Her Majesty in Right of Newfoundland v. Labrador, 2021 NLSC 161

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation: Newfoundland and Labrador (Indigenous Affairs and Reconciliation) v. Newfoundland and Labrador (Information and Privacy Commissioner), 2021 NLSC 161 Date: December 1, 2021 Docket: 202001G4584 Between: Her Majesty in Right of Newfoundland and Labrador as represented by the Minister of the Office of Indigenous Affairs and Reconciliation Applicant And: Michael Harvey, in his capacity as the Information and Privacy Commissioner of Newfoundland and Labrador INTERVENOR AND: INNU NATION INC. INTERVENOR Before: Justice Daniel M.

Boone Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: November 4, 2021

Summary: The Court allowed the Application of the Province for a declaration that discretionary and mandatory exemptions allowed or required it not to disclose records provided insupport of an indigenous land claim. Appearances: David G. Rodgers Appearing on behalf of the Applicant Benjamin Brookwell Appearing on behalf of the Respondent Andrew A. Fitzgerald Appearing on behalf of the Intervenor Authorities Cited: CASES CONSIDERED: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3; Ontario (Ministry of Community Safety & Correctional Services) v.

Ontario(Information & Privacy Commissioner), 2014 SCC 31; Ontario (Native Affairs) (Re), (ON IPC); Air Atonabee Ltd. v. Canada (Minister of Transport)(1989), 27 C.P.R. (3d) 180, 1989 CarswellNat 585 (Fed. Ct. (T.D.)); Mastropietro v. Newfoundland and Labrador (Minister of the Department of Education), 2016

NLTD(G) 156; Corporate Express Canada Inc. v. Memorial University of Newfoundland, 2015 NLCA 52; Hamilton (City) (Re), (ON IPC)); Sask.(Energy and Resources) (Re), (Sask. OIPC)); P.E.I. (Communities, Land and Environment) (Re), (P.E. IPC); Boeing Co. v.Ontario (Ministry of Economic Development & Trade), (ON SCDC), 2005 CarswellOnt 2965, 200 O.A.C. 134 (Sup. Ct. (Div. Ct.)), leave to appealrefused Bombardier Inc. v. Ministry of Economic Development et al, 2005WL8147114 (Ont. C.A.) STATUTES CONSIDERED: Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c.

A-1.2 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sched. D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] The Innu Nation requested disclosure of documents in the hands of the government. The documents were all cited in a report published by the NunatuKavutCommunity Council (the’ NCC”). The government responded to the request by providing some of the documents but refusing to disclose 16 others. The Innu Nationcomplained to the Commissioner.

The Commissioner conducted a formal investigation and then released a report in which he rejected the government arguments againstdisclosure and recommended that the records be released to the Innu Nation. [2] The government applied to this Court under the Access to Information and Protection of Privacy Act, 2015, S.N.L. 2015, c. A-1.2, (ATIPPA), s. 50(2) for adeclaration that it is not required to comply with the recommendation because it is authorized or required to refuse access to the records.

ATIPPA, 2015 accords the InnuNation, as requestor of the records, the status of Intervenor in this proceeding. [3] The Court is directed by ATIPPA to determine this application as a new matter. The Province bears the onus to demonstrate that the documents are exempt fromdisclosure. The public policy underpinning the Act favours transparency in public administration and the disclosure of documents on request. [4] The Province relies on exemptions to disclosure under the Act that allow or require it to withhold information.

The Province says that if it is required to disclosethe information, then it might not be provided with such information in the future, and this would harm the financial interests of the Province. The Province also says thatit can withhold the information because it was provided to the Province in confidence. Finally, the Province argues that it cannot disclose the information because itconsists of technical information developed by a third party and the interests of the third party would be jeopardized if the information is disclosed.

ISSUES [5] The issues in this matter are derived from the statutory exemptions claimed by the Province: 1. Are the documents exempt (under s. 34(1)(

a) of the Act) from mandatory disclosure because disclosure would be harmful to intergovernmental relations ornegotiations? 2. Are the documents exempt (under s. 34(1)(

b) of the Act) from mandatory disclosure because disclosure would reveal information received in confidence from thefederal government? 3. Are the documents exempt (under s. 35 of the Act) from mandatory disclosure because disclosure would be harmful to the financial or economic interests of theProvince or a third party? 4. If either of the discretionary exemptions under s. 34 or s. 35 of the Act apply, then does the public interest in disclosure of the information outweigh the reason for theexception? 5.

