Fort Chipewyan is a hamlet, home to several reserves of the Athabascan Chipewyan (Dene) and the Mikisew Cree First Nation. It is located downstream from Fort McMurray, on the Athabasca river and, notably, downstream of numerous large oil sands tailings ponds.
You may have already heard of Fort Chipewyan as an area with disproportionately high cancer rates and particularly high rates of very rare cancers, such as bile duct cancer. It is often for this reason that Fort Chipewyan has been in the news and why its residents have been increasingly vocal about the environmental assessment process and how the approval of large-scale oil sands projects nearby has contributed to some of these negative health effects.
What is Environmental Justice?
As we defined, environmental justice, sometimes called environmental racism, is “the intentional siting of hazardous waste sites, landfills, incinerators and polluting industries in areas inhabited mainly by Black, Latinos, Indigenous Peoples, Asians, migrant farm workers and low-income people.” In Alberta and other parts of Canada, inadequate access to environmental justice predominantly affects Indigenous communities. Unlike in the United States, Indigenous people in Alberta often already live where the resources are located which limits a company’s ability to move the project site to a different location. As such, this means that, rather than environmental racism being evident through the siting of toxic sites or polluting industries, it is embedded in the approval process for the sites. This results in the government sanctioning activities that result in marginalized communities bearing more environmental burdens than other, more privileged communities.
Access to Environmental Justice
In general, access to justice issues are underpinned by the recognition of specific substantive and procedural legal rights (or a lack thereof) and the costs associated with participating in legal processes. A key procedural right is standing, that is a right to appear before a court or an environmental tribunal. Without it, you will not get the chance to have your story heard.
However, even if a person does have standing they may still not have all the rights to make the process fair. These rights include a right to know the facts of the case, a right to present evidence and cross examine others’ evidence, and a right to have the reasons of decisions. The opportunity to exercise these rights then turns on the costs of participating in the process and of producing evidence. If these costs are too high, they present another barrier to access to justice.
Costs arise in environmental justice issues in a stark way. Often hearings or court cases addressing environmental matters are required to deal with science in an adversarial process which devolves into “a battle of the experts”. The costs of experts can be significant. Further, an expert may need to conduct his/her own research to specifically address the matter being heard. This can add further costs. While, in some instances, these expert costs may be covered in the process, it is not unusual for a party to bear some or all costs of necessary experts.
The “battle of the experts” can be exacerbated by a legal requirement to demonstrate causation (i.e. proving that activity “x” resulted in harm “y”). There can be a high degree of uncertainty in evidence due to natural contributions to a specific harm, cumulative effects, or a general inability to clearly establish that a harm was caused by a specific operation or polluting activity. The nature of scientific inquiry and the evidence it produces can make raising doubts in an adjudicator’s mind (particularly if they have no scientific training) relatively easy.
The same uncertainty that can drive up costs associated with bringing evidence can also contribute to undermining other aspects of access to environmental justice. This is particularly the case when one considers the scope of hearings and whether a party is granted standing where issues of cumulative effects are in play. The incremental impact of one activity may not be sufficient to grant a party standing and it may also limit the scope and approach to a hearing.
Kearl Oil Sands Environmental Assessment
One Albertan example of issues accessing environmental justice was raised after the approval of the Kearl Oil Sands Project near Fort Chipewyan in northern Alberta. The Kearl Oil Sands Project was a large Imperial Oil development, proposed in 2007, that included open pit mines, an ore preparation site, and a bitumen processing facility and which required both a provincial and federal environmental assessment.[1]
During the Kearl Oil Sands Project assessment process, spokespeople from surrounding reserves raised serious concerns about contamination, concerns that arose after elder’s started reporting less fish in the river, oily residue in the water, and higher rates of cancer and disease in the community. This was not the first time the community voiced these same concerns, in fact they had been doing so since early licensing hearings for the project, as far back as 2003. [2]
Following those earlier concerns, studies were conducted which looked at the connection between certain chemicals found in these oil sands projects, such as arsenic, and cancer rates – including those types of cancer being found by elders in the community. One particularly troubling study, commissioned by Suncor, found that the risk of cancer from exposure to inorganic arsenic in the region was 452-453 out of every 100,000 people. Notably, the level considered acceptable by public health officials is 1 out of every 100,000 people – 450 times less. [3]
Despite these community concerns, after both assessments were complete, a report concluded that the project was not likely to cause significant adverse environmental effects. The otherwise extensive report committed very little discussion and rationale for the human health issues that were raised (with only 2.5 out of 115 pages discussing the issues and the concerns of Fort Chipewyan residents warranting only 13 lines). The community raised concerns that the report did not give enough weight to their issues nor did the community believe it gave sufficient weight to the studies connecting the pollution with high cancer rates. [4] For example, with respect to the risks associated with increased inorganic arsenic, the report simply stated that it was expected that Imperial Oil would take the appropriate actions to address the matter. [5]
The Joint Panel’s report’s conclusions raised a couple of questions:
(1) Would the report have awarded more weight to the community’s concerns if they were from an urban environment, say Edmonton or Calgary? and
(2) Would it would have made a difference whether the community was wealthy and politically powerful? [6]
Environmental justice theorists would argue that one of the reasons why the health of Fort Chipewyan residents was not given significant weight in the report’s concluding remarks on the project was because they were a small, less powerful, and less wealthy, Indigenous community.
