Benga Mining Limited v. Canada (Environment and Climate Change)

Benga Mining Limited v. Canada (Environment and Climate Change)
Court (s) Database
Federal Court Decisions
Date
2024-02-12
Neutral citation
2024 FC 231
File numbers
T-1270-21, T-1367-21, T-1369-21
Decision Content
Date: 20240212
Docket: T-1270-21
T-1367-21
T-1369-21
Citation: 2024 FC 231
Ottawa, Ontario, February 12, 2024
PRESENT: The Honourable Mr. Justice Southcott
BETWEEN:
BENGA MINING LIMITED, PIIKANI NATION
AND STONEY NAKODA NATIONS
Applicant
and
THE MINISTER OF ENVIRONMENT AND CLIMATE CHANGE AND
THE ATTORNEY GENERAL OF CANADA
Respondents
JUDGMENT AND REASONS
I. Overview
[1] This decision addresses three consolidated applications for judicial review of two decisions, made under the Canadian Environmental Assessment Act, 2012, SC 2012, c 19 [CEAA 2012], denying the approval of the Grassy Mountain Steelmaking Coal Project [Project]. The decisions were made available to the Applicants and the public on August 6, 2021.
[2] The Applicants, Benga Mining Limited, the Piikani Nation, and the Stoney Nakoda Nations, all support the Project, which they describe as having the potential to represent a billion-dollar investment in Alberta and to employ over 500 local employees over the life of the Project. The Applicants originally commenced separate applications for judicial review in Court file nos. T-1270-21, T-1367-21 and T-1369-21. An Order consolidating the matters was issued on September 29, 2021.
[3] As explained in greater detail below, the applications of the Piikani Nation and the Stoney Nakoda Nations are is allowed, because I find that these Applicants were deprived of procedural fairness due to an unfulfilled representation, made after the issuance of the Report of the Joint Review Panel (as defined later in these Reasons) that they would be consulted before the impugned decisions were made. The application of Benga Mining Limited is dismissed.
II. Background A. Parties [4] Benga Mining Limited [Benga] is a Canadian resource company based in Alberta and the proponent of the Project. Benga describes its parent company as having spent over $700 million acquiring its interests relating to the Project, including pursuing the necessary provincial and federal approvals and assessments.
[5] The Piikani Nation is one of four First Nations comprising the Blackfoot Confederacy and is a signatory to the Blackfoot Treat of 1877 [Treaty 7]. The Piikani Nation is an Indian Band within the meaning of the Indian Act, RSC 1985, c I-5 [Indian Act]. The Project is located entirely within Treaty 7 lands and within the Piikani Nation’s ancestral territory.
[6] Following years of consultations, the Piikani Nation entered into a confidential impact benefit agreement with Benga in July 2016 [Piikani Agreement], formalizing the relationship between Piikani Nation and Benga and intended to compensate the Piikani Nation for the Project’s impact, including setting out Benga’s environmental commitments and initiatives, as well as Benga’s commitment to provide training and employment opportunities, scholarships, and business development opportunities for the Piikani Nation and its members.
[7] The Stoney Nakoda Nations [the Stoney Nakoda] are comprised of three First Nations, the Bearspaw First Nation, the Chiniki First Nation, and the Goodstoney (Wesley) First Nation, and are an Indian Band within the meaning of the Indian Act. The three First Nations are signatories to Treaty 7. The Project is located in the traditional lands of the Stoney Nakoda.
[8] Following years of consultations, the Stoney Nakoda and Benga entered into a confidential Relationship Agreement in February 2019 [the Stoney Nakoda Agreement]. The Stoney Nakoda Agreement provided the Stoney Nakoda with economic, social, and cultural benefits including ongoing consultation, employment, commercial opportunities, as well as community development for social and cultural programs, and a partnership as environmental stewards to oversee the Project including the Project’s reclamation.
[9] The Respondents to these applications are the Minister of Environment and Climate Change [Minister] and the Attorney General of Canada.
B. Project and regulatory processes [10] Benga proposes to operate and construct an open-pit steelmaking coal mine in the Crowsnest Pass area of southwest Alberta. The Project’s maximum production capacity would be 4.5 million tonnes of metallurgical coal per year over a mine life of approximately 23 years, and it is estimated by Benga that it would generate $1.7 billion in royalties and taxes for the provincial and federal governments.
