According to an information letter distributed from Alberta Energy last May, all that functionally remained of the 1976 policy “before rescission was the land use classification system comprising four coal categories. Other mechanisms, such as provisions pertaining to royalties, labor requirements, environmental protection, and Crown equity participation, were superseded or not enforced.”
The letter went on to state that the province “no longer required” the coal categories “to effectively manage Crown coal leases, or the location of exploration and development activities, because of decades of improved policy, planning, and regulatory processes.”
The rescission effectively removed “all restrictions on issuing coal leases within the former coal categories 2 and 3”.
The old policy restricted mining in category 2 lands to underground mining because “infrastructure facilities are generally absent or considered inadequate to support mining operations” and they contained “local areas of high environmental sensitivity”, but such “in-situ” mines had to be “environmentally acceptable”.
Category 3 lands had similar restrictions but were generally less environmentally sensitive as category 2 lands were. These lands include the eastern portion of the Eastern Slopes Region, as well as class 1 and 2 agriculture lands. Approval for mining under the 1976 policy for category 3 lands required assurances “that such lands will be reclaimed to a level of productivity equal to or greater than that which existed prior to mining.”
About 6 months after the rescission, the government opened up 12 coal leases of just under 2,000 hectares combined, within what was formerly category 2 and 3 lands, the largest public offering on coal leases since 2014. 11 of those leases received bids.
Within weeks of the offering and subsequent acceptance of the bids, the provincial government started receiving significant pushback from the public.
Ranchers with grazing leases in the areas of these coal leases filed court challenges, saying that the province didn’t consult enough. As did Ermineskin Cree Nation, Whitefish Lake First Nation, and Kainai Nation. One rancher’s court challenge managed to attract 9 groups as intervenors. As recently as last week, at least 8 communities, including Lethbridge, had expressed concerns with the recent changes, requesting pausing on the leases and improved consultations. Celebrities also came on board the opposition train, included Corb Lund, Paul Brandt, Jann Arden, k.d. lang, and Amber Marshall. And last May, Marlene Poitras, Alberta regional chief for the Assembly of First Nations, claimed that there was no consultation on the rescission, despite virtually the entire province being treaty territory.
Eventually, the pressure mounted enough that the government backed down on the rescission this past Monday.
According to the reinstatement announcement, bringing back the policy will include “reinstating the four coal categories, which dictated where and how coal leasing, exploration and development could occur.”
In addition, Sonya Savage, Alberta’s energy minister reported that she has issued 2 directives to the Alberta Energy Regulator to implement the following 3 initiatives:
- Permit no mountaintop removal ever in Alberta
- Apply all restrictions under the 1976 coal categories, including those on surface mining in Category 2 lands
- Prohibit all future coal exploration approvals on Category 2 lands pending widespread consultations on a “new, modern coal policy”
Now, keep in mind that reinstating the 1976 coal policy won’t stop coal mining in Alberta. After all, the policy hadn’t stopped coal mining over the last nearly 45 years. In fact, the provincial government had held nearly 200 public offerings of crown coal rights since 2006 alone, all allowed under the 1976 coal policy. And as of last February, there were over 1,000 coal leases and over 500 coal lease applications in the entire province.
In the words of the energy minister:
That means that the 1976 coal policy did not preclude coal lease exploration, and it also means that putting it back won’t necessarily end exploration. Further, reinstating this policy does not affect current coal exploration and mining on any other categories of land.
In an information letter issued from the deputy minister of Alberta Energy earlier this week, the AER, regarding the coal policy, will:
- Consider the coal categories and the associated requirements set out in the Coal Policy
- Consider input received during any required engagement completed by the applicant in respect of the application
- Confirm that the applicant for exploration for, or development of, coal has met the requirements under all applicable energy resource enactments and specified enactments and related policies under those enactments
- Confirm that the proposed exploration or development accords with all applicable land use policies
- Confirm that any proposed exploration for, or development of, coal on Category 2 lands does not involve mountain top removal
- For applications for approvals for exploration for coal on Category 2 lands, confirm that the applicant has given broad public notice of the proposed exploration for coal to which the application relates
- Consider whether, in the opinion of the Regulator, broader public notice of the application is required under applicable enactments.
Clearly, both exploration for and extraction of coal will still be permitted with the reinstatement. Except now, when the AER decides on exploration and extraction, they must “consider” the coal categories, enhance public engagement, and make sure any approvals consider all restrictions—at least for category 2 lands.
Remember that “consider” isn’t synonymous with “required”. It means something like “think about”.
On that point, this week’s announcement explicitly stated that there are 6 active coal projects in the exploration stage on category 2 lands, 2 of which were approved after the rescission and 4 of which were approved under the 1976 policy. Savage, in her presser, claimed that the exploration stage includes drilling for core samples and potentially building new roads.
Finally, she was clear that coal mining is still something the government intends to pursue:
Alberta has a rich history of responsible coal mining. It’s been an important part of the province and important to its citizens for decades, with many Albertans continuing to rely on the industry to put food on their families’ tables. Metallurgical coal projects—if approved through vigorous regulatory processes—can help Alberta businesses meet increasing global demand for steel and provide good paying jobs for hard-working Albertans, and given today’s economic climate, that’s not something that can be taken lightly.
That being said, the announcement claimed that all coals lease sales have been indefinitely paused, which was reported in a government announcement last month. That same announcement claimed that the 11 leases granted in the December 2020 auction will be cancelled.
Interestingly, Montem Resources, one of the mining companies who was awarded some of the December 2020 leases—nearly all of them, actually—said they won’t be affected by the reinstatement of the 1976 policy. They report that their two planned key mines—planned Chinook and Tent Mountain—are on category 4 mine land, the least restrictive of the 4 categories. They claim they have no projects in category 2 lands; the 10 leases they won in December are in category 2 and 3 lands.
According to an affidavit filed last year from Michael Moroskat, Alberta Energy’s director of coal and mineral development, Savage was presented with 3 options regarding the coal policy:
- Immediately rescind the policy
- Rescind the policy but reserve coal rights in category 1 lands until overlapping regional plans are complete
- Rescind coal categories concurrently with the completion of the regional plans. Rescission would occur after the plans are in effect.
Savage chose the first option.
Under the rationale for the first option, Moroskat mentioned that rescission of the coal policy “is something the industry has been advocating for years.”
He also highlighted that rescinding the policy could create policy gaps since several integrated resource plans within the Eastern Slopes relied on the coal categories to establish baseline conditions. And since the coal categories would no longer exist, those policies could be at risk.
Finally, Moroskat indicated that rescinding the policy would “draw criticism from environmental groups and other user groups active within Alberta’s Eastern slopes, particularly if the decision is made without prior public consultation.”
And, well, here we are.
Watch Savage’s full presser here:
You can read more about the 1976 policy, the rescission, and the reinstatement here.
Check out this article from the University of Calgary Faculty of Law blog regarding the legal implications of reinstating the 1976 coal policy.
Here’s a map of the coal category lands:
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