Category: Energy Page 19 of 55

Matter Commented On: Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264 (CanLII)

The extent to which Indigenous law is part of Canadian law along with the common law and civil law has become a major issue over the past two decades. Judges have been reluctantly wading into the matter, expressing somewhat inconsistent opinions. A recent example is in Coastal GasLink Pipeline Ltd. v Huson, 2019 BCSC 2264 (CanLII), involving an application by a pipeline company for an interlocutory injunction.

Members of the Wet’suwet’en Nation in British Columbia oppose construction through their territory of a natural gas pipeline that would terminate at Kitimat on the West Coast (Shiri Pasternak, “No, those who defend Wet’suwet’en territory are not criminals”, The Globe and Mail (12 February 2020)). They set up blockades on service roads to prevent the project from proceeding, leading to the injunction application, which Justice Marguerite Church of the BC Supreme Court granted.

Stakeholders Expected Consultation on the Coal Policy Rescission: Was There a Legal Duty?

By Aimee Huntington

On April 7, 2021

In Administrative Law, Energy, Environmental

By: Aimee Huntington, Niall Fink & Peter Shyba

PDF Version: Stakeholders Expected Consultation on the Coal Policy Rescission: Was There a Legal Duty?

Cases Commented On: Blades et al v Alberta; TransAlta Generation Partnership v Regina, 2021 ABQB 37 (CanLII)

This is the sixth ABlawg post on Alberta Energy’s decision to rescind the 1976 Coal Development Policy for Alberta (the “Coal Policy”) in May of 2020 (the “Rescission”). Much has happened since May. At the time of writing, Energy Minister Sonya Savage has temporarily reinstated the Coal Policy with a commitment to “engage with Albertans in the first half of 2021 about the long-term approach to coal development in Alberta.” A Coal Policy Committee has been established, although details on public consultation remain unclear. It is also unclear whether the reinstatement renders moot the case of Blades et al v Alberta, an application for judicial review by two cattle ranchers initiated in July of 2020 (the “Blades Application”). Finally, it is still unclear how the reinstatement will affect approvals for coal exploration granted between rescission and reinstatement (on this point, see Nigel Bankes’ previous post). What is clear is that the government’s duty to consult stakeholders on changes to the Coal Policy will remain contentious in the foreseeable future.

The Blades Application highlighted multiple potential sources of an obligation to consult stakeholders, including provisions in the Alberta Land Stewardship Act, SA 2009, c A-26.8 (ALSA), the common law, and constitutional claims raised by Indigenous intervenors. This post considers one particular source for this obligation: the legitimate expectations of stakeholders in the South Saskatchewan Region. We do so in light of the recent treatment of the doctrine of legitimate expectations in TransAlta Generation Partnership v Regina, 2021 ABQB 37 (CanLII).

Coal Law and Policy Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?

By Drew Yewchuk

On March 24, 2021

In Energy, Environmental

By: Drew Yewchuk

PDF Version: Coal Law and Policy Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?

Legislation Commented On: Impact Assessment Act, SC 2019, c 28, s 1; Species at Risk Act, SC 2002, c 29; Coal Mining Effluent Regulations (forthcoming)

This is another installment in the continuing ABlawg series on the law and policy framework for coal projects in Alberta. This installment focuses on three statutes or regulations by which the federal government exercises authority over possible coal mining in Alberta’s eastern slopes: the Impact Assessment Act, the Species at Risk Act, and the forthcoming Coal Mining Effluent Regulations (a regulation under the Fisheries Act).

It should be noted these three enactments are not exhaustive of federal powers that apply to coal mining. The federal government may be involved in other ways, including through the general protection for fish habitat under the Fisheries Act, limitation of greenhouse gas emissions from industrial projects, constitutional obligations to Indigenous peoples, or water allocation disputes between provinces.

