Oilsands tailings leak exposes gaps in how Alberta, Ottawa oversee industry, experts say

Recent leaks of toxic tailings from northern Alberta oilsands mines have revealed serious flaws in how Canada and Alberta look after the environment, observers say.

Some accuse the federal government of abandoning the province. Others point to what they call a captive provincial regulator. All agree that there's no way a leak from Imperial Oil's Kearl tailings ponds should have gone unreported for nine months to both Ottawa and Edmonton, as well as the people who live near it.

"We have never taken this issue seriously," said Martin Olszynski, a University of Calgary resource law professor and former federal regulatory lawyer. "They have never taken these risks and these threats seriously."

Imperial discovered "brown sludge" near one of its Kearl tailings ponds in May and it became clear over the summer the problem was significant.

However, the Alberta Energy Regulator didn't update First Nations or inform federal and provincial environment ministers about the issue until Feb. 7, when it issued a protection order after a second Kearl release of 5.3 million litres of tailings from a catchment pond. Federal legislation requires Environment Canada to be notified of such leaks within 24 hours.

"The biggest learning from this is that the province has oversight and control over what information the federal government is receiving," said Mandy Olsgard, a toxicologist who has worked on regulatory issues for the Alberta Energy Regulator and Indigenous groups.

Ottawa joins in the review panels that assess projects then mostly back away, Olsgard said.

"They just hand it off to the province."

And then the province hands it off to a regulator that many consider too close to the industry it's supposed to oversee.

"This regulator has always thought of its relationship being bilateral, between itself and industry," said Nigel Bankes, a retired professor of resource law at the University of Calgary. "Never triangular, never a three-legged stool involving the public.

"For me, this [Kearl release] just confirmed all of that."

That attitude is pervasive in the provincial government, Bankes said.

"It's a general message of don't rock the boat," he said. "It permeates the department of energy and it permeates Alberta Environment."

Gabrielle Lamontagne, an Environment and Climate Change Canada spokesperson, said in an email the department is still figuring out what information Imperial reported to Alberta EDGE, in order to determine if the release met the triggers that would require the report to be forwarded to ECCC.