This is the third blog in our series on the management of oil sands tailings ponds. The first two focused on the provincial liability management system including a background look at the Tailings Management Framework and how this management system attempts to move towards a tailings reclamation process.
However, as we note in these blogs, liability management of the oil sands, and of the tailings ponds, is limited. This post will examine how the federal government has failed to fully exercise its jurisdiction, resulting in insufficient regulation of certain aspects of tailings pond management. Overall, better regulation is essential not only to manage the future impacts of tailings ponds and associated reclamation but also because these large industrial projects have significant and ongoing negative impacts on the environment. To highlight this, we specifically consider three main areas:
- Species at Risk;
- Water & Fisheries; and
- Toxic Substances.
Species at Risk: Migratory Birds
In Canada, species at risk are managed by both the federal and provincial governments. Baseline protection is provided by the provinces and in Alberta this falls under the Wildlife Act. Federal protections under the Species at Risk Act (SARA) apply in specific, limited instances including a species being on federal lands or if a species is an aquatic species or a migratory bird. The federal government may also choose to use their emergency powers under SARA to extend protections beyond these otherwise limited instances. In the case of the tailings ponds, impacts on species at risk are often the result of a limited use of these potentially protective SARA provisions.
To begin it may be an opportune time to discuss some of the most well-known impacts on wildlife in the tailings areas, the impact on migratory birds. As you may recall, in 2008 1,600 birds died after landing on a tailings pond managed by Syncrude. After an individual citizen brought a private prosecution alleging that this action resulted in bird deaths in contravention of the law, charges were brought, resulting in a five-week trial and eventually a $3 million fine.[1] Specifically, Syncrude was charged under both Alberta’s Environmental Protection and Enhancement Act (section 155 which required any person storing a hazardous substance to prevent it from coming into contact with animals) and the federal Migratory Birds Convention Act (section 5(1) which provides that no person shall deposit a substance hazardous to migratory birds into waters or areas frequented by those birds).[2] To read more about the charges under both these Acts check out a past ELC blog post here. For our purposes today, however, it is important to note that action only began after a private prosecution was commenced and was not initiated by either the federal or provincial governments.
In fact, during the trial the federal Crown indicated that if Syncrude established a due diligence system to deter birds from landing on the tailings pond, the federal Crown would not seek a conviction under the Migratory Birds Convention Act (MBCA).[3] This is notable because a due diligence defence is generally not available under section 5(1) of the MBCA in these circumstances. As Shuan Fluker succinctly points out, “[t]he offence occurs with the deposit of the toxins – an act contemplated by the very purpose of the tailings pond” and as such it is “nonsensical” that Syncrude could argue due diligence or reasonable care.[4]
The problem is thus, if there is no due diligence defence under the MBCA for harms that occur to migratory birds; can tailings ponds ever be allowable under federal law? In R v Syncrude, the company argued that there had been an abuse of process because they had approval for the tailings pond and because a contravention of the MBCA occurred whenever bitumen entered the tailings pond, specifying that they could not be liable for something they had been permitted to do. In fact, the presiding Judge agreed in part and found that no abuse of process had occurred only once the federal Crown took the position that a finding of due diligence would result in them withdrawing their claim.[5] The Court also referred to government policy echoing this same argument.[6] This is a significant reading down of a provision that would otherwise provide strong habitat protection for migratory birds.[7] In response to this permitting dilemma it seems that the federal government is choosing to, in part, ignore the obligations set out in the MBCA rather than set high standards to prevent bird deaths (as is required by law).
More recently, the federal government sat out entirely when CNRL was convicted of a single count under the EPEA after hundreds of birds died on an island that formed in one of their tailings ponds. In response, the company was fined a total penalty of $278,000 for contravening section 155 of the EPEA.[8] No fine nor other enforcement measures were started under the MBCA, despite direct harm to migratory birds.
The CNRL fact pattern began with the identification of an island in spring 2021 located within the Horizon tailings pond. At the time, no birds were seen on the island and CNRL chose to focus on bird deterrence until eventually the island was resubmerged on its own.[9] They did not make any further efforts to eliminate the island or notify the AER.[10] The island re-emerged a year later in 2022 and this time it became a habitat for both birds and predators.[11] As a result, CNRL reported over 400 bird deaths as well as impacts on predators accessing the island through the tailings water.[12] This is a direct contravention of section 155 of the EPEA (as was found) and section 5(1) of the MBCA.
