On June 1, 2020 the provincial government
rescinded a decades-old policy that placed restrictions on the mining of coal
in Alberta’s Eastern Slopes.
A Coal Development Policy for Alberta was issued in 1976 and was widely known as the “Coal Policy”. The Coal
Policy covered many aspects of the coal development process, from the
acquisition of exploration rights and coal leases to royalties, prices and
marketing. However, the Coal Policy was best known for dividing a large area of
the Eastern Slopes of the Rocky Mountains (where there are substantial coal
deposits) into four different land use categories (“Coal Categories”) where coal
development was prohibited (Category 1), restricted (Category 2) or generally
encouraged (Categories 3 and 4).
In a media release announcing the
rescission of the Coal Policy, Alberta Energy stated that with various
regulatory, policy and planning advances over the past 45 years, the Coal
Policy “became obsolete”. The announcement also stated:
Former
category 1 lands will continue to be protected from coal leasing, exploration
and development on public lands but will not infringe on private lands or
freehold mineral rights. This will support critical watersheds, biodiversity
(including numerous species at risk), as well as recreation and tourism
activities along the eastern slopes of Alberta’s Rocky Mountains. Leasing
outside of these areas will be subject to the same land use planning and
management rules that apply to all other resources and industrial uses.
All coal
development projects will continue to be considered through the existing
rigorous Alberta Energy Regulator review process. This review is based on each
project’s merits, including its economic, social and environmental impacts.
To understand what the rescission of the
Coal Policy means, and in particular the elimination of the Coal Categories, it
is critical to know how the Coal Policy defined the categories, in particular
Categories 1 and 2. Category 1 lands were defined as those:
in
which no exploration or commercial development will be permitted. This category includes National
Parks, present or proposed Provincial Parks, Wilderness Areas, Natural Areas,
Restricted Development Study Areas, Watershed Research Study Basins, Designated
Recreation Areas, Designated Heritage Sites, Wildlife Sanctuaries, settled
urban areas and major lakes and rivers. These are areas for which it has been
determined that alternate land uses have a higher priority than coal activity.
Category 1 also includes most areas associated with high environmental
sensitivity; these are areas for which reclamation of disturbed lands cannot be
assured with existing technology and in which the watershed must be protected.
Category
2 lands were defined as those:
in
which limited exploration is desirable and may be permitted under strict
control but in which commercial development by surface mining will not
normally be considered at the present time. This category contains lands in the
Rocky Mountains and Foothills for which the preferred land or resource use
remains to be determined, or areas where infrastructure facilities are
generally absent or considered inadequate to support major mining operations. In
addition this category contains local areas of high environmental sensitivity
in which neither exploration or development activities will be permitted. Underground
mining or in-situ operations may be permitted in areas within this category
where the surface effects of the operation are deemed to be environmentally
acceptable.
The map
from the Coal Policy showing the location of the various categories of land can
be found here. Category 1 lands are yellow; Category 2
lands are blue.
As part of the rescission of the Coal
Policy, Alberta Energy issued Information Letter 2020-23, which states:
With
the rescission of the Coal Policy, all restrictions on issuing coal leases
within the former coal categories 2 and 3 have been removed. Alberta will continue to
restrict coal leasing, exploration and development within public lands formerly
designated as coal category 1. This prohibition on coal activities is being
continued to maintain watershed, biodiversity, recreation and tourism values
along the Eastern Slopes of Alberta’s Rocky Mountains.
Having regard
for how the Coal Policy defined Category 2 lands, and the map showing their
location, it is clear that in fact a substantial amount of land in the Eastern
Slopes that was formerly restricted from coal development has been now been
opened to development. Under the Coal Policy, “limited exploration” was
permitted in Category 2 lands but “commercial development by surface mining”
was effectively prohibited. This prohibition has been removed.
One of the
reasons stated for the rescission of the Coal Policy is that when the Coal Categories
were created in 1976 “land use planning hadn’t yet been completed”; and that
the categories are no longer needed given “today’s modern regulatory, land use
planning and leasing systems.”
Alberta enacted
the Alberta Land Stewardship Act (“ALSA”) in 2009 to “provide a means to
plan for the future” and to “provide for the co-ordination of decisions by
decision-makers concerning land, species, human settlement, natural resources
and the environment”. Under ALSA, the province was divided into 7 areas for
which a regional plan was to be created. To date, only 2 regional plans have
been completed: the Lower Athabasca Regional Plan and the South Saskatchewan
Regional Plan (“SSRP”).
The SSRP covers
a portion of the southern Eastern Slopes that was also covered by the Coal
Policy. However, a large portion of the Eastern Slopes north of the headwaters
of the Oldman and Livingstone Rivers fall outside the SSRP and are not subject
to any other regional plan. Thus, it seems fair to say that land use planning
for the Eastern Slopes is still not completed. Further, with the rescission of
the Coal Policy and the elimination of the Coal Categories, there is no land
use plan in place for these lands.
The SSRP was
adopted in 2014 and last amended in 2018. It is intended to guide development
in the South Saskatchewan River basin until 2024. The SSRP addresses potential
coal development and specifically states that the government will review the
coal categories established by the Coal Policy:
to
confirm whether these land classifications specific to coal exploration and
development should remain in place or be adjusted. The review of the coal categories will only
be for the South Saskatchewan planning region. The intent is for the SSRP
and implementation strategies of the regional plan or future associated
subregional or issue-specific plans within the region to supersede the coal
categories for the purposes of land use decisions about where coal exploration
and development can and cannot occur in the planning region.
This suggests that the SSRP contemplated
the Coal Categories being replaced or superseded by new “adjusted” land use classifications
developed under the SSRP that would guide decision-makers about where coal
exploration and development can occur. What has happened instead is the Coal
Categories have been eliminated but not replaced with anything new. Further,
the intent of the government’s new policy appears to remove the categorization
of lands for coal development. Instead, development will be reviewed by the
Alberta Energy Regulator on a project-by-project basis, without the benefit of the
guidance that would be provided by adjusted land use classifications under
SSRP.
It
appears that the Coal Policy was rescinded to spur coal exploration and
development in Alberta. The foregoing analysis suggests, however, that the
elimination of the Coal Categories without them being replaced by a new
planning regime may have unintended consequences.
First, as noted above, it raises the
issue of the need to revise the SSRP. This could lead to legal challenges. Second,
the environmental assessment process for major resource extraction projects
like surface coal mines is already slow and cumbersome. Removing any guidance
as to where coal development is appropriate arguably will burden the existing
environmental assessment process even more by opening it up to debates about
the appropriateness of coal development in a specific location.