The province urged the Alberta Court of Queen’s Bench on Tuesday to dismiss an application for a judicial review of the UCP government’s decision to allow open-pit coal mining on the eastern slopes of the Rocky Mountains.
“There’s no getting around the fact that the decision to rescind the coal policy may be seen as an unpopular one to some Albertans,” said Melissa Burkett, a lawyer for the government.
“However, an unpopular decision is not an unlawful decision,” she told the virtual court hearing via video conferencing.
Burkett says the courts are not the venue to resolve the issue, arguing such a policy change is within the mandate of elected officials.
“This case is a classic example of what happens when courts are turned into political arenas,” she said.
“The rescission of the coal policy was driven by economic, social, political factors. It was a core, high level policy decision, and it’s immune from this court review,” she said.
Landowners, environmental groups, municipalities and First Nations are hoping the court will force the government to revisit its decision to rescind the province’s long-standing coal policy that was brought in under former premier Peter Lougheed in 1976.
They’re trying to persuade Justice Richard Neufeld to order a judicial review of the decision to rescind the policy that had protected the eastern slopes of the Rockies — and the headwaters that flow from them — for almost 45 years.
However, during the two-day hearing that started Tuesday morning, Burkett says the policy is redundant and outdated since the province has since implemented a robust, regulatory framework that would review exploration and mining applications through Alberta’s energy regulator.
“The coal policy really is obsolete because there’s a framework in place now that was not there in 1976.”
Not obsolete, says ranchers’ lawyer
Richard Harrison, the lawyer for two ranchers who are seeking the judicial review, argued the nearly half-century old policy is not obsolete. He told the hearing that it’s been used as a means to protect the area from coal development for decades.
“The coal policy was a document that was consistently enforced by the respondents [the Alberta government] over the course of 44 years,” Harrison said.
He said it was used as a mechanism to prevent the exploration and development of coal extraction in certain land classifications in southwestern Alberta.
“It was used right up until the time that the coal policy was rescinded by the respondents in March of 2020.”
Harrison says a proposed open-pit coal mine near his clients’ property will have a profound effect.
Mac Blades is one of the ranchers seeking the judicial review. Harrison says Blades owns land and holds grazing rights for his cattle near an area being explored by Australian-based Atrum Coal.
Harrison said a conveyor belt that would be a part of the proposed open pit coal mine would be located near the confluence of the Oldman and Livingstone rivers, a source of water that Blades is licensed to use for his cattle.
“The impact of a proposed coal project on my client’s ability to earn an income is profound,” he said.
“It will affect every single aspect of his pecuniary interest on his grazing lease.”
“And it will affect every single aspect of both my clients’ ability to earn an income on those grazing leases,” he said.
Harrison is expected to conclude his submission to the court Wednesday morning, followed by a response from the Alberta government.
Earlier, several groups who plan to seek intervenor status in the request for a judicial review agreed to consolidate, to reduce duplication of their arguments and potentially speed up the hearing process.
Justice Neufeld still has to hear arguments from those hoping to join the application.
A number of groups were represented during the hearing, including the M.D. of Ranchland, the Alberta Wilderness Association, the Alberta Hiking Association, the Canadian Parks and Wilderness Society, the Livingstone Landowners Group and the Alberta chapter of Backcountry Hikers and Anglers.
A lawyer representing Cabin Ridge Project Ltd., an Alberta-based coal company, also attended via video link.
A request to adjourn the hearing by a lawyer representing the Ermineskin, Kainai, Siksika and Whitefish First Nations was dismissed.
Landowners and First Nations behind the legal challenge are expected to argue the government was in breach of their constitutional rights because it had a “duty to consult” them before the policy change was made.
If the province’s application for a dismissal fails, the actual judicial review would go ahead at some point in the future.