The timeline in this decision is particularly relevant. In 2022, the second year of the island’s appearance, CNRL first discovered the presence of birds on May 21, 2022, but did not notify the AER of the formation of the island until June 7.[13] At that time, the company told the AER that they were continuing mitigation measures, and no further action was taken. However, on July 12, CNRL notified the AER that birds had now been discovered to be oiled.[14] During the hearing, CNRL argued that the timeline for a contravention of section 155 should begin on July 12, 2022, when they notified the AER that birds had been oiled rather than May 21st, when they first appeared on the island.[15] The AER disagreed, finding that the violation was for the entire 76 days, beginning when the nests were discovered and only ending when the birds left the island.[16]
However, despite this disagreement over timeline, there was no consideration from either party for the fact that CNRL knew about the island one year prior and chose to do nothing to destroy the island or change the water levels to prevent it from returning. Similarly, there was no action by the federal government to bring charges under the MBCA. We know from the earlier Syncrude decision that charges can be brought under both the MBCA and EPEA for the same incident but in this case, there was no MBCA fine. Instead, there seems to be a federal policy decision not to enforce obligations under this Act, to the detriment of these migratory birds.
Notably, while this decision highlights the inadequacy of federal oversight of migratory bird protection, there are similar issues at the provincial level. For example, in 2021, The Narwhal released a report by biology professor Colleen Cassady St Clair[17] which included a review of current approaches to bird protection, gaps, and recommendations for better practices.[18] This report was commissioned by the Government of Alberta but after completion, was not released or made public. Instead, it was only released after a Freedom of Information and Privacy (“FOIP”) request (as it was then known).[19] Similarly, no changes were made to Alberta’s bird protection system after the report’s completion. Again, this suggests the province’s reluctance to fulfill its obligations to protect species at risk, and specifically migratory birds, under relevant provincial law.
Water & Fisheries
Water is another area of overlapping jurisdiction. Generally, water is the property of the Government of Alberta, by virtue of section 3 of the Water Act and other historic legislation. However, sea coast and inland fisheries are the jurisdiction of the federal government under section 91(12) of the Constitution. This split jurisdiction between inland fisheries and water management results in jurisdictional overlap, particularly when it comes to activities that may result in impairment of fish or fish habitat. For our purposes, we will consider the impact of tailings fluid seepage and its potential impact on surface water and subsequently fish and fish habitat and more specifically how each level of government is choosing to exercise its jurisdiction in this regard.
On June 26, 2017, Environmental Defence Canada and the Natural Resources Defence Council alongside Daniel T’seleie filed a submission with the Secretariat of the Commission for Environmental Cooperation (the “Commission”).[20] The submission alleged that the Government of Canada continued to fail to enforce “the pollution prevention provisions of the federal Fisheries Act with respect to alleged leaking of deleterious substances, and specifically oil sands processed water from tailings ponds of oil sands operations in northeastern Alberta.”[21] Specifically, the submission considered section 36(3) of the Fisheries Act which prohibits the release of any deleterious substance into any place from which the substance may enter water frequented by fish. Canada responded, arguing that it could not take any action because it was unable to determine whether elevated readings of certain compounds were due to natural sources or due to oil sands mine water (“OSMW”) seepage.[22] In response to this argument, the Commission pointed to evidence submitted by the Canadian Association of Petroleum Producers consistent with evidence of seepage of OSMW from tailings ponds into groundwater.[23] Further, an expert for the Commission concluded that “based on the scientific tools available today, there is some scientifically valid evidence of OSMW seepage into near-field groundwater around tailings ponds.”[24] Thus it seems that once again this is an example of a policy decision not to enforce existing federal (and provincial) laws when it comes to tailings pond management.
