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Approval of Kearl Oilsands Project Violated Federal Law, Says Lawyer

Posted on: Tuesday, 15 January 2008, 21:00 CST

By Bob Weber, THE CANADIAN PRESS

EDMONTON - A panel violated federal laws and glossed over concerns about mine tailings and over-development when it recommended regulatory approval for a $7-billion oilsands project, a lawyer for an environmental coalition argued Tuesday.

The panel assessing the impacts of Imperial Oil's (TSX:IMO) Kearl proposal knew plans to deal with mine tailings were unproven. It also had concerns about attempts to assess how much development the oilsands region in northern Alberta could take, said Sean Nixon, lawyer for Ecojustice.

But it still decided to advise the federal government that the project posed no significant effects that couldn't be fixed.

"The panel itself clearly found that various mitigation measures were not feasible but proceeded to rely on these non-feasible measures," Nixon told Justice Daniele Tremblay-Lamer in Federal Court.

The project was approved last spring under provincial and federal legislation based on the joint panel's recommendation. The current lawsuit is challenging only the federal portion of that approval. It wants the project stopped until questions about the environmental assessment can be answered.

The project, expected to produce up to 300,000 barrels of synthetic crude oil a day, would eventually strip mine about 200 square kilometres of boreal forest and wetlands north of Fort McMurray, Alta.

In opening arguments Tuesday, Nixon pointed to questions regarding Imperial's plans for mine tailings and land reclamation.

The company said it would reclaim tailings ponds by pouring clean water on top of them and letting the tailings settle out, said Nixon.

The technology has been used before - and has been approved for other oilsands projects scheduled for construction - but never on this scale, Nixon told court.

He said several groups at the hearing expressed concerns, including Environment Canada, Alberta Environment and First Nations from the area. Even the panel's report underlined the need for more research on the so-called end-pit lakes.

But the panel swept those concerns under the carpet, trusting to unspecified further research and consultation, suggested Nixon. As well, the panel failed to recommend timetables or specific parameters for addressing concerns.

"What we're left wondering is, 'What was necessary to reduce this significant environmental effect?"' Nixon said.

"It looks either like they have relied on things other than feasible measures, or they haven't explained their reasons well enough for the government and the public to understand how they got to their final conclusion that there are no significant environmental effects."

The panel dealt with concerns over the cumulative effects of adding another megaproject to the region in the same way, said Nixon.

The province created a committee of environmentalists, area residents and industry officials to develop an overall framework for development in the region, including recommendations on how much it could stand. But that committee has been unable to reach a consensus despite years of talks.

Nixon pointed out that while the review panel knew that, its report still relied on the committee to address cumulative effects.

"It's an error to rely on processes or vague recommendations," said Nixon. "It was unreasonable for them to rely on (the committee), given its track record."

That violates the Canadian Environmental Assessment Act in two ways, he said.

The act requires mitigation measures to be proven as technically and economically feasible. If a review panel decides to approve a riskier technology or an uncertain regulatory process, it is required to explain why.

"You have to wash your dirty linen in public."

Tremblay-Lamer pointed out that it's impossible for regulators to know everything in advance.

But Nixon said the tailings plans and overall management framework were so unreliable that at the very least the panel was obliged to explain why it was willing to accept them.

In documents filed with the court, Imperial points to mountains of evidence and testimony that the board took into consideration before making its determination.

"The panel heard and considered considerable evidence with respect to environmental effects...and proposed mitigation of these effects," said an affidavit from Mark Little of Imperial.

Imperial also argues that the provincial government has been active in passing environmental regulations in the area when required.

Source: Canadian Press

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