NOTICE OF INTENT TO SUBMIT
A CLAIM TO ARBITRATION
UNDER SECTION B OF CHAPTER 9 OF
THE COMPRENEHSIVE AND PROGRESSIVE AGREEMENT FOR TRANS-PACIFIC
PARTNERSHIP
HANCOCK PROSPECTING PTY LTD
AND
RIVERSDALE RESOURCES PTY LTD
Investors
V.
THE GOVERNMENT OF CANADA
Respondent
Pursuant to Articles 9.19.1(a), 9.19.1(b), and 9.19.3 of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (the "Treaty"), Hancock Prospecting Pty Ltd and Riversdale Resources Pty Ltd (the "Investors"), hereby serve this Notice of Intent to Submit a Claim to Arbitration ("Notice of Intent") for breach of Canada's obligations under the Treaty, on their own behalf and on behalf of their enterprise, Northback Holdings Corporation (the "Enterprise").
1. The Investors are:
Level 3 HPPL House
28-42 Ventnor Avenue
West Perth, WA 6005
Australia
Level 3 HPPL House
28-42 Ventnor Avenue
West Perth, WA 6005
Australia
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2. The Enterprise of the Investors is:
1133 Melville Street
Suite 3500, The Stack
Vancouver, BC V6E 4E5
Canada
3. Northback is a British Columbia corporation that is extra-provincially registered in Alberta. Northback was previously called Benga Mining Limited ("Benga"). On July 1, 2023, Benga changed its name to Northback. For the sake of simplicity, Benga and Northback shall hereinafter be referred to as "Northback" throughout this Notice of Intent.
4. The Respondent is the Government of Canada ("Canada"), represented through:
Office of the Deputy Attorney General of Canada
Justice Building
239 Wellington Street
Ottawa, Ontario K1A 0H8
CanadaOffice of the Assistant Deputy Attorney General of Canada
50 O'Connor Street, 5th Floor
Ottawa, Ontario K1A 0H8
Canada
5. Canada has breached its obligations under Section A of Chapter 9 of the Treaty, including the following provisions:
i) Article 9.6 (Minimum Standard of Treatment);
ii) Article 9.8 (Expropriation and Compensation);
iii) Articles 9.4.1 and 9.4.2 (National Treatment Standard); and
iv) Articles 9.5.1 and 9.5.2 (Most-Favored-Nation Treatment).
6. Hancock is a privately owned and diversified Australian company headquartered in Perth, Western Australia, with interests in inter alia iron ore, coal, petroleum, beef, and dairy, as well as mineral exploration and development around the world. Hancock is one of Australia's largest producers of iron ore and is Australia's second largest producer of beef.
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7. Riversdale is an Australian mining company focused on developing metallurgical coal projects capable of supplying metallurgical coal to steel manufacturers around the world. Riversdale is a wholly-owned subsidiary of Hancock.
8. Northback is a corporation incorporated under the laws of British Columbia and extra-provincially registered in the Province of Alberta, with offices in Crowsnest Pass and Calgary, Alberta. Northback is a wholly-owned subsidiary of Riversdale.
9. The Crowsnest Pass region in the southwest of Alberta ("Crowsnest Pass") and the eastern slopes of the Rocky Mountains ("Eastern Slopes"), have a long history of coal mining, dating back to the early 1900s.
10. In or around 2013, Northback acquired mineral rights in Crowsnest Pass and the Eastern Slopes area of Alberta, with the intention of developing long-term metallurgical coal mining operations in the region. In particular, on or about August 29, 2013, Northback acquired assets:
(a) in or around the community of Frank, Alberta ("Bellevue");
(b) south and east of the town of Blairmore, Alberta ("Adanac");
(c) south and west of the town of Blairmore, Alberta ("Lynx Creek"); and
(d) seven kilometers north of the town of Blairmore, Alberta ("Blairmore");
(collectively, the "Northback Properties").
11. As part of the transaction, Northback acquired freehold mineral rights in fee simple, freehold leased mineral rights, and Crown leased mineral rights for the Northback Properties (collectively, the "Freehold Mineral Rights and Crown Leases")
12. Northback acquired the foregoing rights with the intent of constructing and operating an open-pit metallurgical coal mine on the Blairmore property (the "Grassy Mountain Project" or the "Project").
