T-1685-94
BETWEEN:
CHIEF CAROL MCBRIDE, on behalf of the
TIMISKAMING INDIAN BAND
Applicant
- and -
HER MAJESTY THE QUEEN, as represented by the
Minister of Indian and Northern Affairs Canada
and the Attorney General of Canada
Respondent
REASONS FOR ORDER
CULLEN J.:
This is a motion made by the applicant, pursuant to rules 319 and 321.1 of the Federal Court Rules, C.R.C. 1978, c. 663, for the purpose of having this Court review the decision of the Minister of Indian and Northern Affairs to give access to records requested under the provisions of the Access to Information Act. R.S. 1985, c. A-1, s. 1 [hereinafter, the "Act"].
The request for access to information which relates to the applicant, and which is held by the respondent, has been granted under the Act by the Minister of Indian and Northern Affairs [hereinafter, the "Minister"]. The Minister has decided that the information sought does not fall under any of the exemptions contained in the Act and must be disclosed. The applicant seeks judicial review of this decision.
The applicant has also submitted a Notice of Constitutional Question, to be argued within the above motion. The applicant wishes to question the constitutional validity or applicability of the Act generally, and specifically of section 13 of the Act vis-a-vis First Nation governments. The applicant seeks a remedy under section 24 of the Charter by way of an interpretation of the words "municipal governments" in section 13 of the Act to include Band councils.
THE FACTS
Chief Carol McBride is a registered member of the Timiskaming Indian Band and also an Indian within the meaning of the Indian Act. She has been the Chief for seven years, and a member of the Band Council for six years before that.
The Timiskaming Indian Band has approximately 1,365 members, 460 of which live within the traditional territory, and 905 of which live elsewhere. The traditional territory is located in the province of Quebec. It borders on the Municipality of Notre-dame-du-Nord.
On January 18, 1994, the Department of Indian and Northern Affairs [hereinafter, the "Department"] received a request, pursuant to subsection 4(1) of the Act, for certain records relating to the Timiskaming Indian Band [hereinafter, the "Band"]. The Department confirmed that the request was for "any land records" for the Band. Seventeen files, consisting of more than 1,000 pages, were identified as relevant to this request. The documents within the files include Band Council Resolutions [hereinafter, "BCRs"] and Minutes of Band Council meetings.
On March 2, 1994, Mr. Marcel Gauthier, the Assistant Coordinator of the Access to Information and Privacy section of the Department, wrote to the applicant Band, pursuant to section 27 of the Act regarding third parties. In this letter, he advised that his department had received a request for the disclosure of land records for the Band, and requested that the Band comment on the disclosure.
Copies of some of the documents which the Minister proposed to release were included with Mr. Gauthier's letter. These documents are records or portions thereof, that relate to land matters. Some of this information may be found in the records of the Indian Lands Registry Office [hereinafter, the "Registry"], and in two BCRs. Chief Carol McBride deposes that these documents almost exclusively deal with land surrenders and the survey of boundaries between surrendered and unsurrendered land. She further deposes that these documents will be pertinent in either the existing specific land claim and negotiations regarding a recent Quebec issue of Letters Patent, or future land claims arising as a result of the current negotiations.
The documents in the Registry are available for inspection by the public.
On March 22, 1994, the solicitors for the Band responded to the requested disclosure, objecting on the grounds that such disclosure was exempted under the Act as interpreted in concert with the Crown's fiduciary duty.
On June 23, 1994, Mr. Gauthier sent a letter to the applicants. This letter informed the applicants that the Department had decided that the requested information, except for certain information that the Department had highlighted in pink in the documents, does not meet any of the exemptions under the Act and must be disclosed to the party seeking access.1
On July 13, 1994, the applicant filed the originating Notice of Motion for judicial review of the respondent's decision to give access to the requested records, except for the information noted in the paragraph above.