[11] The Project requires both federal and provincial assessments and approvals to proceed. Provincially, the Project required an environmental impact assessment under Alberta’s Environmental Protection and Enhancement Act, RSA 2000, c E-12 [EPEA] and approvals under various provincial acts. Federally, the Project required an assessment under CEAA 2012 and resulting preparation of a report to the Minister. The Minister was then required to decide under subsection 52(1) of CEAA 2012, after taking into account any mitigation measures the Minister considered appropriate, whether the Project was likely to cause significant adverse environmental effects. If so, the Minister was required under subsection 52(2) of CEAA 2012 to refer the matter to the Governor in Council [Cabinet] for a decision under subsection 52(4) whether such effects were justified in the circumstances. Finally, section 54 then required the Minister to issue a decision statement, informing the proponent of the section 52 decisions by the Minister and Cabinet.
[12] In 2018, the Alberta Energy Regulator [AER] and the Minister established a joint federal-provincial review panel [JRP] pursuant to the Agreement to Establish a Joint Review Panel for the Grassy Mountain Coal Project Between the Minister of Environment, Canada and the Alberta Energy Regulator, Alberta [JRP Agreement] and its attached Terms of Reference [TOR]. The JRP Agreement and TOR tasked the JRP with discharging federal and provincial environmental assessment responsibilities for the Project and preparing a report.
[13] Prior to the appointment of the JRP, Benga prepared its Environmental Impact Assessment in accordance with provincial and federal requirements. (While this document is called an Environmental Impact Statement in federal terminology, Benga employs the provincial nomenclature of Environmental Impact Assessment [EIA] in its materials, and I adopt that nomenclature for purposes of these Reasons.) Benga submitted its EIA and responded to multiple information requests [IRs] from the AER and the Canadian Environmental Assessment Agency (now called the Impact Assessment Agency) [Agency] and, subsequent to its appointment, from the JRP. On June 25, 2020, the JRP advised Benga that the information that had been provided was sufficient to proceed to the hearing stage of the environmental assessment process [Sufficiency Determination].
[14] The JRP public hearings took place between October 27, 2020 and December 2, 2020. During the hearing, Benga and the other participants including First Nations presented evidence, cross-examined other parties’ witnesses, and presented argument. The Piikani Nation and the Stoney Nakoda [First Nation Applicants] were invited to participate in the hearing process.
[15] The Stoney Nakoda participated in the JRP hearing through written submissions and an oral presentation. Through that participation, the Stoney Nakoda advised the JRP that, through the Stoney Nakoda Agreement, Benga had adequately addressed the Stoney Nakoda’s project-specific concerns and that the Stoney Nakoda were therefore in support of the Project.
[16] The Piikani Nation did not participate in the hearing. However, it had previously submitted on May 9, 2016, its technical review of the Project, which set out the Piikani Nation’s rights and interests related to the Project, as well as a July 7, 2016 update to that technical review. Further, the Piikani Nation advised the JRP by letter dated January 18, 2019, that it had signed the Piikani Agreement to enter into a partnership with Benga and therefore supported the Project.
[17] In this letter, the Piikani Nation explained that its partnership with Benga would allow it to provide employment, training and education to its members, would spur business development opportunities and help build economies on its reserve, and would increase its administration’s capacity to provide community programming and support for its members. The Piikani Nation stated that, most importantly, its partnership would ensure it could continue to be stewards of its land by working with Benga on environmental protection and mitigation activities that encompass both traditional and modern methods.
[18] On June 17, 2021, the JRP issued its report, concluding that the Project was likely to cause significant adverse environmental effects not outweighed by the positive economic impacts of the Project [JRP Report or Report]. The JRP had the authority as the AER to make the decision whether to approve the Project under Benga’s provincial applications. In its provincial capacity as the AER, the JRP concluded the project was not in the public interest and denied those applications [Provincial Decision]. Without provincial approval, the Project was unable to proceed. Nevertheless, the federal government was required to proceed with the assessment pursuant to CEAA 2012.
