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Benga Mining Limited v Alberta Energy Regulator, 2022 ABCA 30

Link to Decision Summarized

Permission to Appeal

In this decision, the ABCA denied the applications from Benga Mining Limited (“Benga”), the Piikani Nation (“Piikani”), and the Stoney Nakoda Nations (“Stoney Nakoda”) for permission to appeal the AER’s decision Benga Mining Limited Grassy Mountain Coal Project, Crowsnest Pass, 2021 ABAER 010 (the “Decision”).

Background

In the Decision, the Joint Review Panel (the “Panel”), in its capacity as the AER, denied the approval of the Grassy Mountain Steelmaking Coal Project, a proposed open-pit coal mine in Southwest Alberta (the “Project”).

The Panel concluded that approval of the Project was not in the public interest. The Project was likely to result in significant adverse environmental effects. The Panel additionally found that the Project would cause loss of lands used for traditional activities and that this would adversely affect Indigenous groups who use the affected area. While all Treaty 7 First Nations stated that they had no objection to the Project, the Panel concluded that the Project would cause significant adverse effects to sites of physical and cultural heritage for three Treaty 7 First Nations.

The Panel found that Benga took a limited approach to its assessment of the Project’s cumulative environmental effects. The approach made it difficult to assess the magnitude of the Project’s impact. The Panel further found that, in assessing the positive economic impact to the region, Benga did not consider certain risks that could reduce the Project’s positive economic impacts. The mitigation measures proposed by Benga and the First Nation applicants were not sufficient to fully address the negative effects.

Test for Permission to Appeal and Analysis

When deciding whether to grant permission to appeal, the ABCA considered (i) whether the issues are of general importance, (ii) whether the issues are of significance to the Decision itself, (iii) whether the appeal has arguable merit and (iv) whether the appeal will delay the underlying proceeding. The ABCA noted that permission to appeal may not be granted on questions of fact or mixed fact and law and that it is open to it to look behind the wording of the issues as framed by applicants to determine the true nature of the issues raised: Benga’s application included six proposed grounds for appeal.

Ground One: Completeness Determination Letter and Procedural Fairness

Benga argued that the Panel erred in law or denied Benga procedural fairness by issuing the Completeness Determination letter but then later concluded that some of Benga’s information regarding specifics of the Project was incomplete or insufficient without requesting additional information from Benga.

The ABCA found that while this proposed ground of appeal raises a question of law or jurisdiction, permission to appeal would not be granted because this ground had no arguable merit.

Contrary to Benga’s argument, the ABCA found that Section 53 of Environmental Protection and Enhancement Act (“EPEA”) does not preclude the Panel from concluding that additional information was required, after issuing the Completeness Determination letter.

The ABCA determined that issuing the Completeness Determination letter and finding that a submitted Environmental Impact Assessment is complete does not equate to Project approval. The ABCA further found that the Panel had made this clear in its correspondences throughout the Project application. The Completeness Determination letter merely signaled the start of the next phase of Benga’s application process.

Finally, there is no merit to Benga’s submission, as outlined in its Memorandum of Argument, that it was denied procedural fairness because the Panel assured Benga that it would seek further information if necessary and failed to do so. The Completeness Determination letter did not assure Benga that further information would be sought; the Panel merely reserved the right to request further information.

Ground Two: Consideration of the South Saskatchewan Regional Plan

Benga asserted that the Panel erred by failing to consider Alberta government policy as outlined in the South Saskatchewan Regional Plan (“SSRP”). Under section 20 of the Responsible Energy Development Act (“REDA”), the Panel, acting in its capacity as the AER, is required to act in accordance with any applicable Alberta Land Stewardship Act (“ALSA”) regional plans.

The ABCA denied permission to appeal on this ground as it does not raise a question of law because the issue is not that the SSRP was not considered but the weight that the Panel assigned to different portions of it.

Grounds Three and Four: The Panel Ignored Relevant and Material Evidence; The Panel Failed to Consider Rules of Expert Evidence and Reliability Concerns

Benga argued that the issue is not whether the Panel should have weighed or interpreted Benga’s evidence differently, but that the Panel disregarded, overlooked, mischaracterized, or ignored material evidence from Benga and therefore erred in law.

The ABCA found that Benga’s arguments amount to assertions that the Panel should have accepted Benga’s evidence and preferred the evidence of its expert witnesses. It is not an error of law for a decision-maker to accept or reject evidence before it. The ABCA held that the grounds do not raise appealable issues of law or jurisdiction but questions of mixed fact and law, at best.