After various concessions made by the applicant, there remain 34 documents at issue for disclosure. The majority of these documents are either BCRs (in various formats) or the Indian Agent's record of a BCR. The remaining documents are mainly agreements respecting land or, in a few cases, correspondence.
All of the records at issue are in the possession of the Federal government.
On September 23, 1994, pursuant to subsection 44(2) of the Act, the respondent informed the person requesting access to the records at issue that the applicants had commenced these proceedings, and that that person had a right to appear as a party to the judicial review. That person does not, however, appear in this proceeding.
Chief Carol McBride deposes that, as long as she has been the Chief of the Band, whenever the Band sent its BCRs or other documents dealing with land transactions to the Department of Indian Affairs, it was done solely for purposes of the Band and to notify the Department of the Band's decisions. The Band did not authorize any of the transmitted documents to be made public.
THE ISSUES
The main issue is whether all or part of the information which the respondent proposes to disclose ought to be disclosed.
The applicant submits that the main issue is comprised of the following five sub-issues:
| 1. Is the respondent vested with a fiduciary obligation to maintain the confidentiality of materials and information which it receives from the applicants in a confidential manner, and does this obligation supersede the Act? |
The respondent submits that no fiduciary duty between the federal Crown and the Band arises in the circumstances of the case at Bar.
| 2. Based on the facts before this Court, are mandatory exemptions to the disclosure of the subject matter information under paragraphs 20(1)(b), (c), or (d) of the Act made out? Is the information contained in the documents referred to in paragraphs 33-35 of the applicants' Memorandum of Fact and Law personal information as defined in section 3 of the Privacy Act, and therefore protected from disclosure under section 19 of the Act? |
The respondent submits that the subject matter of the information requested is not exempt from disclosure pursuant to the above paragraphs.
| 3. Does section 13 of the Act apply to the applicants? |
The respondent submits that the Band is not included within section 13 of the Act, and even if it were included, the information is not confidential.
| 4. If section 13 does not apply to the applicants, does that omission breach the applicant's right to equal treatment under the law as protected by section 15 of the Charter? |
The respondent submits that the omission of the Band from inclusion within section 13 does not breach any right that the Band may have under section 15 of the Charter.
| 5. If section 13 breaches the applicants' rights, what is an appropriate remedy to this breach under subsection 24(1) of the Charter? |
DISCUSSION
The statutory provisions:
Section 2 of the Act provides that, in principle, information contained in government records should be available to the public. Necessary exceptions to a person's right of access should be limited and specific.2
Section 3 of the Act defines "record" to include:
| ... any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof. |
Subsection 4(1) of the Act identifies the right of access to any record under the control of a government institution as belonging to Canadian citizens and permanent residents.
Section 13 of the Act denies access to information that has been received in confidence from various kinds of governments, ranging foreign states to municipal or regional governments.3
Section 19 prevents the disclosure of any personal information as defined in section 3 of the Privacy Act, R.S. 1985, c. A-1, s. 19, unless the individual to whom it relates consents to the disclosure, the disclosure is in accordance with section 8 of the Privacy Act, or if the information is publicly available.
Subsection 20(1), paragraphs (b) through (d) authorizes the refusal to disclose any record requested under the Act that contains:
| ... |
| (b) financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party; |
| (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or |
| (d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party. |
Analysis:
1. The applicant's principle argument: is there a fiduciary relationship between the applicants and the respondent? If a fiduciary relationship exists, what is its nature; i.e., does it encompass confidentiality of certain documents over others?
The applicant submits that, when dealing with Indian property on behalf of the Band, the Crown is acting as a fiduciary within the context of a trust relationship. This fiduciary duty applies in all Crown dealings with Indian land.4 The applicant submits that documents arising from the surrender to, and/or use of the Band's reserve land by, the Crown arose as a result of the fiduciary relationship between the Crown and the Band.