[19] On the same day, June 17, 2021, the Agency issued a News Release advising that the Minister had received the JRP Report [News Release]. The News Release also stated that, prior to the Government of Canada’s decision on the Project, the Agency would consult with Indigenous groups on the JRP Report. The News Release stated that the Agency would also invite the public and Indigenous groups to comment on potential conditions related to possible mitigation measures and follow-up program requirements that Benga would need to fulfil if the Project was ultimately allowed to proceed. Finally, the Agency stated that the Minister would consider the results of these consultations before issuing a decision statement and any potential legally-binding conditions.
[20] On June 26, 2021, Benga’s legal counsel informed the Minister that Benga was considering appealing the Provincial Decision and requested that the Minister hold the issuance of a decision statement in abeyance until such time as Benga advised the Minister that the process under CEAA 2012 should continue [Abeyance Request]. Benga wrote to the Agency again on July 6, 2021, reiterating the Abeyance Request. Benga received no response to its request.
[21] On July 13, 2021, the Piikani Nation wrote to the Minister in support of Benga’s Abeyance Request. This letter referenced the Piikani Agreement and the benefits and opportunities it would provide for the Piikani Nation and its members and expressed concern that, as the AER had denied approval for the Project, such benefits and opportunities may have been lost. This letter also expressed the Piikani Nation’s understanding that the Agency would be consulting further with Indigenous groups, prior to a federal decision on the Project, and advised that the Piikani Nation looked forward to actively engaging with the Agency on those consultations.
[22] On July 22, 2021, the Agency issued a final version of a report documenting its consultations with Indigenous communities with respect to the Project, for purposes of informing the Minister of those consultations [Final Consultation Report]. This report stated that the Agency considered the consultation process conducted to date to be reasonable and properly implemented and that affected Indigenous communities were given sufficient opportunity to express their views and share concerns throughout the process. The Agency expressed its opinion that, in the event the outcome of the required federal decisions prevented the Project from proceeding, the Crown had fulfilled its duty to consult. The Agency also expressed its opinion that, if the Minister did not agree with the JRP’s findings of significant adverse environmental effects, or if the Cabinet determined that those effects were justified in the circumstances, then further consultation with Indigenous communities would be required.
[23] On August 6, 2021, the Minister issued a decision statement under section 54 of CEAA 2012, communicating the decisions of the Minister and Cabinet [Decision Statement]. The Decision Statement advised that the Minister had determined under section 52(1) of CEAA 2012 that, after considering the JRP Report and the implementation of mitigation measures the Minister considered appropriate, the Project was likely to cause significant adverse environmental effects referred to in subsection 5(1) and 5(2) of the CEAA, 2012 [Minister’s Decision]. The Decision Statement also advised that Cabinet had decided under section 52(4) of CEAA 2012 that the significant adverse effects were not justified in the circumstances [the Cabinet Decision] [collectively, the Decisions]. It is these Decisions that are the subject of these applications for judicial review.
III. Decisions under review [24] The JRP Report, submitted to the Minister under s 43(1)(e) of CEAA 2012 on June 17, 2021, included a summary of findings and recommendations for the purpose of the federal environmental assessment. While the JRP Report is not itself a decision under review in these applications, it is useful to summarize its conclusions, as a report of this nature may be reviewed to ensure that it was a “report” that the Minister or Cabinet could rely upon for purposes of their decisions (Taseko Mines Limited v Canada (Environment), 2019 FCA 319 [Taseko 1] at para 45).
[25] In the Executive Summary section of the JRP Report, the JRP found that Benga’s conclusion, that the Project was not likely to result in significant adverse effects following mitigation measures, was premised on overly optimistic assumed effectiveness of those measures, which was not supported by the evidence provided. The JRP’s conclusions included that the Project was likely to result in significant adverse environmental effects upon surface water quality, westslope cutthroat trout and their habitat, whitebark pine, rough fescue grasslands, and vegetation species and community biodiversity. The JRP also found that the Project was likely to contribute to significant adverse cumulative environmental effects on westslope cutthroat trout, little brown bats, grizzly bears and whitebark pine.
