Ottawa Has Questions About that Oilsands Toxic Waste Spill

Ottawa can afford to speak softly on constitutional matters because it carries a big stick.

Readers following the federal reaction to the constitutional nonsense from Alberta, starting with the Danielle Smith government’s so-called Sovereignty Act and now seeping into other new legislation, know that the feds are unfailingly polite and emphasize Ottawa’s willingness to try to work with the United Conservative Party government for the good of all.

After all, no one in the federal government wants to give Smith an opportunity to crow about getting up their nose.

Still, while federal Environment Minister Steven Guilbeault spoke softly Thursday about the Alberta Energy Regulator’s disgraceful nine months of silence about the flow of 5.3 million litres of toxic sludge from Imperial Oil Ltd.’s Kearl oilsands mine 70 kilometres north of Fort McMurray, there was a hint of steel in his remarks.

Guilbeault called the AER’s failure to report the pollution spill from a drainage pond to Environment Canada or the Mikisew Cree First Nation and the Athabasca Chipewyan First Nation “very worrisome,” which has to be in the running for understatement of the year. The two First Nations are most impacted by the risk from the spill of water containing arsenic, dissolved metals and hydrocarbons.

“For over half a year, the Alberta regulator did not communicate with Environment and Climate Change Canada, nor did they communicate with the Indigenous nations,” Guilbeault told media in Ottawa Thursday. Alberta has an agreement with Ottawa that all such incidents must be reported to Environment and Climate Change Canada within 24 hours, he said.

No such thing happened. Last month, there was an additional release of 5.3 million litres of polluted water from an overflow of an industrial wastewater storage pond. The AER has now placed non-compliance and environmental protection orders on the company.

Both First Nations say their members harvested food on Crown land near the spill without knowing about the hazards because nobody bothered to tell them. This makes the public silence of the oil company, the AER and the provincial ministers responsible for the energy and environment portfolios all the more deplorable.

“Our systems are failing Indigenous peoples, clearly,” Guilbeault said. “And we need to find solutions.”

Alberta Environment Minister Sonya Savage, who was energy minister at the time of the Kearl spill, claimed in a statement March 3 that she and Smith had only been briefed on the situation by the AER “in the last 24 hours.”

If that’s so, that’s yet another shocking aspect to this story and suggests that the system is so full of holes the AER is barely capable of doing its nominal job.

“Federal Environment Minister Steven Guilbeault was offered a briefing today by our government but did not take that opportunity prior to releasing his statement on the matter,” Savage’s March 3 statement continued huffily. If that’s true, you can hardly blame him.

So where’s Ottawa’s quietly carried big stick, you wonder?

Listen carefully to Guilbeault’s remarks Thursday.

“We can’t investigate what we don’t know. There are many problems with this, but we can’t send enforcement officers to do water sampling if we don’t know that there’s a leak, and if we’re not notified as per our agreement that we have to be notified within 24 hours.”

These words have the sound of being carefully chosen. Ever so politely and indirectly, the minister is saying: We know Alberta cannot be trusted to keep its agreements. And bullshit unconstitutional legislation like the Sovereignty Act and changes to trespassing legislation will not stop federal officials from doing their jobs.

As University of Calgary environmental law professor Martin Z. Olszynski has pointed out on social media and in media interviews, changes planned by the UCP to the Petty Trespass Act and the Trespass to Premises Act supposedly intended make it an offence for federal inspectors — say of toxic spills sites in Alberta — are just performative pish-posh.

As Olszynski put it succinctly in a tweet, “In the event of a conflict between valid federal and provincial laws, the federal law is deemed paramount. Thanks for coming to my Ted Talk.”

That is to say, in well-established federal constitutional law, the doctrine of federal paramountcy says that where there is conflict between provincial and federal laws, “the federal law will prevail and the provincial law will be inoperative to the extent that it conflicts with the federal law.” It’s the same deal in the U.S. Constitution, and Australia’s too, in case you were wondering.

Federal paramountcy applies to laws in which compliance with both laws is impossible, but also with legislation where the provincial law is incompatible with the purpose of the federal law, thereby frustrating the federal Parliament’s intention.

This is clearly the intention of both Alberta’s proposed trespass legislation and its ridiculous new Firearms Act. Supposedly the latter, Bill 8, allows Alberta’s justice minister to enact regulations about how federal law is administered in Alberta.

Alas for Alberta, in the unlikely event it ever actually tries to enforce this performative legislation, provinces can’t just wish federal regulatory regimes away.

As Olszynski told me, the Supreme Court of Canada has already confirmed that firearms regulation is valid criminal law. “The province can try to pass its own law based on property and civil rights, but even if that’s successful, if there is conflict with the federal law [e.g. these guns are banned], federal laws prevail.”

It’s the same deal, as he told the Canadian Press, with the trespass laws if they’re used to try to keep federal inspectors from trying to carry out their lawful duties.