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Federal judge rules against Liberal banning of thermal coal mining in Alberta

Justice Henry Brown: Indigenous supporters of coal mining were “inexplicably frozen out of this very one-sided process.”

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Alex Anas Ahmed Calgary AB
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A Canadian federal judge quashed a cabinet order to block the expansion of an Alberta coal mine in the pursuit of climate action.

Environment Minister Jonathan Wilkinson failed in his duty to consult a First Nation that supported the mine as a job creator, the Federal Court ruled, citing no consultation efforts with Ermineskin Cree Nation. Wilkinson in a July 30, 2020 order halted the expansion of Coalspur Mines Ltd.’s Vista Mine near Hinton, Alberta that would produce a total of ten million tonnes of coal a year entirely on their territorial lands.

Justice Henry Brown wrote that Indigenous supporters of coal mining were “inexplicably frozen out of this very one-sided process,” reports Blacklocks, adding that the Minister failed to consult with or give notice to them. The Department of Environment only spoke with First Nations as opposed to the mine, he said: “I find as a fact Ermineskin was not given an opportunity to have any input.”

Lawyers representing the First Nation challenged the order as they had an agreement with the mine operator to reap the economic benefits and job creation. The cabinet order breached their Treaty rights to notice and consultation, lawyers argued.

“The duty to consult is grounded in the honour of the Crown,” wrote Brown, adding that cabinet took “an ungenerous approach to the duty to consult,” he said. “It seems to me we are beyond the stage where government officials, even Ministers, may deprecate agreements entered into by First Nations by describing them as ‘speculative.’”

“If the mining activity is not approved these valuable economic, community and social benefits will be lost to Ermineskin,” wrote Justice Brown. The Court quashed the 2020 order halting construction. “Losses have already been incurred,” said the ruling.

The Department of Environment did not comment, with doubt cast on their recent banning of new thermal coal mining operations in Canada as a climate threat. Wilkinson said he would not issue any federal permits for new mines or expanded operations. “New thermal coal mining projects or expansions are not in line with the ambition Canadians want to see on climate,” Wilkinson said.

The environment department in a policy statement Thermal Coal Mining said the “continued mining and use of coal for energy production anywhere in the world is not environmentally sustainable and does not align with the Government of Canada’s commitments.”

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