13. Metallurgical coal is an essential input material for the steelmaking process. Currently, no commercially or economically viable substitute exists for metallurgical coal in steelmaking, nor is there likely to be one in the foreseeable future. Metallurgical coal is, therefore, a vital commodity, both domestically and internationally.
14. The Grassy Mountain Project would have been partially located on previously disturbed lands that were subject to surface mining activities and were not reclaimed. It was to be located on Treaty 7 lands and on what are commonly referred to as "Category 4" lands under Alberta's 1976 Coal Development Policy for Alberta (the "1976 Coal Policy").
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Category 4 lands may be subject to exploration and commercial development under standard approval procedures for surface, in-situ, and underground mining.
15. Northback entered into confidential impact benefit or relationship agreements with all potentially affected Indigenous groups. Moreover, it obtained letters of support or non-objection from all of the Treaty 7 First Nations and Métis Nation of Alberta.
16. The Grassy Mountain Project would have produced an estimated 4.5 million tonnes of metallurgical coal per year for approximately 23 years. Developing the Grassy Mountain Project would have created approximately 195 employment positions during the construction phase and approximately 385 permanent skilled workers' positions during the approximately 23-year long operations phase in an area of Alberta that has experienced substantial job loss and a declining population over several decades.
17. It was initially estimated that the Grassy Mountain Project would have generated approximately $1.7 billion in royalties and taxes payable to municipal, provincial, and federal governments over its 23-year life. It is now estimated that the Grassy Mountain Project would have resulted in royalties and taxes far in excess of $1.7 billion, given the strong global demand for metallurgical coal.
18. In addition to the Grassy Mountain Project, when acquiring the Northback Properties, Northback also intended to explore and develop its Freehold Mineral Rights and Crown Leases in the Adanac, Lynx Creek, and Bellevue properties.
19. Had Northback been permitted to proceed, its development of each of these properties would have benefitted from centralized administration and planning and shared infrastructure. These properties would have benefited from sharing common processing, maintenance, and logistics infrastructure, all managed out of a central planning and administration office shared with Northback's other mineral assets in the region.
20. At the time Northback acquired the Northback Properties and the Freehold Mineral Rights and Crown Leases, government representatives and the established regulatory and land-use systems in place permitted and, in fact, encouraged coal resource exploration and development on lands that included the Northback Properties and its Freehold Mineral Rights and Crown Leases. However, as described below, Northback's efforts to progress with these projects were frustrated by a succession of measures attributable to Canada.
21. There are three sets of measures undertaken by Canada, its central, regional, or local governments, its authorities, or entities exercising governmental authority delegated to them, that frustrated the development of certain of Northback's planned projects and breached the Treaty. These are set out in greater detail below.
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22. The first set of measures undertaken by or attributable to Canada that frustrated the development of Northback's planned projects and breached the Treaty was in connection with the establishment of Castle Provincial Park and the subsequent cancellation of Crown Leases associated with it.
23. On January 20, 2017, the Government of Alberta's Ministry of Environment and Parks announced that Alberta was creating a new provincial park in Southwest Alberta called Castle Provincial Park ("Castle Provincial Park" or the "Park"). It was established via Order in Council No. 22/2017 (the "OIC") pursuant to the Provincial Parks Act and made effective on February 16, 2017.
24. As a result of the OIC and the corresponding establishment of Castle Provincial Park, several of Northback's Freehold Mineral Rights and Crown Leases became located within or directly adjacent to the new Castle Provincial Park. In particular, the establishment of the new Park affected two of the Northback Properties: (i) Lynx Creek, and (ii) Adanac. Northback's Lynx Creek properties consisted of a total area of approximately 15.6 km², of which 15.0 km² was located entirely within the new Castle Provincial Park boundaries and approximately 0.6 km² was located adjacent to the new Castle Provincial Park boundaries. Northback's Adanac properties consisted of a total area of approximately 45.3 km², of which 22.9 km² was located entirely within the new Castle Provincial Park boundaries and 22.4 km² was located adjacent to the new Castle Provincial Park boundaries.
25. On January 23, 2017, the Government of Alberta's Ministry of Energy and Minerals notified Northback that it would be cancelling all of the Crown leases held by Northback within the Castle Provincial Park boundaries (the "Cancelled Leases").
26. As such, the establishment of the new Park effectively made it impossible for Northback to economically develop its Lynx Creek and Adanac assets. To fully develop a large-scale mining operation, a developer must have mineral rights over a large contiguous area. Further, coal mining success is dependent on economies of scale. The purpose of Northback's acquisition of assets in Crowsnest Pass was to develop a large-scale coal mining operation via several projects. Therefore, the Cancelled Leases significantly frustrated Northback's plan and ability to develop the Northback Properties.
