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The Grassy Mountain mine was to be operated by Riversdale subsidiary Benga Mining Ltd. It was forecast to produce around 93 million tonnes of metallurgical coal (which is used in making steel) over its 23-year life.Jeff McIntosh/The Canadian Press

Two Southern Alberta First Nations have filed for a judicial review of a federal decision rejecting a new open-pit coal mine in the Rocky Mountains, arguing that the government failed in its duty to consult them about the project.

Riversdale Resources Ltd., a subsidiary of Australian mining giant Hancock Prospecting, wanted to build its Grassy Mountain project in Alberta’s Crowsnest Pass. But a joint federal-provincial regulatory panel rejected the proposal in June, followed by the federal government last month. Both said it would likely result in significant adverse effects to the environment and on some First Nations.

In separate filings this week, however, the Piikani Nation and Stoney Nakoda Nations countered that the federal government ignored the economic benefits the mine would bring to their communities. The Stoney Nakoda is comprised of the Bearspaw, Chiniki and Wesley First Nations.

Stoney Nakoda said in its filing that Environment and Climate Change Minister Jonathan Wilkinson and the federal cabinet’s rejection of the mine was “incorrect, unreasonable and unlawful.”

It added that Mr. Wilkinson “improperly relied on a fundamentally flawed” federal-provincial review panel report to reach his decision. That report, it said, did not include the positive effect the project would have on the socioeconomic conditions of the Stoney Nakoda people. Instead, it “incorrectly or unreasonably” found that the mine would have an adverse effect on the community.

Piikani Nation also took issue with Mr. Wilkinson’s decision, saying he “substituted his judgment for what is in the best interests” of the community, rather than respect and rely on its elected leadership.

The federal Impact Assessment Agency of Canada said in an e-mail that Mr. Wilkinson’s decision took into account the panel’s report “and other available and relevant information.” It said the government is aware that the First Nations have filed for a judicial review, and is in the process of reviewing those applications.

The Grassy Mountain mine was to be operated by Riversdale subsidiary Benga Mining Ltd. It was forecast to produce around 93 million tonnes of metallurgical coal (which is used in making steel) over its 23-year life. Benga said it would create hundreds of jobs.

Both Piikani and Stoney Nakoda have confidential impact benefit agreements with Benga. As a result, they say, the mine would bring significant economic, educational and employment advantages to their communities.

In its application for a review, the Piikani Nation said elected leadership signed a benefit agreement with Benga in 2016.

“These benefits are particularly important to the Piikani Nation as its reserve is not located in an area that has typically resulted in these types of opportunities,” it wrote.

“This was the first significant economic opportunity of this kind available to Piikani Nation.”

The panel charged with assessing Grassy Mountain was told about that agreement in a 2019 letter of support for the project. But Piikani Nation said the panel never followed up to seek more information about the agreement, nor did it undertake any analysis on the economic effect on the community were it to deny the mine application.

Stoney Nakoda also argued that the panel ignored economic benefits the mine would bring to the community – despite being well aware of the agreement, given the Stoney Nakoda’s participation in a public hearing, and its multiple written and oral submissions.

Piikani acknowledged that it didn’t take part in public hearings, but said it understood its written submissions would be considered. It asserted that that didn’t happen.

In its August decision to reject the Grassy Mountain mine, the federal government said the project would likely cause “significant adverse environmental effects” to water quality, the westslope cutthroat trout and whitebark pine populations, and the physical and cultural heritage of local first nations.

It also said it had constructive dialogue with Indigenous communities throughout the assessment process, which “was invaluable and allowed the Government of Canada to make well-informed decisions.”

In July, Benga appealed the joint-review panel’s initial decision to reject the project.

Benga argued that regulators had denied the company procedural fairness, and ignored or misconstrued relevant evidence. It also said the panel “improperly relied on layperson, non-expert and unfounded opinion evidence lacking any science-based support to unjustifiably dismiss or disregard Benga’s expert evidence.”

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