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).