Two Alberta First Nations want to go to court to push for Benga coal mine

A second Alberta First Nation wants a court to allow it to appeal a review board's decision that an open-pit coal mine in the Rocky Mountains is not in the public interest.

The Stoney Nakoda Nation has filed a request with the Alberta Court of Appeal to appeal the decision that blocks the development of Benga Mining's proposed Grassy Mountain project near the town of Crowsnest Pass in southwest Alberta.

"The (panel) did not properly assess the impact that rejecting the project would have on Stoney Nakoda Aboriginal and treaty rights and economic interests related to the accommodation of those rights," says the Stoney application.

The Piikani First Nation filed a similar request last week, as did Benga Mining.

Two other southern Alberta First Nations, the Kainai and the Siksika, are not filing appeals.

"At this time they are not participating in the appeal process," said lawyer Clayton Leonard.

In June, a joint federal-provincial environmental review panel decided the project should not proceed because the threat it posed to southern Alberta's water supply was too great for the economic benefits it would have created.

The mine, the company said, would create about 500 jobs during two years of construction and 400 more over its 23-year life. The company said it would pay $1.7 billion in royalties and $35 million in municipal taxes over that time.

But the panel concluded the mine posed too great an environmental risk to the headwaters of the Oldman River from selenium, an element commonly found in coal mines that, in large doses, is toxic to fish.

The panel cast doubt on Benga's promises to capture up to 98 per cent of selenium released. It said Benga's assumptions were overly optimistic, its reclamation plans vague and its economic projections overstated.

The review panel also concluded the mine would damage ecosystems and impair the cultural and physical heritage of local First Nations.

But the Stoney Nakoda Nation, which has signed an impact and benefits agreement with Benga, said it was never asked.

The Piikani made a similar argument. It said that the panel followed a ruling from an Alberta government agency that said consultation had been adequate. As a result, it didn't dig deeply enough into how blocking the mine would affect the First Nation.

"The Indigenous communities impacted by the (panel's) weighing of these factors were not further consulted in any meaningful way," their application says. "This failure was in breach of the Crown's duty of consultation."

Piikani Chief Stanley Grier acknowledged in a statement that opinions in the First Nation are divided on the project.

"I know there are members of my nation who take a different view, and I respect them and fully support their right to speak out," he wrote. "However, that does not change the position of the Piikani Nation."

Benga said the panel treated it unfairly by telling the company it had filed a complete application with supporting documents, then concluding its environmental information was inadequate.

It also said the panel ignored relevant environmental data while accepting evidence the company calls "non-expert and unfounded opinion."

The Piikani and Benga applications are to be heard Sept. 9, while the Stoney appeal is to be heard on Sept. 22.

This report by The Canadian Press was first published July 22, 2021.