27. Indeed, a consequence of the establishment of the new Castle Provincial Park with the OIC and the Cancelled Leases is that much of Northback's remaining mineral rights in the Adanac and Lynx Creek properties are now surrounded by lands which were previously planned by Northback to be developed, but are now sterilized and incapable of further exploration and development. These assets are critical to the orderly, economic, and efficient development of the Adanac and Lynx Creek properties, which can no longer be economically developed as a result of the OIC and the Cancelled Leases. The creation of the Park was, at a minimum, a disguised restriction on development.
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28. Well before Northback made its investment, Alberta had considered what should occur in these circumstances, and provided a remedy. Section 3.15 of the 1976 Coal Policy, which was in effect at the time of the OIC, provides that "[w]here freehold rights to coal and leases of such rights are affected by the restrictions on exploration and development imposed by [the establishment of a Provincial Park], the Government is prepared to purchase the lessor rights at fair value determined by agreement or arbitration, and to acquire any lessee rights on the same basis as for lessees of Crown rights.” Alberta did not purchase or acquire or—or seek to purchase or acquire—Northback's freehold mineral interests affected by the establishment of the Castle Provincial Park, nor did it propose an agreement or arbitration to determine the fair value of Northback's freehold mineral rights ("Alberta Failure to Purchase”). As a result, Alberta failed to provide Northback with the legal processes and compensation promised by Alberta's own 1976 Coal Policy.
29. On January 18, 2019, Northback and Riversdale commenced an action before the Alberta Court of King's Bench against the Province of Alberta, Alberta's Ministry of Environment and Parks, and Alberta's Ministry of Energy and Minerals, seeking damages equivalent to the fair value of the Northback Properties affected by the establishment of Castle Provincial Park. In the alternative, Northback and Riversdale sought a declaration pursuant to Section 3.15 of the 1976 Coal Policy that Alberta was required to purchase Northback's freehold rights for fair value (the "Castle Park Action"). That action remains pending before the Alberta Courts.
30. The OIC, the Cancelled Leases, and the Alberta Failure to Purchase are all measures attributable to Canada that breach various provisions of the Treaty, as set out in greater detail below.
31. The second set of measures undertaken by or attributable to Canada that frustrated the development of Northback's planned projects in Crowsnest Pass and the Eastern Slopes and that breached the Treaty was the wrongful denial of its application for regulatory approvals for the Grassy Mountain Project by both the governments of Alberta and Canada, and the courts' wrongful refusal to set aside those denials. These measures are set out in greater detail below.
(a) The Provincial Assessment Process
32. In order to proceed with the Grassy Mountain Project, Northback required a provincial environmental impact assessment ("EIA") under Alberta's Environmental Protection and Enhancement Act ("EPEA"). The Alberta Energy Regulator ("AER") oversaw the provincial EIA process to determine whether the Grassy Mountain Project was in the public interest and should be approved.
33. In 2014, Northback submitted an initial project proposal to the AER, initiating the process for provincial approval of the Grassy Mountain Project in Alberta. On March 19, 2015, the AER issued final terms of reference identifying the necessary information that Northback needed to include in the Grassy Mountain Project's EIA report under the EPEA.
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(b) The Federal Assessment Process
34. In addition, in order to proceed with the Grassy Mountain Project, Northback required a federal environmental assessment under the Canadian Environmental Assessment Act 2012 ("CEAA").
35. In 2015, Northback submitted a project description to the Canadian Environmental Agency ("Agency") initiating the federal regulatory approval process for the Project. In July 2015, the Minister of Environment and Climate Change ("Minister") referred the environmental assessment for the Project to a review panel pursuant to s. 38(1) of the CEAA.
36. Under the CEAA, a review panel does not have any decision-making responsibilities. Rather, a review panel conducts the environmental assessment of a project, holds a public hearing, prepares a report with its rationale, conclusions, and recommendations, and submits it to the Minister. The Minister must then decide whether, taking into account any mitigation measures the Minister considers appropriate, the project is likely to cause significant adverse environmental effects. If so, the Minister must refer the project to the Governor in Council ("Cabinet") to decide whether those effects are justified in the circumstances. If yes, the project may proceed; if no, the project may not proceed. After Cabinet has made its decision, the Minister must issue a decision statement to the proponent informing it of the Minister's and Cabinet's respective decisions.
