OPINION | Reinstating the Alberta coal policy does not mean the end of coal mining

In reinstating the 1976 Alberta coal policy, the province has not restored the status quo, says natural resources law professor Nigel Bankes.

Policy reversal does not restore status quo, says natural resources law professor

Construction equipment near Grassy Mountain in 2014, with Crowsnest Mountain in the background. This week's decision to reinstate Alberta's 1976 coal policy does not restore the status quo, according to natural resources law professor Nigel Bankes. (CBC)

This column is an opinion from Nigel Bankes, the chair of natural resources law at the University of Calgary's faculty of law.

As most Albertans know, last May the Kenney government rescinded the 1976 Coal Development Policy of the Lougheed government.

Part industrial policy, part energy security policy and part land use policy, the most significant part of the 45-year-old framework remaining in force was the land use element — an effective prohibition on strip mining for coal on the eastern slopes of the Rockies, in areas designated as Category 1 and 2 lands.

While Category 1 lands were principally legislatively protected areas, including national and provincial parks, Category 2 included lands to the east of Banff and Jasper National Parks as well as lands south of Banff National Park and to the west of Highway 22, all the way down to Waterton Lakes National Park.

The decision to rescind the coal policy, made without any consultation, generated heated opposition not only from environmental organizations, such as the Canadian Parks and Wilderness Society (CPAWS) and the Alberta Wilderness Association, but also high-profile artists, including Corb Lund and k.d. lang.

Increasingly vocal opposition

Municipal governments, usually reluctant to take on the provincial government, became increasingly vocal in their opposition as well. Concerns ranged from the risk of selenium poisoning to the radical incompatibility of strip mining for coal with other possible futures for the province, including agricultural food processing, recreation and the need to attract and retain the best and the brightest in a highly mobile, knowledge-based economy.

The most important practical significance of revoking the policy was that the Kenney government began issuing coal leases once again for Category 2 lands to companies that had applied for coal rights on these lands and whose applications were still on file.

Some of these companies also applied to the Alberta Energy Regulator (AER) for approval of exploration programs to allow them on to public lands to construct access roads and begin preliminary exploration work.

This led to concerns as well, as municipal government and others saw the results of the revocation of the policy in the form of environmental damage occurring on the landscape.

But the Kenney government seemed impervious to all of this criticism and hostility.

While the government did cancel a handful of new leases issued in December, as recently as last week Premier Jason Kenney doubled down, characterizing the coal policy as a "dead letter," and ascribing opposition to the decision to rescind the policy to the condescension of urban residents.

But on Monday of this week, things changed.

WATCH | 'What we're doing today … is what we should have done in the beginning,' Savage says:

Alberta reinstates 1976 coal policy, pending public consultation

2 years ago
Duration 16:04
Energy Minister Sonya Savage's full press conference announcing the provincial government's backtrack on its previous decision to cancel the 1976 Coal Development Policy for Alberta.

Sonya Savage, the minister of energy, called a press conference to announce that, effective immediately, the 1976 Coal Development Policy would be reinstated, including the "coal categories, which dictated where and how coal leasing, exploration and development could occur."

No new leases would be issued for Category 2 lands and "[a]ll future coal exploration approvals on Category 2 lands will be prohibited pending widespread consultations on a new coal policy."

In her prepared remarks, Minister Savage also repeated comments she had made the previous week assuring Albertans that the government would not allow mountaintop removal as part of mining. 

This was a significant climb down for the government, but while the decision might have restored the policy on a go-forward basis until something can be developed to replace it, it has not restored the status quo as it stood prior to June 1, 2020.

This is so for at least two reasons.

Leases remain in force

First, as noted above, following last year's revocation of the coal policy, the province has issued a large number of new leases on Category 2 lands. These leases remain in force and one can anticipate that the companies holding these leases will put pressure on the government to allow them to explore and develop these properties.

Under the Mines and Minerals Act, the minister does have the authority to cancel a lease if she is of the opinion that further exploration or development is not in the public interest. But any decision to engage in such a course of action has likely been deferred, pending the results of the proposed consultations.

Cancellation would entitle the lessees to compensation based on the costs they have incurred (and not based on the anticipated value and possible future profits to be obtained if the property were to be developed).

Second, the minister made it clear in her remarks that while she had issued a direction to the AER not to process new applications for the approval of exploration programs on Category 2 lands, this direction did not apply to exploration programs that had already been approved.

Consequently, it can be anticipated that the holders of these approvals will continue with the activities covered by these approvals, including building access roads and engaging in drilling and sampling activities.

Teck Resources' Elkford Operations in British Columbia, just west of the Crowsnest Pass. Nothing in Energy Minister Sonia Savage’s announcement this week changes the status of the nearby Grassy Mountain project, says Nigel Bankes. (Robson Fletcher/CBC)

While the minister or the AER has the authority to issue a stop work order in relation to exploration activities, this is an authority that can only be exercised for cause (for example, a breach of a term or condition of approval). 

It also bears emphasizing that the decision to reinstate the coal policy will not have any effect on proposed mining operations on lands where coal mining activities, including strip mining, were allowed under the policy, such as Category 4 lands.

This is the case for a project that was much in the news during the fall, the Grassy Mountain Coal Project, a proposed open pit mine for metallurgical coal on Category 4 lands north of Blairmore.

Environmental assessment hearings by a joint federal/provincial review panel concluded in the fall and a decision on the project is anticipated in June.

Nothing in Minister Savage's announcement changes the status of this project.

No restoration of status quo

Close examination of the written direction given to the AER makes it clear that the minister's comments ruling out any project that involves "mountaintop removal" only apply to projects on Category 2 lands.

To sum up, the decision to reinstate the coal policy certainly does not signal an end to coal mining in Alberta, or even the restoration of the pre-June status quo.

Mining, subject to compliance with all federal and provincial laws, continues to be a possible land use activity outside Category 1 and 2 lands. Furthermore, limited and already approved exploration will be allowed to continue on some Category 2 lands.

As for the future, all that we know is that the government will be consulting on the development of a new provincial coal policy. There are no details available as to the form or legislative framework for that consultation.

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Nigel Bankes is a professor of law and holder of the chair in natural resources law with the faculty of law at the University of Calgary. He comments on a range of oil and gas and energy law matters on the faculty's blog, Ablawg.