to be downstream of oil sands

75

Hon. Deputy Premier Northwest Territories, Michael Miltenberger, May 12, 2009, 76

Chief Jim Boucher, Fort McKay First Nation, May 12, 2009. 77

“Oilsands less risky than offshore drilling Prentice says”, Bill Graveland, The Canadian Press page D4, 2010-05-08 78

Motion received unanimous support in the House of Commons, June 2010.


16

operations in Wood Buffalo National Park.79 Mention was made of federal monitoring efforts in the mid to late 1990s, recommencing at the beginning of this decade 80 as well as additional hydrometric water quantity stations in the region. Industry witnesses testified that not only was current monitoring adequate, neither industry not government studies had detected any effects on the Lower Athabasaca River by the oils sands sector.81 They testified that monitoring programs, including the Regional Aquatic Monitoring Program (RAMP) funded by industry, indicated there have been no increases in concentrations of contaminants, no evidence of temporal trends and no major effects detected.82

The vast majority of witnesses decried the decline in contribution by federal government in monitoring impacts on water sources.83 Concerns raised at previous federal and provincial reviews were reiterated regarding over-reliance on industry gathered monitoring data. These concerns echo those raised by the federal Natural Resources Committee in 2007 who recommended ending reliance on industry monitoring in favour of stepped up federal investment and engagement.84

The 2006 Alberta government review also documented substantial concerns with the lack of federal involvement.85 Despite government denial of the need for improved monitoring, the recent purchase of equipment to better trace contaminant sources indicates some grudging admission of the need to invest in improved tracking of the sources of contaminants. However, equipment without staffing is of minimal value. Commitments to additional staffing and budgets will be required to deliver a credible long term field monitoring and analytical program for this sector.

While industry witnesses defended the industry led Oil Sands RAMP program,86 others decried continued government reliance on the program without major improvements and federal leadership.87 Criticisms were based on a scientific peer review of RAMP that identified significant problems including: lack of scientific veracity in detecting effects, inability to assess

79

Testimony, Fred Wrona (Acting Director General, Water Science and Technology, Department of the Environment), March 12, 2009. 80

Testimony, Ian McKenzie May 13, 2009. 81

Ibid. It is noteworthy that an Environment Canada study completed in 2003 reported fish abnormalities in the Lower Athabasca. This study was not tabled before the Committee. 82

Ibid, additionally citing Alberta Environment and Environment Canada reports; Testimony by Fred Kuzmic, RAMP, May 13, 2009. The industry testimony raises the obvious question of whether different criteria (i.e “major effects”) are followed for RAMP and other studies vis a vis triggers for intervention. 83

Testimony, Dr. Schindler, Dr. Donahue, Dr. James Bruce, Simon Dyer, Tony Maas, Hon. Michael Miltenberger, and Owen Saunders. 84

Report of the Standing Committee on Natural Resources, The Oil Sands: Toward Sustainable Development, March 2007, 39

th Parliament, 1

st session.

85 Oil Sands Consultation, Stakeholder Committee Final Report, 2007, Government of Alberta

http://www.energy.alberta.ca/OilSands/pdfs/FinalReport_2007_OS_MSC.pdf 86

Testimony, Ian McKenzie and Fred Kuzmik, May 13, 2009. 87

Testimony, Simon Dyer, May 13, 2009.


17

the methodology due to lack of transparency,88 failure to provide rationales for program changes, as well as examples of inappropriate statistical analysis and unsupported conclusions.89 They also raised concerns about scientific leadership, lack of an overall regional plan and significant gaps in monitoring, and made extensive recommendations for improvement. Concerns were raised that despite the breadth of the RAMP program, it is compliance focused and does not adequately address cumulative ecological impacts. Witnesses recommended that the core monitoring program requires major changes necessitating intense efforts over the short term. They strongly recommended against piecemeal changes. A Government of Alberta commissioned report by a former provincial Deputy Minister of Environment echoed these concerns.90 Conflicting testimony was presented on whether the core deficiencies identified have been adequately addressed.

Filling this scientific vacuum, an independent, peer reviewed, internationally published field monitoring study report reveals that oil sands developments are contaminating water bodies with polycyclic hydro carbons.91 Another more recent peer reviewed study, documenting increased loading of toxic priority pollutants in snow and water samples in the Athabasca watershed attributed to the oil sands developments, appears to confirm defects of the RAMP program which has reported no increased levels.92 The scientists concluded that a more robust, ongoing monitoring program is needed to measure exposure and health of fish, wildlife and humans in the region affected by oil sands development. In addition, a monitoring study on acidification of area lakes has reportedly been initiated by a non government association, the Wood Buffalo Environmental Association (WBEA).93

Governments should be acting on these reports rather than questioning their credentials or results.94

88

Simon Dyer, Ibid; Fred Kuzmik admitted in testimony that RAMP raw data is only available to or through RAMP members, June 13, 2009. 89

G. Burton Ayles et al, “Oil Sands Aquatic Monitoring Program (RAMP), Scientific Peer Review of the Five Year Report (1997-2001)”, February 13, 2004; industry witnesses did not table this peer review report. 90

Radke, D., Investing in our Future: Responding to the Rapid Growth of Oil Sands Development, Final Report, December 2009 91

Erin A. Kelly, et al, “Oil sands development contributes elements toxic at low concentrations to the Athabasca River and its tributaries”, Environmental Sciences, July 2010 (www.pnas.org/cgi/doi/10.1073/pnas.10087541-7) 92

Ibid 93

Ian McKenzie, Golder and Associates, May 13, 2009. The WBEA is a collaboration of communities, environmental groups, industry, government and aboriginal peoples (www.wbea.org/content/view/19/55. No results were tabled with the Committee. 94

See comments in Committee proceedings June 9, 2009 regarding scientists’ credentials.

http://www.wbea.org/content/view/19/55


18

Expert witnesses called for greater transparency in monitoring and reporting, including access to data on river quality, leakage from tailings ponds, water withdrawals and incidents & responses. 95 According to one witness:

“One of the unfortunate defining features of oil sands development is the lack of transparency and the absence of publicly available data for many elements of environmental concern, such as tailings seepage, tailings reclamation performance, and access to RAMP data.”96

Since the demise in the 1990s of the once extensive federal inland waters monitoring program97 , access to water data by independent scientists has been limited. This is in part due to the Alberta Government policy of relying on industry funded monitoring programs, with no requirement for transparency. In the absence of common and integrated groundwater or surface water database, accurate modeling of the effects on surface water is limited.98

Concerns were expressed that both the federal and Alberta governments have side-barred review of monitoring data to the consensus based, provincially led CEMA process.

Witnesses also pointed to the shrinking capacity of the federal government to conduct monitoring, due to ever-decreasing budgets and the loss, or redirecting, of federal scientific expertise.99 One witness observed:

“The only agency with the expertise to carry out a decent monitoring program is Environment Canada. I think given the lack of public trust, there should be an oversight panel of scientists not connected with industry and not susceptible to muzzling by government to help regain public confidence. There should be annual public reports that are made widely available. Industry should continue to pay for the program, but it should not be run by industry.”100

For the first time this past August, in response to a court action, the federal government publicly reported, through the National Pollutant Release Inventory (NPRI), the volumes of heavy metals and other carcinogenic substances contained in the tailings ponds. These include mercury, arsenic and 42% more acenaphthene since 2006. Concerns were expressed with the lack of federal engagement in monitoring seepage from the tailings ponds and in reviewing proposals to drain the tailings ponds by creating “end pit lakes”. 101 The Deputy Premier of the

95

Testimony, Dr Schindler, May 12, 2009. 96

Testimony, Simon Dyer, May 13, 2009. 97

Testimony, Dr Donahue, May 12, 2009. 98

Testimony, Dr Jim Bruce, June 9, 2009; Council of Academies, The Sustainable Management of Groundwater in Canada, May 2009. 99

Testimony, Owen Saunders, Faculty of Law, University of Calgary; Dr Schindler, May 12, 2009; and ,Hon. Michael Miltenberger, May 12, 2009. 100

Testimony, Owen Saunders, Ibid 101

Testimony, Simon Dyer, May 13, 2009. ,


19

Northwest Territories also voiced concerns with enormous gaps in federal surface and ground water monitoring stations and lack of monitoring of cumulative impacts of developments within the basin and climate issues.102 This view is echoed by the federal Auditor General103 and independent researchers.104 He also called for greater consideration to incorporating traditional ecological knowledge (TEK) into monitoring and research programs.105 Calls by First Nation leaders for greater support to establish and run community based monitoring programs are discussed below.

Significant concerns were raised regarding the health of the fisheries and failure of federal authorities to respond. A request was submitted to the Prime Minister calling for a comprehensive, long term fish health monitoring program for the lower Athabasca River, Athabasca Delta and Lake Athabasca in response to the increasing incidence of fish deformities, lesions and cysts. They requested that the program be overseen by the federal government but be led by an independent steering committee comprised of community members, fishermen, community leadership, federal government scientists and academic researchers and be complementary to and beyond current monitoring programs. They called for engagement of a fish parasitologist, hispathologist and veterinarian. 106

Finally, concerns were raised regarding a lack of consideration to monitoring and responding to recorded and potential future impacts of climate change on the Athabasca and larger Mackenzie River Basins.107 Testimony was also provided on apparent under recognized levels of greenhouse gas emissions by in situ production. 108

Recommendation: The federal government should adopt a protocol for delivering monitoring and science research programs which would require advance consultation with concerned First Nations and other potentially impacted or interested communities. Advance consultation should include terms of reference, study methodology and process for delivery of study results. All such studies should involve an oversight committee including independent science and TEK experts.

