CROWSNEST PASS, ALBERTA - August 13, 2021 - Benga Mining Limited (Benga) today announced that it has applied to the Federal Court of Canada for a judicial review of decisions against the Grassy Mountain Steelmaking Coal Project (Project) by the Minister of Environment and Climate Change, Jonathan Wilkinson, and the Cabinet, on the grounds that those decisions were unlawful, incorrect, unreasonable and/or unconstitutional.

Benga has applied for an order that quashes or sets aside the Minister’s decision of August 6, 2021, that the Project, “is likely to cause significant adverse environmental effects” and which referred the Project to the Cabinet (Referral Decision). Benga is also seeking to quash the Cabinet’s decision that the, “significant adverse environmental effects” that the Project, “is likely to cause are not justified in the circumstances.” The full court filing can be found here.

The Minister’s determination was based on a decision by the Joint Review Panel (JRP) on June 17, 2021, to deny the Project, and was made despite applications being filed with the Court of Appeal of Alberta on July 16 and 19, 2021, by Benga and two separate First Nations, the Piikani Nation and the Stoney Nakoda Nations. The applications challenge the JRP’s decision on the grounds that it made a number of errors in law and contraventions of procedural fairness and that the JRP’s report was fundamentally and fatally flawed.

Benga’s legal counsel wrote to the Minister on June 26, 2021, formally requesting that he take no action at this time, in order to allow Benga to pursue its legitimate legal avenues on appeal. The Minister did not respond.

Benga then wrote to the Impact Assessment Agency of Canada on July 6, 2021, advising that failure by the Minister to hold the federal process in abeyance pending resolution of Benga’s legal challenges in the Court of Appeal of Alberta would seriously prejudice Benga and potentially those Indigenous groups that may benefit from the Project.  The Agency did not respond.

“We are dismayed that Canada’s Minister of Environment could render a decision so hastily, and based on a report that is facing multiple legal challenges,” said John Wallington, CEO of Benga. “Not only were the Minister’s and Cabinet’s decisions premature and ill-informed, they were also made without adequate consultation with the relevant First Nations, something that is unconscionable within the rigours of a modern regulatory approval process.”

The judicial review in the Federal Court of Canada is being sought on grounds that:

• The Minister improperly failed to consider Benga’s request to hold a decision statement in abeyance while the Alberta Court of Appeal considered the JRP’s decision;
• The Minister improperly relied on a fundamentally flawed JRP report to reach his decision;
• The Minister reached a decision prematurely, knowing that if the JRP report was quashed or sent back for reconsideration, then the Minister’s decision would be invalidated;
• The Minister unreasonably found that the Project is likely to cause significant adverse environmental effects; and
• Prior to the Minister’s Referral Decision, the Federal Crown failed to consult, or failed to adequately consult, with Indigenous groups.

Further, Benga is seeking a judicial review on the grounds that the Cabinet’s decision incorrectly or unreasonably relied on the Minister’s fundamentally flawed Referral Decision. If the Referral Decision is quashed or set aside, the Cabinet’s decision must also be quashed or set aside.

“Throughout the years-long application process which Benga has diligently followed, Benga and its First Nations partners have respected and adhered to the rules,” Wallington said. “Benga’s parent company has to date outlaid in excess of $700 million in acquiring the Project and in pursuing the necessary regulatory approvals.  At the time of acquiring the Project, we were warmly welcomed and made to feel that Canada was very much open for business and intent upon attracting international investment and capital for the development of large-scale projects that would stimulate the economy and provide employment opportunities and jobs.  We were acutely aware of Canada’s international reputation as a destination of choice for mining projects that could be developed without political interference within an open, transparent and fair regulatory regime.  However, the Minister’s and Cabinet’s decisions that we are now seeking to review raise serious questions about sovereign risk and just how open, transparent and fair the regulatory regime actually is.” 

The Project is a proposed steelmaking coal mine in Crowsnest Pass, Alberta.  Metallurgical coal is vital for the production of steel as there is no proven commercially or economically viable substitute for that in the steelmaking process. The Project holds a Category 4 land use classification (being land on which surface or underground mining may be considered); nearly 25% of the Project sits on previously mined (legacy) land, which was mined over 60 years ago and never properly restored at the time, but will be restored if the Project proceeds. 

The capital expenditure for the proposed Project is approximately $800 million, and approximately 500 jobs would be created during construction and 385 full-time positions at full production, plus further benefits to many people indirectly employed. Over the life of the mine, the Project would be expected to generate $1.7 billion in provincial and federal income taxes and royalties.

