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Coalspur applies for judicial review

Masha Scheele

Coalspur Mine Operations LTD, the company that operates the Vista coal mine located just 10 kilometres east of Hinton, applied to the federal court for a judicial review of the Vista mine designation for a federal assessment.

Minister of Environment and Climate Change Canada, Jonathan Wilkinson, recently reversed his decision not to designate the Phase II expansion of the Vista mine.

“The Designation Order is an unlawful, incorrect, unreasonable and/or unconstitutional exercise of ministerial discretion and should be quashed or set aside,” stated the Notice of Application from Coalspur.

Among other issues, the notice put into question why the two proposed Vista mine projects were combined to make the decision to designate the mine, why the minister departed from his previous decision, and why he strayed from the Impact Assessment Agency’s recommendation.

Under the federal Impact Assessment Act, Minister Wilkinson has the discretionary authority to designate projects to require a federal assessment even if they don’t meet the legislatively prescribed thresholds. Those thresholds include increasing the area of the mining operations by more than 50 per cent.

The Impact Assessment Agency and the Minister agreed in December 2019 that the proposed Phase II expansion of the Vista mine does not meet the 50 per cent threshold and that a discretionary designation order was not appropriate.

At the time, the minister stated that the potential risks to the environment and Indigenous rights would be dealt with appropriately by the provincial approval process.

With the addition of an underground mine project within Phase I, the minister said that the two Vista mine projects combined may result in adverse effects of greater magnitude than previously considered. However, the notice of application stated he did not explain how areas of federal jurisdiction would be impacted, why the projects are considered together, and how the underground mine project would cause Phase II to be a designated project.

The Impact Assessment Agency re-confirmed on July 30 that the combined proposed expansions did not meet the 50 per cent threshold.

Various Canadian environmental, Indigenous, health, civil society, and faith groups, were behind a letter sent out this spring that called out the Canadian government for hypocrisy following its failure to designate the expansion plans for an environmental assessment.

On July 30, Wilkinson designated the Vista Underground Test Mine Project and the Vista Coal Mine Phase II Expansion Project as reviewable under the federal impact assessment process.

“The Minister fettered his discretion by unlawfully proceeding on the basis that the requesters’ combination of the underground test mine and Phase II required that he consider both together for the purpose of the designation order,” stated that notice of application.

The document added that the minister failed to take into account relevant facts, including that the underground mine will not cause adverse effects of federal jurisdiction, and that the two projects are completely independent of each other.

It stated that the minister impaired the core of provincial legislative power over local works and undertakings, property and civil rights, and the development, management, and conservation of nonrenewable natural resources. 

“Injecting politics into a rule-driven process that had been until now guided by well-understood federal and provincial assessment regimes is wrong and a terrible disappointment to all of Vista’s employees and Indigenous partners. A halt to plans and operations is bad for Yellowhead County and unwarranted by the facts. Our mine provides well-paying jobs on-site and through the supply chain and can continue to make an important contribution to Canada’s economic recovery in the years ahead.  With double-digit unemployment, we urge government to carefully consider its action as livelihoods are at stake,” stated Vista Energy Resources in a press release.

The designation could delay the construction and expansion of this mine by six to nine years, stated an executive with the company that owns Coalspur Mine Ltd in a meeting with the Hinton Rotary last week.

Vista Coal Mine is an open-pit surface coal mine for the extraction and export of thermal coal. 

Phase I of the mine is designed to produce six to seven million tonnes of coal per year and employs more than 300 people. In 2018, Coalspur proposed to expand Phase I westward through Phase II, using existing infrastructure for transport, processing, and disposal.

Construction of Phase II is proposed to start in January 2022.

The underground mine was proposed in 2019, which would increase the production of coal by about 1,200 tonnes per day.

Construction was proposed to start in 2020.

Its owners have invested over $700M to date with the understanding that expansion would be reviewed under the Alberta environmental review process. Each project must be approved by the Alberta Energy Regulator (AER) to proceed.

No application has been filed for Phase II, while an application for the underground mine was filed in 2019 and resubmitted on Feb. 5, 2020.

The underground mine is located entirely within the current surface mining operation and would not require a provincial environmental impact assessment report.

The expansion would be supported by existing infrastructure of the mine.

Respondents listed on the notice of application included the Minister of Environment and Climate Change, the attorney general of Canada, Keepers of the Water Council, Keepers of the Athabasca Watershed Society, and the West Athabasca Watershed Bioregional Society.