Federal committee forces another round of Kearl questions on Alberta Energy Regulator

A federal committee is forcing the president of the Alberta Energy Regulator (AER) to testify for a second time on the aftermath of huge tailings pond leaks at Imperial Oil's Kearl facility earlier this year.

Laurie Pushor, president and CEO of the AER, previously declined an invitation to appear before the Standing Committee on Environment and Climate Change, citing the need to “protect the integrity” of ongoing investigations into the two incidents at Kearl.

When Pushor declined the invitation, he cited ongoing investigations, his concerns about the committee over-reaching into the provincial regulator’s jurisdiction, and what he described as “antagonistic” lines of questioning.

Heather McPherson, an Alberta NDP MP, said Pushor’s "letter to the committee was the letter of, frankly … a great big baby."

The emails read “like he's having a temper tantrum,” McPherson told Canada’s National Observer in a phone interview. “It’s like he doesn't understand his job is to actually represent the AER and protect Albertans. That's his job and he doesn't like getting questioned on it.”

Federal committees regularly invite witnesses, such as workers, industry executives, academics, politicians, Indigenous leaders and people, scientists, experts and more to speak to MPs about issues and answer questions. But if key witnesses decline the invitation, the committee has the power to issue a legal summons and compel testimony.

Pushor is scheduled to testify virtually before the standing committee on Tuesday. AER communications manager Teresa Broughton confirmed to Canada’s National Observer that he was summoned, but did not add anything else about the upcoming meeting. Broughton said updates on the regulator’s investigation are posted weekly to its website.

Earlier this year, it came to light that toxic tailings were seeping for nine months from Imperial Oil’s Kearl site in northern Alberta, and downstream communities were not properly notified. It took a massive spill of 5.3 million litres in February for the long-term seepage, which Imperial Oil first noticed in May 2022, to be made public through an environmental protection order. This sparked outrage from Indigenous communities, the public and politicians.

Environment and Climate Change Canada enforcement officers are still investigating Imperial Oil to see if the incidents violated the federal Fisheries Act. The federal environment committee promptly undertook a study of the situation and held three hearings when downstream communities, First Nations, and Imperial Oil executives, including president and CEO Brad Corson, and Pushor testified. Corson and Pushor were grilled by MPs and both apologized for what they described as a communication issue. The AER said oil companies — in this case, Imperial Oil — are responsible for notifying affected groups about any spills.

Correspondence between Pushor and the committee clerk reveals his reluctance to return and take questions.

Typically, Canadians can’t see correspondence between committee clerks and potential witnesses. These documents are now available thanks to a motion by Bloc Québécois MP Monique Pauzé, which ensures all witness submissions and supporting documents submitted to the committee’s tailings study are made public.

“The persistent and at times antagonistic questioning in April in response to my stated concerns and cautions about protecting the integrity of the investigation suggests to me that the committee did not and does not take these concerns seriously,” Pushor wrote in the email.

It is “unclear” what specific information the committee wants given the regulator has already shared extensive information surrounding the incidents, said Pushor.

Pushor’s response to the summons, received on Nov. 3, reiterated his “reservations” about appearing again and his stance that federal committees don’t have jurisdiction over the regulatory activities of the AER.

“From the tenor and scope of the committee members’ questions in April, it appeared to me that there was a lack of appreciation or basic understanding of this,” he wrote in the email when he declined the invitation to testify.

“There is 100 per cent jurisdictional availability for the federal government to be asking these questions,” McPherson told Canada’s National Observer in a phone interview.

“We have a key responsibility to be questioning what's happening with regards to water, with regards to all sorts of trans-border implications of the tailings ponds,” the Alberta MP added.

Despite the Northwest Territories having a transboundary water management agreement with Alberta, which requires quick and transparent communication about their shared waters, its government was not notified of the leaks and found out secondhand through Indigenous governments in the area. This violates the agreement, territorial Environment Minister Shane Thompson pointed out in the aftermath.