[26] The JRP Report also explained its conclusion that, in assessing the Project’s positive economic impact on the region, Benga did not consider certain risks that could reduce the magnitude of the positive impacts. The JRP found that the Project would result in low to moderate positive economic impacts on the regional economy.
[27] The JRP additionally found that the Project would result in the loss of lands used for traditional activities and that this would affect Indigenous groups who use the Project area. The JRP concluded that the Project would cause significant adverse effects to physical and cultural heritage for three Treaty 7 First Nations (including the Piikani Nation) and that the proposed mitigation measures were not sufficient to fully mitigate those effects, but it noted that all Treaty 7 First Nations had signed agreements with Benga and stated that they had no objection to the Project.
[28] The JRP Report includes findings specific to the federal assessment and approval process. In accordance with CEAA 2012, the JRP considered potential environmental effects within the legislative authority of Parliament: fish and fish habitat, aquatic species, and migratory bird, as well as the effects of the Project on wildlife species listed under the Species at Risk Act, SC 2002, c 29 and their critical habitat. The JRP also assessed the manner in which the Project may adversely affect asserted or established Aboriginal or Treaty rights as described by Indigenous persons or groups, as well as potential adverse effects that the Project may cause on the health, social, or economic conditions of Indigenous people. The JRP also assessed measures proposed to avoid, mitigate or accommodate adverse environmental effects and adverse effects on Aboriginal and Treaty rights.
[29] In a summary of its findings on matters related to federal jurisdiction, the JRP stated that:
The project would likely result in significant adverse environmental effects on surface water quality, westslope cutthroat trout and their habitat, and whitebark pine.
For some Indigenous groups, the project would result in adverse effects on their current use of land for traditional purposes and physical and cultural heritage, but the effects would not be significant.
For some Treaty 7 First Nations (Káínai, Piikani, and Siksika) the project would result in significant adverse effects on physical and cultural heritage, but these groups entered into agreements with Benga and withdrew their objections to the project.
Impacts on Aboriginal or treaty rights would be low to moderate for the Treaty 7 First Nations, Métis Nation of Alberta Region 3, and Ktunaxa Nation.
[30] The JRP stated that it was not providing mitigation measures for consideration by the Minister, should the Project proceed. The JRP reasoned that, because it had denied the Project provincial approval in its capacity as the AER, the Project could not proceed.
[31] Pursuant to section 51 of CEAA 2012, the Minister was required to take the JRP Report into account and then make a decision under subsection 52(1). Section 52(1) of the CEAA 2012 states:
Decisions of decision maker
52 (1) For the purposes of sections 27, 36, 47 and 51, the decision maker referred to in those sections must decide if, taking into account the implementation of any mitigation measures that the decision maker considers appropriate, the designated project
(a) is likely to cause significant adverse environmental effects referred to in subsection 5(1); and
(b) is likely to cause significant adverse environmental effects referred to in subsection 5(2).
Décisions du décideur
52 (1) Pour l’application des articles 27, 36, 47 et 51, le décideur visé à ces articles décide si, compte tenu de l’application des mesures d’atténuation qu’il estime indiquées, la réalisation du projet désigné est susceptible :
a) d’une part, d’entraîner des effets environnementaux visés au paragraphe 5(1) qui sont négatifs et importants;
b) d’autre part, d’entraîner des effets environnementaux visés au paragraphe 5(2) qui sont négatifs et importants.
[32] In a Memorandum to the Minister, which indicates it was drafted on June 30, 2021, the Agency summarized the conclusions in the JRP Report and recommended that the Minister decide that, taking into account the implementation of mitigation measures he considered appropriate, the Project was likely to cause significant adverse environmental effects. This Memorandum also advised the Minister of the Abeyance Request but informed the Minister that the Agency was of the opinion that there would not be any benefit in delaying the Minister’s decision under CEAA 2012. The Minister endorsed his concurrence upon this Memorandum on July 7, 2021 [Minister’s Decision Memorandum].
[33] Section 52(2) of CEAA 2012 then required the Minister to refer to the Cabinet the matter of whether the significant adverse environmental effects were justified in the circumstances, a decision that Cabinet was authorized to make under section 52(4) of CEAA 2012. In the subsequent Cabinet Decision, set out in an Order in Council dated August 6, 2021 [Order in Council], the Cabinet decided that the significant environmental effects likely to be caused by the Project were not justified in the circumstances.