In fact, one of the reasons why it is still challenging to distinguish between naturally occurring compounds associated with bitumen deposits or elevated readings resulting from seepage, is because there is a lack of legal authority for sampling around tailings ponds.[25] Once again, neither the federal nor provincial government is stepping up to manage this issue and it is leading to both a lack of information and a subsequently a lack of regulation. In fact, the Commission went further to find that overall, there was extremely limited coordination between Alberta and Canada with regards to tailings management. Specifically, the review found “that except for interagency notification of spills and releases, none of which has ever concerned releases from tailings ponds, it was unclear how Canada and Alberta coordinated on the oil sands tailings process.”[26]
Under the Fisheries Act, Canada can regulate the deposit of deleterious substances through regulation; however, no federal regulations currently exist that apply to the deposit of tailings fluids or OSMW.[27] It is a debateable idea whether highlighting this lack of regulation will simply lead to the federal government passing a regulation allowing for certain releases from the tailings ponds; however, even if this were the case it may still allow for increased public input and enforcement options. Further, the Canadian government has promised these regulations for several years and they are the subject of the 2025 Path Forward for Evaluating Policy Options for Managing the Accumulation of Oil Sands Mine Water in Tailings Ponds, including promises that they will be done in such a way that is protective of the environment.[28]
Finally, federal action in this regard would likely provide a benefit to the environment because the Fisheries Act has a lower bar for violation than exists at the provincial level. Section 36(3) does not require evidence of an adverse effect on the environment affected by the deposit. In contrast, the provincial EPEA requires that the deposit of a deleterious substance has a demonstrable adverse effect on the environment. The Commission makes note of this as it finds that the federal government is not fulfilling its jurisdictional role in part because even if the provincial government was fully enforcing EPEA, it would be at lower standard for fisheries protection than that which exists at the federal level.[29]
Additionally, the Commission highlights that Canada is also aware of Alberta’s overall lack of enforcement in this regard.[30] A 2025 report further clarifies that this lack of enforcement is ongoing.[31] In his investigation, Kevin Timoney details a glaring disconnect between reported data on the environmental impact of tailings spills and the actual impact of these spills.[32] For example, when Timoney looked at reported spill volumes he found more than one instance where the publicly reported spill volume was significantly less than the spill volume reported to the government, which was only attainable by FOIP request.[33] In one example the reported spill volume was 100 times less than the volume reported in the FOIP documents.[34] The report also found that the reported date and location of spills was often not supported by photographic evidence, both of which make proper enforcement and cleanup difficult, if not impossible.[35] If the provincial government is not utilizing its legal options under EPEA and the federal government is not utilizing its legal options under the Fisheries Act, then who is regulating these tailings ponds and their impacts?
Toxic Substances: Naphthenic Acid
The final overlap of federal and provincial jurisdiction that we will consider today is about the management of toxic substances. The federal jurisdiction to manage toxic substances has been confirmed by the Supreme Court of Canada in R v Hydro-Quebec which situated the regulation of toxic substances within the federal criminal law power.[36] At the provincial level, jurisdiction easily derives from the provincial control over municipalities, local works and undertakings, all matters of a merely local or private nature and section 92A jurisdiction over the development of non-renewable natural resources, forestry, and electrical energy resources.[37]
At the federal level this jurisdiction is primarily expressed through the Canadian Environmental Protection Act, 1999 (“CEPA”).[38] CEPA requires that, during the administration of the Act, the federal government take a precautionary approach to protect both human health and the environment.[39] The precautionary principle is also specifically applied to the management of toxic substances requiring that “[w]hen the Ministers are conducting and interpreting the results of (c) an assessment whether a substance specified on the Priority Substances List is toxic or capable of becoming toxic, the Ministers shall apply a weight of evidence approach and the precautionary principle.”[40] Provincially, toxic substances fall under the Environmental Protection and Enhancement Act.[41] Parts 8 and 9 deal specifically with hazardous substances which are defined as “a substance or mixture of substances, other than a pesticide, that exhibits characteristics of flammability, corrosivity, reactivity or toxicity.”[42] However, despite both levels of government having the tools to manage toxic substances found in the tailings ponds, neither has done so to the full extent available.
One substance that is present in tailings ponds and that has been the subject of federal obligations under CEPA are naphthenic acids. In 2024, Environment and Climate Change Canada released their assessment of the Commercial Napthenic Acids Group, which considered the toxicity of naphthenic acids; however, they chose to exempt naphthenic acids that are “present as a by-product in oil sands process-affected water.”[43] This exemption was of immediate concern to communities surrounding the oil sands region and a “Request for assessment of naphthenic acids found in oil-sand processed water” was filed soon after on behalf of Athabasca Chipewyan First Nation, Keepers of the Water, and Environmental Defence.[44] This was followed closely by a letter of support from several prominent toxicologists, environment and human health experts.[45] In their request, Ecojustice pointed to the Ministers’ Statutory Obligations, including that when administering CEPA, the Minister must:[46]
- Exercise their powers in a manner that
- Protects the environment and human health, including the health of vulnerable people (s 2(1)(a)(i));
- Applies the precautionary principle (s 2(1)(a)(ii));
- Protects the right of every individual in Canada to a health environment (s 2(1)(a.2));
- Upholds the principle of environmental justice (s 2(1)(a.3));
- Considers available information on any vulnerable population or environment in relation to the substance (s 76.1(2)); and
- Considers available information on the cumulative effects on human health and the environment that may result from exposure to a substance in combination with exposure to other substances (s 76.1(2)).
