Benga is also seeking to quash the Cabinet’s decision that the “significant adverse environmental effects” that the project “is likely to cause are not justified in the circumstances”.
The Minister’s determination was based on a decision by the Joint Review Panel on June 17, to deny the Grassy Mountain project. The determination, Benga said, was made despite applications being filed with the Court of Appeal of Alberta on July 16 and 19, by the company and the Piikani and the Stoney Nakoda First Nations.
Benga said that its legal counsel had written to Wilkinson on June 26, formally requesting that he took no action at this time, in order to allow the company to pursue its legal avenues on appeal.
Benga also wrote to the Impact Assessment Agency of Canada on July 6, advising that failure by the Minister to hold the federal process in abeyance pending resolution of Benga’s legal challenges in the Court of Appeal of Alberta would prejudice Benga and potentially those Indigenous groups that might benefit from the project.
“We are dismayed that Canada’s Minister of Environment could render a decision so hastily, and based on a report that is facing multiple legal challenges,” Benga CEO John Wallington said in a statement.
“Not only were the Minister’s and Cabinet’s decisions premature and ill-informed, they were also made without adequate consultation with the relevant First Nations, something that is unconscionable within the rigours of a modern regulatory approval process.”
Benga’s parent company, Riversdale Resources, has spent about $700 million in acquiring the project and in pursuing the necessary regulatory approvals.
“At the time of acquiring the project, we were warmly welcomed and made to feel that Canada was very much open for business and intent upon attracting international investment and capital for the development of large-scale projects that would stimulate the economy and provide employment opportunities.
“We were acutely aware of Canada’s international reputation as a destination of choice for mining projects that could be developed without political interference within an open, transparent and fair regulatory regime. However, the Minister’s and Cabinet’s decisions that we are now seeking to review raise serious questions about sovereign risk and just how open, transparent and fair the regulatory regime actually is.”
Wilkinson said on August 6 the project was “likely to cause significant adverse environmental effects” to surface water quality, including from selenium effluent discharge; Westslope cutthroat trout, listed as threatened under the Species at Risk Act, and its habitat; Whitebark Pine, listed as endangered under the Species at Risk Act; and Physical and cultural heritage of the Kainai, Piikani and Siksika First Nations.
“The government of Canada must make decisions based on the best available scientific evidence while balancing economic and environmental considerations. It is in Canada’s best interests to safeguard our water ways for healthy fish populations like the Westslope Cutthroat Trout, respect Indigenous peoples’ culture and way of life, and protect the environment for future generations,” the minister said at the time.
The $800 million project is a proposed steelmaking coal mine in Crowsnest Pass, Alberta, expected to contribute $1.7 billion in provincial and federal income taxes and royalties. Benga says the project has a Category 4 land use classification (being land on which surface or underground mining may be considered) and that nearly 25% of the project was on previously mined land.
As proposed, the Grassy Mountain coal project’s production capacity would have been up 4.5 million tonnes of processed coal per year, over a mine-life of about 25 years.
Canada is particularly concerned with harmful substances associated with coal mining. Effluent from coal mines in Canada can be a source of pollution that harms aquatic life and specifically fish and fish habitat. As such, Environment and Climate Change Canada is developing the Coal Mining Effluent Regulations under the Fisheries Act. These proposed regulations will establish effluent quality standards for deleterious substances of concern, including selenium, nitrate and suspended solids.