FEDERAL COURT

BENGA MINING LIMITED

Applicant

-and-

THE MINISTER OF ENVIRONMENT AND CLIMATE CHANGE and THE ATTORNEY GENERAL OF CANADA

Respondents

NOTICE OF APPLICATION

TO THE RESPONDENTS:

A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following page.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at Calgary, Alberta.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notic€, of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Courts Rules, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

CROWSNEST PASS, ALBERTA – August 9, 2021 - Benga Mining Limited (Benga) today announced that it is reviewing with its legal counsel the Decision Statement of the Minister of Environment and Climate Change, Jonathan Wilkinson, issued in Ottawa on August 6, 2021, in which the Minister determined that the Grassy Mountain Steelmaking Coal Project (Project), “is likely to cause significant adverse environmental effects”. The Minister based his determination on the report of the Joint Review Panel (JRP) that was issued on June 17, 2021.

The Minister’s determination was made despite applications being filed with the Court of Appeal of Alberta on July 16 and 19, 2021 by Benga and two separate First Nations, the Piikani Nation and the Stoney Nakoda Nations, challenging the JRP’s report on the grounds that the JRP made a number of errors in law and contraventions of procedural fairness and that the JRP’s report was fundamentally and fatally flawed. (See news release issued July 19 here.)

The Minister’s Decision Statement was issued notwithstanding that by letter dated June 26, 2021, Benga’s legal counsel wrote to the Minister formally requesting that he take no action at this time, in order to allow Benga to pursue its legitimate legal avenues on appeal. Benga received no response from the Minister’s office and was simply emailed the Minister’s Decision Statement late in the afternoon of Friday, August 6, 2021.

“We are shocked that Canada’s Minister of Environment should take such a precipitous step before our legal appeal could be heard in court,” said John Wallington, CEO of Benga. “By ignoring Benga’s legitimate request that he hold his decision in abeyance whilst the legal appeal process runs its course, the Minister has ridden roughshod over the legal rights of Benga, Piikani Nation and Stoney Nakoda Nations, adversely affected economic interests, and relied on a JRP report that is the subject of multiple legal challenges. As such, the Minister’s actions may have far-reaching implications beyond any one project, and sends a strong message to potential investors that Canada’s regulatory regime is uncertain. To be denied due legal process after investing hundreds of millions of dollars and diligently meeting all regulatory requirements over five years in the lead-up to the JRP hearing, is very concerning. Further, it is beyond comprehension that the Minister’s action was taken without consultation with First Nations, with the company, or with the communities that would benefit from the development of this Project.”

The Project is a proposed steelmaking coal mine in Crowsnest Pass, Alberta. Metallurgical coal is vital for the production of steel as there is no substitute for that in the steel making process. The Project holds a Category 4 land use classification (being land on which surface or underground mining may be considered); nearly 25% of the Project sits on previously mined (legacy) land, which was mined over 60 years ago and never properly restored at the time, but will be restored if the Project proceeds.

The capital expenditure for the proposed Project is approximately $800 million, and approximately 500 jobs would be created during construction and 385 full-time positions at full production, plus further benefits to many people indirectly employed. Over the life of the mine, the Project would be expected to generate $1.7 billion in provincial and federal income taxes and royalties.

Benga has 30 days in which to apply to the Federal Court of Canada for a judicial review of the Minister’s determination.

CROWSNEST PASS, ALBERTA - July 19, 2021 - Benga Mining Limited (Benga) today announced that it has commenced a legal appeal process following the decision of the Grassy Mountain Joint Review Panel (JRP), in its capacity as the Alberta Energy Regulator (AER), dated June 17, 2021, to deny the Grassy Mountain Steelmaking Coal Project (Project). Benga has filed an Application for Permission to Appeal to the Court of Appeal of Alberta.

“After careful and thorough review of the JRP’s report, Benga believes that the AER’s conclusions and reasons contain material errors of law and contraventions of procedural fairness,” said John Wallington, CEO of Benga. “Among the reasoning in its report, the AER dismissed the full support of the relevant First Nations without consultation, demonstrated a lack of familiarity with the provincial royalty regime, and gave preference to non-expert layman analysis over expert, science-based evidence. These errors must be addressed to not only deliver fairness to Benga and the Indigenous groups adversely affected by the decision, but to provide future guidance to any company considering an investment in Alberta and Canada, any participants in AER and JRP review processes, future AER and JRP panels, and Indigenous groups that support projects and can benefit economically and culturally from their approval.”

