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Benga Mining Limited v Alberta Energy Regulator, 2021 ABCA 363

Link to Decision Summarized

Permission to Appeal – Respondent and Intervenor Status

In this decision, the Alberta Court of Appeal (“ABCA”) considered applications from the Municipal District of Ranchland No. 66 (the “MD”) and the Livingstone Landowners Group (“Livingstone”) to be named respondents or intervenors in appeal applications brought by Benga Mining Limited (“Benga”), the Piikani Nation (“Piikani”) and the Stoney Nakoda Nations (“Stoney Nakoda”). Each seeks permission to appeal the decision of the Joint Review Panel (the “Panel”) for the Grassy Mountain Coal Project, denying Benga’s application to construct and operate an open-pit coal mine in Southwest Alberta (the “Project”). The ABCA also considered the application from Mr. Allred, who supports the Project, to intervene.

The MD’s application to be added as a respondent was granted. The applications of Livingstone and Mr. Allred were dismissed. The ABCA noted that should permission to appeal be granted to Benga, and without commenting on the merits of any such application, Livingstone may apply to intervene in that appeal.

Background

The Joint Review Panel denied Benga’s application for a licence to construct and operate an open-pit metallurgical coal mine (the “Project”) on June 17, 2021. The Project was held not to be in the public interest as it would result in significant adverse effects on the environment and the physical and cultural heritage of several Treaty 7 First Nations communities. These adverse effects were found to outweigh the low to moderate positive economic impacts on the regional economy.

Piikani indicated their support for the Project. Stoney Nakoda did not object to the Project. Both sought to appeal the Panel’s decision arguing that it erred in law by failing to properly assess the public interest and by failing to further consult with the First Nations communities.

Benga asserted six errors of law or jurisdiction, including that the Joint Review Panel denied Benga procedural fairness, ignored relevant evidence, failed to consider rules of evidence, and failed to further consult with the First Nations communities.

The MD’s Application

The MD is an entirely rural area. Most of the Project and the entire open-pit mine are located in the MD. The MD applied for standing, arguing that it has an environmental and economic interest.

The ABCA noted that it is recognized and confirmed by the Supreme Court of Canada that municipalities are, in a broad sense, a trustee of the environment. This is codified in s 3(a.1) of the Municipal Government Act. Because a legal interest may arise where the applicant has a statutory mandate to carry out its duties for the safety of the public, the ABCA determined that the MD has a legal interest in the outcome of the appeal.

Given its role in the original proceeding leading to the rejection of the Project, where the MD provided extensive evidence and arguments, and its broad public mandate, the ABCA determined that it was just and convenient to add the MD as a party.

The ABCA held that given the MD’s statutory duties and purpose, the fact it represents the broad interests of its constituents, its high level of participation in the hearing, and the fact that the only respondent at the time of this decision was the AER, constituted extraordinary circumstances that warrant the MD being added as a respondent for the purpose of its participation in Benga’s permission to appeal.

During the application, it became clear that the MD did not participate in any way on Indigenous issues. As a result, the ABCA held, it would not be just and convenient to allow it to participate in the permission to appeal applications of Piikani and Stoney Nakoda. The application to be named as a respondent to Benga’s application was granted. The request to be added to the applications of Piikani and Stoney Nakoda was dismissed.

Livingstone’s Application to be Named a Respondent

Livingstone is a non-profit organization that represents landowners and supporters in the Livingstone-Porcupine Hills area adjacent to the Project. Livingstone opposed the Project and was granted standing with full participation rights on the basis that “they have relevant information or expertise about the Project”.

Livingstone did not articulate a legal interest aside from the fact that it was granted standing with full participation rights. Having relevant information does not constitute a legal interest. Livingstone did not demonstrate any proprietary or contractual interest or that its participation or addition as a respondent is needed to protect its interest. Livingstone did not demonstrate a legal interest, and its application to be added as a respondent was dismissed.

Livingstone and Mr. Allred’s Application to be Named Intervenors

Mr. Allred is a resident of Blairmore, supports the Project and participated in the Joint Review Panel hearing and public engagement. The ABCA acknowledged that Mr. Allred is a concerned citizen prepared to volunteer his time and energy on the matter. However, exercising the rights as an engaged citizen at the first instance does not translate to a legal expectation of intervenor status. Similarly, the ABCA was not convinced that Livingstone would provide a unique perspective. Further, there was no indication that its interest in the proceedings would not be fully protected by the parties.

Conclusion

The MD’s application to be added as a respondent was granted. The applications from Livingstone and Mr. Allred were dismissed as they did not demonstrate a legal interest in the outcome of the appeal.

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