The applicants characterize the documents at issue as documents which fell into the Crown's possession as a result of its fiduciary relationship with the Band, as these documents relate to Indian lands and their surrender. The relationship is that of trustee and beneficiary. The applicants seem to be making the argument that the documents, in and of themselves, are property which is held by trustee respondent on behalf of the beneficiary of the trust, that is, the Band.
The thrust of the applicants' argument is that because a trustee/fiduciary cannot release property, including confidential information, belonging to the beneficiary without the express consent of the beneficiary, it follows that the Crown holds a fiduciary duty not to disclose the documents arising from the Crown's dealing with Indian land which it holds in trust. Releasing that information to the general public without consent of the applicants breaches the fiduciary duty of the Crown.
Citing the decisions same as the applicant, namely, Guerin and Sparrow, the respondent submits that the fiduciary relationship between the Crown and the Band arises only where either there is a dispute between the Crown and an Indian Band over surrendered land, or where treaty or aboriginal rights under section 35 of the Constitution Act, 1982 are at stake. Because neither of these scenarios arise in the case at Bar, the fiduciary relationship between the Crown and the Band has no bearing on the issues.
Analysis regarding fiduciary duty: Case law is to the effect that not every aspect of the relationship between fiduciary and trustee takes the form of a fiduciary obligation.5 However, this case turns more on the issue of confidentiality rather than on fiduciary obligation. For the reasons that follow in the next section regarding confidentiality, it will become clear that there is no need to comment on the existence or extent of a fiduciary relationship in this particular case.
Even if the trustee/fiduciary argument could be established in the way that it is characterized by the applicant, its significance is hard to reconcile with the fact that the documents at issue are already publicly available, and have been for quite some time. Although the documents themselves are not contained within the Registry, they have been available to the public who attend at the Registry and conduct searches and make specific requests for them under the existing Registry system since its inception in 1967.6 Prior to that time, the Department, itself, would respond to requests for information contained within such documents. Although the records at issue have not been disclosed to the public before, they certainly were within the public domain and available to it. Just because the information has not been disclosed does not mean that it could not have been disclosed.
2. The applicant's alternative argument: (a) does the information at issue fall under any of the confidentiality provisions in paragraphs 20(1)(b), (c) or (d)?
The applicant's case actually turns on this provision because the records at issue must be of a confidential nature in order to be exempted from disclosure by any of the provisions of the Act, notwithstanding the type of relationship that the Band enjoys with the Crown.
The applicant submits that some of the information falls within the exemption to the disclosure rule as set out in paragraph 20(1)(b) of the Act because it is "financial, commercial, scientific or technical information that is confidential information supplied to a government institution by a third party and is treated consistently in a confidential manner by the third party."7 The applicant is a third party that has supplied the information to a government institution. There are three further conditions that must be met in order to qualify for exemption form disclosure under this provision. The following is an analysis of whether these conditions are met in this case.
(i) Is the information "financial, commercial, scientific or technical" information?
The applicant, in her affidavit of May 6, 1995, deposes that "Many of the documents in issue relate to the lands held by the First Nation. It is clear that the land base of the First Nation and the ownership thereof is critical to the financial and commercial survival of the First Nation. ..."8
It would thus appear that at least some of the records at issue may satisfy this threshold condition for the application of this provision.
It is noteworthy that the respondent has already identified six instances where information contained within the records will be "blacked-out" and not disclosed pursuant to this subsection.
(ii) Is the information "confidential information?"
The applicant submits that the information is confidential information; the respondent denies this.
The law: Because the object of the Act is disclosure, it follows that the standard for non-disclosure must be a high one. There is solid case law from this Court that elaborates on the content of confidentiality.
