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Alberta will not hear Stoney Nakoda appeal for Fortress water application

"This means the appeal is over. The project can proceed as is."
Fortress Mountain Ski Resort, located in Kananaskis Country. SUBMITTED PHOTO

KANANASKIS COUNTRY – Alberta's environmental appeals board has decided against hearing Stoney Nakoda Nation's appeal for the province to reconsider a water licence that allows the removal of water from Fortress Mountain in Kananaskis Country.

In a decision released last month, the province dismissed the late appeal because it was outside the 30-day limit. Stoney Nakoda had argued errors were made in the decision-making process.

"This means the appeal is over. The project can proceed as is," Gilbert Van Nes, general counsel and settlement officer with the provincial environmental appeals board told the Outlook, adding Stoney Nakoda does have the option to challenge the board's decision in court, but it is not a process that happens often.

In its Feb. 21 decision, the board found that no exceptional circumstances warranted extending the deadline to accept appeals. Stoney Nakoda submitted its appeal 53 days after the water amendment licence approval was issued. The timeline to submit an appeal is within 30 days unless there is an exceptional circumstance.

While official reasons have yet to be written, Van Nes said Alberta Environment and Parks had brought up the little to no impact the project would have on the neighbouring Nation.

"Alberta Environment and Parks had raised concerns that Stoney Nakoda was not directly affected ... AEP argued there would be no impact that far downstream," Van Nes said.

In the appeal, Stoney Nakoda Nation representatives argued that Alberta failed to carry out any meaningful consultation and added any adverse impacts to the Nation's rights have yet to be addressed by the province or Fortress.

"We need to be at the table to negotiate an appropriate process and we were not given the opportunity," Stoney Nakoda Bearspaw Chief Darcy Dixon told the Outlook at the time.

Last spring, Fortress Mountain Holding Ltd. filed a water licence amendment to remove water from a tributary of Galatea Creek. It would require nine or more trucks per day to haul a maximum of 50,000 cubic metres of water a year from the mountain for commercial purposes.

In a public letter, Fortress officials said the interest for water removal was "driven by its purity", with a myriad of options for its use, including but not limited to breweries, distilleries, bottles, health-focused companies or non-chlorinated pure water options.

The province had received more than 200 letters of statement and concern, including from the neighbouring Nation. They were all dismissed as "not valid."

The water license was approved Oct. 25, 2019.

The Nation appealed on the grounds that the project is located within the Stoney Nakoda territory, also known as Hatha Tâga ​​​​​Baha, a site that is important for the exercise of the neighbouring Nation's Section 35 rights that is "ecologically sensitive and contains numerous important environmental resources for [Stoney Nakoda Nation]."

Nation representatives claim AEP incorrectly determined Stoney Nakoda was not directly impacted by the project, and that the province had failed to consult at all with the Nation as legally required.

In a pre-consultation assessment from the provincial government dated Sept. 19, 2019, the Aboriginal Consultation Office (ACO) determined there was no consultation required because the "threshold for triggering consultation is low when considering the potential impacts to First Nation's Treaty rights and traditional uses."

In addition, Fortress representatives said they have been trying to set up a meeting with the Nation since as early as March last year.

"As the re-development of Fortress has progressed over the years, we have had to look for innovative and sustainable solutions to the many challenges that have been faced," Fortress Mountain director of operations Chris Mueller wrote to the Nation in an Aug. 8, 2019 email.

"With significant thought and reflection, we feel this initiative provides incredible potential not only for Fortress but for the entire Kananaskis region. We very much look forward to backing up our ‘words’ with future ‘actions’ once provided the opportunity ... I would like to remedy the frustrations you expressed and am always available should you wish to talk."

The decision against not hearing the appeal came four days before the province announced three new members and two reappointed members to the environmental appeals board.

"The board oversees appeals and ensures fair process for all Albertans, so it’s important that we choose members who are experienced and will act in the best interest of the public and the province. With these individuals, I am confident we have achieved exactly that," Minister of Environment and Parks Jason Nixon said in a statement on Feb. 25.

Nation representatives did not respond to request for comment by press time.

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