Environmental and impact assessment as contested knowledge: (in)justice in the Athabasca oil region then and now

Jiasi Liu, edited by Spencer Williams

Professor Nathalie Chalifour contended that the 2006 Kearl Oil Sands environmental assessment process favored economic interests over the wellbeing of surrounding First Nations communities, and reflected the shortcomings of the 1992 Canadian Environmental Impact Assessment Act. The 2019 Impact Assessment Act explicitly incorporates the precautionary principle and may serve as a potential legal vessel for environmental justice, although it remains hampered by the federal government’s reluctance to meaningfully engage with Indigenous decision-making. Substantive environmental justice requires recognizing alternative ways of knowing in law within the impact assessment process and beyond.

Fort McMurray, Alberta (photo by Kris Krüg, source: https://www.flickr.com/photos/kk/6880115375)

Environmental assessments are among the most widely utilized environmental management tools. Devised to holistically evaluate the effects of mines, oil facilities, dams, and other major land used projects, environmental assessments aim to proactively safeguard against “significantly adverse environmental consequences” (SAEE).[1] In Canada, the Impact Assessment Act (IAA), previously the Canadian Environmental Assessment Act (CEAA), delineates the legal obligations of the parties in a federal assessment process.[2] The procedure must be initiated by the proponent of the project and reviewed by government agencies. Public participation and discourse are essential, and indeed, the process brings together a multitude of actors with competing perspectives on land use, economic benefit, and biophysical harm. Broadly, environmental assessment fits comfortably within the growth stream of sustainable development aiming to mitigate – rather than prevent or eliminate – environmental burdens that are the byproducts of industrial progress. 

In many instances, the risk-management approach of the old CEAA functioned to justify extractive agendas when concerns of local communities are not captured by the designated threshold of acceptable risk. In a 2010 article, University of Ottawa professor Nathalie Chalifour contended that the then-environmental assessment process of Alberta’s oil sands developments contributed to the marginalization of surrounding First Nation communities.[3]

Chalifour’s text is situated within a broader literature on environmental justice, a growing body of scholarship focusing on the dynamics giving rise to the higher risk burdens borne by marginalized communities for the benefit of collective society. Based on an analysis of the joint federal-provincial review panel’s report which concluded that there would be no SAEEs, Chalifour unveils how environmental assessment, through its mechanism for determining a SAEE, was but a formality.  While the process enabled First Nations to voice their anxieties, it failed to ensure that community worries would be taken seriously and addressed in any meaningful way.

The CEAA’s central criterion of harm is the demanding threshold of a SAEE.[4] This requires demonstrating a high degree of causality between the effects of the project and its impact on the environment and human health. In the toxicology report presented by Imperial Oil, the linear dose-response tests did not capture cumulative risks of exposure to low-doses of contaminants. Because cumulative low-dose exposures often fail to exhibit a clear chain of causality between an isolated harm attributable to the project initiator and the injury sustained by the victim, these were not included as evidence of SAEEs. Although the joint-review panel acknowledged the lack of certainty regarding the “impact of cumulative impacts for key environmental parameters”, this uncertainty was not enough to reject the project’s application.[5]

At the time of the assessment in 2006, Fort Chipewyan, a predominantly Indigenous town next to the reserves of the Athabasca Chipewyan and Mikisew Cree First Nations, was especially concerned about the project’s cumulative effects on drinking water and fish and game in the region.[6] Located in the Athabasca Oil Region of Alberta, the Kearl mine is home to one of the largest oil sands deposits in the country. When running at full capacity, the site can produce up to 220 000 barrels per day.[7] The region is also home to nineteen First Nation reserves.[8] Both then then and now, their efforts to prove the harmful health effects linked to contamination from the oil sands have been continually discredited by the Alberta government, which has held that Kearl’s operations have had insignificant effects on the environment. 

 A 2020 study by Natcher et al used cultural consensus analysis to evaluate the degree of shared knowledge regarding the perceived impacts of oil sands in the First Nations communities of the Peace and Athabasca oil sands regions. The authors started by asking a series of propositions to a sample of elected fishermen and locally known knowledge holders. The respondents were instructed to answer based on their “own unique understanding gained through personal experience and what they believe to be true or false in the course of their daily lives”.

