Caught off guard by the fast-growing grassroots opposition to vast expansion of open-pit coal mining in the southern slopes of the Rocky Mountains, Alberta’s government announced yesterday it would cancel 11 newly-issued coal leases covering 1,800 hectares.
But the action was miniscule, noted David Luff, a former assistant deputy environmental minister, because it affects less than half of one per cent of some 420,000 hectares already under existing leases. “It’s a trick, smoke and mirrors and misleading,” said Luff.
Under existing leases, four Australian companies plan to industrialize more than 800 square kilometres of the southern and central Rockies with half a dozen open-pit mines.
Today, a group of ranchers and three First Nations will square off in court with the Jason Kenney-led UCP government over its controversial abolishment of the Coal Policy, a land-use plan that once protected most of the eastern slopes from open-pit mining.
The ranchers and First Nations will be arguing that rescinding a major policy that effectively protected the water supplies of two million Albertans without public consultation is illegal because the government had a duty to consult.
The province argues that a government can change any policy it wishes.
The Kenney government, which is pushing to lease a large swath of Rocky Mountain foothills to foreign-owned coal mining firms, hopes to quash the entire application for a judicial review. It is betting open-pit mining and mountain-top removal by the metallurgical coal mining sector can replace jobs and revenue lost in the shrinking oilsands.
At least nine different groups including several conservation groups, two First Nations and two coal companies have asked permission to intervene and comment on the judicial review.
The coal showdown highlights two critical issues now dominating public discussion in Alberta where more than 100,000 people have signed petitions in protest of the government’s actions:
Is it in the public interest to allow open-pit coal mining in the eastern slopes, which have protected and generated clean water for the prairies for millennia?
And do Albertans want a top-down government that avoids public consultation and favours foreign mining interests or a government that dutifully consults its citizens and honours those consultations?
Those questions remain unchanged by yesterday’s announcement by Alberta’s energy minister that her government would be cancelling some recently granted leases and “pausing” future sales.
Unless the Kenney government is prepared to direct the Alberta Energy Regulator to halt all exploration licenses and activity in the eastern slopes and start a process of consultation with Albertans, the announcement will not stop mountain-top removal in the eastern slopes, says Luff.
The Canadian Parks and Wilderness Society also noted that the government’s announcement “fails to address the ongoing threat of coal development in the Rocky Mountains.”
What the court will weigh
In a judicial review, the courts typically review government decisions to make sure they are fair, reasonable and lawful. This review by the Court of Queen’s Bench keys on eight essential issues:
1. Two ranching families with long roots in the foothills brought forward the judicial review earlier last year because they were directly and immediately affected by the Coal Policy’s abolishment.
Both families graze their cattle on fescue grasslands located on Crown leases once protected by the Coal Policy.
Atrum Coal, an Australian company that congratulated the Kenney government for cancelling the Coal Policy, has conducted extensive exploratory coal drilling on Cabin Ridge along Highway 22. That intensive work has already scarred an entire mountain.
The company holds 240 square kilometres of coal leases stretching from the Crowsnest Pass to Chain Lakes and is considering five open-pit mines. The ranchers say open-pit mining will destroy the region’s water security, imperial agriculture and destroy some of Alberta’s most iconic landscapes.
A lengthy brief tabled before the court adds this central point: “Since the Coal Policy was rescinded, the Applicants’ properties and grazing leases are now subject to exploration and the prospect of significant development — development not characterized by shaft mines with restricted impact on surface rights but instead open-pit mines where mountains are scraped off the surface of land and replaced with 250-metre pits.”
2. But the court will have to first address the government’s motion to dismiss the application.
In other words, the ranchers have to prove to the court they have a just and sound reason to ask for a judicial review of the government’s decision before the court will hear the merits of the case. “We anticipated the government would take this approach, and we are not surprised,” said the rancher’s lawyer Richard Harrison in a Tyee interview.
If the court dismisses the government’s motion to strike the case, then it will hear the rancher’s arguments. At that point the ranchers will have to prove the Coal Policy was based in law, directly affected the welfare of their cattle operations, and that they “had a legitimate expectation of consultation.” First Nations will have to do the same.