In response to the legal summons, Pushor informed the committee that he hired legal counsel to advise him during the hearing, “given the potential for significant negative repercussions to the AER’s ongoing investigation.” Pushor’s email said he would attend the meeting in person if his lawyer, William McDowell at Lenczner Slaght, could sit beside him. If not, he would attend virtually. The schedule now indicates he will participate virtually.

At Pushor’s last appearance, he declined to answer many questions, citing an independent review the Alberta Energy Regulator was conducting at the time. He was particularly reticent to answer McPherson’s repeated queries about what date the AER informed the federal government or provincial leaders about the incidents. When the third-party review of the regulator’s response to the Kearl tailings incidents was released in September, McPherson and Liberal MP Patrick Weiler said it raised more questions than answers.

The committee also has more questions for Imperial Oil CEO and president Corson. At an Oct. 19 committee meeting, members agreed if Corson and Pushor did not accept an invitation by Nov. 2, they would both receive a summons. McPherson said to her knowledge, Corson is scheduled to appear on Dec. 14, though this could be subject to change. Imperial Oil spokesperson Lisa Schmidt did not respond to a request for comment by deadline.

‘You've all been put on notice’: ACFN Chief Allan Adam

The Kearl incidents attracted international media attention and highlighted the ever-growing threat oilsands operations pose to the waterways, environment and people who live downstream from the man-made ponds housing more than 1.4 trillion litres of toxic tailings. Unless the federal government comes up with a better plan, the tailings will be treated and released into the Athabasca River when the ponds hit capacity.

Earlier this week, it came to light another incident took place at Imperial Oil’s Kearl facility on Nov. 13, The Canadian Press reported. This time, 670,000 litres of water from drainage ponds escaped from a settling pond into the Muskeg River, a tributary of the Athabasca River. The liquid released was not tailings but did exceed the legal limit of suspended solids.

In response to this news, the Athabasca Chipewyan First Nation (ACFN), which sounded the alarm about massive tailings leaks earlier this year, issued a statement demanding the industry and regulator be held to account.

“We rely on fish as a food source,” ACFN Chief Allan Adam told Canada’s National Observer in a phone interview. “People are worried about their life,” he said, pointing to high rates of cancer and other ailments like asthma, rheumatoid arthritis, skin conditions and more.

“This is a burden to the health-care system, so when is it going to stop? And yet nobody's answering your questions about what's causing these effects?”

Indigenous communities and environmental organizations have long been asking federal and provincial governments to conduct studies on the long-term cumulative effects of living downstream of the oilsands as early as 2003. A proposal was submitted to the federal government in 2019. To date, these requests have gone unfulfilled.

“Frankly, the belief of many people in Alberta, particularly people from First Nations communities that are impacted by the Kearl site, is that the AER is, in fact, not interested in protecting Albertans’ interests,” said McPherson. “They are in the pocket of oil and gas, and are tied so closely that they are in fact protecting the interests of oil and gas, in opposition to supporting Albertans, in opposition to supporting indigenous communities in northern Alberta.”

When the AER’s third-party report was published, Adam told Canada’s National Observer he rejected its findings and said the AER should “prepare for court.”

On Nov. 24, Adam reaffirmed they are preparing to take legal action “when the time comes.”

“[Pushor] is going to be given an affidavit on behalf of ACFN,” said Adam.

“To all industry players within the Wood Buffalo region, you've all been put on notice,” he said. “The ACFN will not tolerate this kind of behaviour when it comes to surface-release water or tailings water into the tributaries or to the Athabasca River.”

Protecting water falls under federal jurisdiction and Canada has a responsibility to enforce the Fisheries Act. If Canada doesn’t uphold its treaty obligations, “we'll take them to court as well,” said Adam.

“We will come down and we will squash the Alberta government with the AER on the decision that they are making under flawed pretence [that they did nothing wrong].”

Natasha Bulowski / Local Journalism Initiative / Canada’s National Observer