Are the documents exempt (under s. 39 of the Act) from mandatory disclosure because disclosure would be harmful to the interests of a third party? ANALYSIS The Documents [6] In 2010, NunatuKavut Community Council (the “NCC”), formerly known as the Labrador Metis Nation and the Labrador Metis Association, submitteddocuments to the federal government to support a land claim first submitted in 1991. The original claim had not been accepted for negotiation by either the federal orprovincial government but became active again in 2010 at the request of NCC.

In 2019, the federal government agreed to a Memorandum of Understanding (MOU) withthe NCC to establish a discussion table for the purpose of identifying the nature of the rights claimed by NCC and considering a framework for negotiation.

That processis ongoing. [7] The MOU between the federal government and the NCC provided that all discussions at the table would remain confidential and neither party would discloserecords that would reveal the content of discussions or the other party’s position or views. [8] The MOU also provided that the parties recognized the importance of the Province participating in the discussions at the table as an active participant. [9] The document mainly relied upon by the NCC in support of its land claim is a 700-page report (first submitted to the federal government in 2009) entitledUnveiling NunatuKavut.

NCC has made this report available, in printed form and online, to the general public. [10] Unveiling NunatuKavut references, but does not append, many other documents. Some of these documents are also publicly available. [11] The NCC provided the Province with a copy of Unveiling NunatuKavut in 2010, but it did not provide the documents referenced in that publication. The Provinceasked the NCC for electronic copies of these documents. The NCC agreed to provide these, but was unable to complete the production due to technical difficulties.

Thefederal government agreed to electronically deliver the documents to the Province so long as the NCC consented. The NCC agreed and the documents were delivered in2011. [12] The ATIPPA request by the Innu Nation sought 57 of these documents. The Province determined that it did not have 36 of those. Of the remaining 21documents, the Province determined that 5 were already publicly available, and it provided those to the Innu Nation.

The remaining 16 records are the subject of thisapplication. [13] The Commissioner described those 16 documents as follows: [16] The records requested by the Complainant, in their form and content, appear to be scholarly research reports, written by one or more authors, containing assessments

of historical and demographic records that may relate to land claim issues. On review, the 16 withheld records, and some of the others, contain statements to the effect that they are the results of research commissioned by the Third Party. [ 14 ] Sealed copies of the documents were filed with the Court. The parties agree that I need to review the documents in order to decide this appeal only if I have to consider s. 39(1)(

a) of the Act . In that case, then I would have to review the documents to determine whether disclosure would reveal third party information of a scientific or technical nature. Are the documents exempt (under s. 34 of the Act) from mandatory disclosure because disclosure would be harmful to intergovernmental relations or negotiations? [ 15 ] The Province relies on s. 34(1)(a)(

i) of the Act to support its position: 34

(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (

a) harm the conduct by the government of the province of relations between that government and the following or their agencies: (

i) the government of Canada or a province [ 16 ] This provision incorporates a future harm test. In order to establish that the documents may be withheld from disclosure under s. 34(1)(a), the Province must show that there is a reasonable expectation that harm will occur. [ 17 ] The occurrence of a future event cannot be demonstrated on the usual civil standard of proof, and that is not what is required of the Province. The Supreme Court considered the requisite standard of proof and defined it as follows in Merck Frosst Canada Ltd. v.

Canada (Health) , 2012 SCC 3 , at para. 206 : To conclude, the accepted formulation of "reasonable expectation of probable harm" captures the need to demonstrate that disclosure will result in a risk of harm that is well beyond the merely possible or speculative, but also that it need not be proved on the balance of probabilities that disclosure will in fact result in such harm. [ 18 ] The Province relies on evidence from two officials to support its objection to disclosure.

Aubrey Gover, Q.C., Deputy Minister of Indigenous Affairs and Reconciliation, is a lawyer and has worked for the government in the field of indigenous affairs since 1999 and served as the Province’s Chief Negotiator in respect of the Innu Nation’s land claim. Justin Mellor is a lawyer with the Department of Justice who has considerable expertise in legal issues arising out of relationships between the Province and indigenous peoples and governments, and between the Province and the federal government. [ 19 ] The evidence from Mr. Gover and Mr.

Mellor that bears on the application s. 34(1)(a)(ii) is as follows: • Confidentiality is integral to the land claim process; • Free sharing of information among the parties promotes cooperation, open discussion and good faith negotiations; • Disclosure of information provided by one party in the course of land claim negotiations can decrease trust; • The Province works with the federal government in matters involving relationships with indigenous peoples and governments, including land claims and developments in which environmental review or indigenous consultation is required. • The disclosure of information related to ongoing land claims received by the Province from the federal government, and by the federal government from an indigenous group could compromise the level of trust in negotiations, the willingness of these parties to share information in the future and the relationship generally between the Province and the federal government. [ 20 ] The province bears the onus to show that the exemptions from disclosure apply.