[34] As previously noted, the Minister also issued on August 6, 2021 the Decision Statement under section 54 of CEAA 2012, communicating both the Minister’s Decision (that the Project was likely to cause significant adverse environmental effects) and the Cabinet Decision (concluding that those effects were not justified in the circumstances).
IV. Issues
[35]In the interests of avoiding duplication, each of the Applicants has identified and provided submissions on different issues for the Court’s determination, but each of the Applicants supports the other Applicants’ submissions on all issues raised. Based on the submissions of all the parties, I would articulate the issues as follows:
Whether the Minister’s Decision is unreasonable;
Whether the Cabinet Decision is unreasonable;
Whether the Decisions breached the right to procedural fairness of any of the Applicants; and
Whether Canada owed the Piikani Nation and the Stoney Nakoda a duty to consult and, if so, whether Canada failed to reasonably consult and accommodate those First Nations before issuing the Decisions, such that the Decisions are unreasonable.
V. Standard of Review [36] All parties agree (and I concur) that the merits of the Decisions are reviewable on the standard of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]), while the procedural fairness issues are reviewable on what is sometimes referred to as the standard of correctness. Strictly speaking, no standard of review applies to issues of procedural fairness. Rather, the Court is required to consider whether the procedure followed was fair having regard to all the circumstances (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54).
[37] The existence, extent, and content of the Crown’s duty to consult First Nations are legal questions reviewable on the standard of correctness (Ermineskin Cree Nation v Canada (Environment and Climate Change), 2021 FC 758 [Ermineskin] at para 82-83; Squamish First Nation v Canada (Fisheries and Oceans), 2019 FCA 216 at para 30; Yellowknives Dene First Nation v Canada (Minister of Aboriginal Affairs and Northern Development), 2015 FCA 148 at paras 46-47). In accordance with the principles explained in Vavilov at paragraph 55, the correctness standard applies to these questions because the duty to consult flows from the honour of the Crown and is constitutionalized by s 35 of the Constitution Act, 1982 (see Ktunaxa Nation v British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 [Ktunaxa Nation] at para 78).
[38] Whether or not Canada fulfilled the duty to consult is reviewable on a standard of reasonableness (see Ermineskin at para 82-83; Coldwater First Nation v Canada (Attorney General), 2020 FCA 34 at para 27, citing Vavilov at para 55).
VI. Analysis A. Whether the Minister’s Decision is unreasonable [39] Leaving aside for the moment the constitutional arguments of the First Nation Applicants (that the Decisions were unreasonable because Canada failed to reasonably consult and accommodate them), the arguments challenging the reasonableness of the Decisions as a matter of administrative law are advanced by Benga. Benga asserts that the JRP Report demonstrates a number of errors made by the JRP, as a consequence of which it was a materially flawed report and therefore not a report for purposes of CEAA 2012 upon which the Minister could rely in making the Minister’s Decision.
[40] As Benga submits, the JRP Report was a statutory prerequisite to the Minister’s Decision (CEAA 2012, s 47(1)). As explained in Taseko 1 at paragraph 45, a decision by the Minister or Cabinet may be set aside if it is based on a materially flawed or materially deficient report, such as one that falls short of legislative standards. In reliance on this principle, Benga raises both procedural fairness concerns, related to the process followed by the JRP before issuing the JRP Report, as well as concerns about the merits of the analysis in the Report. I will consider Benga’s procedural fairness concerns later in these Reasons but will presently address Benga’s arguments surrounding the merits of the substantive determinations in the JRP Report. Those determinations are reviewable on the reasonableness standard (Taseko 1 at paras 47-48).
[41] Benga submits that the JRP Report is flawed because the JRP ignored relevant material evidence, misapprehended the evidence before it, and failed to consider the rules of evidence. I will address each of the examples in the JRP Report upon which Benga relies in advancing this submission. However, before embarking on that analysis, I wish to address a point on which the parties take differing positions surrounding the extent, if any, to which this Court should take into account a decision by the Alberta Court of Appeal in litigation that the Applicants have pursued in an effort to set aside the decision by the AER.
