Emails obtained through a freedom of information request reveal unusual backroom discussions between a coal mining company, the Alberta Energy Regulator’s CEO Rob Morgan, and top UCP bureaucrats prior to the cancellation of a public hearing into Mine 14.
Valory Resources, owner of Summit Coal, is trying to open an underground coal mine near Grande Cache.
On August 21 Morgan cancelled a public hearing into the proposed mine that the AER’s hearing commissioners had scheduled for October 21.
New revelations about what happened before Morgan’s unprecedented public hearing cancellation have put his actions under the legal microscope.
A month earlier, Valory Resources, owner of Summit Coal Inc., sent a letter to the AER asking for a hearing adjournment. Valory Resources President Brian MacDonald also posted a letter to Energy Minister Brian Jean’s office, saying that he was “concerned and disappointed with Alberta’s regulatory processes.”
In a joint lawsuit, the Alberta Wilderness Association and the Canadian Parks and Wilderness Society are seeking to have Alberta’s appeal court overturn Morgan’s decision to cancel the hearing. The two environmental groups were planning to grill Australia-based Valory over its mine plan.
Thanks to internal documents acquired by these two conservation groups, we now know that Morgan was seeking input and a meeting with senior energy ministry staff before he axed the hearing.
Independence of regulator called into question
Nigel Bankes, a resource law specialist at the University of Calgary, says at the very least the paper trail calls into question the energy regulator’s independence.
At worst, it smacks of political interference.
“In my view, any attempt by the CEO to seek input from the Minister’s office about a live application is improper and unlawful, and lays waste to any claim that the AER is an independent decision-maker,”, wrote in a recent blog post.
The documents are heavily redacted. It’s not clear if the AER or the energy minister’s office initiated the contact. We also don’t know if a requested meeting ever happened.
What we do know is that this exchange looks bad.
According to Bankes, even if “Mr. Morgan had the jurisdiction to reconsider and overturn a decision of Hearing Commissioners in a matter with which they were still seized, his decision is tainted by the involvement of political staff.”
Appeal process underway
On November 6, AWA and CPWAS Northern Chapter made their first court appearance in the Alberta Court of Appeal to ask for permission to pursue an appeal of this decision.
The conservation groups are basing their appeal on three issues:
Did the AER’s CEO err in his interpretation of his own authority under the Responsible Energy Development Act (REDA?) Did he breach his statutory authority under REDA? Did he err in law or act unreasonably by misinterpreting and misapplying provisions within REDA without justification?
“I thought our representation did well and stayed on topic. My impressions were that the Summit lawyer covered a lot of background information that was not relevant to the legal arguments we posed,” Kennedy Halvorson, AWA’s conservation specialist, told The Rockies.Life.
“Hard to tell what the Justice will decide; she listened, asked a few clarifying questions, and then left quite abruptly at the end. We don’t have a timeline on when she will make her decision,” he said.
