Alberta municipality appeals regulator's decision to accept coal exploration

An Alberta ranching community is fighting a planned hearing on proposed coal exploration in the Rocky Mountains, saying the province's arm's-length energy regulator shouldn't have heeded a letter from its energy minister suggesting an application from Northback Holdings be accepted.

The information is contained in documents released last week by the Alberta Energy Regulator. They outline the Municipal District of Ranchland's request to appeal the regulator's ruling that Northback's plans for Grassy Mountain in southwest Alberta are exempt from an order blocking such development.

"[Ranchland] submits that the [regulator] abdicated its decision-making responsibilities in reaching the decision by improperly fettering its discretion in the face of a non-binding letter from the minister of energy," say the municipality's court filings.

Northback has applied for three licences on Grassy Mountain near the community of Crowsnest Pass. Northback wants approval for exploratory drilling and water diversion as part of the Australian company's plans for an open-pit steelmaking coal mine.

The project, under the name Benga Mining, has previously been denied by federal and provincial environmental reviews. As well, Alberta has enacted a ministerial order blocking all coal development in the Rockies, save for those considered "advanced projects" that have submitted a project summary to the regulator.

However, Northback argues that the project summary submitted by Benga qualifies it as an advanced project, even though the proposal was rejected.

In a Nov. 16, 2023, letter to the regulator, Alberta Energy Minister Brian Jean sided with Northback. The regulator subsequently accepted Northback's applications and promised public hearings on them.

But Ranchland, in documents filed March 21 with the Alberta Court of Appeal, argues Jean had no right to make that suggestion and the regulator was wrong to follow it.

It says the regulator, in effect, delegated its decision-making power to the minister, contrary to law.

"Relying upon, adopting or deferring to irrelevant or improper evidence in determining that the minister's letter 'carries significant weight,' or in giving any weight to the minister's letter at all ... was [outside the minister's power]," Ranchland's letter reads.

Northback argues the regulator's decision to accept its application is not appealable.

"A system whereby project opponents may complain about the fact that a public hearing has been granted, and then delay that public hearing by requesting regulatory appeals and stays before the public hearing has even been scheduled, does not provide for the efficient development of Alberta's resources," say its filings with the regulator.

The appeal request adds more uncertainty to Northback's plans.

Northback has asked the regulator to schedule hearings in June, with a decision to follow within 30 days.

Opponents argue that not only is it far too tight a timeline, there should be no hearings scheduled at all until the appeal request is ruled on and, if necessary, heard.

"Irreversible loss of habitat, disturbance to wildlife, and sedimentation in adjacent watercourses [could occur] before legal determination of whether the project is considered an advanced project," wrote the Canadian Parks and Wilderness Society.

"This would further damage the trust and accountability of the [regulator]."

Regulator spokesman Renato Gandia said in an email that while no date for the hearings has been set, they are being planned.

"The panel is currently considering requests for participation and will address scheduling after participation is decided."

Gandia said standing at the hearing would be granted to those directly affected or who offer useful perspective, have a tangible interest and won't delay the process.