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Benga Mining hopes to appeal Grassy Mountain rejection

Tuesday, 20 July 2021. Posted in Shootin' the Breeze

Benga Mining hopes to appeal Grassy Mountain rejection

Benga Mining to appeal Grassy Mountain rejection
By Sean Oliver
Local Journalism Initiative Reporter

Benga Mining is challenging the provincial-federal joint review panel decision rejecting the Grassy Mountain mine project. Benga announced Monday it had launched an application for permission to appeal as well as an affidavit and memorandum of argument.

Piikani Nation is also seeking permission to appeal the decision.

The applications will result in a hearing where the company will argue the decision contained errors of law and procedural unfairness. If successful, the matter will be advanced to a formal appeal this fall. 

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The joint review panel ruled last month that the Grassy Mountain project was not in the public interest, with low to moderate economic benefits that would not justify the environmental risk to water quality and species at risk, namely westslope cutthroat trout and whitebark pine.

In its press release, Benga said a fair review was not conducted because the support of First Nations groups was dismissed. The coal company also said the panel did not understand provincial royalties and gave preference to layman opinions over science-based evidence provided by experts.

The release said the decision ignored evidence regarding water quality and fish remediation and that the panel held Benga to an unfair standard by concluding Benga submitted insufficient information in its application even though the Alberta Energy Regulator approved the submission prior to the public hearing.

Benga is also contesting the panel’s assertion that Alberta’s Mine Financial Security Program is inadequate for long-term water treatment costs since the program is run by the government and is beyond Benga’s control.

“These errors must be addressed to not only deliver fairness to Benga and the Indigenous groups adversely affected by the decision, but to provide future guidance to any company considering an investment in Alberta and Canada,” said Benga CEO John Wallington in the press release, adding that the procedural issues will negatively affect future investments in Canada and Alberta.

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Piikani Nation’s appeal is based on similar procedural errors, most prominently that the review panel failed to consult with Indigenous groups about how rejecting the project would adversely affect them.

The appeal application notes the Alberta government’s Aboriginal Consultation Office was satisfied with Benga’s consultation and that an agreement between the company and Piikani Nation offered employment and economic opportunities for members without jeopardizing their treaty and Aboriginal rights in the project area.

The application says the panel’s failure to properly consult precluded Piikani Nation from receiving these benefits while excluding them in the decision that the mine was not in the public’s interest. 

“The process of consultation and accommodation is guided by the honour of the Crown and must further the objective of reconciliation with Indigenous peoples,” the application for appeal reads.

As such, the appeal application says, the panel’s decision raises questions of law that connect to the Crown’s overall relationship with Indigenous groups and a regulatory panel’s obligation to properly assess how rejecting potential projects affect “Indigenous groups, treaty implementation, and matters of reconciliation, including economic reconciliation.”

The appeal hearing is scheduled for Sept. 9.

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