by Drew Yewchuk, Allard School of Law

This post is part of the Lessons from the Aarhus Convention and Escazú Agreement for Procedural Environmental Rights in Canada blog symposium.

Secrecy enables government messaging control and defeats democratic accountability. The right to information is foundational to democratic participation in the conduct of public affairs. When journalists and academics cannot access information on an issue, that information is not conveyed to the public, and the public cannot meaningfully participate or assess government decision-making on the issue. This situation is common with environmental damage – the government permits and enables environmental damage but misleads the public into believing that the environment is being protected. This is the worst outcome for the protection of a clean, healthy and sustainable environment, but the ideal outcome for a governing party, who takes credit for the economic benefits of the environmentally damaging project and avoids any criticism by keeping the public unaware of the environmental damage.

This blog post addresses one major shortcoming in the right to access environmental information in Canada as compared to the right to access environmental information under the Aarhus Convention: in Canada, discussions of environmental policy and environmental harms between federal and provincial governments are kept secret from the public.

The ‘Convention On Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters done at Aarhus, Denmark, on 25 June 1998’ – known as the “Aarhus Convention” recognizes this problem and protects the public’s right of access to environmental information. The Aarhus Convention includes a broad definition of “environmental information” that includes “administrative measures, environmental agreements, policies, legislation, plans and programmes, affecting or likely to affect the elements of the environment,” Article 5 sets requirements for states to collect and disseminate environmental information without specific requests, and Article 4 protects the public’s right to access environmental information by requiring a records request and response system in the style of the American Freedom of Information Act. My focus is on Article 4, section 4, which sets out eight permitted grounds for refusal governments may use to withhold environmental information from disclosure (paraphrased here):

(a) The confidentiality of the proceedings of public authorities, where such confidentiality is provided for under national law;

(b) International relations, national defence or public security;

(c) an enquiry of a criminal or disciplinary nature;

(d) confidentiality of commercial and industrial information attached to a legitimate economic interest and not including emissions information;

(e) Intellectual property rights;

(f) personal privacy and confidentiality;

(g) third party information where the party was not legally required to provide it and does not consent to its release;

(h) the protection of the environment (for example, the location of rare species that may be subject to poaching or smuggling).

And calls for these grounds for refusal to be “interpreted in a restrictive way, taking into account the public interest served by disclosure…”.

Canada claims that the federal Access to Information Act, RSC 1985, c A-1 (ATIA) fulfills most of this objective of Article 4 and that acceding to the Aarhus Convention would have limited benefits, but this is not correct. The right to access environmental information in Canada is notably weaker than the right to environmental information set out in the Aarhus Convention because several broad exceptions to the right of access under ATIA extend beyond the acceptable grounds for refusal of access under the Aarhus Convention.

Secrecy in Federal-Provincial Negotiations on Environmental Information

Some of the most troubling exceptions to the right of access allow the Canadian government to keep details of federal-provincial negotiations and related information secret: sections 13(1)(c) and 14 of the ATIA and their equivalents in each province’s law on the accessibility of government records. Despite ATIA’s goal of having limited and specific exceptions to the right of access (see ATIA, s.2(2)), both sections 13(1)(c) and 14 are drafted in a manner that creates vague and ineffective limits because key terms are not defined.

The exceptions in sections 13(1)(c) and 14 superficially resemble the allowed grounds for refusal of “confidentiality of the proceedings of public authorities” in the Aarhus convention, but poor drafting and an expansive interpretation taken by Canadian governments has expanded the scope of these exceptions to cover factual information on environmental problems and the impact of environmental policies.

Section 13(1)(c) requires federal government institutions to keep information they obtained ‘in confidence’ from provincial governments secret. ATIA fails to define the term “in confidence”, a problem identified when ATIA was enacted. T. Murray Rankin, an access to information advocate important to the passage of ATIA, wrote: “The term “in confidence” may invite abuse. Will even innocuous material obtained from other governments now be routinely stamped “in confidence”?”[1] Rankin’s was correct that the drafting would invite abuse. Successive federal governments have taken the position that all information provided by a provincial government is shared “in confidence” and refused to release such information.

Section 14 allows federal government institutions to keep secret any information that it considers injurious to the conduct of federal-provincial affairs. Section 14 does not specify how information might be ‘injurious’ to federal-provincial affairs, and government institutions take the position that secrecy is necessary to keep federal-provincial communications frank and efficient, and therefore all information about federal-provincial consultations or deliberations could be injurious if released.