Recommendation: The federal government should substantially increase budgetary allocations supporting community based aboriginal water monitoring programs and training programs

102

Hon. Deputy Premier Northwest Territories Michael Miltenberger, 103

Office of the Auditor General of Canada, Spring 2010 Report of the Auditor General of Canada to the House of Commons, “Chapter 4, Sustaining Development in the Northwest Territories”, Ottawa, www.oag-bvg.gc.ca 104

Jennifer Grant, et al, Northern Lifeblood: Empowering Northern Leaders to Protect the Mackenzie River basin from Oil Sands Risks, Pembina Institute for Sustainable Energy Solutions, July 2010. 105

Ibid 106

Letter sent September 16, 2010 to the Prime Minister from chiefs and community members and others. 107

Testimony Dr William Donahue, May 12, 2009 Dr David Schindler, May 12, 2009, and the Hon. Deputy Premier Michael Miltenberger, May 12, 2009. 108

Testimony, Graham Thompson, March 30, 2010


20

potentially through the First Nations Environmental Contaminants Program (FNECP)109 or the BEAHR program.

Recommendation: The federal government should establish a comprehensive, independent and transparent monitoring program for water flows and water quality and air quality for the Lower Athabasca River Basin to include monitoring of tailings reclamation and tailings seepage.

Recommendation: The federal government, in consultation with the Government of the Northwest Territories and First Nation governments, should establish, resource and deliver a baseline environment and cumulative impacts monitoring program for the Northwest Territories, and in particular for the Mackenzie River Basin.

Recommendation: The federal government should review, and where necessary amend, access to information laws and policies, requiring the duty to disclose and providing right of access to all water study reports relied upon, including raw data and study methodology.

Recommendation: Environment Canada should be directed and adequately financed to play a lead role in the collection and analysis of information necessary to deliver on commitments made under the Mackenzie River Basin Master Agreement.

Recommendation: Environment Canada should undertake an open and transparent review and revision of its national water policies and programs with the objective of asserting its constitutional powers and legislated duties to manage waters of national significance, including addressing transboundary impacts.

Recommendation: All federal authorities should cease any reliance on RAMP monitoring data until such time as the deficiencies identified by the peer review are adequately addressed.

Recommendation: Environment Canada, Department of Fisheries and Oceans, Health Canada and Indian and Northern Affairs should revise their monitoring and research study protocols to require timely public release of all results including raw data and methodologies.

Recommendation: The federal government should immediately revise all communication policies to authorize and enable federal scientists to speak freely and publicly on their publicly funded scientific research and monitoring work.

109

See “Potential Exposure to Industrial Contaminants among Aboriginal Communities across Canada: A geographic Information Systems Analysis”, Hing Man Chan, PH.D, Leah Tivoli, B Sc. (community health program, University of Northern BC)


21

Inspection and Enforcement

Minimal testimony was heard on the adequacy of inspection and enforcement of federal laws regulating impacts of the oil sands sector on water. However, during a separate review led by the Committee, Environment Canada officials testified that despite an increase in overall deployment of inspectors and investigators, none are based in the Fort McMurray region.110 It was suggested in testimony that the RAMP program is intended to provide compliance reporting, including for example, reporting on fish deformities, water and sediment quality, fish tainting compounds, and acidity.111

As previously mentioned, it is difficult for potentially impacted communities or the public to assess the efficacy or credibility of the inspection and enforcement regime or, as is their right, to hold the government accountable for effective enforcement. Concerns were raised about the lack of transparency in everything from tailings pond seepage to monitoring reports on contaminants and fish to death of migratory birds in tailings ponds. Concerns were expressed about the inadequate exercise of powers by fisheries officers to issue legally binding and enforceable conditions through HADD permits and authorizations to control harmful alteration, disruption or destruction of fish habitat.112 Equal concern was expressed about the lack of enforcement of the deleterious substance provisions of the Fisheries Act, particularly in light of recent scientific studies indicating levels of contaminants deleterious to fish and fish deformities.113

The federal government has responsibility for enforcing the prohibition against depositing, or allowing the deposit of, substances harmful to migratory birds under the Migratory Birds Protection Act. Serious deficiencies in monitoring and enforcing this law in relation to bird deaths in the tailings ponds were identified in a recent court ruling.114 These enforcement actions were triggered by the filing of a charge by a private individual. The case raises serious questions about adequacy of efforts by federal and other officials to ensure the oil sands operations comply with this law.

Recommendation: Environment Canada should post dedicated inspectors and investigators in Fort McMurray to deliver an intensified inspection and enforcement program to ensure more timely detection and response to incidents and violations of federal environmental laws.

Recommendation: To ensure greater transparency and confidence in government enforcement and compliance strategies for the oil sands sector, Environment Canada and the Department of Fisheries and Oceans should post all inspection and enforcement actions and results on their

110

See testimony by Ian Shugart, Environment Canada, April 2, 2009 during hearings by the Standing Committee on Environment and Sustainable Development, on Bill C-16. 111

Testimony, Fred Kuzmik, Regional Aquatics Monitoring Program, May 13, 2009. 112

Testimony, Barry Robinson, Staff Lawyer, Ecojustice, May 13, 2009.. 113

Ibid; Testimony, Dr. Schindler, May 12, 2009; published papers by Erin Kelly et al, supra n. 71; Letter September 16, 2010 to the Prime Minister from chiefs and residents of Fort Chipewyan and Fort McKay et al. and report made in Edmonton, September 16, 2009 on fish deformities. 114

R. v. Syncrude Canada Ltd., 2010 ABPC 229, decision of the Honourable Judge K.E. Tjosvold.


22

websites and establish and advertise an enhanced pollution complaints reporting and response program.

Recommendation: The Department of Fisheries and Oceans should assert its powers to impose legally binding and enforceable conditions to protect fish and fish habitat through conditions to HADD permits and authorizations.

Recommendation: Environment Canada should assert its responsibilities to protect migratory birds by initiating a review with Alberta authorities on the adequacy of bird deterrence measures and license conditions to ensure greater prevention and improved surveillance.


23

Protection of the Fishery and Fish Habitat

As mentioned previously, the federal government has jurisdiction over fisheries and legislative authority under the federal Fisheries Act to protect fish and fish habitat. This authority includes ensuring an adequate quantity of flow in the river to protect fish habitat, and protecting the quality of the habitat (i.e. water) from the deposition of deleterious substances. It also includes protection of man’s use of fish.

Witnesses expressed concerns that the federal government was doing neither job adequately. More than one witness stated that despite their shared responsibility, neither federal nor provincial governments have been willing to show any leadership on the file.115 It was suggested by one witness that what has been called a complex and confusing allocation of water management powers between federal and provincial governments is often used as an excuse for inaction.116

First Nation leaders expressed concern that the impact of oil sands operations on the fishery threatened their treaty rights.117 During the unrecorded meeting in Fort Chipewyan the community voiced concerns about rising numbers of malformed or cancerous fish. An independent study of fish harvested from the Athabasca River is soon to be completed.118 The Department of fisheries and Oceans was particularly criticized for failing to take action to stop the deterioration of the water quality and quantity in the Athabasca River, its tributaries and downstream lakes:119

“Our community had relied for generations on the exercise of our treaty rights to fish and to provide a good food staple. This treaty right has been effectively extinguished in our region without any consultation, accommodation, or compensation by Canada. Fort McKay will shortly be taking measures to ensure that the failure of the federal government to protect our treaty rights and the important natural resource of water quality and quantity, including the fisheries upon which our treaty rights depend, does not continue.”

Dr. O’Connor testified that since 2001, when he first arrived in Fort Chipewyan as the community physician, many residents have shared reports of increasing numbers of fish being pulled from the lake with tumours, deformities, crooked fins, missing parts, crooked spines and bulging eyes. They frequently reported that the fish tasted oily and were not fit for consumption.120

115

Written brief, Karin Buss, Ecojustice; Testimony, Simon Dyer, May 13, 2009. 116

Testimony, Tony Maas, WWF, May 13, 2009. 117

“Current oil sands operators continue to draw water, regardless of how low the river flow is. The risk of oil sands developments irreparably damaging the fishery threatens our treaty rights.” Chief Jim Boucher, testimony, May 13, 2009. 118

Study by Dr. Erin Kelly and associates, University of Alberta (in peer review) 119

Testimony, Chief Jim Boucher, supra n.117. 120

Testimony, June 11, 2009.


