The case management judge for a case in which five coal companies are suing Alberta had originally ruled that former energy minister Sonya Savage did not have to testify in the case.Todd Korol/The Canadian Press
Alberta’s former energy minister must testify in a case in which five coal companies are suing the province for almost $14-billion over the government’s flip-flop on mining policies, the Alberta Court of Appeal ruled Tuesday.
The massive damages claim stems from the province’s 2020 decision to nix a land-protection policy that dated back to 1976, prompting a furious public backlash that forced the government to reverse its decision the next year. It then cancelled leases earmarked for potential new mines and declared an indefinite moratorium on coal exploration.
Companies that had already spent millions developing mine plans are now trying to recoup some of those costs by suing the province.
The case management judge had originally ruled that former energy minister Sonya Savage and former environment minster Jason Nixon did not have to testify in the case, saying that the documentary record would be enough to establish the reasons behind various ministerial decisions, orders and directions. (Mr. Nixon is now Alberta’s Minister of Seniors, Community and Social Services. Ms. Savage is no longer an MLA.)
The coal companies appealed that decision, saying that Ms. Savage was best placed to explain how and why policy decisions were made.
Appeal judges Anne Kirker, Jane A. Fagnan and Karan Shaner agreed, writing in their decision Tuesday that there is a “specific relationship” between Ms. Savage’s role and work as minister, and the issues to be resolved during litigation.
“It is clear from the record that former Minister Savage has relevant knowledge others do not have, particularly as it relates to the objectives of reinstating the 1976 Coal Policy, prohibiting ‘mountain top removal,’ and indefinitely suspending coal exploration,” they wrote.
Government officials who have already been questioned said that Ms. Savage was concerned about the public opposition to the decision to rescind the 1976 Coal Policy and so decided to reinstate it, but “none could speak further about what the objectives of the reinstatement or the ministerial decisions, orders, and directions that followed were,” the judges wrote.
The government argued during the appeal that its documentary record should suffice.
But the appeal judges disagreed, writing, “There is no evidence in the record available to us to show there are persons equally well informed as former Minister Savage to answer relevant questions about the motive, purpose, and intent of the ministerial decisions, orders, and directions that the appellants argue entitle them to compensation.”
They cited comments from various officials: the deputy minister of energy who had “no specific recollection”; the minister’s chief of staff, who wasn’t there for the decision to reinstate the coal policy; a senior assistant deputy minister who only “[recalled] in general terms” and said that “the minister’s office wanted to do something, and this is what they did”; and the executive director of resource stewardship policy who was not “in those rooms.”
Mr. Nixon, however, will not have to testify.
The appeal judges wrote that while the case management judge “made a palpable error in finding Minister Nixon played no meaningful role in any aspects of the ministerial decisions in question,” they were unable to conclude that he is the person best suited to answer questions.
The suit is a joint case involving four separate submissions to Alberta’s Court of King’s Bench by Cabin Ridge Project Ltd., Atrum Coal Ltd. and its subsidiary Elan Coal Ltd., Black Eagle Mining Corp. and Evolve Power Ltd. All were pursuing mines for metallurgical coal, which is used for making steel. They are seeking a collective $13.8-billion.
The office of current Energy Minister Brian Jean said in an e-mail Tuesday that it would review but would not comment further as the matter is before the courts.
The case is set to begin April 28.