Category: Environmental Page 11 of 53

Coal Law and Policy in Alberta, Part Three: Was the Public Rationale for Rescinding the Coal Policy Ever Convincing?

Matter Commented On: Information Letter 2020-23, “Rescission of A Coal Development Policy for Alberta and new leasing rules for Crown coal leases” (15 May 2020)

While Minister Savage announced the temporary reinstatement of the 1976 Coal Development Policy (CDP) on February 8, 2021, it still seems worth examining the public justification offered by the Government of Alberta for rescinding the CDP. The principal justification advanced was that the CDP was obsolete in light of developments in law and regulation. One version of this justification was posted on the coal policy guidelines page of the Department of Energy’s web page. The text is no longer available online, but it read as follows:

The Coal Policy was originally published in 1976, before modern regulatory processes existed. The scope of the policy was wide-ranging and included, among other items, a land use classification system…. When these categories were created, land use planning hadn’t yet been completed, supporting infrastructure was lacking and there were environmental concerns that the existing regulatory processes weren’t equipped to address.

With the various regulatory, policy and planning advancements over the past 45 years, the Coal Policy became obsolete.

…

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.

The original intention of the Coal Policy was to ensure that there were appropriate regulatory and environmental protection measures in place before new coal projects were authorized—this objective is being met by today’s modern regulatory, land use planning and leasing systems.

Coal Law and Policy in Alberta, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime

By Nigel Bankes

On February 11, 2021

In Energy, Environmental

By: Nigel Bankes

PDF Version: Coal Law and Policy in Alberta, Part Two: The Rules for Acquiring Coal Rights and the Royalty Regime

Matters Commented On: Mines and Minerals Act, RSA 2000, c M-17; Coal Royalty Regulation, Alta Reg 295/1992

Minister of Energy Sonya Savage’s announcement on February 8, 2021 that the province would reinstate the 1976 Coal Development Policy (CDP) caused us to change the planned roll-out of this series on coal law and policy, and to add some analysis of that decision in the post “What Are the Implications of Reinstating the 1976 Coal Development Policy?”

With that out of the way, it still seems useful to return to the original plan in the interests of contributing to the ongoing debate on the future of coal on Alberta’s landscape and economy. To that end, this post examines the rules for acquiring coal rights and the royalty regime for coal in Alberta. In other words, it deals with questions of ownership or property. A later post will deal with questions relating to the regulation of coal exploration and development. It bears emphasizing at the outset that while a lease gives the lessee the property right to exploit the coal, the lessee still needs regulatory approvals from the Alberta Energy Regulator before it can engage in any exploration activities on the land. We see the same parallel structure in the oil and gas sector. A petroleum and natural gas lease, whether acquired from the Crown (Department of Energy) or a private owner, grants the property right to exploit the oil or gas but the lessee still requires a licence from the AER in order to be able to drill a well (see Oil and Gas Conservation Act, RSA 2000, c O-6, s 11). Hence it is important to keep separate questions of property and questions of regulation. The focus of this post is on question of property.

The Court of Appeal Rebukes the Environmental Appeal Board and the Director for an Erroneously Narrow Interpretation, and Unreasonable Application, of the phrase “Directly Affected” in the Environmental Protection and Enhancement Act

By Kirk Lambrecht, Q.C.

On January 11, 2021

In Environmental

By: Kirk Lambrecht Q.C.

PDF Version: The Court of Appeal Rebukes the Environmental Appeal Board and the Director for an Erroneously Narrow Interpretation, and Unreasonable Application, of the phrase “Directly Affected” in the Environmental Protection and Enhancement Act

Decision Commented On: Normtek Radiation Services Ltd v Alberta Environmental Appeal Board, 2020 ABCA 456 (CanLII), reversing Normtek Radiation Services Ltd v Alberta (Environmental Appeals Board), 2018 ABQB 911 (CanLII), which upheld Normtek Radiation Services Ltd. v Director, Red Deer-North Saskatchewan Region, Alberta Environment and Parks, re: Secure Energy Services Inc. (2 March 2018), Appeal No. 16-024-D (AEAB)

This brief case comment offers a proposition on the cause of a yawning gap between (i) purposes defined in section 2 of the Environmental Protection and Enhancement Act (EPEA); and (ii) practices of the Environmental Appeal Board (EAB) and the Directors under EPEA.

The proposition advanced here is that the phrase “directly affected” in EPEA has been, for decades, interpreted and applied by the EAB and Directors under EPEA in such a way as to avoid Ministerial oversight of Directors’ decisions regarding the environment. In Normtek, the Court of Appeal attempted to correct these practices. In the result, the Court remitted the matter of Normtek’s standing to appeal to the EAB back to the EAB for reconsideration in accordance with the reasons of the Court.

Water for Coal Developments: Where Will It Come From?

By Nigel Bankes

On December 4, 2020

In Energy, Environmental, Protection of Species

By: Nigel Bankes and Cheryl Bradley

PDF Version: Water for Coal Developments: Where Will It Come From?

Matters Commented On: A Coal Development Policy for Alberta (1976, rescinded June 1, 2020); Oldman River Basin Water Allocation Order, Alta Reg 319/2003

The Government of Alberta (GoA) is hell-bent on facilitating the development of new coal mines in the Province. To that end, it purported to rescind the long-standing Coal Development Policy (CDP) of 1976 effective June 1, 2020. The CDP prevented development of coal resources in Category I lands on the eastern slopes of the Rockies and only permitted the development of new underground mines (rather than open-pit mines) in Category II lands (see Figure 1, below, also available here).

Bill C-12, Canadian Net-Zero Emissions Accountability Act: A Preliminary Review

By David V Wright

On November 23, 2020

In Climate Change, Environmental

By: David V. Wright

PDF Version: Bill C-12, Canadian Net-Zero Emissions Accountability Act: A Preliminary Review

Matter Commented On: Bill C-12, Canadian Net-Zero Emissions Accountability Act, 2nd Sess, 43rd Parl, 2020 (first reading 19 November 2020)

Just a few days ago, the federal government tabled Bill C-12, Canadian Net-Zero Emissions Accountability Act. This post provides a brief overview and preliminary reflections on the proposed law. Overall, the bill represents a significant milestone in Canadian climate policy, a realm that has been plagued by decades of setting-then-missing emission reduction targets. No previous federal government has so explicitly committed to a long-term emissions reduction pathway and milestones, let alone one with numerous accountability and transparency mechanisms. However, for reasons I discuss below, despite being characterized by the government as “binding”, the proposed law features a number of weaknesses and limitations. Further, while tabling this bill is a commendable step (especially if it becomes law), and is the result of many years of hard work and input from environmental organizations, it leaves difficult, long-standing conversations unaddressed.