(c) The Joint Review Panel and Process
37. On November 10, 2015, Northback submitted an EIA report, and on August 12, 2016, an updated version of the EIA Report, to the AER and the Agency. The EIA Report contained a description of the Grassy Mountain Project, information about its geology, the method used for environmental assessment, an environmental assessment, a conservation and reclamation plan, and public participation and Aboriginal consultation. During this pre-panel stage, the AER sent two sets of information requests to Northback and the Agency sent five additional sets of information requests. Northback responded to each set of information requests.
38. On July 9, 2018, the Minister and the AER established a Joint Review Panel ("JRP") under the Responsible Energy Development Act and the CEAA to jointly assess the Project on behalf of both the provincial and federal governments. On August 16, 2018, the Minister and AER entered into an Agreement to Establish a Joint Review Panel for the Grassy Mountain Coal Project, which tasked the JRP with performing both the provincial functions of the AER and the federal functions of a review panel under the CEAA.
39. The JRP process involved: (i) a review of the EIA and any supplemental information submitted by Northback; (ii) a public hearing; (iii) preparation of an assessment report by the JRP; (iv) issuing a decision in the JRP's provincial capacity as the AER; and (v) providing recommendations to the Minister in its federal capacity under the CEAA.
40. Between 2018 and 2020, the JRP, the Agency, and the AER requested significant additional information from Northback in relation to the Grassy Mountain Project, in response to
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which Northback submitted 12 addenda to its EIA and 34 original or updated technical studies and assessments. All told, its application materials exceeded 26,000 pages.
41. On June 25, 2020, the JRP informed Northback that after reviewing the EIA and the addenda, it determined that: (i) the information submitted by Northback was sufficient to proceed to a public hearing; and (ii) the information provided by Northback met the information requirements outlined in the federal Guidelines for the Preparation of an Environmental Impact Statement.
42. Thereafter, between October 27, 2020 and December 2, 2020, the JRP held a public hearing over 29 sitting days via an online platform given the COVID-19 pandemic at the time. During the online hearing, Northback and other participants presented evidence, cross-examined witnesses, and presented argument. The participation at the hearing of potentially impacted Indigenous groups was limited, as many had already communicated their support or non-objection to the Project by letter.
(d) The Provincial Government's Denial of the Project
43. On June 17, 2021, the JRP issued its assessment report ("JRP Report"). In its provincial capacity as the AER, the JRP unreasonably, arbitrarily, and capriciously declined to approve the Project because, in its view, the Project would cause significant adverse environmental effects that would purportedly outweigh what it considered to be low to moderate positive economic impacts. As a result, the JRP concluded the Project was not in the public interest and declined to approve it (the "Provincial Decision").
44. However, the JRP report was materially flawed in several respects. For instance, and among other things, the JRP Report: (i) noted that Northback's evidence was incomplete or insufficient, despite previously deeming the information provided to be complete and not requesting any additional data from Northback; (ii) failed to consider and discuss the totality of Northback's evidence; and (iii) considered and relied on evidence from hearing participants who lacked proper expertise or independence, while ignoring or disregarding the positions of impacted Indigenous groups.
45. Further, the JRP, the AER, and Alberta's officers and representatives acted outside the constraints of their governing statutes and applicable policies. Northback has come to learn that they improperly interfered with the established process, withheld material information, and denied issuing regulatory permits for the Project with the wrongful purpose of responding to political pressures, contrary to their general practices and a fair and reasonable interpretation of the applicable legislation.
(e) The Federal Government's Denial of the Project
46. Despite the Provincial Decision, the federal government was still required to complete its assessment of the Project under the CEAA. This required the Minister to consider the JRP Report and decide whether the Grassy Mountain Project was likely to cause significant adverse environmental effects and, if so, to refer the matter of whether those effects were justified in the circumstances to the Cabinet. The Minister had until November 14, 2021, to do so.
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47. On June 17, 2021, the Agency issued a news release advising that the Minister had received the JRP Report and would be conducting further consultations with Indigenous groups and the public before making a decision on the Project. In fact, however, the Agency did not conduct any consultation with Indigenous groups or the public following the release of the JRP Report.
