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SCC Declines to Hear Appeal Regarding Regulator’s Decision to Deny an Open-Pit Coal Mine in Southwestern Alberta

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Indigenous Law Bulletin

Benga Mining Ltd. v Alberta Energy Regulator deals with three applications brought by Benga Mining Limited, the Piikani Nation, and the Stoney Nakoda Nations for permission to appeal a decision by the Joint Review Panel (JRP) in its capacity as the Alberta Energy Regulator (AER).

The JRP decision denied regulatory approval of the Grassy Mountain Steelmaking Coal Project, a proposed open-pit coal mine in southwestern Alberta (the Project).[1] The main issue was whether the applicants could appeal the decision of the JRP under section 45 of the Responsible Energy Development Act.[2] The Court considers the following when determining whether to grant permission to appeal: “(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.”[3] The fourth factor was not applicable in this case.[4]

Benga sought permission to appeal on six grounds. Five of the grounds were dismissed because they lacked arguable merit or did not raise questions of law.[5] The Court combined and distilled Benga’s sixth ground of appeal with those of the Piikani Nation and Stoney Nakoda Nations (collectively, the Nations) into three “themes”:

  1. The JRP’s lack of consideration of positive benefits that would have accrued to the Nations 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;
  2. The JRP’s responsibilities or obligations once it considered not approving the Project. In particular, whether the JRP should have requested further information from the Nations regarding implications of not approving the Project; and
  3. The language of the terms of reference related to the JRP’s establishment, which the Nations argued gave rise to the JRP’s error or errors.[6]

First, the Court held that the JRP fulfilled its mandate to determine whether the Project was in the public interest in a manner consistent with the honour of the Crown.[7] It was clear from the JRP’s written decision that sufficient information was presented to the JRP about the positive impacts of the Project.[8] Further, this was not a case where the decision maker refused to consider information submitted by the parties; the Nations had full participation rights.[9]

Second, the Court held that the JRP was under no obligation to seek further information from the Nations about the implications of not approving the Project. The JRP had all of the information it needed to fulfill its mandate, and the Nations were given full participation rights in the hearing.[10]

Finally, the JRP’s terms of reference required the JRP to consider both adverse effects and potential positive benefits, as it was required to consider “any measure proposed to avoid/mitigate/accommodate potential adverse effects” including potential positive benefits accrued to the Nations.[11]

The Court held that all of the grounds of appeal relating to these three categories had no arguable merit. Therefore, permission to appeal the JRP decision was denied and the applications were dismissed.[12]

Similarly, in Ermineskin Cree Nation v Canada (Environment and Climate Change),[13] the Federal Court found that the duty to consult may be triggered where a government decision has the potential to adversely affect economic interests of Indigenous groups.

In that case, Ermineskin Cree Nation (Ermineskin) sought judicial review of a decision by the Minister of Environment and Climate Change (the Minister) to designate the Vista Coal Mine Phase II Expansion Project and Underground Test Mine under section 9(1) the federal Impact Assessment Act[14] (the IAA). Under the IAA, work cannot commence or continue on designated projects until the Impact Assessment Agency either conducts an impact assessment and issues a decision, or until it decides that no impact assessment is required.[15] In either event, the Minister’s decision to designate the project meant the project would be delayed.

Ermineskin argued that the Designation Order would adversely impact its Aboriginal and Treaty rights, including economic opportunities created by an impact benefit agreement it entered into with the project proponent. Specifically, Ermineskin alleged that the Designation Order would “delay, lessen, or eliminate” Ermineskin’s economic interest in the project.[16] The Federal Court held that:

"… the important and valuable economic and community benefits negotiated in compensation of Aboriginal and Treaty rights… are entitled to the protection through the honour of the Crown construed generously and purposefully, and through its concomitant duty to consult, because they are closely related to and derivative from the underlying Aboriginal or Treaty right."[17]

However, Ermineskin was not given notice, nor was it consulted in any way during the process leading to the Designation Order.[18] Consultations were “one-sided” and the Impact Assessment Agency and Minister only heard from Indigenous groups that supported the Designation Order and opposed the project.[19] The Federal Court found that “[t]he duty to consult was breached because Ermineskin was not given notice of or had the benefit of any consultation whatsoever.”[20] Accordingly, the application for judicial review was granted[21] and the Designation Order was set aside. This stands in contrast with the situation in Benga Mining Limited v Alberta Energy Regulator, where the Nations that supported the development were given full participatory rights in the hearing and the Court held that the duty to consult had been fulfilled.

Both authorities support the proposition that the duty to consult may be triggered where a government decision has the potential to adversely affect economic interests of Indigenous groups who have entered into impact and benefit agreements with project proponents. As such, consultation must contemplate any negative impacts, including economic, Indigenous groups might face should the project in question not proceed.

[1] Benga Mining Limited v Alberta Energy Regulator, 2022 ABCA 30 at para 2 [Benga].

[2] SA 2012, c R-17.3.

[3] Benga at para 28, citing Fort McKay First Nation v Prosper Petroleum Ltd, 2019 ABCA 14 at para 18.

[4] Benga at para 28.

[5] Benga at paras 30, 35, 57, 74, and 75.

[6] Benga at para 83.

[7] Benga at para 109.

[8] Benga at para 117.

[9] Benga at para 119. 

[10] Benga at paras 124-126.

[11] Benga at paras 130-131.

[12] Benga at paras 121, 128, 133-132.

[13] 2021 FC 758 [Ermineskin].

[14] SC 2019, c 28 (IAA).

[15] IAA at ss 7(1) and (3).

[16] Ermineskin at para 6.

[17] Ermineskin at para 110.

[18] Ermineskin at paras 24, 128.

[19] Ermineskin at paras 24-25, 129.

[20] Ermineskin at para 132.

[21] Ibid.

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If you have any questions regarding Indigenous or regulatory law, please contact Brenden Hunter or Amy Barrington.

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