(1) Alberta litigation [42] As noted earlier in these Reasons, on June 26, 2021, Benga’s legal counsel informed the Minister that Benga was considering appealing the Provincial Decision by the AER. Subsequently, Benga and the First Nation Applicants all commenced applications for permission to appeal the Provincial Decision to the Alberta Court of Appeal [ABCA], under section 45(1) of the Responsible Energy Development Act, SA 2012, c R-17.3 [REDA]. Under section 45(1), a decision of the AER is appealable to the ABCA with the permission of the Court of Appeal, but only on a question of jurisdiction or on a question of law.
[43] On January 28, 2022, the ABCA released its decision (Benga Mining Limited v Alberta Energy Regulator, 2022 ABCA 30 [ABCA Decision]), dismissing the applications for permission to appeal. The Applicants sought leave for appeal to the Supreme Court of Canada [SCC], which was denied.
[44] The Applicants take the position that this Court should not take the reasoning in the ABCA Decision into account in deciding the present applications for judicial review and, indeed, that it would be an error of law for the Court to do so. In support of that position, advanced in Benga’s submissions, they note that the ABCA was not conducting a reasonableness review. Rather, it was applying the particular test prescribed by REDA, which required consideration of whether the proposed appeal raised questions of law or jurisdiction only. The Applicants also note that the ABCA was considering Alberta law, not federal law, and had a limited record before it, or at least a record different from that which is presently before the Court.
[45] The Applicants also emphasize that the ABCA Decision addressed a leave application, not an appeal on its merits, and rely on the decision of the SCC in Saatva Capital Corporation v Creston Moly, 2014 SCR 53 [Saatva], which provided the following guidance on the extent to which appeal courts are bound by comments on the merits of an appeal made by leave courts (at para 122):
122. With respect, the CA Appeal Court erred in holding that the CA Leave Court’s comments on the merits of the appeal were binding on it and on the SC Appeal Court. A court considering whether leave should be granted is not adjudicating the merits of the case (Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3, at para. 88). A leave court decides only whether the matter warrants granting leave, not whether the appeal will be successful (Pacifica Mortgage Investment Corp. v. Laus Holdings Ltd., 2013 BCCA 95, 333 B.C.A.C. 310, at para. 27, leave to appeal refused, [2013] 3 S.C.R. viii). This is true even where the determination of whether to grant leave involves, as in this case, a preliminary consideration of the question of law at issue. A grant of leave cannot bind or limit the powers of the court hearing the actual appeal (Tamil Co-operative Homes Inc. v. Arulappah (2000), 49 O.R. (3d) 566 (C.A.), at para. 32).
[46] In response to the Applicants’ reliance on Saatva, the Respondents note that the SCC held only that an appellate leave court’s comments on the merits of an appeal are not binding on the appeal court, not that such comments cannot be taken into account. The Respondents recognize that the ABCA Decision was decided in a different statutory context and do not suggest that it has rendered any of the issues in the present applications res judicata or subject to issue estoppel. However, the Respondents note that some of the arguments the Applicants are advancing in the present applications were also advanced before the ABCA. To the extent the ABCA engaged with the merits of those arguments, as required by the test applicable under section 45(1) of the REDA that includes consideration whether the appeal has arguable merit (see ABCA Decision at para 28), the Respondents submit that this Court can treat the ABCA’s analysis as instructive.
[47] In my view, it would be inappropriately artificial for this Court to ignore the reasoning in the ABCA Decision as the Applicants suggest. This is particularly so given that, in one respect when considering the First Nation Applicants’ procedural fairness arguments later in these Reasons, the outcome of my analysis diverges from that of the ABCA, and I consider it appropriate to note and explain that divergence. However, I remain conscious of the various distinctions between the task and circumstances of the ABCA and those of this Court, as raised by the Applicants. As such, to the extent my Reasons reference the analysis in the ABCA Decision on arguments on which I arrive at similar conclusions, I emphasize now (and therefore will not necessarily repeat) that I am not relying on that analysis and arrive at my conclusions in these Reasons independent thereof.
