Alberta defends decision to allow for open-pit coal mining in Rocky Mountains

A lawyer representing the Alberta government urged the Court of Queen’s Bench on Tuesday to dismiss an application for a judicial review of the UCP government’s decision to allow open-pit coal mining on the eastern slopes of the Rocky Mountains in southwestern Alberta.  

“There’s no getting around the fact that the decision to rescind the coal policy may be seen as an unpopular one to some Albertans,” said Melissa Burkett.

“However, an unpopular decision is not an unlawful decision,” she told the virtual court hearing via video conferencing.

Burkett says the courts are not the venue to resolve the issue, arguing such a policy change is within the mandate of elected officials.

“This case is a classic example of what happens when courts are turned into political arenas,” she said.

“The rescission of the coal policy was driven by economic, social, political factors. It was a core, high level policy decision, and it’s immune from this court review,” she said.

Landowners, environmental groups, municipalities and First Nations are hoping the court will force the government to revisit its decision to rescind the province’s long-standing coal policy that was brought in under former premier Peter Lougheed in 1976.

They’re trying to persuade Justice Richard Neufeld to order a judicial review of the decision to rescind the policy that had protected the eastern slopes of the Rockies — and the headwaters that flow from them — for almost 45 years.

However, during the two-day hearing that started Tuesday morning, Burkett says the policy is redundant and outdated since the province has since implemented a robust, regulatory framework that would review exploration and mining applications through Alberta’s energy regulator.

“The coal policy really is obsolete because there’s a framework in place now that was not there in 1976.”

Earlier, several groups who plan to seek intervenor status in the request for a judicial review agreed to consolidate, to reduce duplication of their arguments and potentially speed up the hearing process. 

Justice Neufeld still has to hear arguments from those hoping to join application.

A number of groups were represented during the hearing, including the M.D. of Ranchland, the Alberta Wilderness Association, the Alberta Hiking Association, the Canadian Parks and Wilderness Society and the Livingstone Landowners Group.

A lawyer representing Cabin Ridge Project Ltd., an Alberta-based coal company, also attended via video link. 

A request to adjourn the hearing by a lawyer representing the Ermineskin, Kainai, Siksika and Whitefish First Nations was dismissed.

Landowners and First Nations behind the legal challenge are expected to argue the government was in breach of their constitutional rights because it had a “duty to consult” them before the policy change was made. 

If the province’s application for a dismissal fails, the actual judicial review would go ahead at some point in the future.

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