Lawsuit claims Alberta Energy Regulator had duty to warn First Nation of tailings seepage


Northern Alberta’s Athabasca Chipewyan First Nation (ACFN) has filed a lawsuit against the Alberta Energy Regulator (AER) that alleges negligence over a failure to communicate multiple tailings leaks at Imperial Oil’s Kearl facility. 

The lawsuit’s statement of claim notes that during the nine-month period from May 2022 to February 2023, the AER knew about ongoing significant and uncontrolled discharges of tailings at the Kearl Facility, “yet it failed to inform ACFN about them or their potential impact on the lands and waters where ACFN members exercise their Treaty rights.” 

AER President and CEO, Laurie Pushor, apologized for the communication breakdown before a parliamentary committee in Ottawa on April 24, 2023.  

Discoloured sludge was first discovered outside the boundaries of one of the tailings ponds in May 2022 at the Kearl Lake area, about 70 km north of Fort McMurray. But it wasn’t until 5.4 million litres of wastewater overflowed from a containment pond at the site in February 2023 that the AER notified First Nations located downstream from the incident. 

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The incidents of oilsands mine tailings seeping into groundwater were finally publicized due only to a federal environmental protection order to stop the contamination. 

“The AER is supposed to regulate the energy sector in Alberta to ensure safety and environmental responsibility. They have spectacularly failed on this front,” announced primary plaintiff and ACFN Chief Allan Adam, in a statement. “The AER has also neglected ACFN’s constitutional right to be consulted and accommodated. We will always defend our land and Treaty rights. We will see the AER and Alberta in court to answer for what we say are their unconstitutional, negligent, and reckless actions and decisions,” he added. 

ACFN is seeking punitive damages of $500 million in compensation for the impacts of the incidents on ACFN members’ ability to exercise their Treaty rights and way of life. 

ACFN states in its claim that the AER should have known the First Nation “would be harmed by the uncontrolled discharge of tailings flowing into lands and waterbodies feeding the Athabasca and Firebag Rivers.”  

The Kearl oil sands project is about 300 km south of Fort Chipewyan, where many members of the Mikisew Cree Nation, Fort Chipewyan Metis Nation and ACFN live. 

Following the seepage incidents, a third-party report found that the AER followed existing policies in its response, but also recommended improving the regulator’s outdated notification protocols.  

Imperial Oil attributed the leaks to equipment and process failures, as well as an unexpectedly shallow layer of groundwater. 

In January, ACFN joined forces with several environmental advocacy organizations to submit a federal request to prioritize naphthenic acids produced by oilsands for risk assessment, given the risk of environmental and health impacts.

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  1. The Alberta Energy Regulator is protected by immunity. It can be litigated as it has the same protection as an S of C Judge. See Ernst V Encana. Best of luck on the legal action.


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