Coal Law and Policy, Part Four: The Regulation of Coal Exploration

By Drew Yewchuk

On March 9, 2021

In Energy, Environmental

By: Drew Yewchuk & Nigel Bankes

PDF Version: Coal Law and Policy, Part Four: The Regulation of Coal Exploration

Matter Commented On: Information Letter 2021-07 “Coal Policy Reinstatement” (February 8, 2021) and attached Ministerial Order 054/2021

This is the fourth instalment in ABlawg’s series on coal law: for the background, see Part One: the Coal Policy and Its Legal Status, the special edition: What Are the Implications of Reinstating the 1976 Coal Development Policy?, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime, and Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?

This post covers the regulation of coal exploration programs. On February 8, 2021 the Minister of Energy ordered the Alberta Energy Regulator (AER) not to “issue any new approvals for coal on Category 2 Lands” using the Minister’s authority to issue directions to the AER under section 67 of the Responsible Energy Development Act, SA 2012, c R-17.3. This did not cancel ongoing coal exploration programs and hence the importance of considering at least some elements of the regulation of these activities.

Does the Water Licence for a Coal Mine Capture its Impact on the Water Resource? Examining Benga Mining Limited’s Proposed Grassy Mountain Mine in the Headwaters of the Oldman River Basin

By Chris Hopkinson

On March 8, 2021

In Energy, Environmental

By: Chris Hopkinson

PDF Version: Does the Water Licence for a Coal Mine Capture its Impact on the Water Resource? Examining Benga Mining Limited’s Proposed Grassy Mountain Mine in the Headwaters of the Oldman River Basin

Matters Commented On: Grassy Mountain Mine Project Water Diversion Licence Application by Benga Mining Limited (Riversdale Resources (16 October 2017)); Oldman River Basin Water Allocation Order, Alta Reg 319/2003

An earlier ABlawg post examined the general implications of proposals to re-open the Oldman River Basin Water Allocation Order, Alta Reg 319/2003 (WAO) so as to allow a greater proportion of the 11,000 acre-feet (AF) reserved by that Order to be used for industrial purposes, such as coal mining (see details on the proposals here). The Order as currently framed limits this to 150 AF. This post examines why this proposed change is such an important issue by considering in detail the water issues associated with one proposed mine in the upper Oldman Basin, namely the Grassy Mountain Mine proposed by Benga Mining Limited (BML). The post examines the Grassy Mountain Mine Project Water Diversion Licence (WDL) Application by BML (Riversdale Resources (16 October 2017)) to explore the viability of their proposed water use in the context of competing water demands and the WAO. The examination draws from materials shared and discussed as part of the Grassy Mountain Coal Project Joint Review Panel Public Hearing (Agreement to Establish a Joint Review Panel for the Grassy Mountain Coal Project Between The Minister of the Environment, Canada and The Alberta Energy Regulator, Alberta, OC 262/2018; documents available here). The analysis presented below first considers the disclosed WDL water uses associated with the Coal Processing Plant (CPP) and evaporative loss from the Raw Water Pond (RWP). It then moves to elements of water loss from the mine site that are either omitted from the WDL or expected to exceed the pre-mine background levels. Finally, potential implications of proposed water uses within the context of low frequency high impact drought periods are considered.

The overall conclusions are that BML’s water licence application likely understates its actual impact to the regional water resource, and that the overall hydrological effects of increased mining activity in the upper Oldman basin will reduce water availability for all users downstream, thus leading to an increased risk of water-related conflict during times of drought.

Category: Energy Page 19 of 55

Indigenous Law, the Common Law, and Pipelines

Stakeholders Expected Consultation on the Coal Policy Rescission: Was There a Legal Duty?

Coal Law and Policy Part Five: What is the Role of the Federal Government in Relation to Alberta Coal Mines?

Coal Law and Policy, Part Four: The Regulation of Coal Exploration

Does the Water Licence for a Coal Mine Capture its Impact on the Water Resource? Examining Benga Mining Limited’s Proposed Grassy Mountain Mine in the Headwaters of the Oldman River Basin