Rocky Mountain coal hearings still scheduled despite top court allowing appeal

Grassy Mountain, peak to left, and the Grassy Mountain Coal Project are seen north of Blairmore, Alta., Thursday, June 6, 2024. (THE CANADIAN PRESS/Jeff McIntosh)

The Alberta Energy Regulator seems to be going ahead with hearings on coal exploration in the Rocky Mountains despite a court ruling that opened the question of whether those applications should have been accepted.

The regulator has promised to hold public hearings into three applications from Northback Holdings to explore for coal on the Grassy Mountain site in southwestern Alberta. It released a document dated Aug. 21 that lays out a schedule for hearings in December and January.

The following day, Alberta's top court granted leave for a ranching community to appeal and test the validity of those applications. The Alberta Court of Appeal said it would hear arguments from the Municipal District of Ranchland that the regulator shouldn't have accepted them.

The Grassy project has been previously rejected by an environmental panel and stymied by a provincial ministerial order blocking coal development in the Rockies. But the regulator accepted Northback's applications after receiving a letter from Energy Minister Brian Jean suggesting Grassy Mountain was an "advanced project" and should be exempt from the ban.

In granting the appeal, Justice Kevin Feth wrote the court needs to weigh Ranchland's argument that a project, once rejected by a regulatory body, no longer exists and can't be considered advanced. Feth also said the regulator may have placed too much weight on Jean's letter.

The Canadian Press has asked the regulator several times how Feth's ruling would affect its hearing plans, if at all. The news agency was referred to the regulator's Aug. 21 document.

"I have no additional information to share," said a Monday email from spokesman Renato Gandia.

Ron Davis, reeve of Ranchland, said the municipality won't ask for a stay of the hearings.

"Appealing the dates can be costly and time-consuming and I don't know how much benefit it would be," he said Monday. "We still have the opportunity to put our case forward at the Appeal Court and I think we're covered there."

Hearings for interveners granted limited standing are to appear before the regulator Dec. 3-4. The 46 participants, which include individuals, businesses and environmental groups, can present oral arguments only.

Eight full participants, who can ask questions of witnesses, are to appear Jan. 14-31. Those participants include local landowners, municipalities and four First Nations.

Lawyers for Northback have asked the regulator to advance those dates, saying the current plans preclude work getting done over the winter 2025 construction season.

In his ruling, Feth warned that all that testimony may be moot if Ranchland's appeal is successful.

“The Municipal District’s appeal, if successful, may be dispositive of the applications in their entirety and probably avoid substantial expense and the consumption of limited regulatory resources,” he wrote.

Nigel Bankes, a University of Calgary emeritus professor in resource law, wrote in an email that a successful Ranchland appeal would simply negate the entire hearing.

"If (the court) rules that (the regulator) should never have accepted the applications, then the entire proceeding will be a nullity and a waste of time and resources."

This report by The Canadian Press was first published Aug. 26, 2024.