48. On June 26, 2021, Northback's legal counsel informed the Minister that Northback was considering appealing the Provincial Decision in Alberta and requested that the Minister hold the process under the CEAA in abeyance ("Abeyance Request"). On July 6, 2021, Northback wrote the Agency again to reiterate its Abeyance Request. In a memorandum dated July 7, 2021, the Agency advised the Minister of the Abeyance Request. Yet, neither the Ministry nor the Agency responded to or acknowledged Northback's Abeyance Request.
49. Further, on or around September 29, 2021, Northback, the Piikani Nation ("Piikani"), and the Stoney Nakoda Nations ("Stoney Nakoda"), applied to the Court of Appeal of Alberta for permission for leave to appeal the Provincial Decision to the Court.
50. Nevertheless, notwithstanding the fact that the Minister had until November 14, 2021, to issue a decision statement regarding the outcome of the federal review process, notwithstanding the Agency's promise to consult with Indigenous groups and the public following the issuance of the JRP Report, notwithstanding the legal challenges to the Provincial Decision by Northback, Piikani, and Stoney Nakoda, and notwithstanding Northback's Abeyance Request, the Minister rushed to issue a decision statement on August 6, 2021, just before a federal election was called on August 15, 2021.
51. In the decision statement, the Minister unreasonably, arbitrarily, and capriciously found that the Project was likely to cause significant adverse environmental effects and referred the matter of whether those significant adverse effects were justified in the circumstances to Cabinet ("Referral Decision"). On the same day, Cabinet decided that the significant adverse effects were not justified in the circumstances, thereby denying federal approval for the Project ("Cabinet Decision").
(f) Court Proceedings Arising from the Provincial Decision, Referral Decision, and Cabinet Decision
52. As noted above, on or around September 29, 2021, Northback, Piikani, and Stoney Nakoda applied to the Alberta Court of Appeal for permission to appeal the Provincial Decision. On January 28, 2022, the Alberta Court of Appeal wrongfully denied Northback, Piikani, and Stoney Nakoda permission to appeal the Provincial Decision. Northback, Piikani, and Stoney Nakoda subsequently applied to the Supreme Court of Canada for leave to appeal the Alberta Court of Appeal's decision, but the Supreme Court of Canada denied leave on September 29, 2022 (collectively, these decisions of the Alberta Court of Appeal and the Supreme Court of Canada shall hereinafter be referred to as the "Alberta Court Decisions").
53. On or around August 13, 2021, Northback, Piikani, and Stoney Nakoda applied to the Federal Court of Canada for judicial review of the federal Referral Decision and the
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Cabinet Decision. On February 12, 2024, the Federal Court wrongfully denied Northback's application for judicial review but granted the applications of Piikani and Stoney Nakoda to set aside the Referral Decision and the Cabinet Decision, and remitted the matter to the Minister and Cabinet for redetermination in accordance with the Federal Court's reasons (the "Federal Court Decision").
54. As a result of the JRP Report, Provincial Decision, Alberta Court Decisions, Referral Decision, Cabinet Decision, and Federal Court Decision, Northback cannot construct or operate the Grassy Mountain Project.
55. The third measure undertaken by or attributable to Canada that frustrated Northback from undertaking the planned development of Northback's projects in Crowsnest Pass and the Eastern Slopes was the Alberta government's imposition of an indefinite moratorium on coal exploration and development on the lands on which the Northback Properties are situated in March 2022.
56. To begin, at the time that Northback acquired the Northback Properties, the 1976 Coal Policy was in effect. The 1976 Coal Policy classified lands in Alberta into Categories 1 through 4 ("Land Categories"), with different levels of restriction on coal exploration and development applying to each category. When Northback acquired the Northback Properties, most of them were located on "Category 4" lands under the 1976 Coal Policy, which did not impose any restrictions on the commercial development of Category 4 lands and confirmed that applications for the right to explore, lease, or develop coal on Category 4 lands were to be considered under normal approval procedures respecting protection of the environment and reclamation of disturbed lands.
57. On May 15, 2020, Alberta publicly announced that it had rescinded the 1976 Coal Policy effective on June 1, 2020. On February 8, 2021, Alberta changed its position, and reinstated the 1976 Coal Policy. In conjunction with this, the Minister of Energy and Minerals ("Minister of Energy"), issued Ministerial Order 054/2021 which included a "Coal Policy Direction". The Minister of Energy directed the AER to consider Land Categories set out in the 1976 Coal Policy when considering an application for approval for the exploration for, or development of, coal under energy resources enactments. It also imposed an immediate ban on mountain-top mining on Category 2 lands, and placed a moratorium on any new development on Category 2 lands.
