Open pit

Doing great work for notable clients has its benefits. Halifax lawyer Chip Sutherland is getting a special achievement award at next month’s Juno Awards for his behind-the-scenes work advancing Canada’s music industry.

— Dylan Gibbs

• The open pit coal mine with multiple lives

• Legal news by the numbers

• Canada’s Emergencies Act appeal

• The lawsuit against Quebec’s tuition hikes

ENERGY

Open-pit coal mining… the next big thing?

Northback Holdings (formerly Benga Mining) has been trying to put an open pit coal mine in the eastern slopes of the Rocky Mountains since 2015. Like an energy development equivalent of the Terminator, the project refuses to die.

A joint federal and provincial regulatory review nixed the project in 2021 because of adverse environmental impacts. The Alberta Court of Appeal refused to hear an appeal from that decision. And the Alberta government banned new coal mining activities in the eastern slopes.

But, to Corb Lund’s dismay, that’s not the end of the story. Two recent developments suggest the project has at least a sliver of hope to move forward.

How we got here: Canada and Alberta teamed up to review the project with a joint review panel. The panel said the proposed mine wasn’t in the public interest, which led to rejections from both the Alberta Energy Regulator (AER) and Canada’s Environment Minister.

To move forward, Northback needs to overcome the decisions from both levels of government. It has the support of two First Nations in the area — the Piikani Nation and the Stoney Nakoda Nations — which stand to benefit from the mine moving forward.

Mixed results in Alberta: Northback and the First Nations each tried to appeal the joint review panel’s decision to the Alberta Court of Appeal. The Court refused to hear the appeal because it lacked merit.

But last week, the AER agreed to accept a brand new set of applications for the project. What about Alberta’s coal development ban, you ask? Alberta Energy Minister Brian Jean said the project is exempt from the ban as an “advanced” project. According to Jean’s assessment (which the AER accepted), the AER needs to hear the new applications out even though regulators have already rejected the project.

Federal government dropped the ball: Northback and the First Nations also recently scored a victory on the federal front. According to the Federal Court, the federal government rejected the proposed mine in a way that was procedurally unfair to the First Nations.

• After the joint review panel produced its report about the project, the federal government promised to hold further consultations with the First Nations before making a final decision.

• According to the Court, the further consultations the government promised never happened. So, the Court set aside the federal decision rejecting the project and ordered the government to hold the consultations it promised back in 2021.

Where does that leave us? All of this is ostensibly bad news if you don’t like the idea of a new coal mine in the Rockies (and good news if you do). But Northback’s project still faces significant hurdles no matter how you slice it.

• Even though the AER let Northback’s new applications proceed, that doesn’t undo its 2021 rejection of the project. It’s difficult to see the regulator doing a complete 180. And that’s only relevant if the latest decision holds up — at least one advocacy group said it might challenge the AER’s decision to give Northback another kick at the can.

• The recent Federal Court ruling also didn’t unwind the prior regulatory process. The federal government doesn’t need to completely reconsider the project — it just needs to discuss the joint review panel’s conclusions with the First Nations. Chances are, the federal government will stick with its original decision after holding the further consultations.

Whether Northback wins or loses, though, you gotta respect the tenacity.

PRESENTED BY GATEWAY PUBLIC AFFAIRS

Navigating government doesn’t need to be hard

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A strategic partnership with Gateway Public Affairs ensures your clients deliver the right message to the right people — so they can focus on their business. 

Get in touch with Evan to learn how Gateway Public Affairs can complement your legal efforts.

Interested in the impacts of Alberta’s upcoming Budget? Evan is hosting a free webinar on March 1 (the morning after Alberta Budget 2024). His in-depth analysis will cover the meaning behind the numbers, the budget’s impacts on the province, and potential opportunities for major sectors like energy, tech, and non-profit.

BY THE NUMBERS

Taxing taxes, removing intimate images, and staying open for emergencies

$5B: The amount of sales tax the parliamentary budget officer expects the carbon tax to generate over the next seven years. Unlike revenue from the carbon tax itself, sales tax charged on top of the carbon tax doesn’t need to be returned to households or invested in climate programs.

3: The number of orders BC’s Civil Resolution Tribunal has already issued under the province’s intimate images protection legislation. In less than a month since the legislation took effect, the Tribunal received more than 20 take-down requests and offered counselling to 17 individuals.

24/7: The hours of operation temporarily imposed on a Quebec emergency room by the Quebec Court of Appeal.

• The Rivière-Rouge Hospital in the Laurentians planned to trim its emergency hours back due to staffing shortages, opening only from 8 a.m. to 8 p.m. That would have forced people reliant on the hospital to travel upwards of 60km to get to the next closest emergency room.

• The Superior Court refused to grant an injunction against the reduced hours, but the Court of Appeal said the lower court failed to properly balance the parties’ interests. Based on the evidence, any harm to the hospital from staying open over night was speculative. On the other hand, patients forced to travel long distances faced a real risk of harm. The full decision is available in French.

HEARSAY ROUNDUP

Canadiana

🗣️ McGill and Concordia are suing Quebec over recent tuition hikes that target out-of-province students attending English-language schools.

😷 The federal government filed its appeal against the Federal Court decision saying the government unlawfully used the Emergencies Act to break up convoy protests. Meanwhile, those affected by the Emergencies Act are suing the government. Freedom Convoy leader Chris Barber is the latest to file — he says the federal government violated his rights by using the Emergencies Act to freeze his bank accounts.

🏈 The Toronto Argonauts and quarterback Chad Kelly are facing a lawsuit over alleged discrimination. The team’s former strength and conditioning coach says she faced unwanted sexual advances by Kelly. She says she raised the issue with the team, but the team wrongfully dismissed her instead of taking action.

💰 The federal government reached a $59 million settlement with the Matsqui First Nation in BC. The government granted a right-of-way to the Vancouver Power Company over a corridor of land in 1908, which severed access to some of the First Nation’s reserve lands.

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