The Harper government's move to exempt in-situ oil sands projects from the (new) Canadian Environmental Assessment Act runs contrary to the advice of government scientists, according to documents obtained by Greenpeace Canada under Access to Information legislation. And it may also run afoul of the constitutional rights of First Nations.

In May 2011, the federal Department of Fisheries and Oceans (DFO) expressed new concerns over possible impacts on fish habitat from in-situ tar sands projects. In-situ projects (also known as steam-assisted gravity drainage) extract bitumen from deposits located too far underground to mine. To do this, oil companies pump large quantities of water out of underground aquifers and boil it to produce steam. This steam is then injected back underground to melt the bitumen, so it can be pumped to the surface. In-situ projects have a less visible impact on the landscape than open-pit mines, but require more energy and hence are more greenhouse gas-intensive (for details, see our report Deep Trouble: The Reality of In-Situ tar sands operations).

In-situ mining facility using SAGD (Steam Assisted Gravity Drainage) to make bitumen less viscous so that it can be pumped out of the ground like conventional crude oil.

According to a briefing note prepared for the Deputy Minister of Fisheries and Oceans Canada entitled Fisheries Act Reviews of In-Situ Oil Sands Projects in Alberta, departmental officials stated that they had previously focused on open pit mining operations’ impact on fish habitat and that their review of in-situ operations restricted to impacts of road construction. But they had recently learned of two new ways that in-situ projects could harm fish habitat:

 “The Department has recently become aware of other possible impacts to fish habitat associated with other in-situ activities/operations. Steam injection operations have the potential to cause surface upheaval and groundwater extraction operations may impact groundwater-surface water interactions. This could result in reductions in surface water flows in watercourses, leading to potential impacts to fish habitat.”

In their discussions with the Canadian Environmental Assessment Agency over how to assess in-situ projects, DFO officials supported a system whereby in-situ projects wouldn’t automatically require a comprehensive environmental study under the Canadian Environmental Assessment Act, but could be bumped up to a comprehensive review if there is the possibility of groundwater-surface water interactions resulted in the need to issue an authorization under the Fisheries Act.

In its comments on the document “Canadian Environmental Assessment Agency’s Approach to Managing Environmental Assessments of In-Situ Projects”, DFO explicitly requested that the following sentence be deleted:

“This direction [to not commence comprehensive studies under CEAA for in-situ projects based solely on the potential for groundwater/surface water interactions] is based on the Agency’s current understanding from Fisheries and Oceans Canada (DFO) that there is little possibility that analysis of these interactions on a project specific bases would lead to an authorization being required under subsection 35(20 of the Fisheries Act which would, in turn, require an environmental assessment under the Act.”

The DFO’s comment requesting that CEAA delete this sentence reads:

"This statement should be deleted from the document since it is not an accurate reflection of DFO's position with respect to our regulatory reviews of in-situ projects. DFO anticipates that in some higher risk areas the issuance of a Fisheries Act authorization may be necessary for impacts to fish habitat associated with groundwater disturbance activity as a result of in-situ project operations."

This has become contentious because of changes being made to environmental laws and regulations. Throughout 2011 and into 2012, the oil industry lobbied the federal government on changes to what they called “outdated” environmental legislation to ensure faster and more predictable regulatory approvals.

The Harper government was very receptive to their concerns and brought in an entirely new (and weaker) Canadian Environmental Assessment Act as part of the 2012 federal omnibus budget bill. The Fisheries Act was also amended to weaken the protection of fish habitat.

In spite of the concerns expressed by DFO, the federal government has recently proposed amendments to the way in which the new Canadian Environmental Assessment Act would be applied. These amendments would exclude in situ oil sands operations from the Act, with the (possible but unlikely) exception of individual projects designated by the Minister on a discretionary basis. 

Yet while the federal government may be able to weaken the Environmental Assessment and Fisheries Acts, they can’t ignore the Constitution, which guarantees First Nations the right to hunt, fish and trap in their traditional territory. If oil sands projects are reducing water levels in a way that harm fish habitat or restrict access to their traditional territories (i.e. the rivers are too low for boats to get through), then this right is not being respected.

In what may prove to be a precedent-setting case, the Beaver Lake Cree have filed a lawsuit claiming nearly 20,000 infringements of their treaty rights, most from in-situ oil sands operations. The Frog Lake and Mikisew Cree have launched legal challenges to the omnibus budget bills that changed the Environmental Assessment and Fisheries Act.

And as the video below explains, the Athabasca Chipewyan First Nation is challenging Shell’s proposed new tar sands mines, on the grounds that the rapid expansion of industry is putting their way of life at risk.

Stay tuned...