By Canadian Press

Top Alberta court denies appeal of regulator’s refusal to approve coal mine

Jan 28, 2022 | 3:55 PM

Alberta’s top court has rejected a request to appeal a regulatory decision that denied permits for the Grassy Mountain coal mine in the province’s Rocky Mountains.

In a decision released Friday, the Alberta Court of Appeal turned down the request from Benga Mining and two area First Nations.

“The permission to appeal applications of Stoney Nakoda and Piikani are dismissed as the proposed grounds of appeal have no arguable merit,” the decision reads. “Benga is similarly denied permission.”

Benga Mining had proposed to resume mining for steelmaking coal at Grassy Mountain near Crowsnest Pass in southwestern Alberta on a site that had been previously mined. 

But in June, a joint federal-provincial review panel said the mine’s likely environmental effects on fish and water quality would outweigh what it called the low to moderate economic impacts of the project. Alberta’s regulatory agency denied Benga’s permit application and the federal government followed soon after. 

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Both Benga and the two First Nations, which had signed benefits agreements with the company, asked the court for leave to appeal the decision.

Two other southern Alberta First Nations, the Kainai and the Siksika, did not request an appeal.

In its filings, Benga argued the panel erred by ignoring relevant evidence from the company on water quality, fish habitat and the project’s economics. 

The Piikani and Stoney Nakoda both argued the panel didn’t adequately consult them on matters that affected their economic interests related to the exercise of their constitutional rights.  

The court concluded that Benga was asking the justices to reconsider evidence, not correct an error in law.

“At its core, Benga’s argument is that the panel should have preferred Benga’s expert evidence,” wrote Justice Bernette Ho. “It is not an error of law for a decision-maker to accept or reject evidence before it.”

The decision also found the panel had plenty of information on Indigenous economic benefits and pointed out both First Nations had been free to file whatever information on those benefits they wanted — including the agreements they signed with Benga.

“I disagree with any suggestion the panel did not understand that many, if not all, of the benefits that might accrue to Stoney Nakoda or Piikani from Benga would be lost in the event that the panel did not recommend the project proceed,” Ho wrote. 

Grassy Mountain was the first of a series of possible open-pit coal mines to go before an environmental review. Several others have been suggested since spring 2020, when Alberta’s United Conservative government suddenly revoked a policy that had protected the summits and foothills of the Rockies from such development since 1976. 

Within weeks of that move, thousands of hectares were leased for coal exploration. 

Expansion of the industry has been highly controversial. Albertans are currently awaiting the release of reports from a committee that canvassed the province for public opinion and recommendations.

The government has not said when the reports will be released.

This report by The Canadian Press was first published Jan. 28, 2022.

— Follow Bob Weber on Twitter at @row1960

Bob Weber, The Canadian Press