Striking a delicate balance: protecting water, protecting Indigenous interests
On January 28th, the Alberta Court of Appeal dismissed the actions brought by the Stoney Nakoda and Piikani Nations as well as Benga Mining Limited. These parties were seeking to overturn the decision of a Joint Review Panel (JRP) that declined to approve an open-pit metallurgical coal mine in the Crowsnest Pass.
Coal mining in the foothills of the Rockies became the subject of immense controversy in 2020 when the Government of Alberta rescinded a decades old coal policy and opened the area for open pit mining without any consultation. Opposition was swift, and fierce, catching the government unaware. Major concerns included the leaching of selenium into the Eastern slopes watershed, which feeds four of Alberta’s major rivers which ultimately provide the province’s drinking water. This, in addition to the irreparable change to the foothills landscape. Eventually, the government had to backtrack and reinstate the original coal policy.
By that time, Benga’s Grassy Mountain project, not affected by either change to the coal policy, had already been reviewed by the JRP. However, the JRP did not release their decision until June 2021. In their decision, the JRP found that t Benga’s project was not in the public’s interest and therefore did not approve it. The decision was met with surprise on all sides.
This smacks of patronizing colonialism.
Those who had been arguing against the project’s continuation had years of experience with Alberta’s less than stringent environmental standards of review. So they were pleasantly surprised to see the JRP find that the risks to groundwater and vulnerable species were too significant to be outweighed by the socioeconomic benefits the project could potentially bring to the area. However, not everyone was happy with the JRP decision.
The Mayor of Crowsnest Pass described it as a shocking disappointment. In response to the decision, Benga relied on its 26,000 pages of documentation supplied to the JRP and noted that “it was expected consistent with past practice that where the JRP had concerns about specific matters that it would issue a decision that would allow development subject to those concerns being adequately addressed.” Instead, the JRP shut down the project in its entirety.
Two other parties were also disappointed to see the project not move forward: the Stoney Nakoda and Piikani Nations. Piikani Nation was especially interested in seeing this project move forward as “its reserve is not located in an area that has typically resulted in these types of opportunities…This was the first significant economic opportunity of this kind available to Piikani Nation.”
The Nations joined Benga in appealing the JRP’s decision to the Alberta Court of Appeal (ABCA) and the Federal Court. The ABCA released its decision only a few weeks ago. 
This appeal is an interesting inversion of the narrative to which we’ve become accustomed. Instead of industry being allowed to trample over Indigenous interests, here, the Crown sided against the common interests of industry and affected Indigenous nations. The legal arguments, however, are the same – that the honour of the Crown and the imperative of reconciliation require taking into account Indigenous interests, and that Crown (or its delegate’s) decisions engage the duty to consult.
In assessing the issue of reconciliation, the ABCA leaned into the term’s original meaning – seeking a balance between interests and reconciling Indigenous people’s unique status as the first people of this land with the Crown’s imposition of sovereignty and the introduction of settler’s interests. The JRP described their process as beginning by assessing the environmental impact of the project, evaluating what is required to maintain or improve traditional use and Indigenous health and socioeconomic conditions in the area, and then considering the Aboriginal and treaty rights asserted by the affected Indigenous communities. The ABCA deemed this approach consistent with the honour of the Crown. 
As usual, this reasoning smacks of patronizing colonialism. Are Indigenous Nations unable to assert their own interests? Why should the review panel decide what the Indigenous Nations need to improve their traditional use, their health, and their socioeconomic conditions? Why are those factors the last ones considered?
What are we to make of this case? The JRP’s decision, upheld by the ABCA, protects land and water from further damage, but it does so against the objections of the impacted First Nations. The decision denied those Nations the opportunity to benefit in ways they haven’t before from the resource development that has been going on around them for decades. The reasons of the ABCA rely on an outdated, inadequate definition of reconciliation, and they maintain that the imperative of reconciliation doesn’t tip the scales of the public interest analysis.
Despite the fact that environmental interests finally prevailed, at a very basic level, it seems First Nations can’t win for trying. And in that way, aren’t we all still losing?
Until next time,
Team ReconciliACTION YEG
Benga Mining Limited v Alberta Energy Regulator, 2022 ABCA 30 [Benga v AER].
 The Canadian Press, “Reports on the future of coal mining submitted to Alberta government, says energy minister”, CBC News (30 December 2021), online: <www.cbc.ca/news/canada/edmonton/alberta-coal-policy-sonya-savage-1.6300495>.
 “Why the reversal of a decades-old coal policy sparked controversy in Alberta”, CBC News (3 February 2022), online: <www.cbc.ca/news/science/what-on-earth-alberta-coal-policy-1.6338421> and Alberta Wilderness Association, “Headwaters”, online: <albertawilderness.ca/issues/wildwater/headwaters>.
 Government of Alberta, “Coal Policy”, online: </www.alberta.ca/coal-policy-guidelines.aspx>.
 Alberta Energy Regulator and Impact Assessment Agency of Canada, Report of the Joint Review Panel: Benga Mining Limited (Alberta Energy Regulator Decision), 2021 ABAER 010, (Calgary: 17 June 2021), online:<iaac-aeic.gc.ca/050/documents/p80101/139408E.pdf>.
 Shaun Fluker, “Justice for the Westslope Cutthroat Trout at Grassy Mountain” (July 19, 2021), online: ABlawg, <ablawg.ca/2021/07/19/justice-for-the-westslope-cutthroat-trout-at-grassy-mountain/>.
 Austin Lee, “'It was very shocking': Mixed emotions in Crowsnest Pass following panel review of Grassy Mountain coal project”, CTV News (18 June 2021), online: <calgary.ctvnews.ca/it-was-very-shocking-mixed-emotions-in-crowsnest-pass-following-panel-review-of-grassy-mountain-coal-project-1.5477155>.
 Riversdale Resources, News Release, “Riversdale Reviewing Joint Review Panel Report for the Grassy Mountain Steelmaking Coal Project” (22 June 2021), online: <www.grassymountain.ca/assets/uploads/img/RiversdaleReviewingJointReviewPanelReportfortheGrassyMountainSteelmakingCoalProject.pdf>.
 Kathleen Martens, “First Nations in Alberta challenge federal decision to kill Grassy Mountain coal project”, APTN News (9 September 2021), online: <www.aptnnews.ca/national-news/first-nations-in-alberta-challenge-federal-decision-to-kill-grassy-mountain-coal-project/>.
 Benga v AER, supra note 1.
 Ibid at para 83.
The Nations’ duty to consult argument - that once it was in the contemplation of the JRP not to approve the project, further discussion with the Nations should have been undertaken - is an interesting one.[para 122] It speaks to how certain the regulator’s reviews of such projects have been in Alberta. Proponents thought the deal was done. Given, however, that the express purpose of the JRP process was to make a final determination on the project’s future, the Court dismissed the argument, noting that the JRP’s ultimate decision was not “outside the realm of possibility.”[para 125]