The Innu Nation did not adduce any evidence on this application and it did not cross-examine Mr. Gover or Mr. Mellor. However, that does not mean that the conclusions expressed in the Province’s evidence must be accepted. [ 21 ] The Province says that the evidence shows that the relationship between the Province and the federal government, at least regarding matters of indigenous or environmental affairs, would be negatively impacted if the Province is required to disclose information that it received from Canada, and that Canada received from the NCC, during land claim negotiations.

The essence of the Province’s position is that the negative impact would flow from the erosion of trust that would result from the disclosure of documents that were provided in the expectation that they would not be disclosed. [ 22 ] However, this conclusion does not necessarily follow. The parties to the exchange of information are taken to know the law that governs the secrecy of documents in the possession of the government.

I am not persuaded that the disclosure of documents pursuant to a law that was in existence at the time that the federal government, with the consent of NCC, provided the documents to the Province would necessarily result in an erosion of trust. It is not as if the Province voluntarily gave up the documents without any regard for the interests of the federal government or the NCC. There is no reason to believe that disclosure required by law will result in the harm claimed.

Instead, it may lead only to the parties’ prior consideration of the impact of ATIPPA on future disclosure. [ 23 ] It is true that experience of the Affiant can provide further premises that fill the gap between the initial premise that documents were provided in connection with confidential negotiations and the conclusion that trust would be eroded. However, it is not sufficient for the Affiant merely to say that experience tells him that an erosion of trust affecting the relationship between the provincial governments would follow disclosure.

It should be expected that experience in that regard would be reflected in examples of similar occurrences, or based on conversations in which the Affiant has been told that a loss of trust would follow. [ 24 ] The Supreme Court elaborated on the “reasonable expectation of probable harm” test in Ontario (Ministry of Community Safety & Correctional Services) v.

Ontario (Information & Privacy Commissioner) , 2014 SCC 31 , at para. 54 : 54 This Court in Merck Frosst adopted the "reasonable expectation of probable harm" formulation and it should be used wherever the "could reasonably be expected to" language is used in access to information statutes. As the Court in Merck Frosst emphasized, the statute tries to mark out a middle ground between that which is probable and that which is merely possible. An institution must provide evidence "well beyond" or "considerably above" a mere possibility of harm in order to reach that middle ground: paras. 197 and 199.

This inquiry of course is contextual and how much evidence and the quality of evidence needed to meet this standard will ultimately depend on the nature of the issue and "inherent probabilities or improbabilities or the seriousness of the allegations or consequences": Merck Frosst , at para. 94, citing C. (R.) v. McDougall , 2008 SCC 53 , [2008] 3 S.C.R. 41 (S.C.C.), at para. 40 . [ 25 ] The type of harm that the Province suggests will occur here is harm that would be caused by another entity’s reaction to disclosure.

In some circumstances, that reaction would be natural and ordinary such that an inference of reasonable expectation of future harm necessarily follows.

But, where there is more than one predictable reaction to disclosure, then the reasonable expectation of probable harm test requires more evidence to show that the predicted reaction is not just one of a range of possible reactions. [ 26 ] The Province relies on a decision of the Ontario Privacy Commissioner, Order PO-2439, Ontario (Native Affairs) (Re) , 2005 CnLII 56351 (ON IPC) to support its position: 60 I concur with the Ministry that negotiation is the preferred method of dispute resolution when it comes to land claim matters.

In the circumstances of this appeal, I have concluded that a reasonable expectation of prejudice to the negotiations is sufficient to support a reasonable expectation of prejudice to intergovernmental relations. In my view, these are highly sensitive, complex and at times emotionally charged matters involving a multitude of interests and negotiation allows the parties to adopt a collaborative, creative and cost effective approach to resolving these disputes, which encourages outcomes that achieve the parties’ needs and interests.

I agree that a key factor in establishing a negotiation atmosphere that is conducive to settlement is one in which the parties believe in the process and feel comfortable working with their negotiating partners. I concur with INAC that trust is an essential ingredient in establishing and maintaining productive and respectful working relationships. INAC put it well: with trust comes the willingness to engage in frank and open discussion and the sharing of documentation that reveals complex issues and the parties’ interests.

In my view, if the expectation of confidentiality is dashed, along with goes the trust that is crucial to productive negotiations. [ 27 ] Certainly, the logic in that position supports the Province’s argument here. However, in that case, the Commissioner went on to find that he had been provided

with detailed and convincing evidence that supported the inference of erosion of trust.