In Canada the issue of environmental racism is complicated by the fact that energy companies or other big polluters are limited in where they can locate their projects.
In the United States, studies found that chemical or waste companies specifically chose Black or immigrant neighbourhoods in which to locate their projects, with no particular resource connection to those areas. [7] In Alberta, however, the people of Fort Chipewyan live where the resources are located. Therefore, the issue is instead that the government is sanctioning activities that result in marginalized communities bearing more environmental burdens than other, more privileged communities – rather than allowing these environmental burdens to be placed in one community above another.
In the case of Fort Chipewyan, the environmental justice argument would be that the government’s assessment process downplayed the health issues faced by this community and that this is evidence of environmental racism. [8]
A nearby community called Fort McKay is also facing similar issues with their air pollution. During the summer of 2016, a plume of toxic chemicals was released from an oilfield plant and ended up drifting towards the community. [9] The plume contained hydrogen sulphide and hydrocarbons, both of which can result in negative health impacts. [10] Unfortunately, despite this risk, the community was not notified of this plume until hours after, reducing their ability to effectively respond. These plumes are common for the community and inadequate monitoring systems often leave community members without the necessary information with which to monitor and manage their health. [11] Additionally, despite the numerous air quality advisories in the area, Alberta Environment and Parks has not made any changes or updates to air quality standards or monitoring in the area. [12]
These stories share a strong similarity with the issues facing the Aamjiwnaang First Nation living in Sarnia, Ontario, in Chemical Valley.
If you have already gone through the Toxins and Waste section, take some time to re-evaluate the choices made in Chemical Valley through the lens of environmental racism and justice. Were the Aamjiwnaang people granted the same environmental justice as others?
Africville was a small town in Nova Scotia, made up primarily of Black settlers, many of whom were former slaves, fleeing the United States for a better life and settling in a community on the south shore of the Bedford Basin, on the outskirts of Halifax. Upon arrival and after settling down, the residents of Africville began to face many overt signs of racial discrimination including a lack of services which eventually forced the people of the town to relocate. [13] However, long before this forced relocation, Africville’s residents faced significant issues of environmental racism – less overt but equally detrimental.
Located on the outskirts of Halifax, Africville was considered to be outside of the city boundaries. This meant that it did not receive the same municipal services as Halifax – services that included garbage and waste disposal or other clean up. In addition, Africville became home to numerous environmentally dangerous sites including open dumps, an incinerator, and an infectious disease hospital. [14] Almost immediately after the town was established, railways were built directly through the town and although they did provide transportation and work to residents, they also contributed to reduced property values, accidents, and death.[15]
All of the disposal sites set up in Africville were used by primarily by White Haligonians (citizens of Halifax), while the waste repercussions were only felt by the Black Nova Scotians living in Africville. One of the reasons why these sites consistently ended up located in Africville was because the people living there lacked social, political, or economic power and were therefore unable to fight the municipality’s decision to place these dangerous sites in their area. This led to poor health conditions for the residents of Africville, further diminishing their social capital. [16]
Unfortunately, despite the legacy of Africville, Black and Indigenous people living in Nova Scotia are still disproportionately affected by dangerous waste sites. In fact, in 2015 and 2016 the ENRICH Project attempted to map toxic facility siting across Nova Scotia, in an attempt to demonstrate what Black and Indigenous people had been saying for so long – that although environmental racism is hard to see and even harder to pinpoint, there is still a tendency to site these toxic facilities closer to marginalized communities. Check out their map here: ENRICH Project. [17]
In response to these concerns, a private member’s bill known as the Act to Address Environmental Racism was put forward in 2016 with the purpose of convening a panel made up primarily of Black, Indigenous and Acadian people to study and report back on the issue of environmental racism in Nova Scotia. [18] The Bill has only made it through one reading. However, whether this Bill ever succeeds in becoming law or not, it does demonstrate that the issue of environmental racism in Nova Scotia is alive and well.