This Court first considered the test for what constitutes confidential information in the context of the Act in the case Maislin Industries Ltd. v. Minister of Industry, Trade and Regional Economic Development, [1984] 1 F.C. 939 [hereinafter, Maislin]. At 944-945, Jerome, A.C.J. determined that the test is an objective, and not subjective one:
| It is not sufficient that [the applicant] considered the information to be confidential, as I am sure it did, ... It [the information] must also have been kept confidential by both parties, and obviously, therefore, must not have been otherwise disclosed or available from sources to which the public has access. |
In that case, this Court found that since the information could be found in the applicant's annual report, the applicant could not establish, by any objective standard, that the information was confidential in nature.
The decision in Montana Band of Indians, supra, at 158, further defined the nature of the objective test:
| ... the big test for confidentiality must have more to do with the content of the information, its purpose, and the conditions under which it was prepared and communicated.9 |
The decisions in Noel v. Great Lakes Pilotage Authority, [1988] 2 F.C. 77 and Air Atonabee v. Canada (Minister of Transport) (24 May 1989), T-2249-86 (Fed. T.D.) bolster and support the principles enunciated in Montana Band of Indians concerning the concept of confidentiality in the following regards. First, the information should not have been obtained from sources to which the public has other access. Further, it must have been communicated in confidence with the reasonable assurance that it would not be disclosed. Moreover, it must have been provided as part of a relationship of trust between the government and the person providing it and this relationship must not be contrary to the public interest. In this context, confidentiality must be essential to the complete and satisfactory maintenance of the relationship between the parties. Finally, the relationship must be such that society feels that it should be assiduously upheld.
In Black's Law Dictionary,10 "confidential" is defined as "intrusted with the confidence of another or with his secret affairs or purposes; intended to be held in confidence or kept secret; done in confidence."
The facts: In the applicant's affidavit of March 6, 1995, she outlines where the information is kept in the Band Council's offices, and the procedures followed for accessing this information. Files relating to land holdings are kept in locked filing cabinets in the office of the employee charged with the Band's land. There are only two keys to these filing cabinets. One is held by that employee, and the other is locked in the Band Council's safe. The employee's office is kept locked when that employee is not working.
Access to the files and documents of the Band is limited to Band members. This access is further limited in that a Band member may not see files which relate to another individual member.
BCRs are never published. The requested documents, though disclosed to the Department, have not been published or otherwise released to the public by the Band itself. Although BCRs are accessible to any Band member, they are not accessible to individuals who are not Band members or who are not directly affected by the BCR. An exception to the general access to BCRs allowed to Band members is the "in camera" Band Council meeting, in which matters sensitive to the participants (such as children) are dealt with.
The applicant deposes: "It remains the expectation of our First Nation that communications between the First Nation and the Federal Government is done on a confidential basis. It is not, and has never been, the expectation that communications with the Federal Government would be disseminated by the Federal Government to the public at large."
However, there is no evidence that any of the information submitted to the Department was marked "confidential." There is no evidence that the applicant, or any Band Council member preceding here for that matter, asked that these communications between the Band and the Department be kept confidential.
Analysis: The information relating to land holdings, contained in the BCRs, appears to be treated as confidential, as defined in Black's Law Dictionary, by the Band vis-a-vis itself. However, vis-a-vis the Department, the applicant seems to be saying that the information is to be kept confidential well after the information has been submitted to the Department (some of the records date back to 1909).
Regarding information that must be reported to the Department, such as information regarding land transfers, there is no presumption of confidentiality. The applicant's mere expectation that the communications would remain confidential when submitted to the Department is not enough. The case law on the issue of confidentiality is clear that the test to be met is an objective, and not purely subjective one. The Department did not treat the information as confidential, and provided no assurances that it would not be disclosed.
Since the information cannot be considered confidential, the applicant's argument with respect to paragraph 20(1)(b) necessarily fails according to the tests set out in the case law on the provision. Thus, there is no need to belabour the fulfilment of the third condition to be met in this provision; i.e., whether the information was treated consistently in a confidential manner by the Band.
