Access to Information and the Environment

February 15, 2019

What’s in my drinking water? What’s in the air that I breathe? What’s in the food I’m eating?

Not knowing the answers is often worse than knowing.

When we are aware of environmental contamination, we can avoid it or take steps to mitigate the impacts. However, when we don’t know, the tendency is to do nothing, to wait and see. It should be obvious that access to information concerning the environment is vitally important to the public and those organizations which advocate for sound environmental practices and decision making.

Earlier this year, ECELAW teamed up with McKiggan Hebert to help two fellow Atlantic Canadians, Kathaleen Milan and Ron Neufeld, in their efforts to force the Department of Fisheries and Aquaculture (the “Department”) to release information about two aquaculture sites operated by Kelly Cove Salmon Limited, a subsidiary of aquaculture giant Cooke Aquaculture. They were concerned about the lax enforcement of environmental regulations at the sites based on their own observations. They wanted to know why the Province wasn’t taking action. Kathaleen and Ron requested the information pursuant to the Nova Scotia Freedom of Information and Protection of Privacy Act ("FOIPOP") which requires the Provincial government to release information to citizens upon request unless there is a good reason not to do so. Their request was denied by the Department on the grounds that the information they sought, if made public, could cause harm to the aquaculture company. This was a surprise to Ron and Kathaleen, since similar information had been released about other sites before. Undaunted, they sought a review of the decision by the Nova Scotia Privacy Commissioner, as was their right under the FOIPOP.

To their delight, the Privacy Commission agreed with them. In her report, the Privacy Commissioner found that the Department had failed to provide any evidence that the company’s interests would be harmed if the information was disclosed. It looked like Kathaleen and Ron would get the information they had requested after all!

However, Ron and Kathaleen soon learned that the Province of Nova Scotia is not legally required to follow the decision of its own Privacy Commissioner. Sadly, the Department refused to release the requested information despite the ruling of the Privacy Commissioner. The only recourse available to Kathaleen and Ron was to appeal the Department’s decision to the Nova Scotia Supreme Court.

After filing the appeal, Kathaleen and Ron soon realized something else—representing oneself in court is very difficult and time consuming. Proceedings in the Nova Scotia Supreme Court are governed by the Nova Scotia Civil Procedure Rules, which are hundreds of pages in length. Despite changes to the Rules in 2009—designed, in part, to make the Supreme Court more accessible to self-represented litigants—researching the law, navigating filing deadlines, and putting documents in the proper form with the right information is still overwhelming for most citizens. Luckily, Ron and Kathaleen were able to turn to East Coast Environmental Law, where lawyer-in-training Mike Kofahl helped them through the process and connected them with a pro-bono lawyer at McKiggan Hebert.

FOIPOP appeals are treated like fresh requests. The appeal judge is not bound by the earlier decision of the Privacy Commissioner and makes her own decision based on the evidence before the court. In June 2018, the appeal was heard before Justice Mona Lynch at Bridgewater. The hearing was the final step after filing affidavits, cross-examining witnesses out of court, and submitting written briefs on the law and evidence filed with the court. At the start of the hearing, Justice Lynch was asked to throw out certain evidence. Ron and Kathaleen were successful in admitting into evidence all of the affidavit evidence they had filed. They also successfully argued that Kelly Cove Salmon not be allowed to submit a last-minute affidavit from one of its employees. So far so good for Ron and Kathaleen.

After Justice Lynch decided what evidence was allowed to be submitted on the hearing, one of the Department’s witnesses was cross-examined. Following the cross-examination, each party was permitted to present arguments as to why the Department should or should not release the information sought by Kathaleen and Ron.

After a full day of evidence and argument, Justice Lynch took a short break to consider everything and write a decision. When she returned, she read her decision in open court. She found that Ron and Kathaleen were entitled to the information they had requested! She emphasized that, in Nova Scotia, the presumption is that all government information should be available to citizens unless the information falls into the narrow exceptions listed in the FOIPOP. The onus is on the government to convince the court that the requested information should not be released. She found that the government in this case had failed to show that there was a valid reason not to disclose the information to Ron and Kathaleen.

Even after the decision, there was more to be done. A formal order was prepared and circulated to the lawyers for each party. The lawyers went back and forth until a final form of order was approved. The order was signed by each lawyer and sent off to Justice Lynch. Only after Justice Lynch had reviewed the order and approved it was the order formally issued by the court.

This did not end the matter either, however, as the Department and Kelly Cove Salmon had another 30 days to appeal the decision. Only after the appeal period had lapsed without an appeal could the information be released. It was not until over 2 months after the appeal hearing that Kathaleen and Ron finally received the information they were looking for—more than three years after they had initially requested it.

Environmental and other organizations seek disclosure of government information on a regular basis. It’s all part of holding the government accountable, which is essential in a healthy democracy, especially when it comes to the environment. When the government refuses to release information, it’s good to know that citizens like Kathaleen and Ron are there to push back.

We were happy to be able to help them.

Brian Hebert

Chair of the Board