Feds have options to revisit Coalspur ruling

While the Government of Canada is still reviewing and deciding its next steps following the Federal Court’s decision to quash the designation of the Coalspur Mining (Bighorn) projects, Coalspur could technically move ahead with the projects pending approvals from the Alberta Energy Regulator (AER).

David Percy, a professor of Energy Law and Policy at the University of Alberta, explained that the mine projects cannot currently be subject to a federal assessment, but this can be changed in two ways.

“Firstly, Canada could take an appeal to the Federal Court of Appeal. However, unless there is some form of special application, the federal assessment would remain invalid unless, after the appeal, the Court of Appeal were to reverse the decision of Justice Brown,” he said.

Secondly, Percy continued, the federal government could remedy its failure to consult Ermineskin Cree Nation in the decision to designate the projects by beginning to consult with Ermineskin in good faith and taking those consultations all the way to conclusion.

The reasoning in the judge’s decision to quash the designation was due to a lack of consultation with the Ermineskin Cree Nation, who entered into an Impact Benefit Agreement with Coalspur that provides economic, community, and social benefits to Ermineskin.

The judge stated that the only Indigenous groups consulted by the Minister were those requesting the designation order and that a duty to consult Ermineskin was breached.

Percy explained that remedying the identified failure in a court quashing is what also happened when the courts first quashed the TransMountain pipeline permits.

“When the Federal government properly completed consultation, and after another series of appeals, TMX could proceed with the project,” he said.

This means if Coalspur’s projects have been fully approved by the AER and has obtained all the necessary permits, Coalspur can proceed with the mine, subject to its financial ability to do so under the Companies’ Creditors Arrangement Act (CCAA) protection proceedings. The company recently filed for creditor protection in April and was granted an extension of the protection in early May. This extension ran out on July 23, 2021. No new updates have been released on the company’s status in that process.

The projects in this case include the Phase I Vista Test Underground Mine and Vista Mine Phase II Expansion Projects. The minister of Environment and climate change, Jonathan Wilkinson, said they are determining the implications of the quashing and identifying the next move.

He stated that the federal government is committed to working with Indigenous peoples in a meaningful way that advances reconciliation, respects Indigenous rights and culture, and protects and ensures consideration of Indigenous knowledge.

“That’s why we delivered on our promise to put in place better rules for major projects that support reconciliation, while restoring public trust, protecting the environment and ensuring good projects get built,” stated Wilkinson.

Despite that statement, the judge in this case stated that the duty to consult regarding the loss of the agreement between Ermineskin and Coalspur “also results in value to the Crown in terms of its stated goals in relation to reconciliation.”

Wilkinson went on to state that the continued mining and use of thermal coal for energy production in Canada and around the world runs counter to what is needed to effectively combat climate change.

A policy statement was released by his office on thermal coal mining in June, noting that new thermal coal mines or expansions are likely to cause unacceptable environmental effects, and will inform how these projects will be assessed.

“Going forward, I will continue to consider this policy in deciding whether to designate thermal coal projects under the federal Impact Assessment Act,” Wilkinson said.

Masha Scheele, Local Journalism Initiative Reporter, The Hinton Voice