He recounted this evidence in an earlier part of the decision: 27 Pointing to several previous orders issued by this office (Orders P-630, P-730 and P-948), the Ministry submits that Canada has “consistently stated the disclosure of records revealing the substance of confidential land claim negotiations would be considered a breach of the confidentiality of negotiations and would have a chilling effect on the negotiation process.” The Ministry states further that in order to ensure that the parties freely share information regarding their respective interests, the confidentiality of land claim negotiations is necessary.

In order for Ontario to engage in this “interest-based” negotiation process, the Ministry submits that the parties must be confident that the negotiations will be conducted on a confidential basis. [ 28 ] No such evidence was provided by the Province in this case. [ 29 ] The federal government is subject to access to information legislation.

I cannot find without direct evidence on the point that the federal government would take measures against the Province because of disclosure required under a similar legislative regime. [ 30 ] Therefore, I find that the Province has not met its onus of showing that the information sought is exempt from disclosure pursuant to s. 34(1)(a)(ii) of the Act . Are the documents exempt (under s. 34(1)(

b) of the Act) from mandatory disclosure because disclosure would reveal information received in confidence from the federal government? [ 31 ] Application of s. 34(1)(

b) does not require a harms analysis. The Province must demonstrate that the documents were received in confidence from the federal government: 34.

(1) The head of a public body may refuse to disclose information to an applicant if the disclosure could reasonably be expected to (

b) reveal information received in confidence from a government, council or organization listed in paragraph (

a) or their agencies. [ 32 ] An objective test must be applied to decide whether an otherwise responsive record is exempt from disclosure because it is confidential. The formulation of the test for confidential information stated by MacKay, J. in Air Atonabee Ltd. v. Canada (Minister of Transport) (1989), 27 C.P.R. (3d) 180, 1989 CarswellNat 585 (Fed. Ct. (T.D.)), at paras. 42-45 is commonly applied: 42 … whether information is confidential will depend upon its content, its purposes and the circumstances in which it is compiled and communicated, namely: 43 (

a) that the content of the record be such that the information it contains is not available from sources otherwise accessible by the public or that could not be obtained by observation or independent study by a member of the public acting on his own, 44 (

b) that the information originate and be communicated in a reasonable expectation of confidence that it will not be disclosed, and 45 (

c) that the information be communicated, whether required by law or supplied gratuitously, in a relationship between government and the party supplying it that is either a fiduciary relationship or one that is not contrary to the public interest, and which relationship will be fostered for public benefit by confidential communication. [ 33 ] The Affidavit of Mr. Mellor says: 13. Confidentiality is integral to the land claims negotiating process. If the federal and provincial governments accept a land claim for the purposes of negotiation, then the three parties sign a framework agreement… 14.

In my experience, confidentiality in the land claims process is essential because negotiations are frequently complex and sensitive. The free sharing of information between parties promotes cooperation, open discussion and good faith negotiations. Disclosing information provided in confidence by one of the parties would decrease trust and impede the ultimate goal of indigenous reconciliation. [ 34 ] Mr. Mellor also attested to facts related to the provision of the documents to the Province. In particular, Mr.

Mellor swore that he had asked NCC for a complete set of the documents referred to in Unveiling NunatuKavut , so that the Province could be fully apprised of the basis for NCC asserting indigenous rights in Labrador. Information not otherwise publicly available [ 35 ] The parties agree that the information in the 16 documents sought by this access request is not otherwise publicly available.

Information Originated and Communicated in Expectation of Confidence [ 36 ] I accept that information developed for the purposes of land claim negotiations is prepared with the expectation that it will disclosed in confidence during those negotiations. The Affidavit of Mr.

Mellor attesting to the confidentiality of the land claim negotiation process is supported by the evidence that the MOU between Canada and NCC expressly provided for confidentiality. [ 37 ] Indeed, the Innu Nation does not dispute the assertion that land claim negotiations are held in confidence, or that the records were developed by NCC in support of its position during land claim negotiations. [ 38 ] Rather, the Innu Nation disputes the contention that the records in this case were provided to the Province during the course of, or even in connection with, land claim negotiations. [ 39 ] Mr.

Mellor’s Affidavit attests that the Province came into possession of the records as a result of a request that he made at a meeting with NCC. Mr. Mellor’s Affidavit did not state the purpose of the meeting but noted that it was attended by provincial archeologists and Justice officials. The Innu Nation takes the position in its Factum that “[t]his is suggestive of the meeting having to do with archeology, rather than a land claim negotiation.” [ 40 ] I find that this argument by the Innu Nation is not sufficient to displace the evidence from Mr.

