Federal Court allows judicial review of Crowsnest Pass coal mine denied by panel

Court rules Piikani and Stoney First Nations deprived of promised opportunity for further consultation

A Federal Court ruling Tuesday has thrown out a decision from federal Environmental Minister Steven Guilbeault denying a permit for an open-pit coal mine in the Crowsnest Pass.

The ruling, which comes in response to two Alberta First Nations, will force Guilbeault to revisit the issue after consulting with the bands on the economic benefits of the proposed mine.

The company hoping to develop the mine, Benga Mining, also requested the decision be reviewed. It was denied.

The court ruled that the Piikani and Stoney First Nations never received a consultation opportunity they had been promised by the federal-provincial panel that reviewed Benga’s application.

In his ruling, Judge Richard Southcott said the joint federalprovincial review panel that examined the Grassy Mountain proposal near Crowsnest Pass didn’t live up to the consultation promises it made.

Southcott said the review panel released its report and delivered it to Guilbeault on June 17, 2021. In a news release that day, the panel promised that both First Nations would be consulted again before the minister delivered his decision.

However, about five weeks later, the panel issued a final report to the minister, stating that consultation was complete.

“This report stated that the (federal Impact Assessment) Agency considered the consultation process conducted to date to be reasonable and properly implemented, and that affected Indigenous communities were given sufficient opportunity to express their views and share concerns throughout the process,” Southcott wrote.

But he said that deprived the First Nations of the opportunity they had been promised to present arguments on the impact and benefit agreements they had reached with Benga.

“In my view, the representation in the news release supports the First Nation applicants’ position that they had a legitimate expectation that they would receive the benefit of further consultation before the decisions were made,” Southcott wrote.

“Once the news release gave rise to a legitimate expectation that such procedure would be followed, that procedure was required by the duty of fairness, and the First Nation applicants were entitled to take advantage of the opportunity.”

The ruling now obliges Guilbeault to rescind his earlier decision and revisit it after the promised consultation.

“The minister’s decision will be set aside and the matter referred back to the minister for redetermination following the required consultation,” the decision says.

The company, now known as Northback, earlier lost an attempt to seek judicial review from the Alberta Court of Appeal and was denied permission to take that request to the Supreme Court.

However, Northback is still attempting to develop a mine at Grassy Mountain and holds exploration permits for the area. It has applied to the Alberta Energy Regulator to develop the mine.

Although the provincial United Conservative government has imposed a moratorium on all coal development along that cherished landscape, Northback maintains that its application under the name Benga should allow it to be considered an “advanced project” and as such, exempt.

Douglas Rae, whose firm represented the Stoney Nakoda First Nation, said it’s not clear what happens next.