First Nation lawsuit targets AER, province over Kearl oilsands releases

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An Alberta First Nation has filed a sweeping lawsuit towards the province’s power regulator and the federal government over releases from an oilsands mine, alleging the company acted in unhealthy religion and is ready up in a manner that violates the Structure.

“The (Alberta Vitality Regulator) has to vary,” Chief Allan Adam of the Athabasca Chipewyan First Nation mentioned in an interview Wednesday.

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The lawsuit stems from releases of process-affected water from Imperial Oil’s Kearl mine north of Fort McMurray.

In Could 2022, seepage on the positioning was reported to First Nations and communities as discoloured water pooling on the floor. They weren’t knowledgeable that the seepage contained poisonous tailings till February 2023, when the regulator issued environmental safety orders towards Imperial, after which solely after 5.3 million litres of contaminated wastewater escaped from a holding pond.

Though the seepage was contained inside the Kearl lease, tailings residue was detected in groundwater.

In the meantime, band members continued to hunt, fish, collect vegetation and observe their treaty rights on adjoining land for 9 months.

“It was a direct impression on our treaty rights,” mentioned Adam. “The AER is meant to guard communities.”

The lawsuit alleges the regulator’s communications failings across the Kearl releases are systemic.

“The failings of the AER in relation to the Kearl facility are additionally symptomatic of deficiencies within the provincial regulatory system as an entire, together with its lack of session or consideration for a way cumulative impacts have an effect on (the band’s) Aboriginal and treaty rights,” the assertion of declare says.

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“The acts and omissions of the AER had been sufficiently illegal, negligent and reckless that they quantity to unhealthy religion.”

The lawsuit alleges Alberta’s regulatory regime routinely fails to think about cumulative results of a number of developments and explicitly prevents the regulator from contemplating First Nations constitutional points.

“This regulatory regime infringes the rights of ACFN in its construction and operation, and is unconstitutional and have to be declared so.”

Allegations within the lawsuit haven’t been confirmed and no statements of defence have been filed. A spokesperson with Alberta Setting and Protected Areas didn’t instantly return a request for remark.

Regulator spokesman Renato Gandia mentioned the lawsuit has been acquired.

“The AER can be searching for authorized recommendation,” he mentioned in an e mail.

Arm’s-length, quasi-judicial companies like Alberta’s regulator have some authorized immunity from civil lawsuits over coverage selections.

Kevin Hille, a lawyer for the band, mentioned that immunity doesn’t cowl negligence or constitutional violations.

“You’ll be able to’t keep away from civil legal responsibility once you act in a clearly negligent, reckless or unhealthy religion manner,” he mentioned. “You can also’t depend on a statutory immunity clause once you act in a manner that’s illegal or unconstitutional.”

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Hille mentioned the lawsuit goes after the regulator not for approving the Kearl mine, however for the way it has regulated the mine since. He mentioned the report exhibits the regulator didn’t appropriately take care of tailings seepage regardless that such seepage was predicted through the mine’s approval hearings and knowledge confirmed it was occurring at the very least by 2021.

“The AER, because the day-to-day regulator of a ticking time bomb, ignored all the info that (the mine) was susceptible to seepage and was seeping,” Hille mentioned.

The lawsuit seeks punitive damages of $500 million. It additionally says at the very least a part of the royalties — $50 million a month — that Alberta acquired between February 2022 and November 2023 ought to revert to the band.

However Adam mentioned the purpose of the lawsuit is to stress the province to vary the way in which it offers with First Nations on useful resource tasks.

“That’s the entire level,” he mentioned. “The Alberta authorities has to make modifications.

“Your little puppet, the AER that has been rubber-stamping all these industries, it’s all in query.”

This report by The Canadian Press was first printed March 6, 2024.

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