Alberta Reinstates Longstanding Coal Policy amidst Legal and Political Pressure

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On February 8, 2021, Alberta decided to reinstate the Coal Development Policy after significant pushback from Indigenous communities, ranchers, music stars, and environmental groups. The policy, which had been in place since 1976, was quietly rescinded in May of 2020 with no public or Indigenous consultation taking place. The policy restricted coal mining in different areas of the Eastern Slopes of the Rocky Mountains through the creation of different coal categories. The rescission removed a ban on open-pit mining in approximately 14,000 sq. km of the Rocky Mountains, prompting judicial reviews from Siksika Nation, Kainai (Blood Tribe), Ermineskin Cree Nation, and Whitefish (Goodfish) Lake First Nation, who are represented by JFK Law, as well as from a group of Ranchers with grazing rights in the Eastern Slopes.

History of the Coal Policy

In a press release eight months ago, the Alberta government revealed that it rescinded the province’s 44-year-old Coal Development Policy (the “Decision”).[1]  The policy, in place since 1976, had created four coal categories of lands in which varying rules for development were outlined.

In Coal Category 1, which encompasses most of the Rocky Mountains from the United States border north to Kakwa Wildland Provincial Park, all coal development is forbidden.[2] In Coal Category 2, which includes environmentally sensitive lands in the Rocky Mountains and foothills, open-pit mines are not allowed and limited exploration is permitted.[3] Coal Categories 3 and 4, which trend eastwards towards the plains, have few restrictions with exploration and some development being permitted.[4]

The Alberta government rescinded the coal categories, with only Coal Category 1 lands continuing to be protected with all forms of mining prohibited.[5] Under the 1976 Coal Development Policy, limited exploration was permitted in Coal Category 2 provided that it was under strict control, and surface mining not normally permitted due to the nature of the landscape.[6]

Current State of the Eastern Slopes of the Rockies

Currently, there are hundreds of coal leases scattered throughout Alberta, many of which are located in Coal Category 2 protected lands. Though coal mining and exploration has been heavily restricted in these areas, Alberta is experiencing a significant push for coal mining development in the area with roughly 420,000 hectares of Coal Category 2 lands under lease.[7] When the policy was rescinded, many of the lease applications were converted into full leases. Though a coal lease alone does not permit mining right away, as proponents are still required to apply for a licence for coal exploration, the potential environmental and social impacts of these projects create a major cause for concern.[8] It was a clear signal by Alberta to attract open-pit mining in the Rocky Mountains. Since the Decision, no new mines have been approved though there has been some exploratory work going on in Coal Category 2 lands.[9] The mining in question is for mellurgical coal, which is used to make steel.[10] Alberta is looking to mine metallurgical coal to export to markets overseas.[11]

Reinstatement of Coal Policy

On February 8th, 2021, Alberta’s Energy Minister announced that the Alberta government will reinstate the 44-year old coal policy and consult with the public and affected parties regarding the implementation of a modernized policy.[12] This shift came due to mounting political and legal pressure from Indigenous communities, municipal councils, ranchers, and environmental groups who expressed concerns with the lack of public consultation and the potential for environmental damage.[13] Two applications for coal exploration approved after the Decision will be permitted to continue, but applications for additional exploration in Coal Category 2 lands will be prohibited pending public consultation.[14] Additionally, the province stated that it will not issue any new coal leases in the area until the consultations are complete.[15]

Involvement of JFK Law Corporation

JFK filed judicial reviews challenging Alberta’s decision to rescind the Coal Policy on behalf of the Siksika Nation, Kainai (Blood Tribe), Ermineskin Cree Nation and Whitefish (Goodfish) Lake First Nation, (collectively, the “Nations”).  The Eastern Slopes play an important role in the Nations’ practice of their Treaty rights and culture and is one of the few remaining areas that can still support the practices of the Nations’ rights and culture.

The Nations’ were not consulted on the Decision, nor were they advised that the Decision was made, or going to be made. Rather, the Nations’ learned of the Decision by way of reports in the media.

