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

EDMONTON — 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. 

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. The Canadian Press has reviewed about half of them and found them heavily redacted.

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

The government policy decision that sparked their 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 did not immediately provide a comment on the ruling.

New Democrat Opposition environment critic Sarah Elmeligi said in a release that most Albertans oppose coal mining in the Rockies.

“The UCP has chosen to hide information that the public has requested, has a right to know, and is now mandated by a judge to share.

“Albertans shouldn’t have to fight for years just to get some honesty from their government. If (the UCP) truly have nothing to hide, there should be no hesitation in releasing all documents associated with coal mining in the Rocky Mountains.”

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. 

This report by The Canadian Press was first published April 15, 2024. 

Bob Weber, The Canadian Press