Court quashes Coalspur order

·5 min read

Two mining projects by Coalspur Mines (Bighorn Mining) have been relieved of the designation order issued by the Canadian minister of environment and climate change last summer.

Judge Brown of the federal court granted an application by the Ermineskin Cree Nation for a judicial review of Coalspur’s Designation Order on July 19, 2021, and effectively rendered the Coalspur application moot.

The ruling to the Ermineskin application stated that the designation order is thereby set aside and the matter is remanded for reconsideration. Coalspur’s Application deals mostly with reasonableness, and the judge wrote that no findings are made with respect to the facts or issues raised in that application but that it is decided on mootness alone.

Lawyers from Ermineskin and Coalspur did not respond to the Hinton Voice about what this means for the projects, and Coalspur itself did not respond about potential next steps by the company.

Ermineskin and Coalspur both sought judicial review of the designation of the proposed Vista Coal Mine Phase II Expansion Project and a proposed Underground Test Mine. Both applications requesting to quash the designation order were argued one after the other on May 19 and 20, 2021.

The Minister and the Impact Assessment Agency (IAA) of Canada received requests from the Louis Bull Tribe and Stoney Nakoda Nations, as well as Keepers of the Water Council, Keepers of the Athabasca Watershed Society, and The West Athabasca Watershed Bioregional Society, among others, to designate the Coalspur projects in the spring of 2020. Environment Minister Jonathan Wilkinson issued the designation order in July 2020.

The designation halted all work on the projects, until a determination that no impact assessment is required, certain conditions are met, or they are permitted subject to conditions.

Ermineskin’s application was granted because the judge determined the duty to consult with them was breached.

“The duty to consult was triggered in this case. The duty to consult was breached because Ermineskin was not given notice of or had the benefit of any consultation whatsoever. Therefore, this application for judicial review will be granted,” stated the judge’s conclusion.

All three mines are located entirely within Treaty 6 lands and are entirely within Ermineskin’s Traditional Territory.

Ermineskin entered into an Impact Benefit Agreement (IBA) in 2013 and 2019 with Coalspur that states Coalspur will provide valuable economic, community, and social benefits to Ermineskin. Ermineskin stated that the designation order would adversely impact Aboriginal and Treaty rights, including economic opportunities created by the agreement with Coalspur.

If those adverse impacts occur, the Minister is obligated to consult with Ermineskin prior to making the designation order, according to the judge’s reasoning.

“The only Indigenous groups consulted by the Minister were those requesting the Designation Order. In my respectful view, the Minister had a duty to consult Ermineskin, which he completely breached,” the judge wrote.

The judge stated that the 2019 IBA is designed to compensate Ermineskin for the loss of its Aboriginal and Treaty rights, including the taking up of some of its land.

Part of reconciliation includes consultation around economic rights and benefits, the judge said, and Ermineskin loses the benefits of their agreement with Coalspur due to the designation order.

“The honour of the Crown and the duty to consult encourages reconciliation by better ensuring Aboriginal rights are protected and accommodated,” the judge stated.

The delay of the projects will adversely affect Ermineskin, and already has, according to the judge.

The designation order in July 2020 had the immediate effect of prohibiting Coalspur from any work in connection with carrying out Phase II and the Underground Test Mine. With intended start dates in 2020 these projects have both been delayed already.

“I find that the social, economic and community benefits secured under 2019 IBA are threatened with potential adverse impact by the Designation Order. I also find that losses have already been incurred because the Designation Order was made over a year ago and has already delayed Phase II and the limited Underground Test Mine,” the judge stated.

To be designated, a project must either hit an area or volume of coal production threshold or be ordered by the Minister due to proven adverse effects.

The Impact Assessment Agency and the Minister agreed that the proposed Phase II expansion of the Vista mine alone did not warrant a designation of a federal assessment in December 2019.

In the summer of 2020, the minister said that with the addition of an underground mine project within Phase I, the combined projects may result in adverse effects of greater magnitude than previously considered.

However, the Impact Assessment Agency found that: “the incremental impacts of the Underground Test Mine would be negligible in comparison with those of Phase II given that there is almost no new land disturbance.”

The judge stated that the Impact Assessment Agency notified 31 indigenous communities in the 2019 decision not to designate Phase II, of which four responded and were considered.

In comparison, during the 2020 decision process only indigenous voices were heard that were in favour of the designation order.

“Not only was there no consultation at all, but I find Ermineskin was inexplicably frozen out of this very one-sided process. I say one-sided because for whatever reason the Agency and Minister, in relation to Aboriginal and Indigenous input, decided to hear only from Indigenous voices seeking the Designation Order,” the judge stated.

The office of Canada’s Environment and Climate Change Minister has not issued a public statement yet about the rulings, and questions submitted to the minister’s office were left unanswered prior to The Hinton Voice press deadline.

Masha Scheele, Local Journalism Initiative Reporter, The Hinton Voice

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