Judge orders Alberta to produce massive trove of coal documents after 4-year fight

The Alberta government must produce thousands of documents on its attempts to encourage coal mining in the Rocky Mountains after a judge threw out a bid to block their release.

In denying the government’s request for a judicial review into an order to provide the documents, Justice Kent Teskey warned the province that courts take a dim view of delay being used to neuter public attempts to understand how important decisions are made.

“The requesting parties have been practically denied access to the information they are entitled to at law and this court will not abet this conduct through the availability of judicial review,” he wrote in a judgment released Friday.

“If public bodies are unwilling or unable to comply with their timely obligations under (freedom of information law), they should expect that courts may apply a high level of scrutiny on the availability of judicial review.”

The judgment relates to an attempt by a group of southern Alberta ranchers to understand why the United Conservative Party government chose in 2020 to rescind a decades-old policy that had blocked open-pit coal development from the beloved landscapes of the southern foothills and Rockies.

In 2020, the group asked Alberta Energy for briefing notes, internal memos, reviews, reports and correspondence.

Legislation says a public body has 30 days to make reasonable attempts to respond but may make 30-day extensions. Those extensions were imposed again and again and, after 15 months, the department released 30 pages of what it said were 6,539 records.

It eventually refused to release any more, using exemptions allowed by the law. The ranchers appealed that decision to the Information and Privacy Commissioner’s office, and the exemptions were disallowed.

The judge threw out the government’s request for a judicial review of that decision, saying it relied too heavily on loopholes for cabinet discussions.

“Cabinet confidence is essential to ensure that the government can deliberate freely and unimpeded, but it does not exist to allow governing in secrecy,” Teskey wrote.

As well, the judge said the government changed, without explanation, the number of documents involved, cutting the original number by more than a third.

“I am concerned about the seemingly casual attitude that Alberta Energy adopted in representing the number of records before the commissioner,” Teskey wrote.

Timely access important

His ruling emphasized the importance of timely access to government records.

“Every Albertan is entitled to a broad right of access to the records of their government. This is an essential pillar of a functional democracy.

“It is difficult not to look at the history of this matter and see the critical rights imbued by access to information as being largely illusory.”

Laura Laing, one of the ranchers who made the information request, said the four-year fight was worth it.

“I think (the government) expects people to give up. We’re ranchers. We’re gritty.”

Laing said she’s so far received 609 pages of documents and many have been heavily redacted.

“It’ll probably take years before we can get all the redactions removed. But we’re determined.”

Reacting to the court decision, Brian Jean, Minister of Energy and Minerals, said he felt his department had fairly complied with the ranchers’ request. 

“We have released thousands of documents,” said Jean.

“My understanding is we have and we’ve released all that we are required to by law. And of course there are opportunities to restrict some of the documents based upon the best legal advice and that’s of course what we’ve taken and there is an appeal process for that. And of course, if they want to appeal that, that’s fine and they can do so.”

Jean said his ministry will consider appealing the judge’s decision, because of the impact they believe it will have on cabinet confidence. 

Sarah Elmeligi, Opposition New Democrat environment critic, said she believes the documents should be released in full. Critic, said she believes the documents should be released in full. 

“The government is in place to serve the people.

“The people have very clearly asked for more detailed information about how these decisions around the coal policy and coal mining permissions are being made. And it’s the government’s duty to provide that accountability and transparency. That’s their job.”

Coal application hearings this spring

The government policy decision that sparked the ranchers’ request has since been reversed. But Laing said it’s worth understanding how it was made in the first place.

“Nothing about this coal file has made sense from the beginning. We and Albertans deserve to know the truth behind decisions like this.”

Alberta Energy was unable to immediately provide a comment on the ruling.

Recently, the department provided direction to the province’s energy regulator that it should consider exploration licence applications in the Rockies from an Australian coal company. Those applications are to go before public hearings later this spring.

In January, the Globe and Mail reported Alberta’s Office of the Information and Privacy Commissioner had launched a review into an array of government departments concerning non-compliance with provincial access to information law.

In an investigation into freedom of information across Canada, the newspaper found Alberta was the only province that refused to provide basic information on the functioning of its system.