Ground Five: The Panel Erred in Finding Benga’s Satisfaction of Alberta’s Mine Financial Security Program was Inadequate

Benga’s fifth proposed ground of appeal was that the Panel erred in stating that it was “concerned that the liability for long-term water quality management could fall on the future taxpayers of Alberta” notwithstanding that Benga is legally required to comply with Alberta’s legislated Mine Financial Security Program.

The Panel found that Benga appears to not have explicitly accounted for any of the additional water treatment approaches that may be necessary for selenium as well as other contaminants and, as result, Benga may have significantly underestimated the costs required for long-term management and maintenance of water treatment infrastructure. The ABCA held that this proposed ground of appeal is not an error of law. Benga’s proposed ground of appeal essentially seeks to challenge findings of fact, and therefore, appellate review is not permitted.

Applications from Stoney Nakoda and Piikani and Benga’s Final Proposed Ground of Appeal

The ABCA determined that questions and issues raised by Piikani and Stoney Nakoda related to three themes that would underpin the proposed grounds of appeal. The first theme relates to the Panel’s consideration, or lack of consideration, of positive benefits that would have accrued to Stoney Nakoda and Piikani in relation to the Project in the context of the public interest test and in the context of the honour of the Crown and reconciliation. The second theme relates to the Panel’s responsibilities or obligations once it considered not approving the Project. In particular, it was argued that the Panel should have asked Stoney Nakoda and Piikani for further information or should have requested that Her Majesty the Queen in Right of Alberta engage further with Stoney Nakoda and Piikani regarding implications of not approving the Project. The third theme relates to the language of the Terms of Reference (“TOR”), which Stoney Nakoda and Piikani in particular submit gave rise to the Panel’s error or errors. Benga’s proposed grounds could also be categorized in these themes.

Theme One: The Panel’s Consideration of the Public Interest and the Honour of the Crown and Reconciliation

The applicants argued that the Panel failed to properly consider the public interest test and the honour of the Crown when it decided not to approve the Project because it did so without considering how such a decision would impact Stoney Nakoda and Piikani.

The ABCA noted that the honour of the Crown is a “core precept” that refers to the principle that “servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign”. It is not a cause of action itself, but speaks to how obligations that attract it must be fulfilled. The ABCA found that the proposed issues do not have arguable merit. The ABCA noted that benefit agreements entered into by Benga and Stoney Nakoda and Piikani were not filed as evidence. The Panel stated that it did not have this evidence but could still fulfill its mandate to consider if the Project was in the public interest to an extent consistent with the honour of the Crown.

In the Decision, the Panel discussed the social and economic effects of the Project, Benga’s Indigenous Commitments, the position of each participating Indigenous group, and detailed its assessment of the effects of the Project on each of them. The ABCA found that this made it apparent that the Panel had enough information to determine the Project’s compliance with the public interest.

Permission to appeal was denied on all grounds relating to the Panel’s consideration or positive benefits of the Project in the context of the public interest test and the honour of the Crown and reconciliation.

Theme Two: The Panel’s Responsibilities or Obligations Arising from the Potential Decision not to Approve the Project

Both Stoney Nakoda and Piikani submitted that the Panel had an obligation to seek information from Stoney Nakoda and Piikani about what effect would result from the Panel’s Decision not to approve the Project.

The ABCA noted that both Stoney Nakoda and Piikani were granted full participation rights in the hearing process. The ABCA held that there was no arguable merit in the suggestion that the Panel had to seek further information or ask the Aboriginal Consultation Office to seek further information about implications of non-approval after final arguments were provided. The ABCA denied permission to appeal on any of the grounds regarding the Panel’s obligation to seek further information about the effect of refusing to approve the Project.

Theme Three: The TOR Language

Stoney Nakoda argued that because the TOR referenced only adverse effects, the Panel erred in failing to consider potential positive benefits associated with the Project. The ABCA noted that the TOR provided that the Panel “shall consider” potential adverse effects of the proposed project. However, considering the entire TOR, the ABCA determined that the language of the TOR does not preclude the Panel from considering possible positive socioeconomic impacts to Stoney Nakoda and Piikani and further that the Panel did consider such positive impacts that would arise if the Project was approved.

The ABCA found that there was no arguable merit to questions that suggest the Panel fettered its discretion by acting in accordance with the TOR or that the Panel made determinations respecting the validity of Aboriginal rights and interests contrary to the TOR.

Conclusion

The permission to appeal applications of Stoney Nakoda and Piikani are dismissed as the proposed grounds of appeal have no arguable merit. Benga’s final proposed ground was similarly denied permission to appeal.

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