‘Long legal road’ ahead as ACFN battles Alberta, energy regulator

A case that could have widespread implications for First Nations environmental litigation across the country has its first hearing in an Edmonton court Wednesday. The Alberta Energy Regulator (AER) is challenging the statement of claim filed against it and the Alberta government by Athabasca Chipewyan First Nation or ACFN, as it’s now known in Treaty 8 territory in northeastern Alberta.  “The application by the Alberta Energy Regulator argues the Statement of Claim from ACFN is too broad and vague,” says Emily Cabrera of RAVEN which is helping fund ACFN’s legal battle. RAVEN stands for Respecting Aboriginal Values and Environmental Needs. It’s a registered charity that raises legal funds to support Indigenous Nations in upholding their rights and title to protect traditional territories.  A second application filed by the energy regulator is a motion to strike the case against Alberta and its regulator altogether. That application is expected to be dealt with by the court in the fall of 2026, according to RAVEN. Cabrera says the applications are examples of the delay tactics used in cases like this.  “In the interim, nothing’s actually being solved here. Their waters are still contaminated. Things are still impacted very negatively. And so it’s not a helpful tactic for the First Nation, probably not a good tactic for the Alberta Energy Regulator either, and certainly not for the community at large,” Cabrera says. The claim centres on the discharge of toxic chemicals in the wastewater from the Kearl Oil Sands Processing Plant and mine from May 2022 to November 2023.  The Kearl oilsands facility is located approximately 200 to 300 kilometers upstream from the ACFN community of Fort Chipewyan, Alberta, north of Edmonton. According to the statement of claim “there were three uncontrolled discharges of industrial wastewater tailings ponds at the Kearl Facility, resulting in over 5.3 million litres of tailings and 670,000 litres of other contaminated water entering these lands and waters on which ACFN and its members rely.” ACFN is seeking $500 million in damages from the province for negligence, nuisance, breaches of fiduciary duty, duty to consult and honour of the Crown as well as treaty infringement. ACFN is also asking that the royalties or equivalent payments that the province received from the Kearl Project during the time of the uncontrolled discharges be paid to them. The nation also wants an order directing the province to take “all necessary steps to abate and remediate the uncontrolled discharges and prevent further occurrences.” The statement of claim declares that Alberta’s regulatory and policy framework for the authorization and regulation of tailings facilities at mining operations is inconsistent with Section 35 of the Constitution. It says Alberta has unjustifiably infringed ACFN rights, and “allowed the substantial diminishment” of the nation’s traditional way of life and that the province has failed to fulfill its obligations under Treaty 8. The claim against the AER is also seeking damages, with the amount to be determined at trial. ACFN first learned about an Environmental Protection Order in response to the first two spills, several months after they had occurred.  Area First Nations, including Fort Chipewyan, were notified but not given further updates until February 2023, when information that the release contained tailings seepage was disclosed along with news of a second release of 5.3 million litres of contaminated wastewater from a holding pond. Tailings ponds are large containment structures designed to store wastewater—which is a toxic slurry of water, sand, silt, clay, and residual bitumen—produced during mining. The expectation is that the sediment sinks to the bottom and the water can be used again. But it’s not clear whether that happens.  First Nations communities were angered that their members continued to harvest food, hunt, fish, trap and use water from the polluted watershed for nine months without being told of the contamination. Imperial Oil, owner of the Kearl facility, was fined $50,000 in 2024 after the regulator found wastewater containing oilsands tailings seeped outside its lease boundary in 2022. At the time the fine was announced, ACFN Chief Allan Adam told APTN News, “in our view this is a direct attack on our human way of life, our human health. It’s like germ warfare.” ACFN’s legal action holds the AER accountable for its lack of consultation or consideration for how cumulative impacts affect Athabasca Chipewyan First Nation’s Aboriginal and Treaty rights, Cabrera says. “It’s so important for organizations to stand behind this because this is potentially precedent setting when these cases come to be and are allowed to be heard [and] that there can be change enacted and some accountability in place.” Regulatory reform goal of lawsuit Cabrera says in this case, ACFN wants to see regulatory reform, because “everyone’s impacted by these things.” She says many of the cases like this one are “just seeking some sort of information sharing or the ability to collaborate or just to be heard,” and not actually stopping future projects from going ahead. “Not many [First Nations] are completely saying ‘absolutely no, nothing else ever again because people are interested in seeing new things happen and innovation. And so I think for something like this, what that could look like is just [do] better. But we’re seeing time and time again where it isn’t, Cabrera says. She points out that Indigenous law and Indigenous governance were not considered when many government bodies like the AER were created. Read more: Environment Canada announces investigation into leak at Imperial Oil’s Kearl tarsands site ‘We are probably going to be the first oil sands environmental refugees’ Feds to provide bottled water, mental health services to First Nations dealing with tailings pond leak First Nation tells Alberta energy regulator to ‘lawyer up’ after third-party report “I think really that piece of how do we make sure this is actually embedded in all project proposals and in everything. It’s not about delaying or stopping things from happening,” Cabrera says. “While this is taking place, in this one location and it’s specifically involving ACFN and Alberta, this is something that will impact how work is done across the country. So, it’s a really important case.”   Report an Error Tell us your Story Please enable JavaScript in your browser to complete this form.Your Name *Your Email Address *Details *PhoneSubmit Report Tags: ACFN, Alberta Energy Regulator, Athabasca Chipewyan First Nation, Chief Allan Adam, Consultation, Environmental Protection Order, Imperial Oil, National, raven Author(s) Leanne Sanders [email protected] More Stories Ottawa commits to spending up to $8 billion on Air Force b... 44 mins ago By The Canadian Press Another Grassy Narrows advocate collides with a prime mini... 2 hours ago By Mark Blackburn Grassy Narrows advocate Chrissy Isaacs accepts Carney’s ... 3 hours ago By Jesse Staniforth First Nation leader Robert Phillips says proposed DRIPA ch... 4 hours ago By The Canadian Press Face to Face Award winning reporter Kathleen Martens reflects on 35 yea... 23 hours ago By Dennis Ward Family of Rory Cardinal who evaded arrest allege Alberta R... 23 hours ago By Creeson Agecoutay