Mellor that this information was provided in the context of the Province assessing the basis for NCC asserting indigenous rights. Given the nature of the historical and land use evidence submitted by NCC in Unveiling NunatuKavut , it is not surprising that the Province would apply its own archeological experts to the task of assessing the evidence. Mr. Mellor says that at this meeting he requested the records in order to provide the Province with the full record to assess the NCC claims.

He was not cross-examined on this point. [ 41 ] The Innu Nation accepts that even though the records were supplied to the Province by Canada for technical reasons, the information came from NCC. I note that the federal government appeared to accept that the documents were provided to it impressed with some level of confidentiality because it required the consent of NCC before supplying the documents to the Province. [ 42 ] The evidence from Mr. Mellor and Mr.

Gover, supported again by the MOU, demonstrates that land claim negotiations are, at least at some stages, tripartite negotiations involving the Province as a participant. [ 43 ] I therefore find that the records were developed by NCC in support of its land claim, that NCC expected that the Province had a role to play in those negotiations,

and that the documents were provided by NCC to the Province in connection with those negotiations. Confidential Relationship [ 44 ] The evidence of Mr. Gover and Mr.

Mellor satisfies me that the tripartite relationship among the federal and provincial governments and an indigenous group during the course of land claim negotiations is one that will be “fostered in the public interest by confidential communication.” Conclusion on s. 34(1)(b) [ 45 ] The Province has satisfied its onus to demonstrate that the records were provided to the federal government in confidence and that the federal government provided the information to the Province impressed with that confidence. [ 46 ] I therefore find that the exemption in s. 34(1)(

b) from mandatory disclosure applies to these records. The Province therefore has the discretion, subject to s. 9 of the Act , whether to disclose those records. Are the documents exempt (under s. 35 of the Act) from mandatory disclosure because disclosure would be harmful to the financial or economic interests of the Province or a third party? [ 47 ] The Province says that the records are exempt from mandatory disclosure under s. 35(1)(

d) of the Act which provides as follows: 35

(1) The head of a public body may refuse to disclose to an applicant information which could reasonably be expected to disclose (

d) information, the disclosure of which could reasonably be expected to result in the premature disclosure of a proposal or project or in significant loss or gain to a third party [ 48 ] The Province says that disclosure of the records would result in twofold harm to the NCC. First, the Province relies on correspondence from the NCC objecting to the release of the records in which NCC says that disclosure of the records would interfere with its land claim negotiations.

Second, the Province says that NCC is involved in litigation with the Innu Nation over competing land claims for the same area, and disclosure of the information would result in harm to the NCC in that litigation. [ 49 ] The Province has not provided any evidence that demonstrates that there is a reasonable expectation that disclosure of the records would result in interference with the NCC land claim negotiations.

Even accepting that there is a need for confidentiality in those negotiations does not lead necessarily to the conclusion that disclosure would interfere with the negotiations. [ 50 ] As to the litigation between the Innu Nation and the NCC, no evidence at all has been presented to demonstrate a reasonable expectation that the position of NCC would be damaged if the records were disclosed. [ 51 ] The Province also relies on s. 35(1) (

g) and (h), which provide: 35

(1) The head of a public body may refuse to disclose to an applicant information which could reasonably be expected to disclose (

g) information, the disclosure of which could reasonably be expected to prejudice the financial or economic interest of the government of the province or a public body; or (

h) information, the disclosure of which could reasonably be expected to be injurious to the ability of the government of the province to manage the economy of the province. [ 52 ] The Province relies on the Affidavit evidence of Mr. Gover, which says that it is in the financial interest of the Province to continue to obtain disclosure of all information and documents generated by an indigenous group or submitted to the federal government in respect of a land claim. According to Mr.

Gover, such information puts the Province in a position to fully assess the impact of land claims and on the duty to consult with indigenous groups in respect of resource development and other projects in Labrador. This allows for the Province to adequately plan and account for the involvement of indigenous groups in these projects, which are significant contributors to provincial revenue. Mr.

Gover’s evidence in that regard stands un-contradicted and unchallenged by cross-examination. [ 53 ] The Province relies on a letter from NCC in response to the request for disclosure, which says in part: “Release of any or all of the records would reasonably be expected to result in similar information no longer being supplied to the Province, whereas it would be in the Province’s interest to have continued access to such information in the future.” [ 54 ] Unlike the situation with the claimed harm to the relationship with the federal government that would result from disclosure, in respect of the NCC there is direct evidence that the NCC would refuse to share information with the Province in the future if the records are disclosed.

