Date: 19991123
Docket: A-721-96
(T-491-95)
CORAM: STONE J.A.
ISAAC J.A.
ROTHSTEIN J.A.
BETWEEN:
CHIEF RALPH AKIWENZIE, on behalf of the
CHIPPEWAS OF NAWASH FIRST NATION
Appellant
- and -
HER MAJESTY THE QUEEN, as represented by the
Minister of Indian and Northern Affairs Canada
and the Attorney General of Canada
Respondent
Heard at Ottawa, Ontario, on Tuesday, November 23, 1999
Judgment delivered from the Bench at Ottawa, Ontario, on Tuesday, November 23, 1999
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 19991123
Docket: A-721-96
(T-491-95)
CORAM: STONE J.A.
ISAAC J.A.
ROTHSTEIN J.A.
BETWEEN:
CHIEF RALPH AKIWENZIE, on behalf of the
CHIPPEWAS OF NAWASH FIRST NATION
Appellant
- 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 JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on Tuesday, November 23, 1999)
ROTHSTEIN J.A.
[1] This appeal and the appeal in court file A-469-97 (McBride) relate to decisions allowing for disclosure of information under the Access to Information Act1. By order of Stone J.A. of January 28, 1999, the appeals in this court file and in court file A-469-97 were ordered to be heard together.
[2] Both appeals arise because the appellants oppose disclosure of information submitted to the Department of Indian and Northern Affairs by their respective First Nations. The information includes correspondence, band council resolutions, and minutes of band council meetings. In some of the documents there is reference to land.
[3] The Access to Information Coordinator for the Department of Indian and Northern Affairs decided to allow disclosure of the documents at issue in each case. Applications were taken to the Federal Court Trial Division to review the decisions of the Coordinator. In Akiwenzie, Nadon J. dismissed the application. In court file A-469-97 McBride, Cullen J. dismissed the application.
[4] These are appeals from the Trial Division decisions of Nadon J. and Cullen J.
[5] There are three bases for the appeals. The first is that the information is confidential under paragraph 20(1)(b) of the Access to Information Act. The information in question was provided to us and we have reviewed it. The appellants say they submitted the information with the expectation that the government would keep it confidential. However, before an expectation of confidentiality argument can be made, the documents in question must come under paragraph 20(1)(b). Paragraph 20(1)(b) deals with information that is financial, commercial, scientific or technical.
| 20. (1) Subject to this section, the head of a government institution shall refuse to disclose any record requested under this 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; |
20. (1) Le responsable d'une institution fédérale est tenu, sous réserve des autres dispositions du présent article, de refuser la communication de documents contenant: ... b) des renseignements financiers, commerciaux, scientifiques ou techniques fournis à une institution fédérale par un tiers, qui sont de nature confidentielle et qui sont traités comme tels de façon constante par ce tiers; |
The appellants argue that the information is financial. Clearly, it is not. The only basis for the appellants' argument is that some of the documents refer to land and since land is an asset, there is a financial connotation to it. Without defining what financial information consists of, we are satisfied that merely because documents contain references to land, they do not constitute financial information.
[6] The second argument is that the Government of Canada has a fiduciary duty to the appellants not to disclose the information in question because some of it relates to Indian land. We are not dealing here with the surrender of reserve land, as was the case in Guerin v. The Queen2. Nor are we dealing with Aboriginal rights under section 35 of the Constitution Act, 1982. This case is about whether certain information submitted to the government by the appellants should be disclosed under the Access to Information Act. The government is acting pursuant to a public law duty. Fiduciary obligations do not arise in these circumstances.
[7] The appellants' final argument is that section 13 of the Access to Information Act is discriminatory because it provides for confidentiality of information received by the federal government from other governments but not from Indian bands. Subsection 13(1) provides:
| 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; or (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. |
13. (1) Sous réserve du paragraphe (2), le responsable d'une institution fédérale est tenu de refuser la communication de documents contenant des renseignements obtenus à titre confidentiel : a) des gouvernements des États étrangers ou de leurs organismes; b) des organisations internationales d'États ou de leurs organismes; c) des gouvernements des provinces ou de leurs organismes; d) des administrations municipales ou régionales constituées en vertu de lois provinciales ou de leurs organismes. |
[8] The appellants rely on subsection 15(1) of the Charter.
| 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. |
15. (1) La loi ne fait acception de personne et s'applique également à tous, et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l'origine nationale ou ethnique, la couleur, la religion, le sexe, l'âge ou les déficiences mentales ou physiques. |
The opening words of subsection 15(1) are "Every individual ..." The claim here is that the federal government is discriminating between governments. We agree with Cullen J. in McBride:
| "if the appellant 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. |
[9] Further, as Nadon J. pointed out in Akiwenzie, there is limited evidence of significant probative value on the question of whether an Indian band is a government of the same nature as those referred to in section 13 of the Access to Information Act. We do not say that the question of Aboriginal self-government is not a well known issue that is currently subject to public debate. However, our decision must be based on evidence and on a matter of this significance and complexity, much more evidence would have to have been adduced to prove the appellants' contention.
[10] Finally, we would observe that there is no evidence whatsoever that the exclusion of Indian bands from section 13 of the Access to Information Act was in any way related to grounds of discrimination referred to in subsection 15(1) of the Charter and, in particular, race or ethnic origin.
[11] In spite of the able argument of counsel for the appellants, the appeal will be dismissed. As counsel for the respondents conceded that the learned Motions Judge in Akiwenzie did not hear counsel on the question of costs before ordering costs in favour of the respondent, the matter is remitted to the Motions Judge solely for redetermination of the issue of costs pursuant to section 53 of the Access to Information Act after receiving submissions from the parties.
[12] A copy of these reasons shall be filed in court file A-469-97 and shall be considered a disposition of the appeal in that court file.
"Marshall Rothstein"
J.A.
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