A group of southern Alberta ranchers are turning to the province’s top court in a final bid to block applications for coal exploration in the Rocky Mountains.
Ron Davis, reeve of the Municipal District of Ranchland, said Wednesday his council will revive an application before the Alberta Court of Appeal to review the Alberta Energy Regulator’s decision to accept the applications.
The move comes the day after the regulator announced it was denying the ranchers’ request for an internal regulatory appeal.
“We will be proceeding, yes,” said Davis.
Alberta has a ministerial order that blocks coal development in the Rockies, with the exception of so-called “advanced projects” that have filed a project description with the regulator.
In November, Energy Minister Brian Jean wrote the regulator suggesting the Grassy Mountain proposal from Australian-owned Northback Holdings should be considered one of those projects, although the same project under the name Benga Mining has been rejected by federal and provincial environmental reviews.
In February, saying the minister’s letter carries “significant weight,” the regulator agreed and accepted three drilling and water use applications from Northback. The regulator promised public hearings on the applications.
Ranchlands then filed a request to appeal with the Court of Appeal. Because the municipality’s lawyers felt that request had a better chance if all other appeal options were exhausted, it also filed a request for an appeal through the regulator.
The Appeal Court request was stayed until the regulator decided if it would conduct its own review. Since it won’t, the court request is being re-activated.
Ranchland argues that the regulator, in effect, outsourced its decision-making to Jean — a delegation of authority it’s not allowed to make.
“The (regulator) made no independent conclusions of its own when reviewing the coal exploration applications,” says a letter from Ranchland lawyer Michael Niven.
Nor did the regulator listen to arguments that Northback’s plans shouldn’t be considered an advanced project, he says.
“(It) instead proceeded to simply accept the interpretation set out in the minister’s letter. The (regulator’s) failure to give consideration to any other submissions on this point is an error of law which invalidates the decision.”
In its filings, Northback disputes that the regulator was simply following orders.
“The reasons provided in (its decision) make clear that the (regulator) made its own determination to accept the applications and set them down for a hearing,” say documents from lawyer Martin Ignasiak.
Davis fears the issue is being decided on the government’s political priorities instead of dispassionate analysis.
“We’re quite concerned that there’s politics involved in this decision,” he said. “I think there’s been far too much lobbying going on.
“This case is not supposed to be in (Jean’s) hands.”
Northback has asked the regulator to expedite the hearings. It wants them held in June, with a decision to be made within a month.
Ranchlands has asked for a stay of any hearings until the Appeal Court decides on the request.
The regulator has not scheduled any dates.
Davis said the ranchers behind the appeal request fear the environmental consequences of coal activity.
“They’re very opposed to the whole idea,” he said. “It’s just too delicate an ecosystem and a provider of water to southern Alberta.”