Even with exploration halted, the coal committee’s consultation would be “utterly ineffective,” claimed Rachel Notley, because its “terms of reference explicitly exclude from consideration” matters “at the heart of the call to limit coal mining,” namely, “water quality, water quantity, and land-use planning.” Notley’s view echoed that of Ian Urquhart, Conservation Director of the Alberta Wilderness Association, who had called the Terms of Reference (ToR) a “betrayal of public trust” because of their narrow scope. The coal review was “just one more betrayal” by the Kenney government, agreed Andrew Nikiforuk, because “the review won’t include anything that matters like water and land use.” University-of-Calgary law professor Nigel Bankes similarly maintained that the committee’s ToR did not allow it “to consider the consequences of coal development for water allocations and water quality” and made “it difficult to examine issues related to landscape-level planning and cumulative impacts.”

Critics also read the ToR as precluding discussion of the complete ban on any new eastern-slopes coal mining wanted by so many Albertans (including me). The consultation “looks weighted towards an assessment of where and how coal can be developed in Alberta rather than whether or not continuing coal exploration and development is a permissible use of the landscape,” it was argued, meaning that the coal committee would conduct no more than a “pick your poison consultation.”

In email correspondence at the time, I agreed that if these shocking accounts were true, the coal committee’s ToR would completely contradict the Alberta Land Stewardship Act (ALSA) and the South Saskatchewan Land Use Plan. But once I had read the ToR, I concluded that they were not nearly as narrow as had been claimed.

The ToR were certainly narrow in one key respect. They did indeed, as the critics rightly noted, limit the consultation to “matters under the … administration” of the Minister of Energy.” But they didn’t mandate a “pick your poison” consultation focused only on how (not whether) to conduct eastern-slopes mining. Nor did they foreclose consideration of mining’s impact on water and other environmental concerns. Moreover, they actually invited a degree of landuse or landscape-level planning.

Let’s start with landuse planning. The Terms of Reference explicitly position the consultation against the background of the “reinstated the 1976 coal policy” including “the four coal categories, which indicate where and how coal leasing, exploration and development can occur.” They ask the coal committee to probe “Albertans’ understanding of [this] Coal Policy” and to consider “what, if any, parts of [it] should be changed or removed” or “clarified.” This put landuse planning squarely on the table, I argued in an April 17 email, because the Lougheed policy was a landuse plan — what Nigel Bankes rightly called “a sector-specific landuse policy” (video at 29:00) — and that’s what a revision of it would be. True, it would not be the kind of comprehensive plan envisaged by the ALSA — it would not, for example, address backcountry use of ATV/quads, or forestry, or creation of new parks — but it would be a landuse plan with respect to coal.

Moreover, if the committee’s landuse considerations extended only to the “pick your poison” question of how to mine coal on the eastern slopes, why did the ToR explicitly ask the committee to address the following question?

“Should surface mining ever be considered in Category 2 lands” (emphasis added).

Clearly, the committee could recommend the kind of ban on eastern-slopes coal mining that so many of us hoped to see.

But what were the odds of the committee reaching that conclusion if it couldn’t consider the negative impact of coal mining on water supply and quality because such considerations fell outside the administration of the Minister of Energy. If that were true, I wondered, would a consultation led by the Environment Minister — whose jurisdiction over water was more obvious and complete — similarly have to avoid such energy-ministry matters as coal mining?

Silly question! Government ministries aren’t such watertight compartments, and it is quite certain that an environment-ministry consultation could and would address coal as it relates to water policy. If so, why couldn’t an admittedly narrower energy-ministry consultation address water as it relates to coal policy? As I put it in the previously mentioned April 17 email, “nothing in the terms of reference prevent the panel from considering environmental issues like water — as they relate to coal policy, and the land categories that are part of coal policy.“

On April 23, in the same presser that announced a halt to exploration, Minister Savage and committee chair Ron Wallace declared that water and other environmental issues would indeed be considered by the committee with respect to coal but not more broadly. Both Savage and Wallace also raised and legitimized the prospect of the committee recommending against eastern-slopes mining.

Predictably, the April 23 presser was interpreted by some as throwing “the original terms of reference … out the window” and substituting an entirely new understanding of the consultation process (presser at 22:17). Yet my reading of the ToR arrived at the Savage/Wallace position about a week before their April-23 presser confirmed it.

In his April-23 comments, Ron Wallace spoke with some passion about the “sensational soundbites” dominating media coverage of his committee’s ToR. “Albertans deserve better,” he said. They needed to understand that legislation and agencies within the Energy Minister’s jurisdiction mandated consideration environmental issues as they related to coal policy. No need to jettison the “original terms of reference,” in other words; one just had to stop distorting them.

On May 3, University-of-Calgary Law Professor Arlene Kwasniak provided a detailed confirmation of Wallace’s view. The ToR’s non-exclusive list of “matters under the [Energy] Minister’s administration,” she noted, included the Responsible Energy Development Act (REDA), which establishes the Alberta Energy Regulator (AER). “In respect of energy resource activities,” and to ensure their “safe, orderly and environmentally responsible development,” the AER regulates

(i) the disposition and management of public lands,

(ii) the protection of the environment, and

(iii) the conservation and management of water, including the wise allocation and use of water,

Land management, environmental protection, water allocation and conservation — all addressed by an agency clearly falling under the Energy Minister’s administration, just as Wallace had claimed.

Moreover, added Kwasniak, “when an energy resource activity engages” environmental legislation falling within the Environment and Parks Ministry — e.g., the Water Act, the Environmental Protection and Enhancement Act (EPEA), or the Public Lands Act (PLA) — “the AER considers and decides applications, approvals, and other authorizations, instead of the statutory delegate that would decide such matters for non-energy resource activities.”

So, for example, if a coal development needs a water allocation under the Water Act, the AER considers and decides the matter instead of the EPEA Director assigned by Environment and Parks to consider and decide such matters for non-energy resource activities. Similarly, if a coal development needs an air emission or a water discharge authorization, the AER considers and decides the matter instead of the relevant EPEA Director.

Kwasniak also observed that another Act clearly under the Energy Minister’s administration — the Coal Conservation Act (CCA) — arguably grounds “limited land use planning and maybe even land categories such as those found in the 1976 Coal Policy.”

Kwasniak’s deeper legal analysis confirmed what had been apparent to me from the plain text of the ToR: that the coal committee could consider environmental issues (especially water) and make category-based landuse recommendations — as they relate to coal policy.

But is this still too narrow? Kwasniak thought so. She argued that the environmental issues posed by coal mining should be part of more comprehensive landuse planning under the Alberta Land Stewardship Act (ALSA), and hoped the ToR would be revised accordingly. Restricting the consultation to coal development was “putting the cart before the horse.” Perhaps, but it could also be seen as keeping an “eye on the ball.”

Which brings us to the question posed in the next post in this series: Cart Before the Horse or Eye on the Ball?