Vern vs. the miners

Vern Emard is 62 years old but his age doesnt show as he leads the way up a rickety plywood ramp.

His boots clomp as he steps onto the metal roof of what he calls his palapa a shelter thats not quite a complete house at a high point of land on his remote property north of Blairmore, in the southern Alberta Rockies.

From atop the roof, he gestures across the valley toward Grassy Mountain, its rocky peak protruding from an evergreen forest, dotted with yellow deciduous trees, into blue sky.

He enjoys showing this view to visitors but, personally, Emard prefers it a bit lower down, nestled among the trees along Gold Creek. Its this part of the property where he and his father first built a cabin after buying the land in 1993. His fathers ashes are scattered nearby. One day, he wants the same for himself.

He spends more time in the palapa lately, as pack rats have taken up residence in the cabin. He hopes the building can be salvaged but its not his top priority at the moment. Lately, hes had more pressing concerns.

Emard has been representing himself in court against a high-powered Calgary law firm (one that counts former premier Jason Kenney among its senior advisors) hired by a coal company largely owned by Gina Rinehart, the richest person in Australia.

Northback Holdings is the latest incarnation of a variety of corporate entities belonging to the same parent company, Hancock Prospecting, which has been trying for the past decade to mine Grassy Mountain for coal. Previous iterations were Riversdale Resources and Benga Mining. Emard simply refers to them as the miners.

The miners are coming to drive me off my mountain, he says.

Emard says the company has tried to bully him and other landowners into selling their properties, using Grassy Mountain Road the main access to his land as a sort of bargaining chip.

In documents filed in court, the company has argued it has made every reasonable effort to accommodate the requests of nearby residents when it comes to Grassy Mountain Road but Landowner Vern has been intransigent in his interactions and has made repeated attempts to frustrate Northback. During previous regulatory hearings, the company has also said it offered landowners a significant premium over what it believes is fair market value for their properties.

The legal dispute between a lawyerless landowner and a mining mega-corporation is one front in the larger conflict between those who would reopen the southern Alberta Rockies to coal mining and those looking to keep the industry a thing of the past in the region.

The battle was fought in earnest in 2020, when the Alberta government initially moved to open up the mountains to more mining. The move had its share of supporters, including the mayor of Crowsnest Pass and leaders from the Stoney Nakoda and Piikani First Nations, who believed coal mining would bring a much-needed economic boost to the region.

But the provincial government ultimately reversed course in the face of public opposition. A diverse coalition of coal-mining opponents including local landowners, environmentalists, the tourism industry, leaders of other municipalities, scientists and everyday Albertans counted consecutive victories when the Grassy Mountain project was rejected by regulators in 2021, followed by an order from Albertas energy minister in 2022 that no new applications for coal exploration be accepted.

Many thought that was the end of it. But, as it turns out, the heated battle may not be over.

Northbacks recent application for exploratory drilling on Grassy Mountain is rekindling the flames.

For decades, the Grassy Mountain Road was peaceably shared between resource companies that had previously operated in the area and a half-dozen or so local landowners, who primarily used their properties recreationally.

Conflicts started to arise as early as 2015, after the coal company bought up the land the road sits on. The company installed a gate, gave landowners a limited number of keys and warned them that the road may be shut entirely in the future as it pursued its mining plans. Things came to a head in January 2023, when the company placed a concrete block behind the main gate, blocking access for a brief time.

Northback said the move was necessary for reasons of safety and efficiency. In documents filed in court in August, it claimed Emard had conducted unapproved and unsafe snow-clearing activities the previous winter, which led to extremely icy and hazardous road conditions in January. Given the previous history with this individual vandalizing Riversdale gates and locks, it said the concrete was intended to discourage and prevent vehicle passage on the road should the gate become compromised.

Emard says hes cleared snow from the road since 1993 and has never had an issue before. He doesnt dispute messing with the gate locks in the past; he was charged with mischief but the charge was withdrawn in December 2021, after he agreed to alternative measures. He says hes learned his lesson and wont do it again.

He says the concrete block was in place for only about a week last winter, but the lock on the gate was replaced with one he couldnt open and he lost access to his property for months. With the help of Google and lots of confusion, he decided to fight the company in court.

He filed an application for an injunction to force the company to give him access to the road. In August, a judge granted his request on a temporary basis until the matter can be heard fully in court next year, and Emard received a working key to the gate. The judge also ordered Emard to not do any snow clearing on the road.

