■ ROBIN CAMPBELL,
Something has changed at AER, says Robin Campbell.
In mid-june, a joint review panel rejected outright a proposed metallurgical coal-mining project that had been working its way diligently and transparently through Canada's rigorous regulatory process for nearly five years. Informed by direct input and feedback every step of the way from provincial and federal experts, Benga Mining Ltd. submitted more than 26,000 pages of detailed information and took part in open public hearings.
The panel was aware that the Grassy Mountain Project, located in the Crowsnest Pass region of Alberta, is unique among proposed projects for several reasons: first, it went into the hearing with the full support of all the Treaty 7 First Nations whose territories encompassed the project's footprint. Second, the project is partially located on previously mined land that has been left derelict and disturbed for decades. This land would be reclaimed during the lifespan of the project.
The proposal is also unique for another reason; in an incomprehensible move, the panel, as the Alberta Energy Regulator, rejected the proposal while declining to address any concrete concerns through the long-standing approach of imposing conditions on the development of a proposed project.
The decision, which is being appealed, stands in stark contrast to both the detailed and exhaustive application submitted by Benga as well as decades of precedent set by the regulator. It raises a question not about the quality of the proposal, which contains thousands of pages of science-based studies and assessments, or the lengthy and meticulous submission process in Canada, which is among the most rigorous in the world, but what happened at the AER once the hearings ended.
Leaving aside the specific benefits and details of this particular project, the AER has never denied a project after a public hearing. Since 2009, of the 11 oilsands and coal mining projects that have gone through the AER oral hearing process (excluding joint review panel processes), eight were approved, three were withdrawn by the applicants and none were denied.
The AER does not give out rubber stamps; it has built a reputation as a tough-but-fair regulator that recognizes what works from environmental, social and economic points of view and imposes strict, detailed conditions on factors that do not meet the public interest. Simply put, if a project cannot address these conditions in a satisfactory manner, it does not proceed.
But in this instance, it appears something has changed at the AER.
Again, the project had received support from all of the Treaty 7 First Nations. And yet the AER dismissed these First Nations' written support and instead decided to speak for the First Nations itself, deciding the project would have adverse effects on their “cultural heritage.” This decision was made without the consultation of First Nations, which is shocking.
The AER also claimed that Benga's royalty payment estimates were “likely overstated,” yet it is the Alberta provincial government itself that determines the royalty regime, and the amounts estimated in the proposal are a simple mathematical calculation using existing legislation and experts' long-term commodity price forecasts.
The AER'S review also appears to have failed to apply appropriately rigorous science-based expertise to specific issues and evidence, and failed to acknowledge the critical volume of expertise represented by Benga's submission. Applying inexpert analysis, the AER questioned the effectiveness of well-established, commonly used and proven mitigation processes and technologies, as well as widely used and accepted technical modelling processes for environmental impacts.
Finally, it's baffling as to how the AER could raise new concerns about plans, methods and processes that had already been accepted by the same regulator during the years-long submission process. In its notice of hearing in June 2020, the panel said “it has sufficient information to proceed to a public hearing.” Then, in its decision, the panel said Benga “did not adequately describe” or “did not provide enough detail” about certain aspects. Either the submission process and ongoing exchange of feedback has integrity or it doesn't.
After reviewing the panel's decision in detail, whether you oppose or support new resource-related projects in Alberta, it is almost impossible to comprehend how this decision was made.