[48] Also in relation to the Applicants’ litigation in the Alberta courts, I note that the parties have advised that they are pursuing applications for judicial review of the AER’s decision in the Alberta Court of King’s Bench [ABKB]. I understand that those applications name the AER (and the JRP in its capacity as the AER) and Alberta’s Aboriginal Consultation Office as respondents and seek to set aside the AER’s decision. As I understand the status of that litigation, the AER brought a motion to dismiss the applications, on the basis that the Applicants’ failed appeal under section 45 of REDA, combined with a privative clause in section 56 of REDA, prevented the Applicants from pursuing judicial review. On December 4, 2023, in an unpublished decision, the ABKB granted the motion and dismissed the applications.
[49] However, counsel have advised that the Applicants have appealed this dismissal to the ABCA. Counsel for the First Nation Applicants have further explained that the applications for judicial review before the ABKB remain as against Alberta’s Aboriginal Consultation Office, although they have been placed in abeyance pending the appeal of the dismissal of the applications against the AER.
[50] None of the parties take the position that these applications have any particular significance for the issues before this Court, other than the fact that the Applicants’ efforts to challenge the Provincial Decision are not exhausted, which could be relevant to this Court’s decision on remedies.
[51] I now turn to Benga’s arguments that the JRP Report is flawed because the JRP ignored relevant material evidence, misapprehended the evidence before it, and failed to consider the rules of evidence.
(2) Economic benefits of the Project [52] In assessing the economic benefits of the Project, the JRP considered the impact of global climate change policies on metallurgical coal demand. This assessment contributed to the JRP’s finding that it was likely that Benga had overstated the Project’s positive economic impacts. Benga submits that, in reaching this conclusion, the JRP ignored Benga’s economic analysis and evidence of continued demand for steelmaking coal and instead relied on a witness (Dr. Joseph, testifying on behalf of the Livingstone Landowners Group) who did not have applicable expertise and whose evidence was based on third-party reports. Benga raises similar concerns about the JRP’s reliance on the evidence of other lay witnesses from groups called the Crowsnest Conservation Society and the Eco-Elders for Climate Action. Benga argues that the JRP erred by ignoring Benga’s evidence, which was based on experience and expertise, and failing to assess the qualifications and reliability of the evidence of other witnesses.
[53] Benga submits that, in the JRP’s treatment of this opinion testimony, it failed to consider the rules of evidence. It argues that, even if not bound by the strict rules of evidence applicable to judicial proceedings, administrative decision-makers are still required to consider the reliability of evidence before them (see, e.g., Pridgen v University of Calgary, 2012 ABCA 139 at para 59).
[54] I accept that administrative proceedings are not an evidentiary free-for-all. Rather, as identified in section 22 of its TOR, the JRP hearing was to be conducted in accordance with the Alberta Energy Regulator Rules of Practice, Alta Reg 99/2013. However, as the Respondents submit, those rules do not prescribe a particular approach to the assessment of opinion evidence, and Benga has not identified any particular provision of those rules that it argues was contravened.
[55] The relevant portion of the JRP’s analysis is found at paragraphs 2858 to 2868 of its Report. The JRP references Benga’s evidence and that of Mr. Campbell of the Coal Association of Canada, who predicted future high demand for steel-making coal. The JRP also references the evidence of the Crowsnest Conservation Society and the Eco-Elders for Climate Action, surrounding alternative steelmaking technologies, and then that of Dr. Joseph. His evidence included submission of two scenarios from the International Energy Agency’s annual World Energy Outlook that, depending on various potential scenarios, suggested a future decline in global production of steelmaking coal. Benga argued that the scenarios spoke to production rather than demand, and Dr. Joseph responded that it was reasonable to think that demand would accompany production. The JRP ultimately described the information provided by Dr. Joseph as an independent outlook that such a decline in production and demand for metallurgical coal could be possible.
[56] In relation to the concerns raised by Dr. Joseph about declining production and demand, the JRP considered Benga’s argument that those scenarios spoke to production rather than demand and that, if only production and not demand decreased, this would result in higher prices for steel-making coal. However, the JRP concluded that a decline in demand would be a reasonable expectation if the steel industry was successful in developing new technologies to reduce its greenhouse gas emissions.