24

In 2007 the Standing Committee on Natural Resources recommended that the federal government step up research to determine the true impacts of oil sands activity on aboriginal fisheries in the Peace and Athabasca River Delta.121

Scientists raised concerns with the contamination of the fishery in the Athabasca River and its tributaries from the oil sands development by referencing recent research reports. One internationally published study reports that toxic elements are being discharged to air and water by oil sands mining and processing operations. 122 These include mercury, arsenic, lead, cadmium and several other metals known to be toxic at trace levels. The study was designed specifically to determine whether or not claims that all contaminants found in the Athabasca River are naturally occurring or as a result of industrial activity, and examined patterns of deposition of pollutants in snow and releases to water both near to, and remote from, industry. The study reports the highest concentrations around, and just downstream and downwind from the industrial developments.

A second peer reviewed study reported increased levels of polycyclic aromatic hydrocarbons that they attributed to the oil sands developments at levels likely toxic to fish embryos. 123

It has been suggested that the reported levels of toxins may violate section 36, subsection 3 of the Fisheries Act, which prohibits discharge of toxins in any quantity into fish-bearing waters and warrant investigation and legal action.124 Similar concerns about impacts of the sector on health of the fishery were voiced by other witnesses:

“The federal-provincial management framework for the Athabasca River gives priority to oil sands production over protection of water and fisheries. Under the water management framework for the Athabasca River, there is no legal requirement for water withdrawals to be halted in order to protect fish habitat. The water management framework has a traffic-light system, identifying green, yellow, and red zones. During the red zone, fish and fish habitat are being damaged. Unfortunately, in this instance, red does not mean stop, and water withdrawals are allowed to continue, even when fish habitat damage is occurring.” 125

A third scientific report on abnormalities in fish harvested in the lower Athabasca River, Athabasca Delta and Lake Athabasca is due for release this year. Collective concerns with the high incidence of unhealthy fish, including deformities, lesions and tumours or cysts has prompted a letter to the Prime Minister from First Nation leaders and fishers, health

121

Supra n.72, recommendation 19, p.44. 122

Erin N. Kelly et al, “Oil sands development contributes elements toxic at low concentrations to the Athabasca River and its tributaries, Environmental Sciences, July 2010 (www.pnas.org/cgi/doi/10.1073/pnas.1008754107 123

Erin N. Kelly et al, Oil sands development contributes polycyclic aromatic compounds to the Athabasca River and its tributaries”, pnas.org/cgi/doi/10.1073/pnas.09.0912050106. 124

Ibid. 125

Testimony, . Simon Dyer, May 13, 2009.


25

professionals and scientists.126 They called for federal funding of an independent, comprehensive, long-term fish health monitoring program for the Athabasca watershed.

Recommendation: The Government of Canada should plan, implement and finance a comprehensive, long term fish health monitoring program for the Lower Athabasca River, Athabasca Delta and Lake Athabasca Basin and its tributaries, to include assessing the loss of fish habitat and contamination of the fishery, inclusive of projected increased long term impacts to the fishery from the oil sands developments. The study should be overseen by an independent steering committee comprised of First Nations and Metis community members, fishers, community leadership, federal scientists and academic researchers.

Recommendation: The Department of Fisheries and Oceans should revise its strategy for ensuring the prevention of harm to fish and fish habitat in the Lower Athabasca and the larger Mackenzie River Basins and their tributaries by intensifying efforts at assessing impacts, and the timely imposition of legally binding and enforceable conditions to prohibit water withdrawals where they may result in a HADD.

Recommendation: The Department of Fisheries and Oceans should undertake, in consultation with independent scientific experts, an industry funded study of the scientific efficacy of replacing fish habitat through the end pit lakes, to be completed and publicly reviewed prior to any approvals.

126

Letter dated September, 2010. (www.athabascafish.wordpress.com)


26

Water Management

In considering the role of the federal government in addressing potential impacts of the oil sands sector on water resources, it is important to recognize the geography of the development and its effects. The majority of oil sands extraction is occurring within the lower Athabasca River basin. The Athabasca is an integral part of the larger Mackenzie River basin. The Athabasca River flows into Lake Athabasca which crosses the borders of Alberta and Saskatchewan. Lake Athabasca drains northward though the Slave River. The Slave flows into Slave Lake in the Northwest Territories. The Slave Lake drains into the Mackenzie River and north to the Arctic Ocean. The Mackenzie River Basin is among the largest river basins in the world. The Government of the Northwest Territories and First Nation and Métis leaders from Alberta, Saskatchewan and the Northwest Territories raised concerns with potentially negative implications for the larger river basin.127

The Athabasca River and tributaries, and ground water aquifers provide the major water source for the oil sands sector. The sector is a major water consumer. Industry advised that 70% of water use by the oil and gas sector is by oil sands operators. 128 In the mining process 2 to 4.5 barrels of water are required to extract each barrel of bitumen from the sand. This contaminated water is not returned to the river but stored in tailings ponds. In situ operations draw water from the Peace, Athabasca and Beaver River basins. The watershed is further impacted by deforestation, drainage of streams and marshes and diversion of tributaries for mine development and for in situ operations. The steam injection in situ process also uses substantial volumes of surface and ground water.

Surface Water Impacts

Ecosystem Base Flows

The Committee heard contradictory testimony on the impacts of water withdrawals from the river ecosystems. While industry and government argued that the withdrawals are minimal posing no threat to the river, independent scientists testified that their research indicates that the ecological health of the river and fishery may be at risk. The latter group’s findings were based on predicted seasonal river volumes, minimum flow levels necessary for a healthy ecology and projected sector pace and expansion.129 Industry witnesses admitted to concerns with low flow periods. 130 Many called on the federal government to assert its powers to establish ecosystem base flows and to finance research on the river basin.131

First Nation leaders and elders from Ft McKay, Ft Chipewyan, Fort Fitzgerald, Saskatchewan and the Northwest Territories all spoke to the need to address the impacts of the sector on water levels in the entire Mackenzie River Basin.132

127

Testimony, Hon. Deputy Premier Michael Miltenburger and First Nations leaders and elders, May 12, 2009. 128

Testimony, Stuart Lunn, Imperial Oil Limited, May 13, 2009. 129

Testimony, Dr. Schindler, Dr. Donahue and Dr. Griffiths, May12, 2009. 130

Testimony, Stuart Lunn, May 13, 2009. 131

Testimony, Dr. Donahue, May 12, 2009 Simon Dyer and Tony Maas, May 13, 2009. 132

Testimony by First Nation leaders and elders May 12, 2009.


27

Concerns were voiced by First Nation leaders and elders about the impacts that reduced river flows may have on fish habitat and access to waterways for their traditional harvest.133 The federal-provincial management framework for the Lower Athabasca River134 was entered into with the stated intent of protecting the ecological integrity of the lower Athabasca River during oil sands development and a commitment to a precautionary approach in managing the river. Regardless, concerns were voiced that the framework gives priority to oil sands production over the protection of water and fish, as there is no legal requirement to halt water withdrawals in order to protect fish.135 Contrary to federal fisheries law and policy, the framework exempts pre-1977 water licenses, including the two major water users, Syncrude and Suncor.136

Further, where conditions have been imposed on provincial water licenses, they often are inconsistent and possibly unenforceable without a change in the law.137 It was also revealed that even where the river has reached critical low levels, no action has been taken to curb withdrawals.138 It was suggested that while no legal barrier exists to the Department of Fisheries and Oceans imposing binding conditions based on ecosystem base flows, this requires that an authorization be requested and then issued, which is optional.139

It was suggested that the Federal Fisheries Department is granted clear legal authority under the federal Fisheries Act to require an authorization if the requested water withdrawals will individually or cumulatively cause harmful alteration, destruction or disturbance of fish (HADD) and that this power should be exercised to a greater extent.140 The federal government has overriding and preeminent power to determine what flows must be maintained and withdrawals restricted. What remains is to give Alberta formal notice and enforce this minimum flow level.141 However, enforceability may be a challenge without proof that a particular operation is totally or partially at fault for the HADD.142

Recommendations were made that Phase 2 of the Federal Provincial Framework incorporate clear provisions allowing for imposing HADD conditions and that the mechanism be applied on a retroactive basis where needed to protect ecosystem base flows.143

133

Ibid 134

Alberta Environment-Fisheries and Oceans Canada Water Management Framework: Instream Flow Needs and Water Management System for the Lower Athabasca River, February 2007. 135

Testimony, Arlene Kwasniuk, and Simon Dyer, May 13, 2009.. 136

Kwasniuk, Ibid. 137

Ibid. 138

Testimony, Simon Dyer, supra 135 139

Testimony, Kwasniuk, supra 135. 140

Testimony, Barry Robinson,; Arlene Kwasniuk, May 13, 2009. 141

Ecojustice, submission May 7, 2009, Standing Committee on Environment and Sustainable Development, study on oil sands development and impact on water. 142

Testimony, Arlene Kwasniuk and Owen Saunders, May 13 , 2009 143

Testimony, Arlene Kwasniuk, Tony Maas, May 13, 2009.