If such information is not disclosed, then this would have negative implications for the ability of the Province to manage resource projects in Labrador, which in turn would affect the financial position of the Province. [ 55 ] Consequently, the Province has satisfied its onus of showing that there is a reasonable expectation of harm to the financial position of the Province and to the ability of the Province to manage the economy if the records are disclosed. [ 56 ] I therefore find that the exemption in s. 35 (1)(

g) and (

h) from mandatory disclosure applies to these records. The Province therefore has the discretion, subject to s. 9 of the Act , whether to disclose those records. If either of the discretionary exemptions under s. 34 or s. 35 of the Act apply, then does the public interest in disclosure of the information outweigh the reason for the exception? [ 57 ] The exemptions provided in s. 34 and s. 35 of the Act are discretionary exemptions. If the conditions for either of those exemptions exist, then the public body “may” refuse to disclose the information. That discretion may be overridden: 9

(1) Where the head of a public body may refuse to disclose information to an applicant under a provision listed in subsection (2), that discretionary exception shall not apply where it is clearly demonstrated that the public interest in disclosure of the information outweighs the reason for the exception. [ 58 ] The position of the Innu Nation is that the overriding public interest in this case is inherent in the position of the Province where it articulates the interest of NCC in having these records withheld.

The Province says, in part, that NCC may wish to have these records withheld because they may negatively impact the NCC land claim. The Innu Nation argues that it would be in the public interest that any documents that may undermine the position of NCC in land claim negotiations be publicly disclosed. In that way, the public can be in a position to assess both the strength of the NCC claim and the appropriateness of the Province’s response to that claim. [ 59 ] The problem with this argument is that it presumes that it is in the public interest to undermine the strength of the NCC land claim.

This argument presumes a public interest that would not include the interests of NCC and its members. It is also an argument that would override the application of the exemption in all cases in which a public body engages in confidential negotiations with any third party. The authorities on

interpretation of access to information legislation do not go that far. [ 60 ] I agree with the comments of Murphy, J. in Mastropietro v. Newfoundland and Labrador (Minister of the Department of Education), 2016 NLTD(G) 156, at paragraph 50: 50 I am not saying that it is incumbent upon a person seeking to establish that there is a sufficient public interest in disclosure so as to outweigh the purpose of the

exception from disclosure, to present evidence of the public interest in disclosure, in every case. There may well be cases where the public interest in disclosure, is sonotorious as to be capable of judicial notice by the Court. There may be other cases, where the records or documents themselves, are such that the Court is able to concludethere is a public interest in disclosure.

However, in the absence of these or other similar circumstances, it is my view, that a person seeking to argue on an appeal, that thepublic interest in disclosure clearly outweighs the purpose of the exception from non-disclosure would be well advised to present evidence to the Court to support such anargument. [61] In this case, the Innu Nation has presented no evidence, and demonstrated no notorious factors establishing the compelling public interest in disclosure that wouldoverride the application of the exemptions in s. 34(1)(

b) and s. 35(1)(

g) and (h). Are the documents exempt (under s. 39(1) of the Act) from mandatory disclosure because disclosure would be harmful to the interests of a third party? [62] The Act provides for mandatory protection from disclosure for certain third party information: 39(1) The head of a public body shall refuse to disclose to an applicant information (

a) that would reveal (

i) trade secrets of a third party, or (ii) commercial, financial, labour relations, scientific or technical information of a third party; (

b) that is supplied, implicitly or explicitly, in confidence; and (

c) the disclosure of which could reasonably be expected to (

i) harm significantly the competitive position or interfere significantly with the negotiating position of the third party, (ii) result in similar information no longer being supplied to the public body when it is in the public interest that similar information continue to be supplied, (iii) result in undue financial loss or gain to any person, or (iv) reveal information supplied to, or the report of, an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into a labourrelations dispute. [63] The authorities establish that this

section establishes a three-part test for the exemption of third party information. The party relying on the exemption mustestablish that the information is information of a nature described in s. 39(1)(a); (ii) supplied in confidence; and (iii) such that it could be reasonably expected that one ofthe impacts described in s. 39(1)(c)(ii) – (iv) would result if disclosed. S. 39(1)(a): Scientific or Technical Information of a Third Party [64] The Province relies on s. 39(1)(a)(ii) and argues that the evidence establishes that the information sought is technical information.

The Innu Nation argues thatthe information is unlikely technical information because it likely consists of historical, genealogical, or ethnographic reports and not likely to involve informationdeveloped through the application of applied mechanics or science. [65] In order to determine the nature of the information, the parties agree that I had to review the 16 reports in question, and I have done so. [66] With one exception, the reports consist of social science research prepared under contract with, and for, the predecessors of NCC.