Pursuant to paragraph 20(1)(b), the respondent has already marked portions of six BCRs and a surveyor's price quotation for non-disclosure.11 I am satisfied that this provides adequate protection that information that is, indeed, confidential within those records will remain so.
(b) does the information at issue fall under the confidentiality provision, paragraphs 20(1)(c) or (d)?
The law: To "re-cap," the following paragraphs exempt from disclosure any record requested under the Act that contains:
| (c) information the disclosure of which could reasonably be expected to result in material financial loss or gain to, or could reasonably be expected to prejudice the competitive position of, a third party; or |
| (d) information the disclosure of which could reasonably be expected to interfere with contractual or other negotiations of a third party. |
The test to be met for either of these provisions is the likelihood of identifiable harm that would befall the third party should the requested information be disclosed. The test stated by Jerome, A.C.J. in Canada Packers Inc. v. Canada (Ministry of Agriculture), [1988] 1 F.C. 483 as:
| ... evidence of harm under ss. 20(1)(c) and (d) must be detailed, convincing and describe a direct causation between disclosure and harm. It must not merely provide grounds for speculation as to possible harm. ... |
| ... The evidence must not require pure speculation, but must at least establish a likelihood of substantial injury. |
This decision was upheld on appeal by an unanimous court for which MacGuigan, J. wrote the decision. At 89 of that decision, MacGuigan, J. further narrowed the principle to "a reasonable expectation of probable harm."12
The facts: The applicant submits that document 00029 and an un-numbered BCR dated April 9, 1955 relate to the ongoing negotiation by the applicant for the lease of reserve lands annually for a rodeo, and that the release of this information could adversely impact these continuing negotiations.
Analysis: The applicant relies on the fact that the respondent has not challenged the submission that the two documents relate to ongoing negotiations and that the release of the information could adversely impact these continuing negotiations. However, this is not the test to be met. In order for these documents to qualify for the exemption, the applicant must establish a "reasonable expectation of probable harm" from the release of the information. Thus far, the applicant has made a case for a possible, and not probable harm -- and this does not meet the test for either of the exempting paragraphs.13 The bald assertion that release of the information may affect the rodeo negotiations or rental agreement does not meet the high standard of the test established in the case law.
An examination of the other documents the applicant seeks to have exempted pursuant to paragraphs 20(1)(c) or (d) brings me to the same conclusion as above. It is not the place of this Court, on a motion for judicial review, to examine such documents in minute detail and substitute its opinion about them over that of the respondent. Instead, if the applicant can show that the respondent came to a decision in a reviewable way concerning these documents, this Court will intervene. However, counsel for the applicant has not gone through the non-exempt portions of the documents and shown, to this Court, how they satisfy the various provisions for exemption in the Act. Counsel has shown no evidence of probable harm. Again, counsel has merely provided speculation of possible harm. That is not enough.
(c) personal information?
The applicant lists twelve BCRs in paragraph 22 of her March 6, 1995 affidavit, and submits that these documents contain personal and private information relating to financial transactions. Personal information and exempt from disclosure pursuant to subsection 19(1) of the Act.
Paragraph 19(2)(b) of the Act provides that records containing personal information may be disclosed "if ... the information is publicly available."
The respondent submits that, as the twelve BCRs concern lands, the information they contain is already publicly available in the Indian Lands Registry, and may, therefore, be disclosed.
A number of the documents listed in the applicant's above affidavit have already been confirmed to be contained within the Registry itself. These documents, being publicly available, are no longer at issue in this motion. However, for the remaining records at issue, I am satisfied that the information contained within them is available through the Registry, and is not personal information pursuant to the Act. Therefore, these records can be disclosed pursuant to the Act.
3. Section 13: is the information received by the Department information from another government?
The applicant' further argument is that section 13 of the Act ought to be interpreted so as to include Band Councils or equal protection for Band Council governments ought to be read into the section. The applicant submits that a Band Council is a form of government not dissimilar in any material way from those listed in subsection 13(d),14 except for the race of the constituents of the government body. The applicant submits that, under the Indian Act, Band Councils administer delegated authority over the geographic area of the Indian Reserve, and exercise powers which are very similar to, if not greater than, those of a municipal government.