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Water Quality

Contradictory testimony was also given as to the likelihood of the oil sands developments impacting water quality.144 A number of recently published studies provide evidence that a significant source of contamination of surface waters may be the tailings, run off from land clearance and air emissions from the sector. One study reported napthenic acids to be the most significant contaminant in tailings pond water that may affect mammals 145 A second more recent study reports that the oil sands developments release 13 elements, considered priority pollutants under the U.S. Environmental Protection Agency’s Clean Water Act, via air and water to the Athabasca River and watershed.146 Field study samples documented higher rates of priority pollutants in snow and water near oils sands developments than at more remote sites. Some of the pollutants were found to be elevated above background levels near Fort Chipewyan. Seven of the pollutants exceeded federal and Alberta guidelines. The pollutants entering the surface water were attributed to airborne particulates from land clearing, mining, road dust and bitumen upgrading. The study reports that the area contaminated has doubled in two decades and that the contaminants likely entered the river and its tributaries through snow melt and air deposition. According to the scientists, this study contradicts claims that the surface water contamination is from natural erosion.

Many of the lakes in the region, including into Saskatchewan, are highly susceptible, acid sensitive lakes.147 First Nation government leaders and elders all testified to concerns with declining quality of the river water. These concerns are outlined later in the review of first nation rights. One of the suggested barriers to government intervention is that provincial water licenses issued to oil sands operators prior to enactment of the current Alberta Water Act provides rights in perpetuity.148

144

Testimony, Dr. Murray R. Gray, University of Alberta Professor, (as an individual), May 12, 2009 and Ian Mckenzie, May 13, 2009, suggested impacts are unlikely; Testimony of Dr. David Schindler, Dr William Donahue, Dr. Mary Griffiths on May 12, 2009 reports evidence of impacts. 145

Vincent V. Rogers et al, “Acute and Subchronic Mammalian Toxicity of Napthenic Acids from Oil Sands Tailings”, Toxicological Sciences 66, 347-355(2002); 146

Erin N. Kelly et al, “Oil sands development contributes elements toxic at low concentrations to the Athabasca River and its tributaries, PNAS, July 2, 2010 (www.pnas.org/cgi/doi/10.1073/pnas.10008754107 147

Testimony, Fred Kuzmik, May 13, 2009.. 148

Testimony, Arlene KwasniukMay 13, 2009.


29

Impacts to Ground Water

While the majority of oil sands bitumen has to date been extracted through surface mining, and new mining applications continue to be processed, it has been projected that there will be a significant shift over to reliance on in situ extraction as 4/5 of the bitumen reserves are accessible only by in situ methods.149 While in situ projects also use surface water, ground water is the main source. To date approximately 31 million cubic litres of ground water have been extracted. The industry extracts fresh water and saline water. It was noted by industry that while industry is “moving towards” use of more saline water, some approved operations can only access fresh water at present.150 Saline water must first be processed before use and the wastes disposed on by land fill or deep well injection. Both pose potential risks of contamination of ground water.151

Scientists testified a main concern is with cumulative impacts of overlapping projects in drawing down aquifers.152 They testified that ground water recharge can be impacted by drainage of wetlands and peat lands and use of surface water. More than 80,000 hectares of peat lands in the oil sands area are at risk, have developed over 3000 years and act like a sponge and releasing moisture slowly over time. It was suggested that no reclamation is likely to be able to restore this critical damaged ecosystem.153 Concern was expressed with the lack of any provincial or federal wetlands policy governing the northern boreal forest area.154

Diminishment of ground water can in turn impact volumes of surface water. Concern was expressed by a number of scientists that there is no regional modelling to measure the overall cumulative impacts. This is exacerbated by the fact that work on mapping the aquifers is not yet completed so we lack credible data inputs for modeling. They also noted that use of water from one area can affect the recharge capacity in another. Concern was also raised that the effect of climate change on ground water precipitation and recharge has not been factored.

Water experts and the Deputy Premier of the Northwest Territories called for expedited efforts to collect of sound baseline data and coordinate focused studies to develop a hydrogeological model for the area.155 The information collected for regulatory requirements is not available in consistent, integrated formats.156 These recommendations echo those made in 2007 by the Standing Committee on Natural Resources That the Department of Natural Resources should,

149

Testimony, Dr. Donahue, May 12, 2009; Canadian Council of Academies, The Sustainable Management of Groundwater in Canada, May 2009, Ch. 4.4 Athabasca Oil Sands: Challenges for Sustainable Groundwater Management of Mega-Developments; Griffiths et al, supra n.3. 150

Testimony Matt Fox, Senior Vice President, ConocoPhillips Canada, May 13, 2009 . 151

Testimony Dr. Donahue, May 12, 2009.ibid. 152

Testimony Dr. Donahue, Ibid; Dr. Schindler, May 12, 2009; Dr. Bruce, June 9, 2009. 153

Testimony Dr. Schindler May 12,2009 . 154

Testimony Arlene Kwasniuk,. 155

Testimony, Dr James Bruce, referencing the Council of Academies report, June 9, 2009; Hon. Deputy Premier Michael Miltenberger, May 12, 2009; see also 2010 Spring Report of the Auditor General of Canada, “Chapter 4: Sustaining Development in the Northwest Territories”; and Jennifer Grant, et al, supra n. 104. 156

Canadian Council of Academies, The Sustainable Management of Groundwater in Canada, May 2009


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through the Geological Survey of Canada, accelerate research on Alberta aquifers in oil sands operation areas, in cooperation with Alberta.157

Concerns have been expressed that the Surface Water Working Group of the CEMA has not considered impacts on ground water and the group may lack sufficient expertise and freedom to evaluate whether environmental reports and monitoring are adequate to ensure sustainable groundwater management.158 Water scientists identified a number of critical yet unaddressed issues including: what is the impact of low-flow levels in the Athabasca River affect shallow ground water? How does aquifer dewatering in mining affect surface water systems? What is the effect of mining on groundwater discharge? What data are needed to assess impact of injecting steam and waste on local aquifers? Do planned developments have adverse impacts on Saskatchewan and the Northwest Territories and downstream ecosystems?159

With concerns that some of the aquifers may straddle Alberta and Saskatchewan and oil sands developments are also anticipated to proceed in Saskatchewan, attention needs to be given to baseline work for that province as well.160 The Standing Committee on Natural Resources also recommended increasing federal funding for research on “true impacts of oil sands activities on the Athabasca River ecosystem” and accelerating technologies to radically reduce use of water in bitumen extraction and treatment processes. They determined that industry should take the lead in accelerating research and action in land reclamation vis-a-vis toxicity of tailings and water based on the “Polluter Pays Principle”.161

A major independent report on ground water, cited by a number of witnesses, references many previously recommended federal actions to improve ground water knowledge and merits serious attention and consideration.162 The process of mapping ground water sources in the Athabasca River basin is still in process. The report identified concerns with the Government of Alberta environmental risk management approach to energy development that has been interpreted to tolerate adverse impacts on aquifers if there are no other end users.163 Concern has been raised with the approach of allocating ground water based on estimated sustainable well yield, as opposed to acceptable diversion rates from an aquifer. It has been suggested that finding and sustaining large volumes of fresh (non-saline) ground water for steam production may be a challenge without jeopardizing groundwater resources with the result of limiting large scale commercial development of the oil sands.164 Industry witnesses suggested a need to consolidate data on ground water use by users and review cumulative withdrawals on a

157

Supra n.72 158

Supra n.153. 159

Ibid. 160

Testimony, Dr. David Boerner, Director General, Central and Northern Canada Branch, Geological Survey of Canada, Department of Natural Resources, June 9, 2009. 161

Supra n.72. 162

Council of Canadian Academies, Sustainable Management of Ground Water in Canada, Appendix 3: Major Recommendations of Canadian Reports on Groundwater Resources, 2010. 163

Council of Academies, Ibid, Chapter 4.4 Athabasca Oil sands: Challenges for Sustainable Groundwater Management of Mega-Developments. 164

Ibid.


31

regional basis.165 It was noted that while the Department of Natural Resources contributes financially to the mapping and study of aquifers, Environment Canada testified that the federal government has no jurisdiction over ground water.166

Some testified that a potential risk to groundwater exists in the federal and provincial

governments’ push to mitigate the carbon footprint of the oil sands industry through carbon

capture and storage (CCS).167 This process injects liquefied C02 into saline aquifers, effectively

“capturing” the carbon emissions from industrial processes and “storing’ it in the aquifer.

