"They can’t just sit back and wait for habitat destruction to occur," said Ecojustice lawyer Dan Cheater. "We’d like to see them take action."

Coalspur Mines is planning a large expansion of its Vista thermal coal mine near Hinton, Alta., which would make it the largest thermal coal mine in North America. The company is also planning an underground test mine on the site to determine the feasibility of subsurface mining.

In 2020, then−federal Environment minister Jonathan Wilkinson ordered a joint federal−provincial review of both the expansion and the test mine. That review collapsed last fall when the Supreme Court of Canada ruled Ottawa’s Impact Assessment Act was unconstitutional.

But by then the Department of Fisheries and Oceans had reviewed plans for both projects and decided it required permits under two different pieces of legislation.

"DFO indicated that the physical activities would require a Fisheries Act authorization," says the 2021 analysis report from the Impact Assessment Agency of Canada.

"The physical activities may also potentially require the exercise of powers ... such as a Species at Risk Act permit for impacts to Athabasca rainbow trout or other species at risk."

The department has been in contact with Coalspur but has not begun an investigation, said Fisheries spokesman Robert Rombouts.

"The company is obliged to comply with the acts and failure to comply may lead to enforcement action," he said in an email.

Meanwhile, work on the underground mine has begun.

"The company started construction work, but it’s limited to the underground portion of the mine," said an email from Renato Gandia, spokesman for the Alberta Energy Regulator.

"Coalspur has not commenced mining activities at Vista Test Underground Mine. As of Dec. 31, 2023, no coal has been mined at the underground mine and the portal has not been constructed."

The company has received all necessary provincial permits for the test mine. Coalspur has argued that because the test mine doesn’t expand the mine’s overall footprint, no additional permits are required.

"The (test mine) simply represents an alternative mining method within the existing and approved permit boundary," says its project description. "The (test mine) does not represent additional disturbance beyond the boundaries of the existing Phase I permit area."

Officials from Coalspur did not respond to an interview request.

Federal officials found several reasons for concern, including possible changes to nearby streams from dewatering of the underground mine and impacts of underground mining on groundwater.

"The (test mine) includes mining underneath tributaries of McPherson Creek," says the assessment agency’s analysis. "The processing and waste management associated with the physical activity also have the potential to adversely affect critical habitat, due to the location of tributaries within and surrounding the ... lease area within which the (test mine) is located."

Area waterways are habitat for the endangered Athabasca rainbow trout and the bull trout, Alberta’s provincial fish.

Ecojustice, acting for two local environmental groups, has written two letters to the federal Fisheries department asking for it to enforce the rules before damage is done.

"We know what will happen once work has started on both the underground mine and this future expansion," Cheater said. "Department of Fisheries and Oceans has confirmed what the expected impacts are.

"Regardless, Coalspur is forging ahead."

A revamped environmental assessment act is expected this spring, with draft regulations on coal mine effluent in the fall, Environment Canada spokeswoman Kaitlin Power said in an email.

"It is expected that Vista coal mine, if it moves forward, would be subject to these regulations," she wrote.

"Regardless of whether the Vista Coal Underground Mine Project and Vista Mine Phase II Expansion Project in Alberta undergo a federal impact assessment, they must comply with all relevant federal statutes. As such, they may require federal permits or authorizations."

Cheater said companies shouldn’t be able to take advantage of an artificial gap in environmental legislation while Ottawa rejigs it.

"We’re in an interim period where projects like this and potentially others are not going to be subject to an environmental assessment. But that doesn’t mean the federal government can sidestep its obligations to protect the environment."

This report by The Canadian Press was first published Mach 7, 2024.

Bob Weber, The Canadian Press