58. Between February 23, 2021 and December 29, 2021, the Minister of Energy consulted with the public in preparation of a new coal policy. On March 2, 2022, the Minister of Energy issued Ministerial Order 002/2022, which included a new "Coal Development Direction". The Coal Development Direction directed the AER to continue the pause on coal exploration and development activities on Category 2 lands, and expanded this pause to coal exploration and development activities on Category 3 and 4 lands. Additionally, pursuant to the Coal Development Direction, Alberta would no longer accept any new coal lease applications for Category 2, 3, and 4 lands, and lease applications for Category 1 lands would be denied. In other words, on March 2, 2022, Alberta announced a new,
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indefinite moratorium on essentially all coal exploration and development on lands such as those on which the Northback Properties are located ("Indefinite Moratorium").
59. On March 4, 2022, Alberta announced and confirmed the Indefinite Moratorium and stated that, effective immediately, it was extending, both temporally and spatially, restrictions on coal exploration and development by suspending all coal-related exploration and development activity in the Eastern Slopes.
60. The effect of the Indefinite Moratorium is that Northback is prevented from advancing any coal exploration or development at the Northback Properties and cannot exploit its Freehold Mineral Rights and Crown Leases.
61. As a result of, among other measures, the OIC, the Cancelled Leases, Alberta's Failure to Purchase, the JRP Report, the Provincial Decision, the Referral Decision, the Cabinet Decision, the Alberta Court Decisions, the Federal Court Decision, and the Indefinite Moratorium (the "Measures"), Northback has been prevented from advancing any coal exploration or development at the Northback Properties and cannot exploit any of the Freehold Mineral Rights and Crown Leases it acquired, causing Hancock, Riversdale, and Northback to incur significant damages. Both individually and collectively, these Measures were not only contrary to Canadian law, but they also breached the Treaty.
1. Hancock and Riversdale are Protected Investors and Northback is a Protected Enterprise Under the Treaty
62. The Treaty applies to the instant case. The Treaty provides protections to Australian investors with investments in Canada, and to Canadian enterprises owned and controlled, either directly or indirectly, by Australian investors.
63. In the instant case, Hancock and Riversdale are protected "investors" with an "investment" in Canada that existed as of the date of entry into force of the Treaty. Australia is a party to the Treaty, having ratified it on October 31, 2018. Hancock (an Australian company), wholly owns Riversdale (an Australian company), which wholly owns Northback (a Canadian company). Thus, both Hancock and Riversdale qualify as protected "investors" who have made an "investment" in an "enterprise" in Canada. Further, Hancock, Riversdale, and/or Northback have also made substantial investments in the Northback Properties, the Freehold Mineral Rights and Crown Leases, and to advance their projects in Crowsnest Pass and the Eastern Slopes.
64. Article 9.19.1 of the Treaty allows Hancock and/or Riversdale to bring claims against Canada (a) on behalf of themselves for the losses and damages they have incurred as a result of the breach of the Treaty, and/or (b) on behalf of Northback for the losses and damages it has incurred as a result of the breach of the Treaty. In the instant case, the claim is based on both Article 9.19.1(a) and (b).
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2. The Measures Breach the Treaty
65. The Measures set out above breach numerous provisions of the Treaty, including but not limited to all of those set out below.
66. First, they breached the Minimum Standard of Treatment in Article 9.6 of the Treaty, which provides, in summary, that "[e]ach Party shall accord to covered investments treatment in accordance with applicable customary international law principles, including fair and equitable treatment and full protection and security". Among other things, these breaches include, but are not limited to, arbitrary treatment, unfair, unjust, and idiosyncratic treatment, discriminatory treatment, lack of transparency and candor, denial of justice, denial of due process, and denial of procedural fairness.
67. Second, the Measures breached the Expropriation and Compensation provision in Article 9.8 of the Treaty, which provides, in summary, that "[n]o Party shall expropriate or nationalise a covered investment either directly or indirectly through measures equivalent to expropriation or nationalisation (expropriation), except: (a) for a public purpose, (b) in a non-discriminatory manner, (c) on payment of prompt, adequate and effective compensation in accordance with paragraphs 2, 3 and 4; and (d) in accordance with due process of law".
