Oil sands tailings pond

Review from the Office of the Ombudsman | English Services

Summary

Reports about the environmental condition of an oil sands tailings pond

The Office of the Ombudsman received two complaints and requests for review in November, 2010, concerning CBC News reports about an oil sands tailings pond. In December, 2010, we received an additional complaint from Paul Mendes, Vice President, Legal and General Counsel, Canadian Natural Resources Limited. He has also requested a review.

Since the complaints were similar in nature, I have undertaken a joint review.


The story broke November 15, 2010, on CBC Radio, CBCNews.ca and CBC Television and concerned questions about the environmental condition of a tailings pond about 70 kilometres northwest of Fort McMurray, Alberta. The containment pond was approved six years ago by the Alberta Energy Resources Conservation Board (ERCB) as part of a project for natural resources development, licensed to Canadian Natural Resources Limited (CNRL). It intersects with a trapping line from the Fort McKay First Nation.

The tailings pond has been in operation for about one year. It was licensed to comprise berms on three sides to contain sludge. The sloping western shoreline and bed of clay of the pond is, in effect, the fourth berm.

The report first aired early November 15, 2010, on CBC Radio and online at CBCNews.ca (with overhead footage of the pond area) and later that day on CBC Television locally (with a second report), then nationally.

The first report, headlined “Alta. oilsands sludge oozes into bush,” suggested the shoreline berm wasn‟t containing sludge from seeping into the adjacent muskeg and that wildlife was ingesting toxic substances because there were no barriers to keep them from the sprawled tailings.

The Fort McKay First Nation hunts and traps in the area and its concerns about the impact of the pond on the food chain played a significant role in the story. Members of the First Nation noticed animal tracks to the pond and concluded toxins had been consumed by wildlife.

David Schindler, a University of Alberta professor of ecology noted for his expertise on water, expressed concern about the effectiveness of the shoreline in containing toxins and indicated the pictures from the scene were troubling.

As the day progressed, the federal Environment Minister indicated serious concern about the situation and promised the House of Commons an assessment of the pond to ensure it complied with federal regulations. (Later the department concluded the pond was in compliance.)

The initial radio and online reports early Monday did not contain comment from CNRL, but later that day the company commented and was included in the television and online reports. That day, too, the ERCB released a statement challenging the initial reports and CBCNews.ca posted a story arising from that. Further reports during the day included political reaction, details from CNRL about its efforts to remove beavers from the area, and background on the licensing arrangement.

The complaints asserted there was a lack of balance in the initial stories and an exaggerated portrayal of risk overall. The complaints asserted CBC News was not justified in stating in its online headline that the sludge was oozing into the bush, in part because that suggested a lack of containment and non-compliance with the tailing pond licence. The complaint from Canadian Natural Resources Limited also suggested CBC had trespassed on private property and placed both its own employees and the facility‟s employees at some risk.

In its response to the complaints November 29, 2010, CBC News asserted that CNRL had not made anyone available for an interview for the initial report. It noted that the tailings pond had been licensed by ERCB six years earlier and that nothing CBC reported suggested the pond was in non-compliance with its licence. CBC said it did, however, question the berm‟s effectiveness because of native and scientific concerns.

On the issue of balance, CBC News said its organization‟s expectation is of an “equitable expression of differing points of view on controversial matters.” It says it seeks accurate reporting and comments and opinions from those involved in the events it covers. “With that information, viewers and readers may be reasonably expected to evaluate the comments, test them against each other and the facts, and decide whose „truth‟ to believe.”

In its response, CBC News said it was not clear if sludge was leaking into the bush, a statement one complainant later said in his request for a review was at odds with the more categorical online headline.

CBC asserted it was not trespassing in the area. It was invited by the Fort McKay First Nation, which had authority to do so because its trapping lines were in the area. The involvement of the Fort McKay First Nation was relevant in another respect. In the course of its research of the story, CBC learned that another news organization was gathering similar information from the First Nation. This shifted the timetable for publishing ahead by two days.

The review has to assess if CBC News, in delivering the journalism to the public, met its Journalistic Standards and Practices.

Given the controversial nature at times in the development of oilsands, it is important to note what the policy says: “On issues of controversy, we ensure that divergent views are reflected respectfully, taking into account their relevance to the debate and how widely held these views are. We also ensure that they are represented over a reasonable period of time.”

On the matter of updating a developing story, particularly one involving reaction from parties earlier not included in a story, the policy states: “The fact that a situation has evolved so that information that was accurate at the time of its publication is no longer accurate does not mean that an error was committed, but we must consider the appropriateness of updating it, taking into account its importance and impact.”

Investigative journalism of this nature is addressed in several ways by the policy. Among other things, the policy says CBC “diligently attempt(s) to present the point of view of the person or institution being investigated.” CBC does “not broadcast an investigative report until we have ensured that the facts and evidence support the conclusions and judgments.”

Conclusion

CBC News performed an important public service in gathering the facts first-hand. It visited the affected region. It used credible sources – the First Nation of the area and an authoritative scientist – to raise important questions about the habitat for wildlife and impact on the food chain. Its efforts questioned the wisdom of a licensing process that permits a possibly porous shoreline to contain toxins in an area inhabited by wildlife and a source of food.

I concluded the stories themselves were fair in their description of the sprawl of tailings to avoid drawing a conclusion that could not be scientifically supported. CBC sufficiently established that the tailings pond was not violating its licence, and it drew upon a scientist and residents to raise concerns there might be an unexpected consequence.

While the stories demonstrated restraint, the categorical tone of the online headline (“Alta. oilsands sludge oozes into bush”) was insufficiently supported. The fears of the ecologist and of First Nations were important to discuss. Without an independent test of the muskeg or of wildlife to furnish proof to those fears, the headline asserts damage; it would have been better phrased were it attributed as a concern of a relevant party.

The more significant matter here, though, involves the inclusiveness and balance of the first report. With its investment in the story, CBC News was concerned about losing the competitive advantage if it further delayed publication. It attempted unsuccessfully to reach a CNRL representative for comment on the weekend before publishing. It did not violate CBC Journalistic Standards and Practices in attempting to include CNRL and noting it was not available. But it was difficult to fault CNRL for not providing a spokesperson on what appeared to be a non-urgent matter on a weekend. Waiting to include the company perspective from the outset would have served the audience better, defused potential criticism, and been more reflective of the standards and practices.

That being said, CBC News was fair-minded in following the reaction to the initial reporting. As the day progressed, and in the days that followed, it gave voice to all parties in the controversy.

Kirk LaPointe
CBC Ombudsman