Its not the first time road access has been a source of frustration.

Disagreements came up repeatedly during regulatory hearings into the coal companys proposed Grassy Mountain project three years ago, when landowners expressed concern over the locked gate and the hassles they said it was creating.

Ed Donkersgoed raised the issue at the hearings in November 2020:

For anyone to access or use our property from friends, family, or contractors or even EMS how are they to do that?

The company gave landowners a limited number of keys to the gate, and they were instructed not to copy them. Emard made 80 copies anyway, and gave out dozens to friends and family members. The company later changed the locks and implemented a new system with keys that could not be copied.

Another landowner, Norm Watmough, told regulators there were no issues with previous resource companies, including Devon Energy, that owned the road in the past.

We have been using the Grassy Mountain Road access to our property for 27 years, he testified.

The company defended itself at the hearing, saying it maintained open lines of communication with landowners for years and did its best to keep them apprised of its plans for the road, which could include safety-related closures if and when the company ramped up exploration or other mining activities.

Through all of these steps, we have been openly consulting with the landowners, Gary Houston, the companys vice-president of external affairs at the time, told the review panel.

He also testified that the company had offered landowners a significant premium for their properties through a voluntary purchase program.

The significant premium, in our mind, is in the order of a hundred per cent over fair market value, Houston told the panel, although a professional appraiser retained by the landowners disputed this calculation.

Some landowners told the hearing the changes to road access coupled with offers to buy their properties carried the implication, in their view, that the land may lose value if the road is further restricted in the future.

What I would say is that theres been a big disconnect between the PR side of Benga and our experience as landowners, Donkersgoed told the hearing.

The PR side speaks of open consultation, good-faith bargaining, but our experience has been locked gates, threats of cutting off our access, and lowball offers.

These interviews formed one small part of hearings that spanned weeks in late 2020, the culmination of a years-long regulatory review process. (CBC News reached out to other nearby landowners in 2023 but did not receive a reply.)

In 2021, after examining the mountains of evidence presented to it, the Alberta Energy Regulator rejected the Grassy Mountain project, saying it was not in the public interest.

The company sought to appeal the decision, but the Alberta Court of Appeal refused to hear the case, saying it had no arguable merit. They tried the Supreme Court of Canada next but were similarly rebuffed.

At the same time, in the face of sustained public opposition to its coal policy changes, the provincial government backtracked. Instead of loosening restrictions, as it had done in 2020, it now moved to tighten them. In March 2022, Sonya Savage, Albertas energy minister at the time, issued a ministerial order saying no new applications will be accepted for coal exploration.

The order stands to this day, with an exception for advanced coal projects a carve-out that has recently become a new source of contention.

Over the summer, Northback (the rebranded name that combines the true North strong and free with the outback of Western Australia) started arranging meetings with politicians and filing documents with regulators.

On Sept. 5, it submitted an application for a deep-drilling permit in support of its 2023/2024 coal exploration program.

The coal issue, which had burned so hot in Alberta a couple of years ago, had largely fallen out of the public consciousness. So it took a month for one of the most high profile coal-mining opponents the last time around country music star Corb Lund to realize what the company had been doing.

I just found out about this a few days ago, Lund said in an Oct. 3 video posted to YouTube, titled Urgent Message For Albertans The Foreign Coal Companies are At It Again.

Im not anti-resource, as usual, and Im also not partisan I dont really trust any politicians, Lund said. But this particular idea, resource extraction aside, is a particularly dumb one. This is a stupid idea with very little in it for Alberta except for a handful of jobs and a huge cleanup bill and ruined water.

Water usage and potential water contamination from open-pit mining were among the primary concerns for many people who live in southern Alberta during the last coal debate. Those concerns have escalated recently, Lund says in his video, as the region is experiencing a multi-year drought.

Legal experts have also questioned why the Alberta Energy Regulator accepted Northbacks applications in the first place, given it had already rejected the Grassy Mountain project in 2021 and given the subsequent ministerial order that said no new applications would be allowed.

That project, in my view, was dead, said University of Calgary law professor emeritus Nigel Bankes, who specializes in property, natural-resource and environmental law.

An official with Albertas Ministry of Energy and Minerals said the Grassy Mountain project qualifies under the exception for advanced coal projects because a project summary and environmental impact assessment were filed with regulators several years prior to the 2022 ministerial order.