Benga’s Application for Permission to Appeal is based on a number of errors made by the JRP in its capacity as the AER, each of which raises a question of law or jurisdiction. These errors include:

• Failing to engage with, consult with, or suggest consultation with affected Indigenous groups when contemplating the rejection of the Project. As a result, the JRP did not properly assess the impact of the rejection of the Project on Indigenous rights and economic interests. Should it proceed, the Project would create hundreds of jobs and generate economic benefits for nearby Indigenous groups.
• Denying Benga procedural fairness by finding that Benga submitted insufficient information in its application, after informing Benga prior to the hearing that the “content of the EIA report and addenda meet the Alberta Energy Regulator final terms of reference”.
• Ignoring relevant evidence from Benga, or misconstruing that evidence related to topics such as surface-water quality, Westslope Cutthroat Trout and their habitat, and Project economics.
• Improperly relying on layperson or non-expert and unfounded opinions that lacked science-based support, rather than on science-based evidence presented by Benga.
• Finding that Alberta’s Mine Financial Security Program – which is overseen by the government itself – was inadequate for Benga to rely on to address long-term water treatment costs.

Each of these errors was fundamental to the JRP’s finding that the Project is not in the public interest and require the JRP to reconsider Benga’s application to approve the Project.

Benga believes it is unprecedented for Alberta’s energy regulator to deny a project after a public hearing. Since 2009, 11 oil sands and coal mining projects have gone through Alberta’s energy regulator oral hearing process, with eight being approved, three withdrawn, and none denied.

“The JRP could have addressed any valid concerns with the Project by making an approval conditional on strict conditions. This well-established and proven approach ensures any development can only proceed with adequate protections in place. Unfortunately, for reasons unknown to us, the JRP imposed a decision that is based on a number of errors of law, leaving Benga no choice but to take the steps we announced today,” said Wallington.

Benga will file an Affidavit and a Memorandum of Argument in support of its Application for Permission to Appeal in the coming days and weeks.

The Grassy Mountain Project is a proposed steelmaking coal mine in Crowsnest Pass, Alberta. The Project holds a Category 4 land use classification; nearly 25% of the Project sits on previously mined (legacy) land, which was mined over 60 years ago and never properly restored. Benga’s plans incorporate industry- leading practices to manage water use, protect wildlife and accelerate reclamation.

The proposed capital expenditure for the Project is approximately $800 million, and approximately 500 jobs would be created during construction and 385 full-time site positions at full production. Over the life of mine, the Project would be expected to generate $1.7 billion in provincial and federal income taxes and royalties.

NOTICE TO RESPONDENT(S):

You have the right to state your side of this matter before the Court.
To do so, you must be in Court when the application is heard as shown below:
Date: August 26, 2021, or such other date as directed by this Honourable Court.
Time: 9:30 a.m.
Where: By video conference or audio telephone, as this Honourable Court directs.
Before: Single judge of the court (Rule 14.37).

Nature of Application and Relief Sought:

1. The Applicant, Benga Mining Limited (“Benga”), seeks an order from this Honourable Court pursuant to section 45 of the Responsible Energy Development Act, SA 2012, c R-17.3 (“REDA”):
(a) granting permission to appeal the decision of the Joint Review Panel (“JRP”) for the Grassy Mountain Coal Project in its capacity as the Alberta Energy Regulator (the “AER”) in Decision 2021 ABAER 010: Benga Mining Limited, Grassy Mountain Coal Project, Crowsnest Pass dated June 17, 2021 (the “Decision”);
(b) awarding the costs of this application against any registered participants identified in Schedule A that participate in this proceeding; and
(c) such further and other relief as this Honourable Court deems just.
2. In the Decision, the JRP, in its capacity as the AER, found that the Grassy Mountain Coal Project (the “Project”) is not in the public interest and therefore denied Benga’s applications under the Coal Conservation Act, RSA 2000, c C-17; Environmental Protection and Enhancement Act, RSA 2000, c E-12 (“EPEA”); Water Act, RSA 2000, c W-3; and Public Lands Act, RSA 2000, c P-40.
3. The AER’s conclusion and reasons are grounded in and contain material errors of law and contraventions of procedural fairness that warrant this Court granting permission to appeal.

CROWSNEST PASS, ALBERTA - July 6, 2021 – Benga Mining Ltd., operating as Riversdale Resources, today responded to a news release issued by Alberta’s NDP that contained a number of factually incorrect statements.