A myriad of problems were raised with this technology, including the many unknowns surrounding the technology, its efficacy, and its potential impacts on underground water. It was suggested that there may be risks with trying to store millions of tonnes of highly pressurized carbon dioxide in old oil fields punctured by old oil wells:

“It's called the pincushion effect and could create leaks of carbon dioxide into groundwater or into the atmosphere. The former could leach elements such as arsenic into underground sources of drinking water. The latter could be a health threat in large enough quantities, but even small amounts over time could undo any climate change good done by sequestration in the first place. "168

Action on Watershed Management for the Mackenzie River Basin

Numerous witnesses raised concerns about the lack of a water management framework for the larger Mackenzie River basin.169 Clearly the need was once recognized for joint federal-provincial-territorial action to address transboundary cumulative impacts within the larger Mackenzie River basin, as an agreement was negotiated and signed almost two decades ago and remains in place although little action has been taken to implement it.170 While the agreement provides for bilateral agreements, only one has been finalized. Similar to the Alberta-Federal agreement for the Lower Athabasca, parties to the Mackenzie agreement commit to managing water resources in a manner consistent with the ecological integrity of the

165

Testimony, Stuart Lunn, May.13, 2009. 166

Testimony, Cynthia Wright, ADM, Environment Canada, March 12, 2009. 167

Testimony, Graham Thomson, (as an individual) March 12, 2010 and author of “Burying Carbon Dioxide in Underground Saline Aquifers, Political Folly or Climate Change Fix?”, Program on Water Issues, Munk Centre for International Studies, Toronto, University of Toronto, 2009. 168

Testimony, Graham Thomson, March 12, 2010. 169

Testimony, Hon. Michael Miltenberger and Dr. Schindler, May 12, 2009. 170 Mackenzie River Basin Transboundary Waters Master Agreement, entered into between the Government of Canada and the Governments of British Columbia, Alberta, Saskatchewan, Northwest Territories and Yukon, 1997. The federal government is represented by the Minister of Environment and Minister of Indian Affairs and Northern Development. (http://www.ngps.nt.ca/Upload/Interveners/Government%20of%20the%20Northwest%20Territories/j-gnwt-00027/documents/08_Mackenzie_Master_ Agreement.pdf.)


32

aquatic ecosystem and in a manner sustainable for present and future generations.171 The agreement provides that the federal government shall be responsible for managing expenditures in the first instance, but specifies an incredibly small budget to deliver the joint efforts.172 It was suggested that that any credible water management framework requires sufficient baseline data on historical, seasonal and project flow rates for that larger basin.

As mentioned above, significant information is also lacking on aquifers. The current water framework in the opinion of these experts is arbitrary absent these critical data inputs. They also called for the establishment of surface water and ground water monitoring models.173

These concerns were echoed by the Deputy Premier of the Northwest Territories and legal experts. One legal expert expressed frustration with the federal government’s abdication of its jurisdiction in the Mackenzie Basin:

“If one were to take the broader view and look at the likely stresses on the basin in coming years, particularly in light of possible impacts of climate change, then one is inevitably struck, it seems to me, first, by the highly deferential role that the federal government has played in the negotiation of the inter-jurisdictional agreement on the Mackenzie; second, by the consequent weaknesses of the agreement itself; and third, by what I think we have to say is the poor track record of jurisdictions in concluding the subsequent bilateral agreements necessary to give some substance to the master agreement.

In sum, there are important federal interests here and a clear need for federal leadership, which has largely been abdicated by the federal government over the past three decades.”174

The Deputy Premier expressed equal frustration with the lack of a national water strategy allowing the federal government to play a clear leadership role, advising that since 1987 cuts to federal water programs have stalled work on surface and ground water.175 He advised that the Mackenzie River Basin Master Agreement has been “sitting in neutral” , underfunded since 1997, the ministers have yet to meet, and there is no comprehensive research monitoring on headwaters, surface and ground water or research partnership yet established, then added:

“What we are recommending is a revitalizing and strengthening of the transboundary mechanisms through the Mackenzie River Basin Waters Master Transboundary Agreement. They speak of an integrated watershed management approach, which we support. We support the federal government being involved

171

Ibid, Part C: Principles. 172

Ibid, Part D: Administration; A mere $280,000 is budgeted. 173

Testimony, Dr Schindler and Dr. Donahue, May 12, 2009. 174

Testimony, Owen Saunders, May 12, 2009. See also J. Owen Saunders and Michael M. Wenig, Chapter 6 “Whose Water? Canadian Water Management and the Challenges of Jurisdictional Fragmentation”, Eau Canada: the Future of Canada’s Water, ed. Karen Bakker, UBC Press, 2007. 175

Testimony, Hon. Michael Miltenberger, May 12, 2009


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and providing a leadership role. This is a national issue, not just one for the Northwest Territories or individual jurisdictions. We all have an interest in this”. …. We want to recommend that this committee support and push for a national water strategy”176

The Northwest Territories government unanimously passed a motion declaring water as a fundamental human right.177

While the province of Alberta has initiated a watershed planning and land use planning processes for the Lower Athabasca, no provincial water or land use frameworks are in place that would bind future water uses and it is not clear if they may have any retroactive effect on current water or air emission license holders. It is unclear what role federal authorities or transboundary agreements have played in the Alberta processes, as the provincial government declined our invitation to testify. The Deputy Premier of the Northwest Territories decried the lack of a mechanism for jurisdictions outside Alberta to be engaged in decisions that Alberta is making that may impact downstream water users.178 There is a federal interdepartmental committee on water, but it was not clear if it deals with matters beyond safe drinking water.179

It is noteworthy that federal authorities are clearly mandated in law to play a role in water management. While the Canada Water Act allows for federal-provincial agreements to plan and implement programs for waters where there is a significant national interest in managing those water bodies and for the declaration of a stretch of water as a special planning area, none of these measures has ever been utilized.180 It was suggested that such measures could be useful but warrant legislative amendments to strengthen the mechanisms.181 The federal Fisheries Act empowers Fisheries and Oceans to undertake research and develop protection plans.182 The federal government can also enter into agreements with provinces for joint designation of a water management quality area where water quality has become a matter of urgent national concern. The law also provides for federal regulations to restrict waste in designated water quality management areas. The federal government has yet to assert its powers to regulate this sector. These regulations may become particularly relevant should the Alberta Government implement its strategy to reduce tailings ponds by allowing the return of tailings water to the rivers.

Seepage from Tailings Ponds

Somewhat conflicting testimony was provided on whether seepage from tailings ponds of contaminated water may pose any risk to surface or ground waters. 183 It was reported that 720

176

Ibid 177

Ibid 178

Ibid 179

Testimony, Cynthia Wright, March 12, 2009. 180

Testimony, Owen Saunders, May 13, 2009. 181

Testimony, Owen Saunders, May 13, 2009. 182

Section 37 183

Testimony, Dr. James Barker, professor, Department of Earth and Environmental Sciences, University of Waterloo (as an individual), June 16, 2009; Simon Dyer, May 13, 2009


34

million cubic meters of liquid tailings are impounded in ponds covering about 130 square kilometers of land.184 The tailings ponds liquids are 100 times more toxic that the produced bitumen.185 On average 1.5 barrels of tailings are produced per barrel of bitumen.186 It was estimated that 11 million litres a day of tailings water leaks into the environment, to double with projected expansions.187 As one industry witness testified, “All things leak”.188 In over forty years of oil sands development, no tailings pond has been certified as reclaimed and no operator has demonstrated they can deal with the liquid toxic waste.

Key issues related to tailings ponds included loss of water to the basin (as tailings water is not returned),189 cumulative seepage, the potential for catastrophic releases, and the long term fate of the tailings. Concerns were raised with proposed “end pit lakes” as a solution tailings water. Concerns were also raised with the lack of public access to data on tailings ponds, lack of clarity on whether cumulative summaries exist, whether the federal or provincial governments have the capacity to analyze the data or if federal officials have even requested the data.190 Industry advised they would employ new technology if it was “economically available.”191 It was recommended that the federal government assert its regulatory authority to prohibit any further use of tailing ponds or end pit lakes until such time the technologies are proven to prevent environmental degradation.192 Testimony from technical experts researching improved technologies to treat tailings or to reduce or avoid water use raised frustrations that progress on workable technologies is hindered by the limitation in funds, lack of commitment to finance field testing technologies and the lack of regulatory drivers to trigger more intensive research on better technologies and for actual deployment on a wider scale.193

Impacts on Waters outside the Mackenzie River Basin

Testimony was heard on impacts to water sources by planned bitumen upgraders in other river basins, in particular the North Saskatchewan River.194

The Impacts of coal- fired power, the intended major electricity source for planned bitumen upgraders in the Edmonton area, on water resources was not reviewed. This sector has significant environmental effects on water levels and water quality in the North Saskatchewan

184

Testimony, Dr. Selma Guigard, Associate Professor, Environmental Engineering Program, University of Alberta (as an individual), May 12, 2009. 185

Testimony, Simon DyerMay 13, 2009. 186

Ibid. 187

While Don Thompson, President Oil Sands Development Group, May 13, 2009, p.1, testified that operators are prohibited from releasing any untreated water to the environment, Ian MacKenzie at p. 15 testified that a Suncor Pond is leaking directly into the Athabasca River and admitted “minute amounts” of seepage can potentially reach receiving streams. No data was provided as to the amounts but a number of examples of leakage from other projects in the environmental impact statements, May 13, 2009. 188

Testimony, Calvin Duane, Manager, Environment, Canadian Natural Resources, Ltd., May 13, 2009. 189

Testimony, Dr. Selma Guigard, May 12, 2009. 190

Testimony, Simon Dyer, May 13, 2009. 191

Testimony, Calvin Duane, Manager, Environment, Canadian Natural Resources, May 13, 2009. 192

Testimony, Dyer, May 13, 2009. 193

Testimony, Dr. Selma Guigard, May 12, 2009. 194

Testimony, Dr. Griffiths May 13, 2009. See also Griffiths et al, supra n.3.


