Introduction to the Crown-Indigenous Working Group for the Potential Oil Sands Mining Effluent Regulations

1. Introduction

1.1. Disclaimer

The members of the Crown-Indigenous Working Group (CIWG) for the Potential Oil Sands Mining Effluent Regulations participate in good faith in support of the Government of Canada’s commitment to renewed Nation-to-Nation and government-to-government relationships that are based on recognition of rights, respect, collaboration, and partnership as the foundation for transformative change. Participation by the First Nations, Métis Nations and Métis communities in the CIWG should not be interpreted as tacit support or acceptance of oil sands mine water release or as an abrogation or derogation of their rights. This document was developed collaboratively by CIWG members. While CIWG members support this document in principle, some statements may not fully represent the position of each member.

1.2. Purpose

As the Government of Canada’s lead department for the protection and conservation of the environment, Environment and Climate Change Canada (ECCC) is exploring options to manage oil sands mine water on the sites of surface mines located in the Lower Athabasca Region in Northern Alberta. The CIWG has prepared this introductory paper to provide interested parties with an update on the work completed by the CIWG to date, an overview of the collaborative process established through the CIWG, and an opportunity for early feedback. This paper was developed collaboratively by the CIWG. This paper will be followed by several planned engagement documents and marks the start of several planned public consultation periods. Any interested parties may comment in writing by e-mail or mail.

2. Context

2.1. The Crown-Indigenous Working Group

The CIWG was established in January 2021 in response to concerns raised by Indigenous communities regarding potential releases of oil sands mining effluent to the Athabasca River watershed. It is meant to serve as a mechanism for collaboration to assess whether regulations authorizing releases of treated oil sands mining effluent are needed, and if necessary on the development of potential regulations for oil sands mining effluent. The CIWG is composed of representatives from ECCC and nine Indigenous communities located in and downstream of the oil sands area including^{Footnote 1} :

• Athabasca Chipewyan First Nation (ACFN)
• Chipewyan Prairie First Nation (CPFN)
• Fort Chipewyan Métis Nation Association (FCMNA)
• Fort McKay First Nation (FMFN)
• Fort McKay Métis Nation (FMMN)
• Fort McMurray 468 First Nation (FM468FN)
• Métis Nation of Alberta Association Fort McMurray Local Council 1935 (McMurray Métis [MM])
• Mikisew Cree First Nation (MCFN)
• Smith’s Landing First Nation (SLFN)

The work of the CIWG includes identifying issues, developing analyses and issue papers, conducting and/or reviewing research, and co-drafting engagement documents. Should ECCC continue developing potential regulations for oil sands mine water release, the CIWG will be involved in the regulatory development process.

In order to determine whether regulations authorizing the release of oil sands mining effluent are necessary and justified, the CIWG is currently working on an assessment of alternative options to the release of treated mine water. At the same time, the CIWG is continuing the technical and scientific research and analyses needed to establish potential regulations, in the event it is determined that authorizing release is necessary and justified.

Regulations, if established, will be protective of the environment and the human health of Indigenous people and consistent with the Crown’s obligations to Indigenous peoples.

2.2. Treaty and Aboriginal rights

The Government of Canada is committed to reconciliation with Indigenous Peoples through a renewed, nation-to-nation and government-to-government relationship, based on the recognition of rights, respect, collaboration, and partnership. Consideration of options to manage the accumulation of oil sands process-affected water in the existing tailings ponds includes potential regulations allowing for the release of treated oil sands mining effluent. Such a regulation or other management options requires careful assessments of potential impacts to Treaty and Aboriginal rights guaranteed by Section 35 of the Constitution Act (1982) and the health and well-being of Indigenous people. It also requires consideration of commitments made by the Government of Canada under the United Nations Declaration of the Rights of Indigenous Peoples ActFootnote 2 as well as the findings and recommendations of the Report of the Royal Commission on Aboriginal Peoples and Truth and Reconciliation Commission of Canada: Calls to Action. The release of oil sands mining effluent would occur in a context in which Indigenous communities in and downstream of the oil sands region have already experienced significant, cumulative impacts to their rights and health.

