Potential Implications of Alberta’s Rescission of the Coal Policy

On June 1, 2020 the provincial government rescinded a decades-old policy that placed restrictions on the mining of coal in Alberta’s Eastern Slopes.
A Coal Development Policy for Alberta was issued in 1976 and was widely known as the “Coal Policy”. The Coal Policy covered many aspects of the coal development process, from the acquisition of exploration rights and coal leases to royalties, prices and marketing. However, the Coal Policy was best known for dividing a large area of the Eastern Slopes of the Rocky Mountains (where there are substantial coal deposits) into four different land use categories (“Coal Categories”) where coal development was prohibited (Category 1), restricted (Category 2) or generally encouraged (Categories 3 and 4).

In a media release announcing the rescission of the Coal Policy, Alberta Energy stated that with various regulatory, policy and planning advances over the past 45 years, the Coal Policy “became obsolete”. The announcement also stated:
Former category 1 lands will continue to be protected from coal leasing, exploration and development on public lands but will not infringe on private lands or freehold mineral rights. This will support critical watersheds, biodiversity (including numerous species at risk), as well as recreation and tourism activities along the eastern slopes of Alberta’s Rocky Mountains. Leasing outside of these areas will be subject to the same land use planning and management rules that apply to all other resources and industrial uses.
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.

To understand what the rescission of the Coal Policy means, and in particular the elimination of the Coal Categories, it is critical to know how the Coal Policy defined the categories, in particular Categories 1 and 2. Category 1 lands were defined as those:

in which no exploration or commercial development will be permitted. This category includes National Parks, present or proposed Provincial Parks, Wilderness Areas, Natural Areas, Restricted Development Study Areas, Watershed Research Study Basins, Designated Recreation Areas, Designated Heritage Sites, Wildlife Sanctuaries, settled urban areas and major lakes and rivers. These are areas for which it has been determined that alternate land uses have a higher priority than coal activity. Category 1 also includes most areas associated with high environmental sensitivity; these are areas for which reclamation of disturbed lands cannot be assured with existing technology and in which the watershed must be protected.

Category 2 lands were defined as those:

in which limited exploration is desirable and may be permitted under strict control but in which commercial development by surface mining will not normally be considered at the present time. This category contains lands in the Rocky Mountains and Foothills for which the preferred land or resource use remains to be determined, or areas where infrastructure facilities are generally absent or considered inadequate to support major mining operations. In addition this category contains local areas of high environmental sensitivity in which neither exploration or development activities will be permitted. Underground mining or in-situ operations may be permitted in areas within this category where the surface effects of the operation are deemed to be environmentally acceptable.

The map from the Coal Policy showing the location of the various categories of land can be found here. Category 1 lands are yellow; Category 2 lands are blue.

As part of the rescission of the Coal Policy, Alberta Energy issued Information Letter 2020-23, which states:
With the rescission of the Coal Policy, all restrictions on issuing coal leases within the former coal categories 2 and 3 have been removed. Alberta will continue to restrict coal leasing, exploration and development within public lands formerly designated as coal category 1. This prohibition on coal activities is being continued to maintain watershed, biodiversity, recreation and tourism values along the Eastern Slopes of Alberta’s Rocky Mountains.

Having regard for how the Coal Policy defined Category 2 lands, and the map showing their location, it is clear that in fact a substantial amount of land in the Eastern Slopes that was formerly restricted from coal development has been now been opened to development. Under the Coal Policy, “limited exploration” was permitted in Category 2 lands but “commercial development by surface mining” was effectively prohibited. This prohibition has been removed.

One of the reasons stated for the rescission of the Coal Policy is that when the Coal Categories were created in 1976 “land use planning hadn’t yet been completed”; and that the categories are no longer needed given “today’s modern regulatory, land use planning and leasing systems.”

Alberta enacted the Alberta Land Stewardship Act (“ALSA”) in 2009 to “provide a means to plan for the future” and to “provide for the co-ordination of decisions by decision-makers concerning land, species, human settlement, natural resources and the environment”. Under ALSA, the province was divided into 7 areas for which a regional plan was to be created. To date, only 2 regional plans have been completed: the Lower Athabasca Regional Plan and the South Saskatchewan Regional Plan (“SSRP”).

The SSRP covers a portion of the southern Eastern Slopes that was also covered by the Coal Policy. However, a large portion of the Eastern Slopes north of the headwaters of the Oldman and Livingstone Rivers fall outside the SSRP and are not subject to any other regional plan. Thus, it seems fair to say that land use planning for the Eastern Slopes is still not completed. Further, with the rescission of the Coal Policy and the elimination of the Coal Categories, there is no land use plan in place for these lands.

The SSRP was adopted in 2014 and last amended in 2018. It is intended to guide development in the South Saskatchewan River basin until 2024. The SSRP addresses potential coal development and specifically states that the government will review the coal categories established by the Coal Policy:

to confirm whether these land classifications specific to coal exploration and development should remain in place or be adjusted. The review of the coal categories will only be for the South Saskatchewan planning region. The intent is for the SSRP and implementation strategies of the regional plan or future associated subregional or issue-specific plans within the region to supersede the coal categories for the purposes of land use decisions about where coal exploration and development can and cannot occur in the planning region.

This suggests that the SSRP contemplated the Coal Categories being replaced or superseded by new “adjusted” land use classifications developed under the SSRP that would guide decision-makers about where coal exploration and development can occur. What has happened instead is the Coal Categories have been eliminated but not replaced with anything new. Further, the intent of the government’s new policy appears to remove the categorization of lands for coal development. Instead, development will be reviewed by the Alberta Energy Regulator on a project-by-project basis, without the benefit of the guidance that would be provided by adjusted land use classifications under SSRP.

 It appears that the Coal Policy was rescinded to spur coal exploration and development in Alberta. The foregoing analysis suggests, however, that the elimination of the Coal Categories without them being replaced by a new planning regime may have unintended consequences.

First, as noted above, it raises the issue of the need to revise the SSRP. This could lead to legal challenges. Second, the environmental assessment process for major resource extraction projects like surface coal mines is already slow and cumbersome. Removing any guidance as to where coal development is appropriate arguably will burden the existing environmental assessment process even more by opening it up to debates about the appropriateness of coal development in a specific location.