Bankes, however, said its a very strange interpretation to believe the exception goes on forever because of an application filed nearly a decade ago.

Northback had an advanced coal project at one point in time, he said. That project, though, was killed stone dead.

A spokesperson for the Alberta Energy Regulator told CBC News it will consider whether the project falls within the definition of an advanced coal project as part of its technical review of the application.

The regulator also said the ministerial order applies only to public lands, not private land.

Some of the activities applied for in Northbacks exploration applications are proposed to occur on private lands, the spokesperson said in an email.

For Bill Trafford, the fact that the application was even allowed to progress to this stage feels like a betrayal. He represented local landowners as a member of Albertas Coal Policy Committee and was among the people who came up with the idea of a carve-out for advanced coal projects in the first place.

That phrase didnt originate with the ministerial order; it initially came from the final report of the committee that the government struck in 2021 in an effort to get back onside with public opinion.

The reports first recommendation was that coal authorizations should be paused until land-use plans were completed for a given region something Trafford says still hasnt happened in southern Alberta. The committee made an exception for advanced coal projects but made sure to define that term specifically.

Projects in exploration stages are not considered to be advanced coal projects, the recommendation reads.

So Trafford was shocked when he heard Northback had submitted a new application for coal exploration on Grassy Mountain in September.

The hurtful part is the provincial government as a whole the cabinet and the caucus all accepted our recommendations, he said. And that was the No. 1 recommendation.

Energy Minister Brian Jean says the fact that the Alberta Energy Regulator has accepted the application doesnt necessarily mean new exploratory drilling let alone a full-blown mining operation will be allowed on Grassy Mountain.

Albertas government is keeping strong restrictions in place on coal mining, Jean said in a statement.

But the nature of the 2022 ministerial order means Jean could, with the stroke of a pen, rescind or amend the rules at any time.

And coal advocates have been trying to gain his ear.

Since August, lobbyists have been registering to meet with various provincial ministries, including Jeans, to advocate for the Grassy Mountain project, according to records from the Alberta Lobbyist Registry.

They include representatives from Northback as well as the Coal Association of Canada and a Toronto-based consulting firm named Enterprise Canada working on behalf of Northback.

The goal, according to registry filings from Northback CEO Michael Young, is to ensure government officials are provided with information on all relevant aspects of the proposed project, including expected economic and environmental impacts, support from Indigenous communities and local stakeholders.

Trafford worries the political winds are shifting back in coals favour.

In addition to sitting on the Coal Policy Committee in the past, he still serves as a director of the Livingstone Landowners Group. The organization was an active participant in the fight against coal mining in 2020 and 2021.

With a new premier, energy minister and environment minister now in place, Trafford says there are concerns among the group that the United Conservative government may once again try to open up the southern Alberta Rockies to open-pit mining, as they dont really understand the magnitude of the pushback the last time.

I just dont think theyve felt it in their gut like the previous government did, he said.

At the same time, he isnt so sure rallying the public for a second round in the fight over coal will be as easy as it was before, when pandemic restrictions were in full swing and people had more free time.

People gave up their lives for nine months while that was going on, he said. And then youre asked to go and do it again? Thats a little bit tough to do. I think there will be a huge pushback; its just going to take longer to get going.

Trafford is aware of Emards recent legal battle with Northback over the Grassy Mountain Road, and said he empathizes with what hes going through.

Verns story is really our story, he said. It is tough fighting these guys. And hes fighting these guys on his own.

In regulatory filings and court documents, Northback has argued that Emard could use one of two alternative routes to access his property.

One leads north from Highway 3, running near the ghost town of Lille and up the Gold Creek Valley. Emard says that route requires creek crossings, though, and upgrading it could be a challenge given Lille is a provincial historic resource and there are restrictions on disturbing the area.

Northback also identified another alternative starting from Highway 40 itself a gravel road and leading eastward along a series of remote roads and trails, eventually connecting to the north end of Emards property.

Holy catfish! Emard exclaims when asked about that proposed route, before offering a tour of what it would entail.

He navigates his blue Chevrolet Tahoe past old trailers, a work shed and his Sno-Cat. He knows these backroads well, though depth perception is a challenge given his recent stroke and loss of vision in one eye, which he blames on the stress of the legal battle.