Since this request was filed, the Government of Canada has agreed to add OSMW naphthenic acids “as a priority for assessment to the proposed Plan of Priorities being developed under section 73 of CEPA.”[47] Section 73 of CEPA deals with the assessment of substances and provides that the Minister shall develop and publish a plan with timelines specifying the substances that priority should be given to in assessing toxicity.[48]
It remains to be seen how the federal government will assess and characterize OSMW naphthenic acids, and this is just the first step towards further regulation of these toxic substances. However, it is also one of the first examples of the federal government exercising its jurisdiction to act regarding the management and regulation of toxic substances stemming from OSMW.
Closing Thoughts
In our previous blogs in this series, we highlighted the fact that some of these oil sands mines are nearing their end of life. This means that once production ceases, clean up, purportedly should begin. However, what today’s post serves to demonstrate is that ongoing regulation or management of these tailings ponds has also been inadequate. We have already emphasized the ways in which the Alberta regulatory regime has not been applied to its full extent and has resulted in deficient reclamation and management of the tailings ponds, and this blog focuses on the federal government.
In many ways, the federal government has not fulfilled its responsibilities and jurisdiction over tailings pond management. This is, despite the fact, that it is undoubtedly aware that the provincial regime has not been sufficient to protect human health or the environment in the surrounding areas. Like the missing ‘progressive reclamation’ from the provincial regime, this lack of enforcement has resulted in serious and ongoing impacts to the environment whether in the form of harm to migratory birds, fish, or surrounding communities. In response, we can repeat for a third time that the complex and multi-pronged issue of tailings management will require a complex and multi-pronged response. Ongoing regulation is imperative to ensure that this problem does not balloon out of control. As we highlight in our introduction, not only is reclamation of these tailings pond a looming problem, but ongoing impacts are being felt by the environment already. Further, while impacts to the environment will often be felt most directly in Alberta, impacts from (and benefits of) these oil sand mines have been shared by all of Canada and as such, is a collective responsibility.
Cover Photo -“Tailings Pond: A tailings pond coming from the Syncrude mine in Wood Buffalo, near Fort McMurray, Alberta,” by Alex Abboud. Uploaded 10 September 2009. Licensed under CC BY-SA 2.0.
Source: Flickr / Alex Abboud → https://www.flickr.com/photos/alexabboud/3905115487
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[1] R v Syncrude Canada, 2010 ABPC 229 [R v Syncrude].
[2] Environmental Protection and Enhancement Act, RSA 2000, c E-12 [EPEA]; Migratory Birds Convention Act, 1994, SC 1994, c 22.
[3] R v Syncrude Canada at para 47.
[4] Shaun Fluker, “R v Syncrude Canada: A Clash of Bitumen and Birds” (2011) 49-1 Alberta Law Review 237 at 242 [Fluker].
[5] R v Syncrude Canada at para 154.
[6] R v Syncrude Canada at para 6.
[7] Fluker at 244.
[8] Alberta Energy Regulator, Administrative Penalty Director’s Decision 2022-057 online: https://www1.aer.ca/compliancedashboard/enforcement/202407-005_Canadian%20Natural%20Resources%20Ltd_Director%27s%20Decision_2022-057.pdf [AER Decision 2022-057].
[9] AER Decision 2022-057 at 2.
[10] AER Decision 2022-057 at 2.
[11] AER Decision 2022-057 at 2.
[12] AER Decision 2022-057 at 3.
[13] AER Decision 2022-057 at 3.
[14] AER Decision 2022-057 at 3.
[15] AER Decision 2022-057 at 6.
[16] This decision was upheld on appeal in Alberta Energy Regulator, “Canadian Natural Resources Limited Regulatory Appeal of Administrative Penalty” (7 Aug 2025) online: https://static.aer.ca/prd/documents/decisions/2025/2025-ABAER-007.pdf.