The NDP incorrectly claim that work is continuing at the Grassy Mountain Project and that water is being diverted for use at the Project. This is categorically false.  Work halted at Grassy Mountain immediately following the determination of the Joint Review Panel (JRP) that the Project was not in the public interest.

The NDP news release indicates that water licenses for the purpose of supporting drilling activities were approved by the Alberta Energy Regulator (AER) for the Grassy Mountain Project on June 30, which is nearly two weeks following the JRP decision.

Riversdale confirms these licenses were applied for by the company in March 2021, prior to the JRP decision. However, all drill programs have ceased since the JRP report was released.

Riversdale has contacted the NDP and has requested the removal or correction of inaccurate statements made about the company.

The Grassy Mountain Project is located on Treaty 7 lands in Alberta and is also in the traditional lands of Métis represented by Métis Nation of Alberta Region 3. The Company has received support letters for the Project from all of the Treaty 7 First Nations including Piikani Nation, the Blood Tribe/ Kainai, Siksika Nation, Stoney Nakoda Nation, Tsuut’ina Nation, as well as the Métis Nation of Alberta, and the National Coalition of Chiefs. The Company has consistently demonstrated it is committed to advancing the Grassy Mountain Project in a manner that is respectful of First Nations and Métis Peoples. Engagement with First Nations and Métis communities in the region began five years ago at the earliest stages of the Project.

The Grassy Mountain Project is a proposed steelmaking coal mine in Crowsnest Pass, Alberta. The Project holds a Category 4 land use classification; nearly 25% of the Project sits on previously mined (legacy) land, which was mined over 60 years ago and never properly restored at the time but will be restored if the Project proceeds.

The capital expenditure for the proposed Project is approximately $800 million, and approximately 500 jobs would be created during construction and 385 full-time site positions at full production, plus further benefits to many people indirectly employed.  Over the life of mine, the Project would be expected to generate $1.7 billion in provincial and federal income taxes and royalties.

CROWSNEST PASS, ALBERTA - June 22, 2021 - Benga Mining Ltd, operating as Riversdale Resources, is reviewing the report issued by the Grassy Mountain Joint Review Panel (JRP) established by the Federal Minister of Environment and Climate Change and the Alberta Energy Regulator. The JRP report concluded that the Grassy Mountain Steelmaking Coal Project is not in the public interest. Riversdale Resources is disappointed at this initial outcome.

As part of its review to better understand the report’s conclusion and the underlying stated reasons, the Company is reviewing its options moving forward.

The Company submitted its Project proposal to regulators in August 2016 and spent nearly five years moving through a joint federal/ provincial environmental assessment review. The Grassy Mountain application has undergone extensive review by the appointed Joint Review Panel, federal and provincial regulators, stakeholders, and Indigenous communities. Feedback during the hearing suggested that the panel had all the information required to make a decision.

Given the comprehensive more than 26,000 pages of detailed information provided as part of the submission over many years covering all relevant aspects of the Project, 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.  As such, we will be engaging with the relevant authorities to better understand the reasons for the decision to obtain assurance that the process has been fair and transparent, has accorded sufficient weight to recognised experts and established industry practices, and that the decision is not effectively an anti-development decision.

The Project is located on Treaty 7 lands in Alberta and is also in the traditional lands of Métis represented by Métis Nation of Alberta Region 3. The Company has received support letters for the Project from all of the Treaty 7 First Nations including Piikani Nation, the Blood Tribe/ Kainai, Siksika Nation, Stoney Nakoda Nation, Tsuut’ina Nation, as well as the Métis Nation of Alberta, and the National Coalition of Chiefs. The Company has consistently demonstrated it is committed to advancing the Grassy Mountain Project in a manner that is respectful of First Nations and Métis Peoples. Engagement with First Nations and Métis communities in the region began five years ago at the earliest stages of the Project.

The Grassy Mountain Project is a proposed steelmaking coal mine in Crowsnest Pass, Alberta. The Project holds a Category 4 land use classification; nearly 25% of the Project sits on previously mined (legacy) land, which was mined over 60 years ago and never properly restored at the time but will be restored if the Project proceeds.

The capital expenditure for the proposed Project is approximately $800 million, and approximately 500 jobs would be created during construction and 385 full-time site positions at full production, plus further benefits to many people indirectly employed.  Over the life of mine, the Project would be expected to generate $1.7 billion in provincial and federal income taxes and royalties.