The AER rejects Summit Coal’s requests for their Mine 14 Public Hearing
March 3, 2025
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On February 25, 2025, Summit’s legal representatives sent a letter to the AER requesting a pre-hearing meeting to determine what they characterize as “substantive issues” with the proceedings. These include:
“(a) the scope of Indigenous law issues to be addressed at the hearing of the Applications;
(b) the scope of non-Indigenous law issues to be addressed at the hearing of the Applications;
(c) the eligibility of the ENGOs to recover costs from Summit;
(d) the eligibility of the Indigenous groups to recover costs from Summit;
(e) an advanced determination as to whether the hearing will be cancelled if the four Indigenous groups granted participation rights withdraw their requests to participate, but the two ENGOs do not”
Summit also requested to set a timeline they want AER to abide moving forward, attempted to limit what AWA should be permitted to speak about during the public hearing, and called into question the AER’s decision to include AWA in the proceedings:
“The Hearing Panel’s participation decisions with respect to the four Indigenous groups not recognized by the ACO and the two ENGOs create significant uncertainties regarding how the AER will process the Applications through a hearing. These uncertainties need to be addressed not only so that the Applications can be efficiently processed, but also so future investors in Alberta’s resource economy have some certainty and predictability regarding how Alberta manages its obligations to Indigenous communities and what the role of ENGOs are in Alberta’s regulatory processes.”
The AER promptly responded with their own letter on March 3, denying Summit’s requests on the following basis:
“The discretion to hold a pre-hearing meeting is afforded to us to organize complex or overly technical matters and to ensure that the hearing is an efficient process. It is not an opportunity to argue or re-argue positions that have already been decided by the panel… the essence of the submissions in Summit’s letter do not present a sufficient reason to hold a pre-hearing meeting. The submissions of Summit seem to request efficiency on one hand, but add additional steps that will require significant planning, resources, and deliberation… Coordinating what essentially amounts to two hearings, one pre-hearing meeting and the later hearing on the merits, will overly complicate and delay this proceeding…
Further, the submissions of Summit seem to indicate that the issues to be discussed at the pre-hearing meeting cannot be determined by the AER’s usual hearing processes. We disagree. The issue before us is to make a decision on the Applications in a manner that affords procedural fairness to all parties. That can be done in our usual hearing processes…
Summit’s submissions and request with respect to making pre-hearing costs arguments do not accord with the established procedure in D031, in addition to being premature because the panel will not have the requisite information to evaluate the factors set out in rule 58.1 until after the hearing…
Another issue that Summit proposed is related to a future process and if some parties withdraw their participation. It would be inappropriate to predetermine a decision that we might make in the future on facts that we do not have in front of us today. If those withdrawals occur, we will address them when they occur.
Finally, it appears that the bulk of Summit’s letter argues that we ought to reconsider our participation decisions, namely the participation of indigenous groups, the AWA, and CPAWS. A pre-hearing meeting is not an avenue for reconsideration or appeal of this panel’s decisions.
We do not accept Summit’s proposed schedule. We will consider logistical arrangements and any necessary procedural matters, and we will release our direction regarding hearing process in due course…
Lastly, all participants in proceeding 449 are directed to make further motions formally and in accordance with the section 44 of the Rules.”