The respondent submits that the applicant's Band does not fall within the section 13 exemption, and that furthermore, this provision should be interpreted narrowly and not broadly as suggested by the applicant.15
Analysis: The applicant's submission on this point must fail due to its failure on the issue of confidentiality. The threshold for exemption under this provision is that the information disclosed to the Department by the applicant must have been obtained by the Department "in confidence." For the reasons that I have already stated above, I do not accept that the information at issue is confidential, and I certainly cannot conclude that the Department obtained the information in confidence. Accordingly, there is no need even to discuss the issue of whether the applicant's Band Council falls within the meaning of this provision, as even if it did, there would be no exemption available to it.
4. Section 15 of the Charter: is the omission of the protection under section 13 of the Act for the Band Council discriminatory on the basis of race or ethnic origin?
The applicant's final argument is that, if the Band Council does not fall within the purview of section 13 of the Act, then the Band's rights under section 15 of the Charter to equality before and under the law, and equal protection and benefit of the law without discrimination, are violated on the basis of race or ethnic origin. The applicant submits that the Band, as composed by its members, is distinct as being Aboriginal. The applicant submits that the difference between every other government as recognized under section 13 of the Act, and First Nations governments, is the race of the applicants.
The respondent submits that section 15 has no application in this case because that provision applies to "individuals" and not groups such as the Band Council.
Because of my finding that section 13 of the Act has no application in this case, there is no basis upon which to apply a Charter analysis. However, even if I were to embark on a Charter analysis, I do not believe that the applicant could succeed. If the applicant is claiming to be a government within the meaning of paragraph 13(1)(d) of the Act, then it cannot claim, likewise, the protection of section 15 of the Charter, protection which is afforded to individuals, and not governments.
CONCLUSION
Of the approximately 1,000 records subject to the Access to Information request, now only 34 remain at issue. The applicant submits that these remaining records are documents that have been transmitted to the Department in confidence. The respondent maintains that the Department never treated these documents as confidential, and that these documents have always been in the public domain (although they have not previously been publicly disclosed). Any information that should be exempted from disclosure by the Act has been indicated as such to the applicant, and will be "blacked-out" when released to the requester of the information.
I cannot accept the applicant's argument that the fiduciary relationship between the Band and the federal Crown protects these documents from disclosure, primarily because it is hard to get around the fact that the disputed records are already within the public domain. They are not confidential to begin with. The fiduciary duty owed to the Band by the Crown does not cover all aspects of the relationship between the two, and it especially does not cover something that was not confidential in the first place.
The sub-text of this case is whether, and to what extent, is the constitutionally-entrenched right to self-government of First Nations recognized by the Federal Government. What is the meaning of this right? Is the "government" part of the term "self-government" to be read into federal legislation wherever there are references to various forms and levels of government? Basically, the Band wants to have the decision-making capacity to disclose information relating to itself requested under the Access to Information Act. It argues that it is a government along the lines of a municipal government, whose communications with the Federal Government should be kept confidential, pursuant to section 13 of the Act.
The issue of the content to be given to the concept of self-government cries out for resolution, but a motion for a judicial review of an Access to Information decision is not the place for its resolution. This case must be decided on a plain reading of the Act; i.e., is the requested information "confidential" information as defined in the Act? On the basis of the able submissions from counsel for the applicant and for the respondent, the statutory provisions, and the case law interpreting those provisions, I find that the information in the disputed documents is not confidential information and does not fall under any of the exemptions specified in the Act.
Accordingly, I find no alternative but to dismiss this application.
OTTAWA, ONTARIO
May 27th, 1997. J.F.C.C.
