Alberta Energy Minister Sonya Savage addresses the attendees while Tom Olsen, Managing Director of the Canadian Energy Centre, looks on at a press conference at SAIT in Calgary on Wednesday, Dec. 11, 2019. THE CANADIAN PRESS/Greg Fulmes

Alberta Energy Minister Sonya Savage addresses the attendees while Tom Olsen, Managing Director of the Canadian Energy Centre, looks on at a press conference at SAIT in Calgary on Wednesday, Dec. 11, 2019. THE CANADIAN PRESS/Greg Fulmes

‘Morally and ethically wrong:’ Court to hear challenge to Alberta coal policy removal

At least 9 interveners will seek to join a rancher’s request for a judicial review of Alberta’s decision

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. Thewater is heavily allocated.

Endangered species, including cutthroat trout and grizzly bears, live there. The region’s beauty is universally acknowledged.

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.

Other hopeful interveners include the Municipal District of Ranchland, which is concerned about the impact that coal development could have on municipal services and infrastructure.

Environmental groups seeking to intervene want to ensure water quality and ecological degradation are taken into account.

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.

Alberta officials have said mining will create hundreds of jobs and generate millions of tax dollars at a time when the province really needs them. They say any proposed mines would still be reviewed by the provincial regulator.

Prominent and popular Alberta country musicians Corb Lund and Paul Brandt have publicly opposed the mines.

A petition to the federal government opposing one development already in the review stage had more than 25,000 signatures as of Friday morning.

The government has sold leases on about 1.4 million hectares of land for coal exploration since the policy was revoked. At least one provincial recreation area is partly covered by a coal lease and four others are surrounded by them.

The province has also reopened water allocation agreements.

Bob Weber, The Canadian Press

coal mine

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Jaimee Peters photo of a Willow Midwives helping with a birth. Willow is closing its doors March 31 because of a shortage of midwives. (Contributed)
Petition to save South Okanagan’s only midwife clinic nears 3,000 signatures

After 12 years, Willow Community Midwives has to close its doors due to a shortage of midwives

Calls for potential overdoses in B.C. spiked in 2020, especially in the Okanagan - Shuswap. Pictured above is a BCEHS re-enactment of paramedics attending an overdose. (BCHES photo)
UBCO program increases drug checking availability in Kelowna, Penticton, Vernon

January 2021 data shows of 95 opioid samples tested across Interior Health, 93 contained fentanyl

Youth from Vernon, Kelowna, Penticton and the Kootenays were able to dig into two evenings of online learning and connection through United Way Southern Interior B.C.’s <CODE>anagan program. (Submitted)<code> </code>
CODEanagan gives youth a chance to learn about technology

The youth, aged 12 to 21, built their own WordPress sites and developed blogging ideas

A rainbow shining on Kelowna General Hospital on May 12, 2020 International Nurses Day. (Steve Wensley - Prime Light Media)
New COVID cases trending down in Interior Health

24 new cases reported Thursday, Feb. 25, death at Kelowna General Hospital

Okanagan patients will benefit from the recent inclusion of the Medical Arts Health Research Group in a worldwide study with the National Institute of Health (NIH). The study will be a global collaboration for finding better treatments for COVID-19. (File photo)
Okanagan research group involved with finding better COVID treatments

Okanagan Medical Arts Health Research Group invited to collaborate in global study

Provincial health officer Dr. Bonnie Henry updates B.C.’s COVID-19 situation at the B.C. legislature. (B.C. government)
B.C. reports 10 additional deaths, 395 new COVID-19 cases

The majority of new coronavirus infections were in the Fraser Health region

A new survey has found that virtual visits are British Columbian’s preferred way to see the doctor amid the COVID-19 pandemic. (Unsplash)
Majority of British Columbians now prefer routine virtual doctor’s visits: study

More than 82% feel virtual health options reduce wait times, 64% think they lead to better health

Larch Place is the first building to be built in the BC Housing, Canadian Mental Health Association housing project at the corner of Third Street SW and Fifth Avenue SW. This view is from the Shuswap Street side where it sits behind the Graystone East building. (File photo)
Opening of doors at new housing development in Salmon Arm welcomed

BC Housing announces opening of 32 rental units, with 35 more expected in summer 2021

Cory Mills, Eric Blackmore and A.J. Jensen, all 20, drown in the Sooke River in February 2020. (Contributed photos)
Coroner confirms ‘puddle jumping’ in 2020 drowning deaths of 3 B.C. men

Cory Mills, Eric Blackmore and A.J. Jensen pulled into raging river driving through nearby flooding

Castlegar doctor Megan Taylor contracted COVID-19 in November. This photo was taken before the pandemic. Photo: Submitted
Kootenay doctor shares experience contracting COVID-19

Castlegar doctor shares her COVID experience

Vancouver International Women in Film Festival kicks off March 5.
Women in Film Festival features two B.C. filmmakers

The 16th annual festival kicks off March 5, 2021

The booklet roots present day activism in the history of racist policies, arguing the history must be acknowledged in order to change. (CCPA)
New resource dives into 150 years of racist policy in B.C.

Racist history must be acknowledged in order to change, authors say

Agatha Mary Clarissa Miller, before she knew she would change literature. Photo Wikipedia
And Then There Were None

What book knocked your booties off when you were young?

A webinar on dealing with dementia will be held Wednesday, March 10, 2021 (Submitted)
Webinar on dementia scheduled for March 10

Okanagan residents invited to event on legal issues surrounding dementia

Most Read