35

River and Lake Wabamun. The sector is also a major source of water contamination, including mercury and other toxins.195 While the federal government committed in 2007196 to issue new air emission standards for this sector, no action has been taken.

Concerns were also raised regarding the potential for impacts on water resources in Saskatchewan should the decision be made to proceed with developing the estimated 27,000 square kilometres of oil sands potential in that province.197

Recommendation: Any modelling relied upon for assessing impacts of the oil sands sector on surface and ground water resources within the Athabasca and greater Mackenzie River basins should consider all factors inclusive of land clearance; loss of wetlands, peatlands and forests; dewatering for mining; and, containment in tailings ponds or pit lakes.

Recommendation: Government officials should, in calculating water withdrawals by the oil sands sector, factor in the reality that the majority of water withdrawn is not returned to the original source.

Recommendation: The federal Department of Fisheries and Oceans should assert its powers to impose legally binding conditions on authorized water withdrawals for all existing and future oil sands operations, by authorization or regulation, based on ecosystem base flow levels. The department should ensure that no further authorizations or approvals are issued until a scientifically based ecosystem base flow is established for the Athabasca River and incorporated into Phase 2 of the Water Management Framework for the Lower Athabasca River, to prohibit any water withdrawals where the fishery is at risk.

Recommendation: The federal government should exercise leadership in working with Alberta authorities to establish a data base on cumulative volumes of liquid seepage from tailings ponds and other wastewater containment sources and make this information publically accessible.

Recommendation: The federal government should budget substantially more resources and greater priority to implementing the Mackenzie River Basin Master Agreement. They should, through the Ministers of Environment and Indian and Northern Affairs, assert leadership in finalization of the associated bilateral agreements and adhere to commitments to ensure the basin is managed in a manner consistent with ecological integrity of the aquatic ecosystem.

195

Clean Air Strategic Alliance, Air Management Framework for the Alberta Electricity Sector, available at www.casahome.org/public/uploads/Emissions_Mgmt_Framework.pdf 196

“We will impose stringent targets on industry so that air pollution is cut in half by 2015. We will accomplish our goals with a concrete and realistic plan to regulate industrial air emissions.” Speech by the Honourable John Baird, then Minister of the Environment , April 25, 2007.

197 Testimony, Chief Albert Mercredi, Fond du Lac First Nation, May 12, 2009; see also Peter Prebble ,et al, supra n.

74.


36

First Nations Peoples, Lands and Waters

Testimony by aboriginal witnesses focused on concerns that the oil sands sector may be impacting their treaty rights, human health, access to safe drinking water and the local fishery, including reliance for sustenance and commercial sales.198 Concerns were also raised about the impacts on their access to traditional harvesting territories. Witnesses from Fort Chipewyan criticized the government for targeting their physicians who have raised concerns about potential linkages to rates of cancer.199

Aboriginal witnesses also raised concerns that the constitutional duty to meaningfully consult and accommodate the interests and concerns of affected aboriginal peoples and the duty to honour their treaties were not being respected.200 The courts have held that a consultation process compatible with the honour of the Crown requires governments to provide advance notice, directly engage the affected aboriginal peoples, actually consider their concerns and make an attempt to minimize any adverse impacts on treaty rights.201 However, there is as yet no official federal policy on Aboriginal consultation. 202 This deficiency appears supported by recommendations made for improving the RAMP monitoring program, including that RAMP actively promote the use of traditional ecological knowledge (TEK) by incorporating it into the design of scientific programs.

Chief Jim Boucher, Fort McKay First Nation testified: “My members have lost approximately 60% of their trap lines to oil sands development, and 75% of our lands within 20 kilometers of our communities have been mined or approved for mining. Oil sands leases cover almost our traditional territory and have effectively extinguished the exorcize of our treat right to hunt, fish, trap, and gather … There is presently no cohesive federal or provincial economic, environmental, or regulatory framework or blue print to address not only the sustainability of oil sands production, but also its cumulative and long term environmental impacts on water, land, air and aboriginal rights.” 203

198

Testimony by First Nations leaders and elders, at meeting with the Standing Committee on Environment and Sustainable Development in Fort Chipewyan (unrecorded), May 11, 2009 and May 12, 2009 in Edmonton; Echoed by the Hon. Michael Miltenberger, May 12, 2009. 199

Testimony, Chief Allan Adam, Athabasca Chipewyan First Nation, May 12, 2009 200

Testimony by all First Nation Leaders and elders, May 12, 2009. 201

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S,C.R. 388 202

Linda F. Duncan and Marie Ann Bowden, A Legal Guide to Aboriginal Drinking Water, 2009 at pp. 24 -28. 203

Testimony, Chief Jim Boucher, May 12, 2009.


37

George Poitras, Mikisew Cree Consultation Coordinator, Government and Industry, echoed these views:

“The Mikisew Cree have submitted on many occasions to the governments of Alberta and Canada concerns regarding the pace and extent of oil sands development. Unfettered exploitation of oil sands with little or no regard to the Mikisew Cree’s concerns and claims have left the fist nation to conclude that both levels of government has de facto extinguished treaty rights of the Mikisew Cree. … The federal government has both the legal tools and the legal obligation to protect our rights and our health.” 204

The first nations located further downstream and outside of Alberta advised that they have never been consulted by the federal government regarding impacts of the oils sands developments or invited as parties to intergovernmental water agreements for the area.205 We were advised that the Government of the Northwest Territories had consulted the Smith’s Landing First Nation, located just south of the Northwest Territories border, on their water policy and all other first nations and Métis in the territory.206 We were also advised that one aboriginal representative per jurisdiction is reserved for the Mackenzie River Basin body, although it was not clear if appointments have been made and whom.207 The courts have held that a consultation process compatible with the honour of the Crown requires governments to provide advance notice, directly engage the affected aboriginal peoples, actually consider their concerns and make an attempt to minimize any adverse impacts on treaty rights.208 However, there is as yet no official federal policy on Aboriginal consultation.209 This deficiency appears partially recognized by recommendations made for improving the RAMP monitoring program, including that RAMP actively promote the use of traditional ecological knowledge (TEK) by incorporating it into the design of future scientific programs.210

Concerns were raised during this review process and the Committee’s review of the implementation of the federal Species at Risk Act to take timely action required under the law to protect threatened species, in particular woodland caribou.211A number of parallel legal actions have been filed by three first nations and two national environmental organizations seeking a court order to require the federal Minister of the Environment to comply with his

204

Testimony, George Poitras, May 12, 2009. 205

Testimony, Chief Mercredi, Sam Gargan and Francois Paulette, May 12, 2009 206

Testimony, Francois Paulette, May 12, 2009; discussions with Deputy Premier Michael Miltenberger. 207

Testimony, Hon. Michael Miltenberger, May 12, 2009. 208

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S,C.R. 388 209

Linda F. Duncan and Marie Ann Bowden, A Legal Guide to Aboriginal Drinking Water, (Tomorrow Foundation, Edmonton, 2009) at pp. 24 -28. 210

RAMP Peer Review, supra n. 89. 211

Testimony, Mr. Pat Marcel (Chairman, Elders Council, Athabasca Chipewyan First Nation), Committee Evidence, House of Commons Standing Committee on Environment and Sustainable Development, April 13, 2010.


38

mandatory duty to complete a recovery plan.212 Recommendations made by CEMA to set aside conservation areas to protect threatened wildlife and habitat within the oil sands development area have yet to be acted upon.213

The First Nations representatives who testified also raised concerns about the impacts of the oil sands development on their health.214 They reported that rates of cancer, lupus, asthma and skin diseases had escalated in the past four decades.215 While they do not know the causes their concern is focused on water as due to the remoteness of the community they rely 78% on their traditional harvest. The fish from the Athabasca River and the wildlife drinking the water are consumed on a daily basis. Chief Allan Adam, Athabasca Chipewyan First Nation testified that they have been denied requests for support for a community based monitoring program.

Concerns were expressed as well by first nation leaders further downstream of the Athabasca River basin. Elder Francois Paulette, Smiths Landing First Nation located on the Alberta-Northwest Territories border along the Slave River and Mr. Sam Gargan, Dehcho First Nation, located on the Mackenzie River shared observations and concerns about the state of the water quality further downstream in the Slave and Mackenzie Rivers.216 Bill Erasmus, Regional Chief, Northwest Territories, Assembly of Fist Nations echoing concerns about impacts of the sector on Dene, Cree and Métis hunting and trapping rights and health, called for regular testing of traditional foods to ensure contaminants and toxins do not exceed recommended levels.217 He added:

“The traditional lands of first nations in Alberta, Saskatchewan and the Northwest Territories are being destroyed for tar sands exploration and extraction. And First Nations are not being included or properly compensated for those lost and destroyed lands, water supplies, breach of treaty rights, and loss of traditional foods. The Dene and Cree first nations and the Métis live close by or in the midst of these tar sands deposits, mostly along the Athabasca River.”

