Judge nixes order requiring review
Coalspur Mines Ltd.'s controversial Vista mine expansion project in Alberta is no longer subject to the federal impact assessment process, a federal judge has ruled.
The Federal Court ruling, issued this week, quashes a June 2020 designation order from Environment and Climate Change Minister Jonathan Wilkinson that subjected both Vista's proposed open-pit expansion and underground test mine to review by the federal impact assessment agency.
It found the minister had failed to consult the Ermineskin Cree Nation, which has an impact benefit agreement with Coalspur, and instead only consulted Indigenous communities who sought the designation order before issuing his decision.
“Not only was there no consultation at all, but I find Ermineskin was inexplicably frozen out of this very one-sided process,” wrote Judge Henry Brown in his decision.
The decision comes just weeks after Wilkinson issued a federal policy statement on thermal coal, saying any new or expanded projects would cause “unacceptable environmental impacts,” at the time all but sending Vista's expansion up in smoke.
Wilkinson told the Financial Post in June the federal government could not prevent thermal coal miners from bringing projects forward, but “the bar (for approval) would be exceedingly high.”
In an emailed statement to the Financial Post, Wilkinson said his office was reviewing the decision to “determine its implications and identify next steps.”
“The continued mining and use of thermal coal for energy production in Canada and around the world runs counter to what is needed to effectively combat climate change.”
Wilkinson had initially declined to designate the Vista expansion under the impact assessment act in December 2019, saying the Alberta Energy Regulator could cover the areas of federal concern in its environmental assessment, but reversed course after mounting pressure from Indigenous People and environmental groups.
His decision last June said Vista “may result in adverse effects of greater magnitude to those previously considered.”
The proposed two-part expansion would nearly double Vista's production capacity, from roughly 6.5 million tonnes per year of thermal coal to between 10 million and 15 million tonnes.
Coalspur has been plagued by challenges this year.
It filed for Companies' Creditors Arrangement Act protection in late April, roughly four months after a permitting issue with the AER forced it to put Vista on care and maintenance and lay off roughly 300 workers. Operations resumed at Vista during the first week of May, after the company secured a Us$26-million interim lending facility to recall about 250 employees and restart the mine while it works through restructuring.
Both Coalspur and the Ermineskin Cree Nation sought judicial review of the minister's order in two separate court filings.
The Ermineskin argued Wilkinson had failed to consult the Nation before putting Vista through the impact assessment process.
The decision would affect its Aboriginal and treaty rights, the Ermineskin argued, by lessening, delaying or eliminating its economic interest in the expansion.
Wilkinson argued he had no duty to consult the Nation, and disputed that the loss of any economic, social and community benefits laid out in the impact benefit agreement were an infringement on Aboriginal and treaty rights.
Brown disagreed, writing that the Crown's duty to consult clearly extends to Indigenous communities' economic rights and benefits.