Alberta ranchers argue courts must decide whether rescinding coal mine policy was fair

The lawyer for two Alberta ranchers seeking a judicial review of the province's decision to rescind a nearly 45-year-old policy limiting coal mining in the eastern slopes says his clients should have been consulted before the decision was made in the spring of 2020.

Richard Harrison says ending the government's coal policy, which was used by government and Alberta's energy regulator since 1976 as a guiding principle for the resource's development, should have triggered the province's duty to consult with key stakeholders, including landowners, municipalities and First Nations.

"It was a significant protection that for 44 years was afforded to my clients," said the lawyer, referring to ranchers Mac Blades and John Smith.

"The removal of that protection in the manner that the respondents [the Alberta government] decided to remove it, with no consultation, not even a phone call, does not do my clients justice," he said.

Harrison said the 1976 policy was put in place following four years of "heavy consultation" and hundreds of public submissions.

"And then to rescind it on the Friday of May long weekend in the middle of a global pandemic."

"This is not a matter that can be swept under the rug of high policy, and disregarded and ignored by this court," said Harrison.

Energy Minister Sonya Savage quietly announced the policy change on May 15, 2020.

"When they exercise their discretion, they need to do so in a fair, procedural manner," Harrison told Court of Queen's Bench Justice Richard Neufeld.

The two-day virtual court hearing is being held to decide on an application by the province to dismiss the ranchers' request for a judicial review of Savage's decision to rescind the coal policy.

Unpopular, but not unlawful

A lawyer for the Alberta government told the hearing Tuesday that the decision to scrap the policy was a "core, high level policy decision," and one that is "immune from this court review."

Melissa Burkett said that while the decision may be unpopular for some Albertans, it's not unlawful.

She said the court should not be turned into a political arena to decide such matters.

The 1976 policy offered protections for certain lands along the eastern slopes of the Rocky Mountains against open-pit and strip coal mining. 

Harrison admitted the policy was not a complete barrier to coal development on his clients' leased grazing land, but he instead agreed with an earlier characterization that described it as a "yellow light" for regulators who consider development applications in the so-called Category 2 lands.

The policy described Category 2 lands to have "areas of high environmental sensitivity, in which neither exploration or development activities will be permitted," said Harrison, who read from a section of the policy, which stated that underground mining or in-situ operations "may be permitted in areas within this category."

"It is still a policy that outlines very specifically that open-pit coal mining in Category 2 lands is to be discouraged," he said.

Exploration permits issued

Since the policy was rescinded in March 2020, the government has approved permits for coal exploration in an area covering hundreds of thousands of hectares along the area that forms the headwaters for several rivers that provide water for municipalities, industry and agriculture uses.

Harrison says Australian-based Atrum Coal is one of the licence holders that is proposing an open-pit coal mine in his clients' "backyard." It's a development that he said would have a profound effect on his clients' ability to graze their cattle and earn a living.

He said a conveyor belt for the open-pit mine would be located near the confluence of the Oldman and Livingstone rivers, near his clients' properties and grazing lands.

Burkett told the court Tuesday the policy was obsolete because a robust, regulatory framework now exists for Alberta's energy regulator to consider applications for coal development. 

If the province's application for a dismissal fails, the actual judicial review would go ahead at some point in the future.

Decision delayed

Justice Neufeld said Wednesday afternoon that he will need some time to make a decision, so the case has been adjourned — likely until the spring.

"I understand that this is a matter of public and private concern and we want to make sure that as we proceed, we're doing so in a thoughtful way," he said. 

Several groups are seeking intervenor status to join the ranchers seeking a judicial review: the M.D. of Ranchland, the Bearspaw, Siksika, Kainai and Whitefish First Nations, the Canadian Parks and Wilderness Society, the Alberta Hiking Association, the Alberta Backcountry Hunters and Anglers Association, the Alberta Wilderness Association and the Livingstone Landowners Group.

Two coal companies, Atrum and Cabin Ridge Ltd., are also seeking intervenor status.

The lawyer for Atrum told the hearing that the Australian company would be seeking a "remedy" should a potential judicial review overturn the government's decision to rescind the coal policy. 

Cabin Ridge Ltd., which has secured leasehold rights to begin exploration work in the area, is the other company seeking intervenor status.

"We seek to put forward some perspective, in terms of what the project proponents' legitimate expectations are, in terms of the rescission of that coal policy," said Keith Marlowe, a lawyer for Cabin Ridge.

Bryan Labby is an enterprise reporter with CBC Calgary. If you have a good story idea or tip, you can reach him at [email protected] or on Twitter at @CBCBryan.