The oil sands mining area is located within the territory of Treaty 8, which encompasses a landmass of approximately 840,000 square kilometres and is home to 39 First Nations communities. Treaties, including Treaty 8, define ongoing rights and obligations between Indigenous Peoples and the Government of Canada. Honouring treaties is essential for Indigenous and non-Indigenous peoples to live together in Canada. Likewise, for Sovereign Métis Nations where no treaties are signed by independent Métis Powley communities, discussions on Aboriginal Title with Canada are still ongoing and thus, are considered in this regulatory development process. Indigenous communities assert that their rights in relation to the river have not been ceded or modified and that the Crown has a duty to obtain consent prior to authorizing any releases to the river.

ECCC is committed to ensuring that impacts to treaty and Aboriginal rights resulting from the potential release of oil sands mining effluent are understood and fully considered. If it is determined that there are no appropriate alternatives to regulations authorizing the release of treated oil sands mining effluent and that they are necessary, ECCC will work with impacted parties to assess potential impacts to rights. The results of those assessments will inform decisions on what is needed to avoid and mitigate impacts to rights and, if impacts cannot be avoided or mitigated, to inform discussions of accommodation measures and free, prior and informed consent. Indigenous people in the region have significant concerns about the potential for adverse effects to the health and populations of fish and aquatic species and to human health from water and aquatic resource consumption and use, which is an integral part of their section 35 rights, including the ability to preserve and transmit Indigenous knowledge

In parallel to the CIWG, Indigenous communities and ECCC will work together bilaterally to assess the potential impacts to treaty or Aboriginal rights resulting from options to manage the accumulation of oil sands process-affected water in the tailings ponds, including potential regulations allowing for the release of treated oil sands mining effluent. Indigenous community members of the CIWG and ECCC are currently working together to develop frameworks for the rights impact assessment process. This work is still in its early stages but will be essential if regulations allowing for the release of oil sands mining effluent are to be developed. ECCC is also committed to working with Indigenous communities outside of the CIWG that may experience impacts to their environment and/or Aboriginal and treaty rights.

2.3. Oil sands mining sector

Mining of oil sands to extract bitumen has been undertaken on a commercial scale for over 50 years. Oil sands mining involves first exposing the ore by removing overburden and muskeg. The oil sands ore is then mined and transported to crushers to be broken into smaller pieces. A slurry containing the mined ore and hot water is formed and sent to separation cells that use gravity to isolate the bitumen from the coarse solids (mostly silica sand). This step generates a froth that requires further treatment using a solvent or diluent to reduce the viscosity and allow for further gravity separation of any remaining water and fine solids. Extracted bitumen is then sent to either an upgrader or a high-conversion refinery. Upgraders turn extracted bitumen into synthetic crude oil, which is then sent to a refinery to be made into petroleum products that are sold to end users; high-conversion refineries are capable of processing bitumen without the intermediary step of upgrading.

The oil sands mining processes require large amounts of water. The bitumen extraction process generates mine water and tailings that are stored in tailings ponds. Approximately 12-15 barrels of tailings are generated for each barrel of bitumen produced. Despite high rates of water recycling, tailings ponds continue to grow. There are approximately 28 tailings ponds in the oil sands region spanning over 220 km². In 2021, the Alberta Energy Regulator reported 8 operating oil sands mines storing approximately 1.3 billion m³ of fluid tailings (enough to fill about 540,000 Olympic-sized swimming pools) and 472 million m³ of tailings water in 28 tailings impoundment structures (that is, tailings ponds) (Figure 1, 2)^{Footnote 3} .

2.4. Regulatory context

Oil sands mining operations must comply with all applicable federal legislation, including the Fisheries Act. The Minister of the Environment and Climate Change is responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act. Subsection 36(3) of the Fisheries Act prohibits anyone from depositing or permitting the deposit of a deleterious substance in water frequented by fish, or in any place where the deleterious substance may enter such water. The Fisheries Act allows for the establishment of federal regulations that could authorize the discharge of deleterious substances under conditions set out in the regulations. There are currently no regulations authorizing the release of oil sands mining effluent. Instead, oil sands mines retain most of the water used in their processes including site runoff, waters used during extraction, significant amounts of water from depressurization and removal of waters as mining occurs and progresses, and significant amounts of accumulated precipitation, since they began operating. Waters of variable composition and toxicity are mixed and moved around, ultimately being stored in large and multiple ponds.