[57] Benga submits that the JRP’s analysis is illogical, because basic economics dictates that production (or supply) and demand are factors that influence price, not that there is a relationship between supply and demand. However, this argument asks the Court to re-weigh the evidence before the JRP in a manner that is not appropriate on judicial review.
[58] It is clear from the evidentiary references in the JRP Report that Benga’s evidence was not ignored, and the JRP’s treatment of the evidence and resulting analysis is intelligible as required by Vavilov (at para 99). Moreover, even if fault could be found with the JRP’s treatment of Dr. Joseph’s evidence or that of the other witnesses to which Benga refers, that evidence forms only a portion of the JRP’s reasoning in support of its finding that Benga had overstated the positive economic impacts of the Project. The Report also analyses the potential for negative economic impacts on the tourism and recreational sectors and the potential for coal quality from the Project to decline in later years of mine life, reducing market prices and government revenues (see paras 2835-2857).
[59] I find that this portion of the JRP’s analysis withstands reasonableness review under the principles prescribed by Vavilov and, applying the language of Taseko 1, that Benga’s arguments surrounding this analysis do not render the JRP Report a materially flawed or deficient report.
[60] Before leaving these arguments, I note that it appears that similar submissions were rejected by the ABCA, which held at paragraph 65 to 66 that Benga’s arguments amounted to assertions that the JRP should have accepted or preferred Benga’s evidence.
(3) Surface water quality and effects on westslope cutthroat trout [61] Benga advances similar arguments surrounding the JRP’s assessment of surface water quality and effects on westslope cutthroat trout [WSCT], topics within federal jurisdiction. Benga submits that the JRP improperly relied on lay evidence and unfounded opinion, lacking any scientific support, instead of Benga’s expert and science-based evidence.
[62] Benga explains that it conducted fish inventory surveys from 2014 to 2016, employing a suite of standard protocols including active capture and direct visual observation in order to characterize fish species composition, distribution and abundance in mark-capture assessment techniques, and that it continued to conduct annual fish surveys between 2016 and 2020. However, it submits that, instead of reviewing and relying on this evidence, the JRP accepted the evidence of the personal catch rate of a local fisherman, without assessing the fisherman’s qualifications or providing reasons why that evidence was reliable or more persuasive than that of Benga.
[63] This portion of the JRP Report (at paras 1177-1194), which addresses whether a particular waterway (Gold Creek) is a critical habitat for WSCT and the size and trends in WSCT populations, clearly references Benga’s surveys including its mark-capture assessment. As such, it is not possible to conclude that the JRP did not review Benga’s evidence. In expressing its concerns about WSCT populations and Benga’s proposed mitigation measures to avoid significant adverse effects on that species, the JRP stated the importance of having accurate population estimates and trends. The JRP disagreed with Benga’s characterization of a particular waterway as not being good habitat for WSCT, relying upon a number of evidentiary sources in arriving at that conclusion. It also expressed concern about the reliability of Benga’s data, including based on Benga’s own acknowledgement of the difficulty in obtaining an accurate population estimate.
[64] Included among the evidence that the JRP reviewed in the course of this analysis was that of a local fly fisherman who provided his personal catch rates and noted a dramatic decline following a 2015 pollution event. However, this evidence, based on the fisherman’s personal observations, was only one of a number of sources (including the Canadian Parks and Wilderness Society [CPAWS], the Coalition of the Alberta Wilderness Association and the Grassy Mountain Group [Coalition], and the Department of Fisheries and Oceans [DFO]) from which the JRP developed its concern about water quality effects on WSCT populations. I find no basis to conclude that this portion of the JRP’s analysis is unreasonable or that it renders the JRP Report materially deficient.
[65] As the Respondents note, Benga raised before the ABCA its concern that the JRP had improperly relied on anecdotal information from a local fly fisherman in considering Gold Creek as a critical habitat for WSCT. The ABCA Decision at paragraphs 72 to 73 found that Benga’s argument represented selective reading of the Provincial Decision (i.e., the JRP Report), which also described the position advanced by the CPAWS, the Coalition, and DFO. The ABCA found nothing in the Provincial Decision indicating that the JRP unreasonably relied upon the fly fisherman’s evidence, particularly since his concern echoed that of other hearing participants.
(4) Mitigation m