These sections of ATIA became a catastrophic impediment to exercising the right to access environmental information because the Canadian distribution of legislative powers does not assign environmental protection to the federal government or the provinces, and an extended process of negotiation and litigation has turned environmental protection into a complex zone of semi-overlapping powers.[2]

This complex and uncertain semi-overlapping responsibility means the federal government consults and negotiates with provincial governments regarding environmental protection to attempt to avoid disputes and pre-empt litigation. Federal-provincial negotiations are a regular part of Canadian environmental decision-making, from broad questions of carbon emission controls to the minutiae of the size of riparian habitat protections for endangered trout. In particular, the federal Species at Risk Act, SC 2002, c 29 requires the federal Minister of the Environment and Minister of Fisheries and Oceans to consult with provincial ministers on a variety of topics, including the application of prohibitions on killing or harming species at risk on provincial lands[3] and the preparation of recovery strategies.[4]

Section 14 of ATIA has an equivalent in every province and territory’s law on the accessibility of government records (as shown in the table below):

The result is that Canadians cannot access information shared during federal-provincial negotiations through provincial or federal access laws. Canadians cannot access information related to negotiations between their own provincial government and the Canadian federal government even though both of those governments, in theory, represent that citizen.

Together, sections 13(1) and 14 are used to withhold factual information from the public. When the federal and provincial governments negotiate about how to respond to an environmental problem, they withhold not just information on their negotiating positions and strategies, but information they share about the size, scope, and impacts of the environmental problem. That goes well beyond what is permitted by the Aarhus Convention’s allowableprotection for the proceedings of public authorities.

I offer two examples of the problem: first, the metallurgical coal mines in the Elk Valley of British Columbia have been leaching selenium into rivers for decades, polluting the rivers downstream into the United States. The metallurgical coal company whose operations would be financially impacted by new environmental regulations lobbied both the provincial and federal governments against a transboundary inquiry into the selenium pollution. The documents released by the British Columbia government are covered in redactions under British Columbia’s exemption to the right of access for “Disclosure harmful to intergovernmental relations or negotiations”[5]. Second, a memorandum to the Federal Minister of Finance explaining why the Federal government would be providing a large subsidy to oil and gas corporations in Alberta, Saskatchewan, and British Columbia to address environmental liabilities from their operations (ATIA Record A-2020-00167 from the Department of Finance Canada) was almost entirely exempted from disclosure on the grounds of sections 14 and 21 of ATIA (section 21 protects “advice, etc.” and is another of the worst drafted exceptions to the right of access). The federal government’s decision violated the polluter pays principle and would have been difficult to justify or even explain, but the exceptions in ATIA allowed the government to withhold the background information on the scale of the environmental problem.

Easy Legal Solutions and Hard Political Problems

Like many government secrecy problems, crafting a solution is simple. The real obstacle is resistance from Canadian governments accustomed to a tradition of secrecy that allows them to maintain messaging control and act with limited public scrutiny.

A solution following the approach of the Aarhus Convention, would be to redraft both sections 13(1)(c) and 14 to be more restricted to the proceedings of public authorities, and exclude information merely shared or held by public authorities. The key purpose of section 13 was to allow different levels of government to share information without making the information more vulnerable to access to information requests. Section 13(1)(c) should replace the undefined phrase “information that was obtained in confidence” with the more specific “information that the provincial government would be entitled to withhold under their respective access to information legislation”. The key purpose of section 14 was to protect the federal governments’ ability to prepare for negotiation or consultation with the provinces without the provincial government having access to information that would reveal federal strategy or tactics. Section 14 should be redrafted to prevent the disclosure only of information on the strategy or tactics adopted or to be adopted by the Government of Canada relating to the conduct of federal-provincial affairs.

A third solution, larger and better, would be to repeal sections 13(1)(c) and 14 completely, and force Canada’s provincial and federal governments to allow the public to supervise the intergovernmental decision-making processes. This would be a massive change to Canadian governance, and it would be a good one. The Canadian public has not benefitted from the aggressive political posturing and extensive delays in policy-making occasioned by Canada’s current approach to inter-jurisdictional issues, especially on environmental protection issues.

All three of these solutions would bring Canada closer to compliance with the Aarhus Convention’s more limited set of grounds for refusing access to environmental information. It is also worth noting that the Aarhus Convention’s requirement that information on the scale of environmental harms not be secret is a minimum. The Aarhus Convention may not go far enough – when the federal and provincial governments negotiate about how much environmental harm to allow, why should the negotiation positions of the governments be kept secret from Canadians?

I emphasize that these solutions would not shift the balance of power between federal and provincial governments, but would shift the balance of power (in the form of information) away from the executive branches of the federal and provincial governments towards Canadian citizens – an increase in democracy rather than a move towards or away from federalism.

[1] “The New Access to Information and Privacy Act: A Critical Annotation” (1983) 15:1 Ottawa L Rev 1 at 15.

[2] Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3; 114957 Canada Ltée (Spraytech, Société d’arrosage) v Hudson (Town), 2001 SCC 40; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11; and Reference re Impact Assessment Act, 2023 SCC 23. See the recent discussion in Nathan Murray & Martin Olszynski, “Locating the Constitutional Guardrails on Federal Environmental Decision Making after Reference re: Impact Assessment Act” (30 January 2024), online: ABlawg, http://ablawg.ca/wp-content/uploads/2024/01/Blog_NM_MO_Constitutional_Guardrails.pdf

[3] SARA, s.34(4).

[4] SARA, s.39(1)(a).

[5] Freedom of Information and Protection of Privacy Act, RSBC 1996, c 165, s.16.