The Indian Act is the main piece of federal legislation governing the relationship between Indigenous peoples and the federal government. It was first passed in 1867 and was a consolidation of various laws relating to the Indigenous peoples that had been living in Canada long before the British North America Act. [19] Even today, after many significant changes, the Indian Act remains controversial and many regard it as a racist piece of legislation, relegating Indigenous people under federal control and leading to paternalistic decisions about their health, education, and more. [20]
A key aspect of the Indian Act is that it created the reserve system. Section 18 of the Act states that reserves are to be held for the use and benefit of Indians (the term used for Indigenous peoples throughout the Act). [21] Reserves then became home for many Indigenous peoples across the country and were often the only places available for Indigenous people to attempt to maintain their traditional way of living. Although today there are many more Indigenous people living in urban centres, there are still thousands of reserves across the country. Not only do those people living on-reserve report living in crowded homes or homes in need of major repairs more than both Indigenous peoples living off reserve and non-Indigenous peoples (Further to their 2011 National Household Survey and 2012 Aboriginal Peoples Survey, Statistics Canada found that the numbers were: 28% living on reserve, 7% living off-reserve, and 4% non-Indigenous) but there is also a nationwide water crisis occurring on Indigenous reserves across the country. [22]
As of December 2020, there were 58 long term drinking water advisories in effect in First Nation communities across the country – a number which has declined in the last few years. [23] Often, these advisories mean that the available water is not clean enough or free from bacteria or parasites, forcing communities to drink bottled or boiled water. If this is a surprise to you, you are not alone. Many Canadians are unaware of the seriousness of this problem. It is also disconcerting that in a country, such as Canada, with clean, healthy water in all of its cities and towns, water advisories still exist in such high numbers for these communities.
Notably, these are not only short-term advisories meant as a backup measure in the event that something goes wrong with a water treatment plant. Rather, this is common place and long lasting and represents a serious health risk to anyone living under an advisory. Over the years, many advisories have simply become commonplace for these communities.
To this last question, environmental justice scholars would say no. In fact, not only environmental justice scholars would come to this conclusion. A 2005 report by the federal Commissioner of the Environment and Sustainable Development concluded that, “when it comes to the safety of drinking water, residents of First Nations communities do not benefit from a level of protection comparable to that of people who live off reserves.” [24]
For a real-world Alberta example, the Town of Bentley, Alberta had a water main break on March 13, 2018 which resulted in a boil-water advisory for town residents. [25] The issues were resolved and the town was given the all clear by Alberta Health Services that the town water supply was safe for human consumption again on March 15, only 2 days later. [26]
From a legal perspective, part of the problem is that water is regulated by the provinces and reserves are regulated by the federal government, and we do not have a national water standard or piece of legislation governing water quality across the country. This leaves the water on reserves in a bubble of non-regulation. [27] The Safe Drinking Water for First Nations Act enables the Minister to make regulations setting out water guidelines and standards for first nation reserves, however, this regulatory regime has not yet been developed. [28] This lack of regulation, combined with on-reserve Indigenous people’s lack of political power and socio-economic influence, has meant years without clean water and another example of environmental racism in modern-day Canada.
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[1] Alberta Energy and Utilities Board and the Government of Canada, “EUB Decision 2007-013: Imperial Oil Resources Ventures Limited, Application for an Oil Sands Mine and Bitumen Processing Facility (Kearl Oil Sands Project) in the Fort McMurray Area” (27 February 2007) online: https://www.aer.ca/documents/decisions/2007/2007-013.pdf.
[2] Natalie 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, 21 J of Env L & Prac 32 at 37.
[3] Natalie 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 at 40.
[4] Natalie 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 at 52.
[5] Natalie 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 at 52.
[6] Natalie 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 at 54.
