A coal mining company has launched a legal challenge of Ottawa’s decision to subject its Alberta mine expansion to a federal environmental review that would consider risks to Indigenous people, fish and species at risk.
In its notice of application requesting a judicial review, Coalspur Mines said Environment and Climate Change Canada Minister Jonathan Wilkinson acted “unlawfully, unreasonably and unconstitutionally” in opting to designate the Vista mine expansion for a federal assessment.
In particular, the company argues the minister overstepped provincial jurisdiction in ordering a federal review of proposed expansions to its thermal coal mine, which is located within Alberta’s borders.
Wilkinson’s communications director Ricky Landry said in a statement Tuesday to The Narwhal that the minister considered both “the likelihood of environmental impacts within federal jurisdiction, and public concern related to the project” in making his decision earlier this summer.
The July announcement by Wilkinson referenced concerns about harm to fish and fish habitat and species at risk, as well as adverse impacts on constitutionally protected Aboriginal and Treaty Rights.
Landry said this week: “We oversee fair and thorough environmental assessments that are grounded in science, evidence and Indigenous traditional knowledge. Our government will work directly with the province of Alberta and the Alberta Energy Regulator to ensure the process is predictable, timely and achieves ‘one project, one review.’”
“As this matter is before the courts it would be inappropriate to comment further,” he said.
Coalspur did not respond to a request for comment by publication time.
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The company has operated the Vista open-pit coal mine near the town of Hinton, about 40 kilometres from the eastern edge of Jasper National Park, since 2019. In 2018, the company proposed a phase two expansion of the mine that could increase coal production from six million tonnes per year to twelve million tonnes per year.
Coalspur then proposed a further expansion in 2019: an underground mine test site that would increase production by 1.8 million tonnes over a limited lifetime of three years.
Both expansion projects require approval from the Alberta Energy Regulator. The phase two expansion will also require a provincial environmental impact assessment report.
In its notice of application to the court, Coalspur explains the underground test mine does not require a provincial environmental assessment because it’s located within the existing mine area and “novel adverse effects are not anticipated.”
Pending the outcome of the Coalspur’s case, both proposed expansions will now be subjected to federal environmental impacts assessment.
Concerns over Alberta’s regulatory oversight
The legal challenge didn’t come as a surprise to Meaghan Conroy, a partner with MLT Aikins and legal counsel for Louis Bull Tribe, which was named alongside the Stoney Nakoda Nation, three environmental groups and the federal minister as respondents in the case.
Coalspur’s argument that Wilkinson overstepped his jurisdiction is “extremely frustrating” to Louis Bull Tribe, Conroy said.
“[Louis Bull Tribe] signed their treaties with the Queen and they see Canada as their treaty partner,” she explained.
“Not that Canada has been a perfect treaty partner by any means, but there is animosity with the provincial Crown in that they have continually failed to improve the regulatory system provincially to properly account for or assess impacts on Indigenous rights,” she said, adding there also hasn’t been an effective effort to accommodate Treaty Rights in project approvals.
The Alberta government is not named as a respondent in Coalspur’s filing but Conroy said she’ll be watching to see if the province intervenes in the case.
Alberta is already challenging the constitutionality of Bill C-69, which brought the federal Impact Assessment Act into law. The Kenney government maintains that the constitution gives the province exclusive jurisdiction over the exploration and development of non-renewable resources, Jess Sinclair, press secretary to Alberta’s Minister of Environment and Parks Jason Nixon, said in a statement to The Narwhal.
“It does say that in the constitution,” Conroy said, “but overlaid on that are Treaty obligations and that’s what Alberta has failed to wrestle with in its regulatory process, frankly.”
Why Wilkinson reversed course on a Vista mine review
Wilkinson initially decided not to require a federal impact assessment of the expansion, reasoning that adverse effects, including impacts on the rights of Indigenous peoples, would be managed through the provincial assessment as well as federal regulatory processes.
But when Louis Bull Tribe’s lawyers saw Coalspur had filed an application with the Alberta Energy Regulator for the underground test mine, they sent a request to the minister to designate both the underground mine and phase two expansion for review as one project.
Stoney Nakoda Nation and Ecojustice, legal counsel for Keepers of the Water, Keepers of the Athabasca and the West Athabasca Watershed Bioregional Society, also submitted requests for Wilkinson to designate the expansion for review.
In opting to pursue a federal review, Wilkinson raised concerns that the company had applied for approval for two separate expansions.
“That would lead me to be concerned that this is, perhaps, an exercise in project-splitting for the purpose of avoiding a federal assessment,” he told The Globe and Mail in July.
Mine expansions that increase the area mined by 50 per cent or more and result in a total coal production capacity of 5,000 tonnes per day automatically trigger a federal impact assessment.
While Coalspur’s projects fall just under the area threshold and are therefore not automatically required to undergo the federal assessment, Wilkinson noted that the daily production of the two projects would be over the production threshold, producing more than 18,000 tonnes per day.
In court documents, Coalspur argues Wilkinson’s designation order should be quashed in part because the minister “incorrectly or unreasonably” combined the underground test mine and phase two expansion for review and went against the conclusion of the Impact Assessment Agency’s July analysis report that neither the test mine or phase II should be designated for review.
The agency concluded that “the potential for adverse effects…including cumulative effects, would be limited through project design, the application of standard mitigation measures and through existing legislative mechanisms.”
The company also argues Wilkinson failed to consider “that the underground test mine will not cause adverse effects or novel adverse effects on areas of federal jurisdiction.”
But Sharon Mascher, an environmental law professor at the University of Calgary, said the minister has discretion to designate projects for review “when, in his opinion, there’s the potential to cause adverse effects within federal jurisdiction or direct or incidental adverse effects or there’s public concern that warrants designation.”
“This project ticks all of those boxes,” she said.
Mascher said the case could have implications for Indigenous people, climate change and the issue of project splitting, including whether to assess whole projects rather than incremental pieces.
The impact of project splitting was raised in the designation requests sent to the minister earlier this year. In its July report, the Impact Assessment Agency acknowledged concerns that Coalspur’s decision to characterize its plans as separate projects “may misrepresent the depth and breadth of the potential impacts of the project and undermine engagement and meaningful consultation.”
“In my opinion, the minister’s decision to designate activities associated with the expansion of the Vista thermal coal mine — given the potential effects on listed and endangered species, section 35 rights of Aboriginal peoples, and federal lands and fisheries together with the significant levels of public concern — is not only the right decision but the only decision open to him if the federal impact assessment legislation is to achieve its goal of restoring public trust in the process,” Mascher said.
Fraser Thomson, a lawyer with Ecojustice representing the three environmental groups named as respondents in the case, said his clients are in the process of reviewing Coalspur’s application but are hopeful the minister’s decision will be upheld.
“There were tens of thousands of Canadians that sent in letters, made phone calls to the minister’s office to tell him that Canada really can’t afford a coal comeback,” he said.
“This is a massive project, Coalspur is proposing to expand its existing operations to allow for the extraction of up to 15 million tonnes of coal a year,” Thomson said, adding that when that coal is burned it will release the same emissions as seven million cars on the road.
The thermal coal produced at the Vista mine is shipped overseas, where it’s burned to produce electricity. Those overseas emissions may one day be considered in federal assessments of new thermal coal mining projects.
Earlier this summer, the federal government announced a strategic assessment of thermal coal mining that will weigh the implications of exporting thermal coal on Canada’s domestic and international policies and commitments, as well as the environmental, health and climate impacts.
The final assessment is expected to be released in the fall of 2021.