__________________ 1 The information, highlighted in pink, which the Department states should not be disclosed, is as follows:
Document # Information Not disclosed pursuant to Act 10 Names of Band members subsection 19(1) 11 Names of Band members subsection 19(1) 28 Amount paid for surrender subparagraph 20(1)(b) 33 Amount for crop lease subparagraph 20(1)(b) 58 Amount for survey subparagraph 20(1)(b) 205 Expenditures from Band funds subparagraph 20(1)(b) 206 Expenditures from Band funds subparagraph 20(1)(b) 207 Expenditures from Band funds and subsection 19(1) and information about Mr. King subparagraph 20(1)(b) 208 Expenditures from Band funds subparagraph 20(1)(b)
2 Subsection 2(1) of the Act reads:
2.(1) The purpose of this Act is to extend the present laws of Canada to provide a right of access to information in records under the control of a government institution in accordance with the principles that government information should be available to the public, that necessary exceptions to the right of access should be limited and specific and that decisions on the disclosure of government information should be reviewed independently of government.
3 Paragraph 13(1)(d) is particularly relevant here. According to this provision, subject to the parties' consent, access to information that has been requested under the Act shall be refused if the requested information was obtained in confidence from:
(d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government.
4 The applicants cite as authority for this proposition: Guerin v. The Queen, [1985] 2 S.C.R. 335, [1985] 1 C.N.L.R. 120 [hereinafter, Guerin]; R.. v. Sparrow, [1990] 1 S.C.R. 1070, [1990] 3 C.N.L.R. 160 [hereinafter, Sparrow]; Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 F.C. 143 (Fed. T.D.), (1988), 18 F.T.R. 15 at 22 [hereinafter, Montana Band of Indians]; Indian Act, R.S.C. 1990, c. I-5, s. 2(1).
5 Quebec (A.G.) v. Canada (National Energy Board), [1994] 1 S.C.R. 159.
6 Confidential Affidavit of Charles Provost, sworn October 25, 1995. Charles Provost has been a Deputy Registrar at the Indian Lands Registry since 1981.
7 This quotation follows the exact wording of the provision.
8 In her May 6, 1995 affidavit, the applicant elaborates on the financial and commercial nature of the information on land holdings as relating to agricultural leases, timber use, land for private businesses as well as potential mining use.
9 Montana Band of Indians, supra note 4 at 158.
10 5th ed. (St. Paul, Minn.: West Publishing Co., 1979) at 269.
12 Canada Packers Inc. v. Canada (Minister of Agriculture) (1988), 87 N.R. 81 at 89 (F.C.A.) [emphasis in the original].
13 Saint John Shipbuilding Ltd. v. Canada (Minister of Supply and Services) (1990), 107 N.R. 89 at 91 (F.C.A.) confirms the position of Canada Packers Inc., and adds that "... the threshold must be that of probability and not, as the appellant would seem to want it, mere possibility or speculation."
14 Section 13 reads:
13. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any record requested under this Act that contains information that was obtained in confidence from
(a) the government of a foreign state or an institution thereof;
(b) an international organization of states or an institution thereof;
(c) the government of a province or an institution thereof;
(d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government.
15 Rubin v. Canada (Canada Mortgage and Housing Corp.), [1989] 1 F.C. 265 at 273.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE No.: T-1685-94
STYLE OF CAUSE: Chief Carol McBride
on behalf of the Timiskaming Indian Band
v. Her Majesty the Queen as represented by the Minister of Indian and Northern Affairs Canada and the Attorney General of Canada
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 12 and 22, 1997
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE CULLEN DATED MAY 27, 1997
APPEARANCES:
Patrick Micheal Nadjiwan for the Applicant
John B. Edmond for the Respondent
SOLICITORS OF RECORD:
Nahwegahbow, Nadjiwan
Ottawa, Ontario for the Applicant
George Thomson
Deputy Attorney General of Canada
Ottawa, Ontario for the Respondent