Alberta coal policy changes triggers joint lawsuit from coal companies

Joel Dryden · CBC News

· Posted: Dec 23, 2023 8:00 AM EST | Last Updated: December 23

A trial date has been set for early 2025 to sort out whether Alberta is liable for billions in compensation due to policy changes for coal development in the province.

In four separate statements of claim, coal companies allege that Alberta’s decision in 2022 to change the rules around coal mining cost them financially and resulted in a “de facto expropriation” of their coal assets.

The companies involved in the action, which seeks a combined total in damages over $10 billion, are Cabin Ridge Holdings Ltd. and Cabin Ridge Project Ltd.; Atrum Coal Ltd., along with its subsidiary, Elan Coal Ltd.; Black Eagle Mining Corp.; and Montem Resources Ltd., which recently rebranded as Evolve Power Ltd.

In 2020, the Alberta government opened up mountains to more mining but reversed course on that decision two years later.

Claims from the individual coal companies have been filed in the months subsequent to the policy change, but the consolidation of four separate actions was ordered in early November, as first reported by the Globe and Mail. The cases are scheduled to be tried either at the same time or one after the other, starting on or after March 31, 2025.

The companies’ allegations have not been tested in court.

Peter Doyle, president and CEO of Montem’s Alberta operations, wrote in an email that his company was attracted to Alberta in 2016 to invest in the “valuable steelmaking coal resources” in the Crowsnest Pass, located in southwestern Alberta.

“We concentrated our investment on our assets where coal mining had occurred previously. We were confident we could responsibly restart and redevelop these old mines,” Doyle said.

In its claim, Montem said the government’s policy change and indefinite moratorium has resulted in the province acquiring “a benefit interest in or flowing from” the Montem properties.

“[It has] removed all reasonable uses of the Montem Properties by denying Montem the opportunity to continue the development of the Montem Projects and realize on those property rights,” the claim reads.

Atrum Coal has said policy changes caused its share price to plummet. In its statement of claim, the company wrote that the Elan Project had an estimated 486 million tonnes of metallurgical coal and an approximate 34-year mine life, and developing Isolation South alone would see a value exceeding $3.53 billion.

A spokesperson for Alberta Minister of Energy and Minerals Brian Jean said the province was “committed to protecting the areas Albertans cherish, while allowing responsible resource development where appropriate.”

“We cannot comment on this, or any other matter, that is before the courts,” James Snell wrote in response to a request for comment.

Claims face obstacles, says law professor

Nigel Bankes, an emeritus professor of law at the University of Calgary, specializes in natural resources and energy law.

He says claims of de facto expropriation or “constructive taking” seek compensation on the claim the planned coal mines would have gone into production and produced profits over their lifespans.

But the law around such matters isn’t that clear in Canada yet, he said.

“In Canada, it’s clear that there is no constitutional protection of property rights. It’s clear, therefore, that if the Government of Alberta wishes not to pay compensation, it can stipulate that by statutes,” Bankes said.

“It can also say, ‘We will compensate on the basis of costs, rather than value.’ So I guess I’m saying it’s certainly not a clear case.”

Though the claims are seeking a combined total over $10 billion, they also suggest alternatives. For instance, in the case of Cabin Ridge Holdings Ltd. and Cabin Ridge Project Ltd., the claim suggests restitution in the amount of $56 million plus future and contingent remediation costs.

CBC News has reached out to representatives with Atrum, Black Eagle Mining Corp. and the Cabin Ridge project for comment.