Chief Erasmus also tabled a resolution passed by the Dene calling for a halt in expansion of oil sands development until commitments are made to address concerns with leakage from tailing ponds, to shift to a dry tailing process, and to hold extensive environmental hearings on the cumulative impacts of the sector, including any plans to allow water from the tailings ponds to enter the river.218 He called for the recognition of First Nation governments who must be directly engaged in decision making.

212

“First Nations press Ottawa over caribou depletion, native groups seek recovery stratgey in court”, Elise Stolte, Edmonton Journal, September 9, 2010, p.B3 213

“Alberta looks at conservation areas, Minister ‘not comfortable’ with advice to protect 32% of Lower Athabasca region”, Nathan Vanderklippe, Globe and Mail. August 28, 2010, B7. 214

Chief Allan Adam, Athabasca Chipewyan First Nation, May 12, 2009 at p. 29; Regional Chied Bill Erasma, may 12, 2009. 215

Ibid. 216

Testimony May 12, 2009. 217

Testimony may 12, 2009. 218

Dene Nation, Resolution on the Athabasca Tar Sands, Adopted February 19, 2009, in Yellowknife, Denendeh, by Dene Chiefs.


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Chief Albert Mercredi, Fond du Lac First Nation in Saskatchewan echoed concerns with impacts of oil sands developments in Alberta and in Saskatchewan:219

“The energy industry has encroached upon the lands and the waters, in most cases without consultation or regard for our people: however, our greatest threat is the encroachment to our territory of the oil and gas industry and activities in the Fort McMurray area on the Alberta side. The oil sands Quest area on the Saskatchewan side recently has publicized its thousands of kilometers of new cut lines and roads in our territory, with the intention of production within one or two years. …. Our Dene people are alarmed that the waters flowing north in the Athabasca River are bringing these poisons into our lake Athabasca and to our doorstep on the Saskatchewan side. In addition, the reports from Alberta and Saskatchewan disclose increasing levels of acid rain liked to the Fort McMurray tar sands. Our Dene people are experiencing the harmful effects of these poisonous projects on the fish and wildlife, which we rely upon for our sustenance and which we contribute to our Denesuline economy.”

No additional evidence or testimony was before the Committee regarding current or potential impacts of the oil sands sector in Saskatchewan.

Health Canada testified they were responsible for ensuring safe drinking water for First Nation communities, limiting exposure to contaminants in foods, in particular country foods, and contributing to environmental and health risk assessments for projects.220 They viewed their role for the most part to be monitoring drinking water sources post treatment although one official indicated a need for action to protect source water.221 Contradictory opinions were expressed by federal officials on whether the sources of contaminants in water or fish were naturally occurring or associated with industrial activity.222 No mention was made of the federal Health Minister’s mandatory legal duty to investigate any information brought to her attention that a toxin may potentially be causing a health impact.223 Health Canada reported that two health studies have been undertaken in the Fort Chipewyan area.224 Both were delivered by Alberta authorities, a 2006 study of chronic disease incidences and analysis of county foods led by Alberta Health and Wellness and a 2008-2009 review of those study results led by the Alberta Cancer Board. The studies were triggered by reports of potentially high rates of cancers

219

Testimony May 12, 2009. 220

Testimony by Mr. John Cooper, Health Canada, March 12, 2009 221

Ibid 222

Testimony Cooper, Ibid; Cynthia Wright testified March 12, 2009, that the contaminants were all naturally occurring. 223

Section 45 Canadian Environmental Protection Act. 224

Testimony by Dr. Wadieh Yacoub, (Medical Officer, Director, Health Protection, First Nations and Inuit Health, Alberta Region), Health Canada, March 12, 2009.


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in Fort Chipewyan225 and reported significant levels of arsenic and other contaminants in fish, water and sediment in the Athabasca River.226 Testimony was given that concerns with cancer incidences had been raised by other Ft McMurray based physicians.227

While the 2006 study reported no higher rates of cancer, a follow up review in 2009 found a 30% higher rate for some cancers.228 The Board recommended continued monitoring of cancer incidences over a 5 to 10 year period. A number of parties have recommended delivery of a more comprehensive health study to include analysis of country foods, biological monitoring, inclusion of residents in both Fort Chipewyan and Ft. McMurray area communities and analysis of river water and sediment.229 A scientific committee composed of federal and provincial health and aboriginal officials, the now former provincial Medical Officer of Health for the Wood Buffalo Region and two local physicians. No aboriginal members have been appointed. Differences of opinion have been expressed over the focus of the proposed 5 to 10 year study, some supporting a focus on cancer rates and others preferring a review of overall health of residents of Fort Chipewyan. While discussions proceed on the study terms, controversy has erupted over suggestions that a Management Oversight Committee include industry participation.230

While Health Canada officials advised they worked cooperatively with the Fort Chipewyan Nunee Health Board Authority in designing and delivering the studies,231 other witnesses raised concerns with the lack of direct consultation with the community, failure to report results first to the community and with the complaints filed against their physician alleging he caused undue alarm in the community.232 Health Canada had responded to reports by their physician of possible higher rates of some cancers by filing a series of complaints against him to the Alberta College of Physicians and Surgeons. The College absolved the doctor of all the complaints except for the allegation of causing undue alarm.233 The latter file was closed, denying Dr. Connor the opportunity of a hearing on the complaint.234

Testimony was given about long held concerns about health impacts of the oils sands sector on the river, the fishery and their health. It was revealed that a baseline health study had been requested as early as the late 1980s.235 In January 2008 the Athabasca Chipewyan First Nation

225

Reports were made by Dr. John O’Connor physician practicing in Fort Chipewyan. 226

Testimony by Dr. John O’Connor June 11, 2009 referencing the study by Dr. Kevin Timoney, “A study of Water and Sediment Quality as related to Public health Issues, Fort Chipewyan, Alberta,” 227

Dr. John O’Connor June 11, 2009 and First Nation witnesses May 12 and 13, 2009. 228

Alberta Cancer Board, Division of Population Health and Information Surveillance, “Cancer Incidence in Fort Chipewyan, Alberta, 1995-2006”, February 2009. 229

Testimony, Dr. O’Connor, June 11, 2009 and Dr. Schindler, May 12, 2009; Timoney, supra n. 226. 230

“Concerns raised over oil industry’s possible role with health study”, Hanneke Brooymans, Edmonton Journal, September 4, 2010.

231 Supra note 62.

232 Concerns were raised to the Committee during our meeting held May 12, 2009 in Fort Chipewyan and during

testimony by First Nation leaders May 13 at Edmonton and Dr. O’Connor, June 11, 2009. 233

Testimony, Dr. O’Connor, June 11, 2009. 234

Interview with Dr. O’Connor September 6, 2010. 235

Supra n. 62


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filed a petition with the Office of the federal Commissioner for Environment and Sustainable Development seeking a peer reviewed toxicology study of the effects of exposure to toxins in communities of the lower Athabasca River basin. The petition was triggered by health advisories issued by Health Canada to limit consumption of locally harvested fish.

Witnesses from Fort Chipewyan also revealed that they had commissioned their own study of health impacts of the oil sands developments on the community.236 The study indicated potential exposure to higher levels of some contaminants including arsenic, mercury and polycyclic aromatic hydro carbons, in particular those who ate an abundance of country food and consume untreated water. The study also documented higher than expected rates of fish abnormalities based on scientific data and traditional knowledge. The researcher for this report was not called to testify.

Recommendation: Health Canada should assume lead responsibility for the expedited delivery of the requested and promised comprehensive health impacts study of aboriginal communities in the lower Athabasca River basin. They should also take the lead in expediting the design, delivery and response to any potential health impacts associated with the oils sands sector within aboriginal communities throughout the Mackenzie River Basin and any other communities in adjoining provinces or territories.

Recommendation: Health Canada should undertake a review of disease and death record systems for aboriginal patients to ensure scientific efficacy and comparability of the data for health study purposes.

Recommendation: The Government of Canada should develop and implement a protocol, in consultation with First Nations and Métis peoples and their governments, to ensure full consultation and accommodation of aboriginal interests and concerns in the design and delivery of any future project reviews, environment and health studies, including fulsome representation on any study design or oversight bodies.

Recommendation: Efforts should be taken to ensure and enable a strengthened role for First Nation governments in formulating and implementing the Mackenzie River Basin Agreements.

List of Recommendations

Assessing Cumulative Impacts to Prevent Harm

Recommendation: Amend the Canadian Environmental Assessment Act to provide a framework for delivering cumulative impact assessments and require that the long overdue cumulative effects assessment of the current and potential environmental impacts of oil sands operations be undertaken within an expedited timeline, cost shared by governments and the sector, with

236

Kevin P. Timoney, “A study of Water and Sediment Quality as related to Public health Issues, Fort Chipewyan, Alberta,” on behalf of the Nunee Health Board Society, 11 November 2007.


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terms of reference set by the federal government following consultation with First Nations and public through an open and transparent process.

Recommendation: The long overdue cumulative assessment of current and projected potential impacts of oil sands developments should be undertaken within an expedited timeframe, paid for by the sector, and pursuant to terms of reference set by the government based on consultations with First Nations, Métis, academic and government scientists and other concerned parties, through an open and transparent process.

