Alberta Court of Appeal dismisses Grassy Mountain appeals made by Northback and Piikani, Stoney Nakoda Nations
The Alberta Court of Appeal dismissed Tuesday appeals made by an Australia-based mining company and two First Nations for a new hearing over a proposed coal mine along the Eastern Slopes of the Rocky Mountains.
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In 2021, the Alberta Energy Regulator (AER), acting as part of a joint provincial-federal review panel, had turned down provincial approval for the Grassy Mountain project proposed by Benga Mining, now Northback Holdings. The federal government also rejected the proposal that year.
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Benga, Piikani Nation and Stoney Nakoda Nation challenged the AER decision, appealing both to the Alberta Court of Appeal as well as filing applications for a judicial review in the Court of King's Bench.
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Permission to appeal to the Court of Appeal was denied, and Justice Allison Kuntz turned down three separate judicial review applications made to the Court of King's Bench in December 2023.
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Following an Oct. 8 hearing, Justices Jane Fagnan and Karan M. Shaner upheld the dismissal of the judicial review applications, with Chief Justice Ritu Khullar dissenting.
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In their majority decision, the justices noted that Kuntz had pointed out that none of the judicial review applications challenged the constitutional validity of section 56 of the Responsible Energy Development Act (REDA), which prohibits judicial review.
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Kuntz had dismissed the judicial review applications because they were barred by the REDA section.
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In upholding that 2023 ruling, the justices wrote that Northback and the two First Nations were essentially arguing that the section is 'ineffective for constitutional reasons.'
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'The appellants did not provide timely notice of the constitutional issue raised before the chambers justice,' the justices concluded in Tuesday's ruling.
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'In the circumstances, the chambers justice did not err in determining that s 56 barred judicial review by the Court of King's Bench in this case.'
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