Emard has a history in roads. For years, he and his father ran Emard Excavating Ltd., a company that specialized in earthmoving, subdivision development, farm work and road building

Finally, he reaches the area Northback flagged as a possible access route, driving his truck as far as he can before he must stop and get out.

How am I proposed to get my vehicle across this? he says as he approaches a collection of sun-faded logs and boards that span a creek. The makeshift bridge would be passable on a dirtbike or all-terrain vehicle, but a Chevy Tahoe? Emard doubts it.

Though the temporary injunction gives him access to the Grassy Mountain Road for now, a more definitive court date still looms in March 2024 to hear the finer points of the arcane property law at issue in this case.

Emard believes easements attached to the titles of his own land and the land upon which the road sits guarantee him access to his property. The coal company sees it differently. The details are complex.

Unable to afford legal representation, Emard is relying on internet searches and informal advice he can garner from other sources as he prepares his arguments.

The advice I got from a lawyer is its gonna cost a lot of money, he said. And it could be a lot of years.

Northback has already pushed back.

In September, the company filed an application in court to have Emards injunction thrown out, on the basis that the sworn affidavit he provided in support was flawed.

The application alleges Emards affidavit contains claims that have no air of reality, including information and bald statements that are neither relevant nor material to the matter. The company also sought to be compensated for its court costs to date.

Word of this reached social media, including a Facebook group dedicated to opposing coal development in the Rockies. With Northbacks application set to be heard in a Lethbridge court on Oct. 25, one group member wrote that she was looking for a jammed courtroom that day.

But as Emard and his supporters geared up for the day in court, an unexpected letter appeared in his inbox on Oct. 12. It was from a lawyer with Bennett Jones, the Calgary-based firm representing Northback.

Northback thinks that the interim injunction has been working well for both parties, the letter reads, referring to Emards temporary road access. They see no reason to go forward with this application as long as this status quo remains workable and peaceful for everyone.

Emard was stunned, relieved and also a little suspicious. Was the company genuinely backing down? Or was this part of some larger strategy he didnt understand?

Whatever it was, the move meant he didnt have to meet the company in court to fight over the temporary injunction and legal costs. But his full case is still set to be heard in March 2024.

Northback declined to comment on any of this.

This matter is currently before the courts and there is an active interim order in place, a company spokesperson said in an email. It is not our practice to comment publicly on matters that are the subject of ongoing court proceedings.

As the weeks go on, Emard expects Grassy Mountain Road will be increasingly covered in snow, which he isnt allowed to clear under the terms of the interim injunction.

Significant snow accumulates in the area as early as November and normally remains until May, the company wrote in a submission to regulators in 2020, adding that it doesnt routinely clear the road unless it needs to.

In that same submission, the company said a lack of winter access is not typically an issue as none of the adjacent landowners are using their properties year-round or as permanent residences.

Emard takes issue with that.

Ive been living up there since about 2019, after I retired, he says.

Its my home. Its where I live and breathe.

The cabin may be rat-infested. The palapa may have plastic sheeting for windows. But Emard has water, power, a wood stove and even a Starlink device on the metal roof, connecting him to the internet via satellites.

This land began as a refuge, a place of solace and recreation. But, as the years went by, he started to see it in a new light: as a part of his legacy.

I teach my kids, my grandkids, about the land, he says. Its non-replaceable, in my books. Money cannot replace where Im living.

He pauses to look across the valley at the summit of Grassy Mountain, the remnants of old roads and excavation sites still visible. The mountain was the site of an open-pit mine decades ago. Coal mining built the communities in this region, starting in the early 1900s, but there hasnt been an active coal operation in southern Alberta for a generation or more. The last one closed in 1983.

Now, in 2023, what the future holds for coal mining in this part of the province is again uncertain. Decisions soon to be made in regulatory offices, courtrooms and the halls of political power will determine whats next in this ongoing struggle over who controls the mountains, the water, the land.

For Emard, though, the bigger picture seems far off. As the leaves fall and the days shorten, its winter thats on his mind, and how he will access his land once the snow gets too deep.

Look at that, he says, gesturing toward the peak of Grassy Mountain.

That mountain, they say, Oh, it needs reclaiming. Its been destroyed. Theres nothing destroyed about that mountain, yet. Theres some scars on it. But we all have scars.

Turning back toward his land he says: This is me.

Everybody knows, this is Vern.