68. Third, the Measures breach the National Treatment standard in Article 9.4.1 and 9.4.2 of the Treaty, which provides, in summary, that "[e]ach Party shall accord to investors of another Party [and covered investments] treatment no less favourable than that it accords in like circumstances, to its own investors with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory".
69. Fourth, the Measures breach the Most-Favored-Nation Treatment standard in Articles 9.5.1 and 9.5.2 of the Treaty, which provides, in summary, that "[e]ach Party shall accord to investors of another Party [and covered investments] treatment no less favourable than that it accords, in like circumstances, to investors of any other Party or of any non-Party with respect to the establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments in its territory".
70. Fifth, in the event that the Alberta Court of King's Bench fails to award damages equivalent to the fair market value of the Northback Properties affected by the establishment of Castle Provincial Park or does not declare that Alberta is required to purchase Northback's freehold rights for fair value in the Castle Park Action, this will also constitute a breach of Articles 9.6, 9.8, 9.4.1, 9.4.2, 9.5.1, and 9.5.2 of the Treaty.
71. Sixth, in the event that the Minister and Cabinet do not reconsider and approve the Grassy Mountain Project pursuant to the Federal Court Decision, this will also constitute a breach of Articles 9.6, 9.8, 9.4.1, 9.4.2, 9.5.1, and 9.5.2 of the Treaty.
72. Finally, all of the Measures are attributable to Canada pursuant to Article 9.2.2(a) of the Treaty, which provides that Canada's obligations under Chapter 9 of the Treaty apply to: (a) the central, regional or local governments or authorities of Canada, and (b) any person,
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including a state enterprise or any other body, when it exercises any governmental authority delegated to it by central, regional or local governments or authorities of Canada. In the instant case, all of the Measures were adopted or maintained by an entity that meets this definition, including among others, the provincial government of Alberta, the federal government of Canada, the JRP, and the courts.
73. As a result of the Measures, Northback has been prevented from advancing any coal exploration or development at the Northback Properties and cannot exploit any Freehold Mineral Rights and Crown Leases it acquired, causing Hancock, Riversdale, and Northback to incur significant losses and damages. It is currently estimated that these losses and damages are in excess of $7 billion, which includes, among other things, (a) the net present value of the Northback Properties and the Freehold Mineral Rights and Crown Leases prior to the adoption of the Measures; (b) the costs to acquire, explore, and develop the Northback Properties and the Freehold Mineral Rights and Crown Leases; (c) the cost of lease rental payments made to Alberta subsequent to the removal of Northback's ability to explore and develop the Northback Properties and the Freehold Mineral Rights and Crown Leases; and (d) losses due to the delay in Northback's ability to develop the Northback Properties and the Freehold Mineral Rights and Crown Leases.
74. Has Canada taken measures inconsistent with its obligations under the Treaty, including under Articles 9.4, 9.5, 9.6, and 9.8 of Chapter 9?
75. If the answer to the above questions is yes, what is the quantum of compensation that should be paid to the Investors and/or the Enterprise as a result Canada's failure to comply with its obligations under the Treaty?
76. The Investors respectfully claim the following:
i) Damages of not less than $7,000,000,000.00 as compensation for the loss, harm, injury, and substantial damages caused by, or arising out of, the Measures which breached Canada's obligations contained within Part A of Chapter 9 of the Treaty;
ii) All costs associated with the arbitral proceedings, including but not limited to all professional fees, attorney's fees, and disbursements;
iii) Fees and expenses incurred to oppose and overturn the infringing Measures, including but not limited to all professional fees, attorney's fees, and disbursements;
iv) Pre-award and post-award interest at a rate to be fixed by the Tribunal;
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v) Payment of a sum of compensation equal to any tax consequences of the award, in order to maintain the award's integrity; and
vi) Such further relief as counsel may advise and that this Tribunal may deem appropriate.
DATE OF ISSUE: 17 September 2024
s.19(1)
[Redacted]
Vasilis F.L. Pappas
Sabrina A. Bandali
Martin Ignasiak, KC
Counsel to the Investors
Bennett Jones LLP
[Redacted]
Alberta, Canada [Redacted]
Counsel to Hancock Prospecting Pty, Riversdale
Resources Pty Ltd, and Northback Holdings
Corporation
SERVED TO:
Office of the Assistant Deputy Attorney General of Canada
50 O'Connor Street, 5th Floor
Ottawa, Ontario K1A 0H8
Canada