The release of oil sands mine water is not authorized by provincial regulations or project-specific approvals. The Government of Alberta is developing provincial regulatory requirements for releases of oil sands mine water. ECCC and Alberta Environment and Protected Areas (AEPA), are engaging regularly to share information and coordinate activities where appropriate. The CIWG is not involved in this engagement between ECCC and AEPA.

3. Considerations

3.1. Substances of concern

Oil sands mining produces several by-products or waste streams from both the processing of oil sands to extract bitumen and the physical disturbance of surface and groundwater required to extract the oil sands. The variety of liquid wastes produced by oil sands mining, and the manner in which they are managed, combined and accumulated over significant periods of time, makes identifying oil sands mine water challenging. Sources of oil sands mine water that could contribute to mining effluent include:

• Fluid tailings and oil sands process water (FT and OSPW): liquid wastes produced by processing oil sands. These are variously called process affected water, oil sands process water, recycled water, pond effluent water, dyke seepage, expressed water and release water
• Industrial wastewater (IWW): by-products generated by oil sands operations but not a direct waste produced from the oil sands extraction process, such as blowdown water, cooling tower water, flue gas desulphurization water , ash pond water, and sewage and domestic wastewater. These may be termed industrial wastewater, sanitary sewage, domestic wastewater, pond water, polishing water, cooling water, boiler feed water, and flue gas desulphurization water
• Other: waste streams resulting from accumulation of various types of water that nonetheless cannot be released, such as water resulting from groundwater removal, muskeg dewatering, and some types of overland runoff. These are held in water treatment ponds that accumulate from various onsite processing activities. These natural sources may or may not be segregated from IWW depending on the mine site

Oil sands mine water has unique physical and chemical qualities. It contains elevated concentrations of several compounds of concern known to be toxic to organisms^{Footnote 4} . Chemical concentrations vary between tailings ponds due to differences in ore composition, extraction processes, and pond age. The following chemical classes and types have been identified in tailings water and fine sediments (Table 1)^{Footnote 5} .

3.1.1. Discussion questions

Are there additional substances of concern in oil sands mine water of which the CIWG should be aware or should consider? If so, what are they, and why are they of concern?

3.2. Information gaps

The end goal of oil sands mine closure is to reclaim disturbed lands to a functioning ecosystem that is integrated with the surrounding environment. Oil sands mine operators assert that releases of treated effluent are needed to address the accumulation of oil sands process water over time and to facilitate mine closure and reclamation. The need for releases of treated effluent was not previously contemplated in the near term and quantification has not occurred that demonstrates how releases of treated effluent will achieve these outcomes while protecting the environment, human health and Aboriginal and treaty rights. The CIWG is currently assessing the magnitude of fluid accumulation. In addition, more information is needed on the nature of oil sands mine water that might be released from oil sands mining operations. It is critical to understand which waters (type, composition, toxicity) are being considered for release, where and how much would be released, and the frequency and timing of potential releases across the sector.

3.2.1. Discussion questions

Are there any sources of information or resources on the magnitude of fluid accumulation or the nature of oil sands mine water that the CIWG should be aware? If so, what are they and why are they relevant to this process?

3.3 Alternatives to Releases of Treated Oil Sands Mine Water

The CIWG is currently assessing alternative options to the release of treated oil sands mine waters, such as increased water recycling, local and regional reuse of waters, segregation and targeted treatment of waters based on source of production and quality to increase reuse and recycle, and alternative disposal options. Given the volumes involved, the varied composition, and uncertainties associated with these waters, an integrated approach that considers alternatives is needed before releases of oil sands mining effluent can be authorized.

3.3.1. Discussion questions

Are there additional alternatives to regulations that CIWG should consider? If so, what are they and why do you think they should be considered?

3.4. Cumulative Impacts

Existing oil sands tailings are located in close proximity to the Athabasca River (Figure 1). The Athabasca River watershed is already experiencing cumulative effects from oil sands, urban, industrial, and agricultural development^{Footnote 6} . Release of oil sands mine water will have additive impacts to these existing impacts that must be considered and assessed. The number and size of oil sands tailings will also result in multiple releases from multiple operations within a short distance of the Athabasca River. The cumulative effects of these multiple releases must also be fully assessed and considered.

The Athabasca River empties into the Peace Athabasca Delta, which is the world's largest inland, freshwater delta and is within Wood Buffalo National Park, a UNESCO World Heritage Site. The Delta then feeds the Slave River and the Slave Delta. In addition to water quality loads, the sediment impact of oil sands mine water release to these deltaic environments receive large volumes of sediments.