[17] Colleen Cassady St Clair was also the author of the “Final Report of the Research on Avian Protection Project” which was part of a creative sentencing regime following the Syncrude conviction and was intended to provide research and support to protect birds in the oil sands region. However, after the completion of the sentencing requirements, no further reports were commissioned.
[18] Colleen Cassady St Clair, “Bird protection from tailings ponds in the minable oil sands: Review of current approaches, knowledge gaps, and recommendations for better practices” online: https://www.scribd.com/document/489963319/Bird-protection-from-tailings-ponds-in-the-minable-oilsands-Review-of-current-approaches-knowledge-gaps-and-recommendations-for-better-practice.
[19] Sharon J. Riley, “‘Transparency is critical’: buried report raises questions about oilsands bird monitoring program” (21 Jan 2021) The Narwhal online: https://thenarwhal.ca/alberta-oilsands-bird-monitoring-foi/.
[20] The Commission for Environmental Cooperation was created in accordance with Article 15 of the North American Agreement on Environmental Cooperation.
[21] Commission for Environmental Cooperation, “Alberta Tailings Ponds II: Factual Record Regarding Submission SEM-17-001” (2020) at 1 online: https://www.cec.org/wp-content/uploads/wpallimport/files/17-1-ffr_en.pdf [CEC Factual Record].
[22] CEC Factual Record at 2. Note that both oil sands mine water and oil sands process affected water are used to describe some fluid tailings. We will use oil sands mine water throughout for consistency.
[23] CEC Factual Record at 3.
[24] CEC Factual Record at 3.
[25] CEC Factual Record at 3.
[26] CEC Factual Record at 5.
[27] CEC Factual Record at 8.
[28] CEC Factual Record at 36; Crown Indigenous Working Group for the potential oil sands mining effluent regulations, “Path forward for evaluating policy options for managing the accumulation of oil sands mine water in tailings ponds” (Feb 2025) at 6 online: https://www.canada.ca/content/dam/eccc/documents/pdf/managing-pollution/sources-industry/ciwg/Path%20forward%20for%20evaluating%20policy%20options%20for%20managing%20the%20accumulation%20of%20oil%20sands%20mine%20water%20in%20tailings%20ponds.pdf.
[29] CEC Factual Record at 40.
[30] CEC Factual Record at 41.
[31] Kevin P. Timoney, “Regulatory failure to monitor and manage the impacts of tailings spills, Alberta, Canada” (3 Jan 2025) Environ Monit Assess 197:125 [Timoney].
[32] Timoney.
[33] Timoney at 5.
[34] Timoney at 5.
[35] Timoney at 8-9.
[36] R v Hydro-Quebec, [1997] 3 SCR 213.
[37] Constitution Act, 1867, ss 92(8), (10), (16) & 92A.
[38] Canadian Environmental Protection Act, 1999, SC 1999, c 33 [CEPA].
[39] CEPA, s 2(1)(a).
[40] CEPA, s 76.1(c).
[41] EPEA.
[42] EPEA, s 1(aa).
[43] Environment and Climate Change Canada & Health Canada, “Assessment Commercial Napthenic Acids Group” (January 2024) at i online: https://publications.gc.ca/collections/collection_2024/eccc/En84-341-2023-eng.pdf.
[44] Letter from Ecojustice to Minister of Environment and Climate Change (11 Mar 2024) re: Request for assessment of naphthenic acids found in oil-sand process water (“OSPW NAs”) pursuant to s. 76(1) of the Canadian Environmental Protection Act, 1999 online: https://ecojustice.ca/wp-content/uploads/2024/03/2024-03-11-Letter-to-Minister-Guilbeault-re-s.-76-request-to-assess-OSPW-NAs.pdf [Ecojustice Letter].
[45] Letter from Sarah Andersen et al. to Minister of Environment and Climate Change & Minister of Health (27 May 2024) re: Support for Assessment of Napthenic Acids in Oil Sands Process Water under the Canadian Environmental Protection Act, 1999 online: https://ecojustice.ca/wp-content/uploads/2024/05/05.27.2024-naphthenic-acids-RA-letter-of-support.pdf.
[46] Ecojustice Letter at 3-4.
[47] Letter from The Honourable Steven Guilbeault to Ecojustice (28 May 2024) online: https://ecojustice.ca/wp-content/uploads/2024/05/Ecojustice-Response-to-Request-to-Assess-OSPW-NAs-under-section-76-of-CEPA.pdf.
[48] CEPA, s 73(1).