[7] Brett Bundale, “Weekend Focus: The toxic sites of Nova Scotia racism” (25 April 2015) The Chronicle Herald.
[8] Vann R. Newkirk II, “Trump’s EPA Concludes Environmental Racism is Real” (28 February 2018) The Atlantic online: https://www.theatlantic.com/politics/archive/2018/02/the-trump-administration-finds-that-environmental-racism-is-real/554315/.
[9] Natalie 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 at 54.
[10] Emma McIntosh & Mike De Souza, “How Alberta kept Fort McKay First Nation in the dark about a toxic cloud from the oilsands” (8 April 2019) Canada’s National Observer online: https://www.nationalobserver.com/2019/04/08/news/how-alberta-kept-fort-mckay-first-nation-dark-about-toxic-cloud-oilsands.
[11] Emma McIntosh & Mike De Souza, “How Alberta kept Fort McKay First Nation in the dark about a toxic cloud from the oilsands”.
[12] Emma McIntosh & Mike De Souza, “How Alberta kept Fort McKay First Nation in the dark about a toxic cloud from the oilsands”.
[13] Emma McIntosh & Mike De Souza, “How Alberta kept Fort McKay First Nation in the dark about a toxic cloud from the oilsands”.
[14] Canadian Museum for Human Rights, “The Story of Africville” (23 February 2017) online: https://humanrights.ca/blog/black-history-month-story-africville.
[15] Laura Westra & Bill E. Lawson, Faces of Environmental Racism: Confronting Issues of Global Justice, 2nd ed (Toronto: Rowman & Littlefield Press, 2001) at 101.
[16] Kaitlyn Mitchell & Zachary D’Onofrio, “Environmental Injustice and Racism in Canada: The First Step is Admitting We Have a Problem” (2016) 29 J Env L & Prac 305 at 324.
[17] Moira Donovan, “Nova Scotia group maps environmental racism” (16 March 2016) CBC News online: http://www.cbc.ca/news/canada/nova-scotia/ns-environmental-racism-map-1.3494081.
[18] Bill 32, An Act to Address Environmental Racism, 1st Sess, 63rd Gen Assembly, Nova Scotia, 2017 (first reading October 6, 2017).
[19] Indian Act, RSC 1985, c 1-5.
[20] Doug Beazley, “Decolonizing the Indian Act” (Winter 2017) CBA National online: http://www.nationalmagazine.ca/Articles/Winter-2017-Issue/Decolonizing-the-Indian-Act.aspx; Tim Fontaine, “Indian Act turns 140, but few celebrating” (12 April 2016) CBC News online: https://www.cbc.ca/news/indigenous/indian-act-turns-140-but-few-celebrating-1.3532810.
[21] Indian Act, s 18.
[22] Statistics Canada, Indigenous Peoples: Fact Sheet for Canada, 89-656-X (Ottawa: StatCan, 30 November 2015) online: http://www.statcan.gc.ca/pub/89-656-x/89-656-x2015001-eng.htm#a5.
[23] Government of Canada, “Ending long-term drinking water advisories” (23 December 2020) online: https://www.sac-isc.gc.ca/eng/1506514143353/1533317130660; First Nations Health Authority, “Drinking Water Advisories” (30 June 2018) online: http://www.fnha.ca/what-we-do/environmental-health/drinking-water-advisories; Kaitlyn Mitchell & Zachary D’Onofrio at 324.
[24] Commissioner of the Environment and Sustainable Development, Report of the Commissioner of the Environment and Sustainable Development to the House of Commons, ch 5 (Ottawa: Office of the Auditor General, 2005) at 1.
[25] Phil Heidenreich, “Water main break prompts boil water advisory for Bentley, Alta” (13 March 2018) Global News online: https://globalnews.ca/news/4081572/water-main-break-prompts-boil-water-advisory-for-bentley-alta/.
[26] Phil Heidenreich, “Water main break prompts boil water advisory for Bentley, Alta”; Town of Bentley, “Boil Water Advisory has ended” (15 March 2018) posted on Town of Bentley, online: Facebook.
[27] Human Rights Watch, “Make it Safe: Canada’s Obligation to End the First Nations Water Crisis” (7 June 2016) online: https://www.hrw.org/report/2016/06/07/make-it-safe/canadas-obligation-end-first-nations-water-crisis.
[28] Safe Drinking Water for First Nations Act, SC 2013, c 21.
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