Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on whether 42 internal government records were shielded from disclosure under public interest immunity.

• Plaintiffs claimed regulatory changes to Alberta’s 1976 Coal Policy led to a constructive expropriation of their coal development interests.

• Records at issue included briefing notes, ministerial communications, and Cabinet policy drafts from 2020–2023.

• Case turned on application of the Carey v Ontario test and whether documents revealed Cabinet deliberations or policy formulation.

• Alberta government asserted immunity citing Cabinet confidentiality, relying on the 2024 SCC decision in Ontario Information and Privacy.

• Court of Appeal overturned the lower court’s disclosure order, holding all but one group of documents were immune from production.

Background and litigation context

The dispute arises from a series of policy reversals affecting coal development along Alberta’s Eastern Slopes. The plaintiffs—Black Eagle Mining Corporation, Montem Resources Alberta Operations Ltd, Cabin Ridge Project Limited, Cabin Ridge Holdings Limited, Atrum Coal Limited, and Elan Coal Limited—held coal interests primarily on Category 2 lands under Alberta’s 1976 Coal Policy. Historically, these lands permitted surface mining, subject to regulatory approvals.

On May 15, 2020, Alberta announced the rescission of the 1976 Coal Policy, effective June 1, 2020, eliminating land categories and easing lease restrictions. Following this, the plaintiffs took steps to acquire assets and commence exploration.

On February 8, 2021, the rescission was reversed, reinstating the 1976 policy with added restrictions, including a ban on mountaintop removal. Subsequently, on April 23, 2021, coal exploration approvals were suspended until December 31, 2021, and on March 2, 2022, this suspension was extended indefinitely, halting new exploration applications indefinitely.

The plaintiffs alleged these reversals constituted constructive expropriation. In response, the Alberta government claimed public interest immunity over various records requested during litigation discovery.

Records and claims of immunity

The records fell into four categories:

• Materials for the Priorities Implementation Cabinet Committee (2020–2022),

• Ministerial communications (2020–2023),

• Briefing notes and drafts prepared by civil servants,

• Internal civil servant communications (2020–2023).

The government supported its claims with an affidavit and a certificate under section 34(4) of the Alberta Evidence Act, asserting that disclosure would harm public interest.

The case management judge ordered disclosure of 42 records, ruling they didn’t sufficiently reveal Cabinet deliberations or were already public. The judge reasoned some were merely “informational,” “narrative,” or draft versions of documents already released.

Appeal and Court of Appeal ruling

The Alberta Court of Appeal, comprised of Justices Slatter, Pentelechuk, and Ho, overturned the disclosure order in 2025 ABCA 22, concluding the judge misapplied the law on public interest immunity.

The appellate court emphasized:

• Immunity protects not only final Cabinet decisions but also the entire deliberative process, including advice, drafts, and strategy documents.

• Information being publicly known does not waive immunity if the record was part of policy formulation.

• Immunity is not defeated by a document being merely “informational” if it was addressed to a Minister or used in Cabinet deliberation.

• Records leading up to public decisions or communication strategies are still protected.

The appeal court accepted that internal decision-making around coal policy was ongoing, contentious, and of significant public interest. The court found no evidence of bad faith or misconduct by the government that would justify breaching confidentiality. It held that the need to preserve Cabinet deliberation outweighed the plaintiffs’ interest in disclosure.

Outcome

The Court of Appeal allowed the appeal, holding that all documents identified in Case Management Decision #3 were covered by public interest immunity, except the email cover sheet identified in paragraph 14, which contained no substantive content and could be disclosed.