In addition to the potential for cumulative impacts described above, there are many existing authorized discharges of effluent to the Athabasca River and its tributaries that must be considered in the status and health of the aquatic ecosystems in the region. How these releases in combination with climate change, land use change, and future development may cumulatively impact the region must also be considered in the development of a regulation for release of treated oil sands mining effluent.

4. Ongoing and Planned Work

4.1. Ongoing Work

The following is a list of work items currently being completed by the CIWG:

• An assessment of alternatives to the treatment and release of oil sands mining effluent
  • An assessment of treatment and disposal options that could eliminate or mitigate the need to release treated effluent while achieving similar environmental and reclamation outcomes to treatment and release.
• Exploring options for an active regulatory approach (for example an authorization or permitting regime) for oil sands mining effluent
  • A review of options for active regulatory regimes for oil sands mining effluent that could include a collaborative Crown-Indigenous decision-making framework and pre-release assessments of effluent quality, potential cumulative effects, and potential impacts to rights
• A best available technology assessment
  • An assessment of best available technologies for treating oil sands mining effluent
• Toxicity and environmental effects monitoring requirements
  • Research and analysis in support of developing toxicity and environmental effects monitoring requirements for oil sands mining effluent

4.1.1. Discussion questions

Is there existing research or information that the CIWG should consider in support of these work items? If so, what is it?

4.2. Planned Work

The following is a preliminary list of work items the CIWG plans to conduct in support of development of potential regulations for oil sands mining effluent. This work is subject to the results of the assessment of alternatives to the treatment and release of oil sands mining effluent, which will help determine whether regulations authorizing release are needed. This list is not exhaustive and does not preclude the CIWG from conducting any additional work it deems necessary.

• Developing an approach to braiding Indigenous knowledge and western science
• Developing an understanding of the current state the Athabasca River
• Conducting human health risk and health impact assessments
• Continuing to review water inventories and storage capabilities, water efficiency measures and closure plans to better understand the amounts, constitution, and future trajectories of effluent release and tailings waste management
• Continuing to develop an understanding of the potential scale, sources, and outfalls of oil sands mining effluent
• Finalizing the list of substances of concern
• Developing reporting requirements
• Developing conditions for closed mines

4.2.1 Discussion questions

Are there any additional assessments the CIWG should consider? If so, what are they and why should they be considered?

5. Timelines and next steps

5.1. Public consultation process

The CIWG plans to release engagement documents, followed by targeted consultation sessions, at regular intervals throughout regulatory development. The frequency and timing of these papers and information sessions will be determined by the results of the assessment of alternatives and feedback from the consultation sessions.

5.2. Timelines

The publication of this paper will be followed by engagement sessions with interested parties. Interested parties are welcome to provide written feedback on the paper by September 15,2023 .

If it is determined that regulations authorizing the release of treated oil sands mining effluent are needed, ECCC is committed to taking the time necessary to meaningfully consult with Indigenous communities.

6. References

AER. 2022. State of Fluid Tailings Management for Mineable Oil Sands, 2021.

Allen, E.W., 2008. Process water treatment in Canada’s oil sands industry: I. Target pollutants and treatment objectives. Journal of Environmental Engineering and Science, 7(2), pp.123-138.

Canadian Council of Ministers of the Environment (CCME). Canadian Environmental Quality Guidelines (CEQGs). Undated. Accessible at: Canadian Council of Ministers of the Environment | Le Conseil canadien des ministres de l'environment (ccme.ca)

Mahaffey, A. and Dubé, M., 2017. Review of the composition and toxicity of oil sands process-affected water. Environmental Reviews, 25(1), pp.97-114.

Government of Alberta. 2018. Environmental Quality Guidelines for Alberta Surface Waters. Water Policy Branch, Alberta Environment and Parks. Edmonton, Alberta

US EPA. 2015. National Recommended Water Quality Criteria - Human Health Criteria Table. Accessible at: National Recommended Water Quality Criteria - Human Health Criteria Table | US EPA

Health Canada. 2021. Guidelines for Canadian drinking water quality—summary table. Accessible at: Canadian Drinking Water Guidelines - Canada.ca

Tondu, J.M.E., 2017. Longitudinal water quality patterns in the Athabasca River: winter synoptic survey (2015). Alberta Environment and Parks.