Several of the reports arecatalogued separately and do not state their provenance expressly, but reading the reports in context leads me to the conclusion that these ancillary documents wereprepared in conjunction with the attributed reports. [67] One report does not fall into this category because it was a report prepared at the request of the federal Department of Indian Affairs and Northern Development.

It is not a report that was prepared for NCC or its predecessors and it would not fall within the s. 39(1) exception. [68] The reports prepared for the predecessors of the NCC consist of the work of historians, ethnographers, anthropologists, archivists, historical cartographers,linguists and editors. Except for the ancillary documents, each report expressly describes the methodology adopted and applied in the work. [69] The Innu Nation, supported by the Commissioner, takes the position that these reports do not constitute scientific or technical information.

They urge theadoption of a definition of technical or scientific information that has been adopted by privacy commissioners and would appear to restrict the information caught by thissection to the physical sciences and related applied technical work.

In this case, for instance, the Commissioner utilized the following definition expressed by theSaskatchewan Commissioner in Report F2006-002 of the Saskatchewan OIPC: “Technical information is information belonging to an organized field of knowledge whichwould fall under the general categories of applied sciences or mechanical arts.” [70] The argument of the Innu Nation and the Commissioner is encapsulated by the conclusion of the Commissioner in this case: [26] A review of the disputed records leads us to the conclusion that they are studies in history and demographics, and do not fit into the category of technical information.

Therefore, while the Third Party, having commissioned the research, may have a proprietary interest in the information contained in these records, they have not beenshown to fit within a category of business information that the legislature has chosen to protect, and so the first part of the three part test has not been met. [71] The cases cited by the Innu Nation and the Commissioner do not establish the proposition that social science research and studies cannot be considered scientificor technical information within the meaning of s. 39(1)(a)(ii).

Those cases considered information generated through applied physical science, such as a structuralengineering report (Hamilton (City) (Re), (ON IPC)) or a map based on aerial survey (Sask. (Energy and Resources) (Re), (Sask.OIPC)); or was a draft script described as an artistic work (P.E.I. (Communities, Land and Environment) (Re), (P.E. IPC). [72] The Supreme Court of Canada in Merck Frosst considered the

interpretation of a similar statutory provision to s. 39(1)(a)(ii) and adopted a proposition that hadbeen accepted in federal court cases:

139 First, the terms "financial, commercial, scientific or technical" should be given their ordinary dictionary meanings. As MacKay J. in Air Atonabee stated, at p. 268: ... dictionary meanings provide the best guide and that it is sufficient for purposes of subs. 20(1)(

b) that the information relate or pertain to matters of finance, commerce,science or technical matters as those terms are commonly understood. [73] The Oxford English Dictionary, online edition, suggests the following meaning of “scientific”: “Of, relating to, or employing the methodology of science.” [74] The same dictionary offers the following as a definition of science: “A systematic method or body of knowledge in a given area.” [75] The same dictionary suggests the following

definitions of the word “technical”: 1. Of or relating to technique: a technical procedure; great technical skill in playing the violin. 2.a. Having or demonstrating special skill or practical knowledge especially in a mechanical or scientific field: a technical adviser; technical expertise in digital photography. b. Used in or peculiar to a specific field or profession; specialized: technical jargon. c. Requiring advanced skills or specialized equipment: technical mountain climbing. 3. Of or relating to the practical, mechanical, or industrial arts or to the applied sciences: a technical institute. [76] Although the primary

definitions of both scientific and technical refer to the physical sciences, the alternate

definitions are broad enough to include the work ofsocial science where that work employs a systematic approach and the application of special skill or knowledge. [77] The

interpretation of the Act requires a broad and purposive approach that recognizes that access to information is the rule and that the

interpretation of the 39(1)(

a) exemption must be considered in light of its purpose to protect information owned by a party and provided to the public body in confidence: Corporate Express CanadaInc. v. Memorial University of Newfoundland, 2015 NLCA 52, at paras. 15-39. [78] The purpose of statutory exemptions such as s. 39(1)(

a) has been described as follows by the Ontario Divisional Court in Boeing Co. v. Ontario (Ministry ofEconomic Development & Trade), (ON SCDC), 2005 CarswellOnt 2965, 200 O.A.C. 134 (Sup. Ct. (Div. Ct.)), leave to appeal refused, BombardierInc. v. Ministry of Economic Development et al, 2005WL8147114 (Ont. C.A.): 15 As noted by the Commissioner in his reasons, the exemption in s. 17(1) is designed to protect the "informational assets" of private businesses and other organizationsfrom which the government receives information in the course of carrying out its public responsibilities (Reasons, p. 3).

In order for a record to qualify for exemption unders. 17, the Act contemplates a three part test… [79] Given the purpose of the exemption, there is no reason to restrict the terms “scientific or technical information” to information derived from pure or appliedphysical science.