Recommendation: Strengthen federal environmental assessments of oil sands developments by requiring the identification of cumulative effects of the project and combined oil sands activities on the Lower Athabasca River basin and its tributaries, the larger Mackenzie River Basin and any other waters potentially impacted. No further federal approvals or authorizations should be granted until a cumulative assessment is completed, publicly reviewed and impacts addressed.

Recommendation: Rescind the 2010 amendments to CEAA empowering the Minister of Environment to narrow the scope of a federal environmental assessment and ensure that future federal assessments consider all potential environmental impacts subject to federal laws and areas of responsibility.

Recommendation: Federal authorities should refrain from participating in and/or relying on the CEMA process until the significant concerns raised by current and past members are addressed to their satisfaction, including greater transparency in the process; ending the deferral of regulatory duties; committing to timely action on recommendations; and, ensuring greater credence is given to scientific determinations.

Recommendation: Strengthen federal engagement in oil sands project assessments and reviews to ensure that all potential impacts within federal areas of jurisdiction including federal lands, fisheries, aboriginal peoples and lands, transboundary impacts, toxic emissions, migratory birds, endangered species, and climate are considered and addressed.

Recommendation: The federal government, under the mantle of the Mackenzie River Basin Board, should undertake a study, in cooperation with relevant territorial, provincial and First Nation governments, on the potential cumulative impacts of the oil sands sector within the larger Mackenzie River basin to ensure adequate consideration to necessary federal regulations and approvals.


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Regulation of Toxic and Deleterious Substances

Recommendation: The Department of Fisheries and Oceans should impose legally binding conditions through regulations, permits and authorizations to address potential contamination of fish, or waters frequented by fish, through spills, run off and leakage of deleterious substances from tailing ponds and land clearance activities and emissions or effluent from bitumen processing.

Recommendation: Environment Canada should immediately gazette, for public review and comment, enforceable regulatory standards under the Canadian Environmental Protection Act (CEPA) for toxic substances released or emitted in extraction, processing or containment of oil sands tailings and processing wastes including but not limited to Napthenic acids, Polycyclic Aromatic Hydrocarbons and heavy metals.

Recommendation: Federal authorities should be directly engaged with Alberta Government authorities responsible for establishing criteria for certification of reclamation of oil sands mine or tailings ponds operations and for certifying reclamation to ensure that federal standards will be met, laws complied with and federal responsibilities delivered.

Recommendation: The federal should government deliver the promised comprehensive review and revision of all federal laws and policies governing the development of unconventional sources of oil and gas, including oil sands, through a transparent process and the broadest possible consultation with interested stakeholders to ensure the strongest possible environmental and safety rules.237

Monitoring, Reporting and Transparency

Recommendation: The federal government should adopt a protocol for delivering monitoring and science research programs which would require advance consultation with concerned First Nations and other potentially impacted or interested communities. Advance consultation should include terms of reference, study methodology and process for delivery of study results. All such studies should involve an oversight committee including independent science and TEK experts.

Recommendation: The federal government should substantially increase budgetary allocations supporting community based aboriginal water monitoring programs and training programs potentially through the First Nations Environmental Contaminants Program (FNECP)238 or the BEAHR program.

237

Motion received unanimous support in the House of Commons, June 2010. 238

See “Potential Exposure to Industrial Contaminants among Aboriginal Communities across Canada: A geographic Information Systems Analysis”, Hing Man Chan, PH.D, Leah Tivoli, B Sc. (community health program, University of Northern BC)


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Recommendation: The federal government should establish a comprehensive, independent and transparent monitoring program for water flows and water quality and air quality for the Lower Athabasca River Basin to include monitoring of tailings reclamation and tailings seepage.

Recommendation: The federal government, in consultation with the Government of the Northwest Territories and First Nation governments, should establish, resource and deliver a baseline environment and cumulative impacts monitoring program for the Northwest Territories, and in particular for the Mackenzie River Basin.

Recommendation: The federal government should review, and where necessary amend, access to information laws and policies, requiring the duty to disclose and providing right of access to all water study reports relied upon, including raw data and study methodology.

Recommendation: Environment Canada should be directed and adequately financed to play a lead role in the collection and analysis of information necessary to deliver on commitments made under the Mackenzie River Basin Master Agreement.

Recommendation: Environment Canada should undertake an open and transparent review and revision of its national water policies and programs with the objective of asserting its constitutional powers and legislated duties to manage waters of national significance, including addressing transboundary impacts.

Recommendation: All federal authorities should cease any reliance on RAMP monitoring data until such time as the deficiencies identified by the peer review are adequately addressed.

Recommendation: Environment Canada, Department of Fisheries and Oceans, Health Canada and Indian and Northern Affairs should revise their monitoring and research study protocols to require timely public release of all results including raw data and methodologies.

Recommendation: The federal government should immediately revise all communication policies to authorize and enable federal scientists to speak freely and publicly on their publicly funded scientific research and monitoring work.

Inspection and Enforcement

Recommendation: Environment Canada should post dedicated inspectors and investigators in Fort McMurray to deliver an intensified inspection and enforcement program to ensure more timely detection and response to incidents and violations of federal environmental laws.

Recommendation: To ensure greater transparency and confidence in government enforcement and compliance strategies for the oil sands sector, Environment Canada and the Department of Fisheries and Oceans should post all inspection and enforcement actions and results on their websites and establish and advertise an enhanced pollution complaints reporting and response program.


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Recommendation: The Department of Fisheries and Oceans should assert its powers to impose legally binding and enforceable conditions to protect fish and fish habitat through conditions to HADD permits and authorizations.

Recommendation: Environment Canada should assert its responsibilities to protect migratory birds by initiating a review with Alberta authorities on the adequacy of bird deterrence measures and license conditions to ensure greater prevention and improved surveillance.

Protection of the Fishery and Fish Habitat

Recommendation: The Government of Canada should plan, implement and finance a comprehensive, long term fish health monitoring program for the Lower Athabasca River, Athabasca Delta and Lake Athabasca Basin and its tributaries, to include assessing the loss of fish habitat and contamination of the fishery, inclusive of projected increased long term impacts to the fishery from the oil sands developments. The study should be overseen by an independent steering committee comprised of First Nations and Metis community members, fishers, community leadership, federal scientists and academic researchers.

Recommendation: The Department of Fisheries and Oceans should revise its strategy for ensuring the prevention of harm to fish and fish habitat in the Lower Athabasca and the larger Mackenzie River Basins and their tributaries by intensifying efforts at assessing impacts, and the timely imposition of legally binding and enforceable conditions to prohibit water withdrawals where they may result in a HADD.

Recommendation: The Department of Fisheries and Oceans should undertake, in consultation with independent scientific experts, an industry funded study of the scientific efficacy of replacing fish habitat through the end pit lakes, to be completed and publicly reviewed prior to any approvals.

Water Management

Recommendation: Any modelling relied upon for assessing impacts of the oil sands sector on surface and ground water resources within the Athabasca and greater Mackenzie River basins should consider all factors inclusive of land clearance; loss of wetlands, peatlands and forests; dewatering for mining; and, containment in tailings ponds or pit lakes.

Recommendation: Government officials should, in calculating water withdrawals by the oil sands sector, factor in the reality that the majority of water withdrawn is not returned to the original source.

Recommendation: The federal Department of Fisheries and Oceans should assert its powers to impose legally binding conditions on authorized water withdrawals for all existing and future oil sands operations, by authorization or regulation, based on ecosystem base flow levels. The


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department should ensure that no further authorizations or approvals are issued until a scientifically based ecosystem base flow is established for the Athabasca River and incorporated into Phase 2 of the Water Management Framework for the Lower Athabasca River, to prohibit any water withdrawals where the fishery is at risk.

Recommendation: The federal government should exercise leadership in working with Alberta authorities to establish a data base on cumulative volumes of liquid seepage from tailings ponds and other wastewater containment sources and make this information publically accessible.

Recommendation: The federal government should budget substantially more resources and greater priority to implementing the Mackenzie River Basin Master Agreement. They should, through the Ministers of Environment and Indian and Northern Affairs, assert leadership in finalization of the associated bilateral agreements and adhere to commitments to ensure the basin is managed in a manner consistent with ecological integrity of the aquatic ecosystem.

First Nations Peoples, Lands and Waters

Recommendation: Health Canada should assume lead responsibility for the expedited delivery of the requested and promised comprehensive health impacts study of aboriginal communities in the lower Athabasca River basin. They should also take the lead in expediting the design, delivery and response to any potential health impacts associated with the oils sands sector within aboriginal communities throughout the Mackenzie River Basin and any other communities in adjoining provinces or territories.

Recommendation: Health Canada should undertake a review of disease and death record systems for aboriginal patients to ensure scientific efficacy and comparability of the data for health study purposes.

Recommendation: The Government of Canada should develop and implement a protocol, in consultation with First Nations and Métis peoples and their governments, to ensure full consultation and accommodation of aboriginal interests and concerns in the design and delivery of any future project reviews, environment and health studies, including fulsome representation on any study design or oversight bodies.

Recommendation: Efforts should be taken to ensure and enable a strengthened role for First Nation governments in formulating and implementing the Mackenzie River Basin Agreements.

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