Alberta regulator accepts Rockies coal mine application, will call public hearing

Brian Jean gestures during a leadership debate in Medicine Hat, Alta., Wednesday, July 27, 2022. Alberta's energy regulator will accept an application and open hearings into a controversial open-pit coal mine on the southern slopes of the province's Rocky Mountains. (THE CANADIAN PRESS/Jeff McIntosh)

Alberta's energy regulator has accepted initial applications and is to open public hearings for a controversial open-pit coal mine on the eastern slopes of the province's southern Rocky Mountains that has already been turned down twice. 

In an internal letter dated Thursday, the Alberta Energy Regulator says it made its decision after receiving "clarification" from Energy Minister Brian Jean about whether or not Northback's Grassy Mountain proposal should be exempted from a moratorium on coal development on those landscapes. 

"The (regulator) has accepted the ... applications from Northback and has determined they should be decided by a panel of hearing commissioners," the letter says. 

The news was welcomed by Blair Painter, mayor of the nearby community of Crowsnest Pass.

"It's good news for the community," he said.

"It would give us a really good industrial base. We view it as a great opportunity."

Area landowners and ranchers weren't as pleased.

"Our immediate reaction is one of great frustration and disappointment," said Bobbi Lambright of the Livingstone Landowners Group.

"It's pretty clear that this is a political rather than a regulatory decision."

The Grassy Mountain proposal, the site of significant mining in the past, has been before regulators for years. The steelmaking coal project was judged not in the public interest in 2021, after a long environmental review by a joint federal-provincial panel, and its permits were denied by both levels of government. 

But the proposal was included on a list of so-called "advanced projects" exempted from a 2022 ministerial order that banned coal development in the Rockies, issued after a loud public outcry over a staking rush on those lands. 

In September, the project was revived under the name Northback. Northback has applied for drilling and exploration permits and a water diversion licence and argues that it remains exempt from the order.

Opponents argue the project lost its advanced status when governments turned it down and that the regulator shouldn't consider the new applications.

"It's legally dead," Nigel Bankes, a University of Calgary emeritus professor of resource law, said in a blog post. "It's an ex-project."

In a November letter to the regulator, Energy Minister Brian Jean said once a project, always a project. 

"Once a project is considered an advanced project it remains as one regardless of the outcome of regulatory applications submitted before it was declared an advanced project," he wrote. "It is my expectation that the (regulator) will review any applications related to these advanced coal projects."

That's what the regulator says it will do.

"A letter from the minister of energy clarifying the application of the (ministerial order) ... carries significant weight," says the regulator's Thursday letter.

It instructs its hearing commissioner to strike a panel to consider Northback's applications. It's not clear yet how that panel would operate or who would be eligible to appear before it. 

There is likely to be significant interest. 

A letter from Northback's lawyers to the regulator says 43 statements of support have been received. The regulator's website shows 83 objections to the drilling application. 

It may not get that far. Katie Morrison of the Canadian Parks and Wilderness Society said her group is considering a legal challenge to the regulator's ruling that a proposal killed by two levels of government can still count as an advanced project. 

"(The regulator) is missing the point," she said. 

"This isn't a project that should be going through the regulator. It should not be considered an advanced project."

Morrison points to widespread opposition to expanded coal mining in the Rockies that exploded after the United Conservative Party government withdrew protections in 2020 for those lands without public consultation.

"Northback is refusing to hear the 'no' that has come from the vast majority of Albertans who oppose coal," she said. "The company continues to find these wedges and loopholes."

Northback CEO Mike Young wrote in an email that the company will listen to concerns of all Canadians and government regulators.

"We look forward to learning more details on the AER panel review of our proposed exploration drilling applications and sharing how our expertise and experience will ensure this exploratory drilling program is safe and protects the valuable water resources in the region,” he wrote.

Bankes said that even if the hearing goes ahead, the project still faces its previous regulatory rejections, upheld by the Alberta Court of Appeal.  

"They keep trying and trying and trying, but Northback has to undermine or get quashed both the federal decision and the provincial decision," he said.

A Federal Court ruling last week rolled back the federal rejection. But that decision only compels cabinet to complete consultations with First Nations and leaves it open for Ottawa to reject the mine again. 

Meanwhile, Painter is hoping for the best.

"Northback has supported our hospital and different social entities," he said. "They've been a good corporate citizen."

Here we go again, said Lambright. 

"(The project) was conclusively denied by the joint review panel, the Alberta Energy Regulator, the federal and provincial governments in a regulatory process that was one of the most extended and comprehensive of any project.

"Why are we back doing a hearing again?"

This report by The Canadian Press was first published Feb. 23, 2024.