If the purpose of this provision is to provide protection to the informational assets of an organization obtained through the application of its industry ormoney, the exemption is broad enough to apply to information obtained through pure or applied social science that requires specialized skill or analysis in recognizedacademic disciplines. All of the reports in this case were based on work of that nature. [80] The one report that I discussed that was prepared for the federal Department of Indian Affairs and Northern Development would not constitute the information ofthe third party, NCC.

The remainder are reports that were paid for by the predecessors of NCC, and therefore are the informational assets of that organization. S. 39)(1)(

b) Information that is Supplied, Implicitly or Explicitly, in Confidence [81] I have already concluded, when considering the exemption in s. 34(1)(

b) that the records were provided to the federal government in confidence and that thefederal government provided the information to the Province impressed with that confidence. S. 39(1)(

c) Disclosure Could be Reasonably Expected that One of the Impacts Described in s. 39(1)(c)(ii) – (iv) [82] The application of s. 39(1)(

c) supports an exemption if a reasonable expectation of any of the four listed effects in that

section is demonstrated. [83] In this case, the exemption is supported by the circumstance provided for in s.39(1)(c)(ii): that “disclosure result in similar information no longer being suppliedto the public body when it is in the public interest that similar information continue to be supplied.” [84] Neither the Innu Nation nor the Commissioner disputed the contention of the Province that it is in the public interest for the Province to obtain informationrelated to indigenous land claims in order to fully and properly participate in negotiations of such claims. [85] Mr.

Gover in his Affidavit attested to his view that disclosure of this information would result in such information not being supplied by the federal governmentor by the NCC in the future. In respect of the federal government, I found that his evidence in that regard did not satisfy the proof of future harm required under s. 34(1)(a),because it was not supported by any other evidence that the federal government would be reasonably expected to respond in that way. [86] However, there is such evidence in respect of the anticipated response of the NCC.

After the original request for production of these documents was received bythe Province, it notified the NCC that it was considering the request and invited the NCC to articulate its position. The NCC responded that it considered the informationto have been provided in confidence and stated further: “Release of any or all of the records would reasonably be expected to result in similar information no longer beingsupplied to the Province…” [87] Mr.

Gover’s evidence together with this express statement of intention on the part of the NCC satisfies the onus on the Province to demonstrate that there is areasonable expectation of the harm described in s. 39(1)(c)(ii). [88] In light of that conclusion, there is no need to go on to consider whether the Province has met its onus to demonstrate a reasonable expectation of the harmsdescribed in s. 39(1)c)(

i) or (iii), on which it also relied. Conclusion on s. 39(1) [89] I therefore find that the exemption in s. 39(1) applies to 15 of the 16 records (the one exception being the report prepared for the federal Department of IndianAffairs and Northern Development). The Province therefore is required to refuse to disclose those 15 records. CONCLUSION and DISPOSITION [90] In

summary, I conclude as follows: • The records are not exempt under s. 34(1)(

a) from mandatory disclosure because the Province did not demonstrate disclosure would be harmful to intergovernmental

relations or negotiations; • The records are exempt under s. 34(1)(

b) from mandatory disclosure because disclosure would reveal information received in confidence from the federal government; • The records are not exempt under s. 35(1)(

d) from mandatory disclosure because disclosure would result in a reasonable expectation of significant loss to the NCC; • The records are exempt from disclosure under s. 35(1)(

g) and (

h) because disclosure would result in a reasonable expectation of prejudice to the financial or economic interest of the Province, or would be injurious to the ability of the Province to manage its economy; • The Innu Nation has failed to demonstrate that there exists a public interest in disclosure that would override the application of the exemptions in s. 34(1)(

b) and s. 35 (1)(

g) and (h); and • The exemption in s. 39(1) applies to 15 of the 16 records (the one exception being the report prepared for the federal Department of Indian Affairs and Northern Development).

The Province therefore is required to refuse to disclose those 15 records. [ 91 ] The Application of the Province is allowed and it is entitled to a declaration pursuant to the Access to Information and Protection of Privacy Act, 2015 , s. 50(2) that it is not required to comply with recommendation (1) in Report A2020-20 of the Office of the Information and Privacy Commissioner. [ 92 ] The Province is entitled to its costs against the Innu Nation, taxed on Column III of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sched. D .

The Commissioner filed a brief that outlined the considerations that the Court must take into account in this matter, but he did not advocate for a particular result. He did not seek costs and the Province does not seek costs from the Commissioner. The Commissioner shall bear his own costs. _____________________________ Daniel M. Boone Justice