3. Requests for judicial reviews aren’t always well received in Alberta’s courts, but this application is different, because it is now supported by three First Nations including the Kainai (Blood Tribe) and Siksika Nation.
The Kainai argue in their application that “increased coal development in the Eastern Slopes will have adverse impacts on the Nation’s ability to practice their Treaty rights and on source water for Kainai’s reserve lands.”
These Treaty 7 Nations, whose people still refer to the Rockies as “the backbone of the world,” communicated their concerns to the Kenney government about the invasion of Australian-based coal mining companies in the Rockies. But as their application notes, the Kenney government killed the Coal Policy “without any consultation with the Nations. Alberta did not even notify the Nations that the Decision had been made.”
4. The Kenney government continues to argue that the 1976 Coal Policy was an outdated relic from the era of then-premier Peter Lougheed and that the province now has better and more “stringent rules” to deal with open-pit mines.
In letters to individual Albertans alarmed by the abrupt change, Energy Minister Sonya Savage characterized the Coal Policy as “a significant barrier for an important industry where the export of high-quality metallurgical coal can be used to produce steel.”
The judicial review application argues that Coal Policy was an enforceable law that protected 1.5 million hectares from open-pit mining, and that those protections are now gone.
The policy also served as the guiding backbone for four specific land-use plans, including the South Saskatchewan Regional Plan and the Livingstone-Porcupine Hills Land Footprint Management Plan.
5. In a 72-page brief to the court, the ranchers highlight that the Coal Policy “was rescinded on the Friday of the May long weekend in the middle of a global pandemic (as courts sat silent and judicial processes largely waned).”
The policy’s abolishment stands “in stark contrast to the effort taken by” the Lougheed government to establish it, says the brief.
The Coal Policy was not drafted in a vacuum but directly complemented and protected the principles of Lougheed’s Eastern Slopes Policy in 1973. It was the product of four years of active public consultations including more than 300 submissions from Albertans that occupy 10 volumes.
The ranchers’ lawyer Harrison highlights that the concerns of a majority of Albertans in the 1970s remain the same as those of today: water and the loss of highly-productive grasslands that sequester carbon and guard water. “Those are the same issues we have today. How are we going to secure water supplies and protect environmental sustainability?”
6. The Coal Policy not only put much of the Rockies off limits to open-pit mining but discouraged bust and boom mining schemes that didn’t directly benefit the province.
The policy did so by mandating thorough reviews and comprehensive reclamation plans as well as high royalties for the province. These high coal royalties were in effect until 1992.
Alberta’s current royalties for coal are now one per cent. Even in Australia, a state highly dependent on coal exports and highly influenced by powerful coal interests, royalties are seven per cent.
7. Normally during a judicial review the government has to share background papers and documents explaining why it has changed a specific policy. But the Kenney government “has shared no record,” says Harrison.
“We have been stonewalled at every opportunity,” Harrison says. The government said it would take more than 280 days to produce any records on the policy change.
The Alberta lobbyist registry documents that the Alberta government consulted with only one group about axing the Coal Policy: the Coal Association of Canada whose members include several Australian coal companies. The director of the association is a former Conservative Alberta environmental minister with direct access to government.
8. The one document that the Kenney government has shared with the courts is entitled “Advice to Minister for Decision about Alberta’s Coal Policy,” which gave Energy Minister Savage three options on the Coal Policy, all of which included rescinding it.
The government chose Option A, which was rescinding the Coal Policy without public consultation. The note warned that this option would please the coal lobby but draw “criticism from environmental groups and other user groups active within Alberta’s eastern slopes if the decision is made without prior consultation.”
It also warned the government of serious “policy gaps” because four regional plans were based on land categories set by the Coal Policy. A promised review of “full extent of the policy gap risk” was not performed by the Kenney government.
If the court finds that Kenney’s abolishment of the Coal Policy was illegal, unfair or unreasonable, it could order the government to reinstate the policy and force the government to hold full public consultations. Mac Blades, one of the ranchers who initiated the judicial review, hopes for that outcome.
“The government didn’t follow the rules when they rescinded the Coal Policy,” Blades told The Tyee. “They must have promised a lot of things to these coal companies.”