In the Athabasca region, the results revealed a cultural truth about the Athabasca River. Every respondent concurred that the oil sands had “contaminated the Athabasca River and the fish in it”.[9] Moreover, 92% considered the fish unsafe to eat, although this belief was also attributed to the agricultural sector.[10] Based on this knowledge, fishing in the region has noticeably decreased, with those who carry on the activity having observed higher numbers of unhealthy fish being caught.[11]

The study presents the variable experiences of First Nations communities regarding oil sands development. Despite the cultural truth on oil sands in the Athabasca region, perspectives on the industry even within this community are not monolithic. For many, the oil and gas sector’s employment and cultural funding opportunities have provided important tangible benefits. But it is difficult for the community to reconcile their relationship with the industry when there are deep concerns about the long-term health of the land and its people.[12]

Chalifour contends that the environmental assessment process as a whole ought to be interpreted to include principles of environmental justice, in which there is “a duty to demonstrate that the environmental harms deemed acceptable will not be shouldered disproportionately by the under-privileged community”.[13] Environmental assessments hinge on the instrumentalization of valid knowledge to further each party’s interests. Meeting this high burden of proof requires mobilizing a wealth of resources.  In the case of the Kearl Oil Sands, the communities’ subjective account of risk was discredited in favor of the dominant scientific account.[14] As such, the environmental assessment process, although inclusive of multiple perspectives, becomes a contested terrain knowledge.

In a society where the growth imperative paradigm dominates, the CEAA‘s approach of weighing potential economic benefits against physical harms by zeroing in on the significance of biophysical environmental impacts inevitably leads to the approval of most projects so long as the proponent agrees to undertake some kinds of mitigation measures.[15] This environmental assessment regime and its delineation of liability reveal our preoccupation with collective growth above all else, an unfettered ambition even in the face of worrisome consequences borne by the minority. These concerns, although alarming, are ultimately justified through notions of “acceptable” risk. The findings of Chalifour and Natcher et al indicate that at the very least, a more nuanced approach to risk assessment would be beneficial. 

The CEAA was repealed by Parliament in 2019 and effectively replaced by the IAA.  Although the notion of a SAEE remains central, the IAA places greater emphasis on Indigenous rights, includes the precautionary principle, and identifies cumulative effects of a proposed project. This has not been without contention. In May 2022, Alberta succeeded in its constitutional challenge of the Act in the province’s Court of Appeal.[16] The Government of Canada has since announced its plan to appeal that advisory decision to the Supreme Court of Canada.[17] But even in its new and improved form, the Act has not significantly empowered Indigenous decision-making when it comes to major land use projects. Although the Act enables the federal government to “co-lead an assessment with an ‘Indigenous governing body’”, the Impact Assessment Agency and Minister of Environment have repeatedly refused to do so, claiming that “regulation is first required”.[18] As a forward-looking measure, the IAA also cannot provide a remedy for harm that has already been inflicted. The precautionary principle of impact assessments may open the door to the possibility of environmental justice, but substantive justice will require meaningful recognition of Indigenous sovereignty and making space in law for alternative ways of knowing in the assessment process and beyond.

[1] See Government of Canada, “Basics of Impact Assessment” (last modified 14 February 2022), online: Government of Canada <www.canada.ca/en/impact-assessment-agency/services/policy-guidance/basics-of-impact-assessments.html>.

[2] Impact Assessment Act, SC 2019, c 28, s 1.

[3] Nathalie J Chalifour, “Bringing Justice to Environmental Assessment: An Examination of Kearl Oil Sands Joint Review Panel and the Health Concerns of the Community of Fort Chipewyan” (2010) 21 J Environmental L & Practice 31 at 33.

[4] See Government of Canada, “Determining Whether a Designated Project is Likely to Cause Significant Adverse Environmental Effects under the Canadian Environmental Assessment Act, 2012” (last modified 18 November 2019), online: Government of Canada <www.canada.ca/en/impact-assessment-agency/services/policy-guidance/determining-project-cause-significant-environmental-effects-ceaa2012.html>.

[5] See Chalifour, supra note 3 at 52, 56.

[6] Ibid at 35.

[7] See Kiewit, “Kearl Oil Sands Project: Fort McMurray, Alberta” (last visited 22 February 2022), online: Kiewit <www.kiewit.com/projects/kearl-oil-sands-project/>.

[8] See Natcher et al, “Seeking indigenous consensus on the impacts of oil sands development in Alberta, Canada” (2020) 7:4 Extractive Industries & Society 1330 at 1332.

[9] Ibid at 1334.

[10] Ibid at 1333.

[11] Ibid.

[12] Angela Sterritt, “Athabasca Chipewyan First Nation makes the best of oil money” CBC News (2 April 2014) online: <www.cbc.ca/news/indigenous/athabasca-chipewyan-first-nation-makes-the-best-of-oil-money-1.2579126>.

[13] See Chalifour, supra note 3 at 31.

[14] Ibid at 64.

[15] Ibid at 48–49.

[16] See Meghan Grant, “Supreme Court asked to rule on environmental impact legislation after Alberta ruling” CBC News (July 7 2022) online: <www.cbc.ca/news/canada/calgary/supreme-court-appeal-environmental-impact-legislation-alberta-1.6512383>.

[17] Ibid.

[18] Zoryana Cherwick, “Breaking down Canada’s Impact Assessment Act” (7 December 2021), online: Ecojustice <https://ecojustice.ca/breaking-down-canadas-impact-assessment-act/>.