On behalf of the Nations, JFK is seeking a number of remedies including:

  • a declaration that the Decision was unreasonable;
  • a declaration that Alberta breached its duty to consult in making the Decision;
  • a declaration that the Decision Maker is required to consult with respect to the Decision; and
  • a declaration that the Decision Maker breached its duty of procedural fairness.

After the reinstatement of the 1976 Coal Development Policy it is unclear how these judicial reviews will proceed.

Potential Effects

The Eastern Slopes are the source of three major rivers – the Red Deer, the Oldman and the South Saskatchewan. Everyone in southern Alberta, and many in Saskatchewan, depend on these rivers for drinking water, irrigation, and industry. Endangered species, including cutthroat trout and grizzly bears reside in this area. If the 1976 Coal Development Policy is rescinded, the risk of potential environmental harm would greatly increase, including the risk of streams and rivers being contaminated with selenium as a result of mining activity. Additionally, mining, and particularly open pit coal mining, can have significant adverse impacts on the Nations’ ability to practice their rights and culture through increasing the fragmentation of the landscape, reducing available territory for the practice of the Nations’ rights, the destruction of wildlife and wildlife habitat and destruction of plants relied on for food, spiritual or ceremonial purposes.

Though the temporary reinstatement of the 1976 Coal Development Policy is a significant improvement, it has not restored the status quo as it stood prior to June 1, 2020 for two critical reasons.

First, the leases that were issued in Coal Category 2 in the last eight months remain in force and one can anticipate that the companies holding the leases will continue to put pressure on the government to allow them to explore and develop these properties.

Second, Alberta’s Energy Minister made it clear in her remarks that while the Alberta Energy Regulator has been directed to not process new applications for approval of exploration programs on Coal Category 2 lands, this direction does not apply to exploration programs that have already been approved. It can be anticipated that the approval holders will continue with the activities covered by the approvals, including building access roads and engaging in drilling and sampling activities.

Article written by JFK Law Secondment Student Ksenia Orehova

 

[1] Alberta, Government of Alberta, Press Release, “Updated coal rules keep protection, strengthen certainty”, (Alberta: 15 May 2020), online: <https://www.alberta.ca/release.cfm?xID=71360F8EBFAD6-F329-868E-8D338CE2C2A0A01F> [Alberta Press Release].

[2] Alberta, Department of Energy and Natural Resources, “A Coal Development Policy for Alberta”, (15 June 1976), online: <https://open.alberta.ca/dataset/cc40f8f5-a3f7-42ce-ad53-7521ef360b99/resource/802d6feb-04ae-4bcc-aac3-3b3be31a0476/download/1114651976coal-development-policy-for-alberta1976-06.pdf> [Alberta Coal Development Policy].

[3] Alberta Coal Development Policy.

[4] Alberta Coal Development Policy.

[5] Alberta Press Release.

[6] Alberta Coal Development Policy.

[7] Robson Fletcher, “Answers to questions about Alberta’s coal policy, that at this point, you’re too afraid to ask”, CBC News (21 January 2021), online: <https://www.cbc.ca/news/canada/calgary/alberta-coal-policy-faq-frequently-asked-questions-1.5880659>. [Answers to Alberta’s Coal Policy].

[8] Answers to Alberta’s Coal Policy.

[9] Answers to Alberta’s Coal Policy.

[10] Answers to Alberta’s Coal Policy.

[11] Answers to Alberta’s Coal Policy.

[12] Alberta, Government of Alberta, Press Release, “Reinstatement of the 1976 Coal Policy”, (Alberta: 8 February 2021), online: < https://www.alberta.ca/coal-policy-guidelines.aspx#jumplinks-2>.

[13] Robson Fletcher, “Alberta reverses direction on coal development and reinstates 1976 policy, for now”, CBC News (8 February 2021), online: https://www.cbc.ca/news/canada/calgary/alberta-coal-policy-changes-press-conference-1.5905484 [Alberta Policy Reversal].

[14] Alberta Policy Reversal.

[15] Alberta Policy Reversal.