`Morally and ethically wrong' move on mining

Judge to hear arguments after province rescinds policy protecting eastern slopes

First Nations, ranchers, municipal officials and environmentalists hope to persuade a judge this week to force Alberta to revisit its decision to open one of the province's most important and best-loved landscapes to open-pit coal mining.

At least nine interveners will seek to join a southern Alberta rancher's request for a judicial review of the province's decision to rescind a coal-mining policy that had protected the eastern slopes of the Rocky Mountains — and the headwaters that flow from them — for almost 45 years.

“You talk about the Alberta identity,” said Ian Urquhart of the Alberta Wilderness Association, one of the parties looking for standing.

“The eastern slopes, the Rocky Mountains and the foothills, are at the heart of what the Alberta identity is. This policy change threatens that.”

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 those rivers for drinking water, irrigation and industry. The water is heavily allocated.

A 1976 policy brought in by Peter Lougheed's government laid out how and where coal development could go ahead, forbade open-pit mines over a large area and banned any mining at all in the most sensitive spots. It came after years of work and dozens of public consultations, said David Luff, a retired civil servant and consultant who worked on the policy.

“Albertans overwhelmingly said the eastern slopes should be devoted to watershed protection, recreation and tourism. Lougheed had a very compelling vision based on input he received from extensive public consultation.”

Over the years, the policy informed the Alberta Land Stewardship Act and was written into legally binding land-use plans.

Last spring, the policy was quietly revoked by Energy Minister Sonya Savage with no consultation. It was done on the Friday of the May long weekend, during the height of COVID-19'S first wave, through an information letter on the department's website.

“It's morally and ethically wrong,” said Luff.

But legally wrong?

The province doesn't think so. The hearing in Calgary Court of Queen's Bench is to begin Tuesday with Alberta arguing that there was no duty to consult because the coal policy was just that — a policy.

“The 1976 coal policy was not enacted using a legislative tool, so it can be rescinded unilaterally by Alberta Energy at any time,” says a provincial briefing note entered in the court record.

The province plans to ask the court to rule that the change is a political decision, not a legal matter, and the review request should be dismissed.

Nigel Bankes, chair of natural resources law at the University of Calgary, notes land-use plans and the land stewardship act both promise consultation before major change.

“This is effectively an amendment to the plan and therefore triggers the consultation obligations,” he said. “There's certainly case law to suggest that high-level policy changes may trigger the duty to consult.”

As well, Bankes said, First Nations are owed a duty to consult.

Three of them — the Bearspaw, Ermineskin and Whitefish — are asking to intervene.

He suggests there's a good chance the court will turn down the provincial request for dismissal.

One coal company — Cabin Ridge Coal — has asked for standing as well. It says it's already invested substantial money in exploration leases.

“Restoration of the coal policy will create uncertainty in circumstances where the (Alberta Energy Regulator) presently has clear standards and processes for considering proposed exploration and development activities in Alberta,” it says in a court filing.

The government has sold leases on about 1.4 million hectares of land for coal exploration since the policy was revoked.

The eastern slopes ... are at the heart of what the Alberta identity is. This policy change threatens that.