GNWT overzealously redacted mining industry documents

The NWT government has been ordered to roll back many redactions in some documents related to its meetings with the mining industry.

For Frame Lake MLA Kevin O’Reilly, those meetings have been a source of ire for years.

Dubbing them “secret meetings,” O’Reilly has repeatedly questioned their nature in the NWT legislature. He has said meetings that began to help the mining industry rebound from Covid-19 turned into “a high-level, bi-monthly lobbying campaign behind closed doors.”

Industry minister Caroline Wawzonek has consistently denied that the meetings were secret, and has characterized them as perfectly appropriate for an industry that generates a third of the territory’s gross domestic product.

“If ITI wasn’t having regular meetings with industry representatives, I would be facing very difficult questions in the House to explain why we aren’t,” Wawzonek said in 2021.

But new rulings from the NWT’s information and privacy commissioner, Andrew Fox, side with O’Reilly in at least some regards.

O’Reilly had used access to information legislation to acquire copies of internal NWT government minutes for meetings with the NWT and Nunavut Chamber of Mines and various companies who work in the sector.

He got back more than 100 pages of documents related to meetings from 2020 and 2021, but then appealed to Fox over the extent to which the minutes had been redacted before the GNWT handed them over.

Fox, in two decisions made at the end of May and recently published, ordered the department to get rid of many of the redactions it made.

‘Significantly misapplied’

The GNWT had said most of the redactions in question were made either to protect the privacy of third parties or because the information constituted “advice developed by or for a public body,” which can be withheld under the legislation.

But Fox said most of the material redacted was nothing of the sort.

After painstakingly analyzing dozens of redactions, Fox said the department had “significantly misapplied” the legislation. He ordered that many of the “advice” redactions be rolled back, and that the redacted names of mining industry representatives and corporations be restored. (Initially, O’Reilly had been given documents that blacked out even the list of non-government attendees at each meeting.)

“More problematic,” Fox wrote in one ruling, referring to an argument the GNWT had made to him, “is the proposition that government can discuss policies with the Chamber of Mines ‘so the industry can prepare for these changes prior to the general public being aware of these policies.’ The department seems to say that it is appropriate to share policies with select members of the public before the policies are known to the general public.”

He continued: “The rationale offered – so industry can ‘prepare’ – does not appear to appreciate the dangers inherent in giving private individuals or organizations privileged early notice of government policy before it is made public.”

Fox also homed in on a section of the minutes in which the department redacted “not just the information about a policy decision, but also redacted the admonition to the working group members not to discuss it until it was announced publicly.”

“This is the sort of behaviour that could lead to the perception of regulatory capture,” he concluded, while allowing that such a concern “is beyond my jurisdiction.”

Get the documents
• Andrew Fox’s orders on the matter
• The documents before Fox’s orders and revised to comply

There is no suggestion any members of the mining sector acted improperly.

The meeting minutes primarily show mining representatives and the GNWT working collaboratively to determine ways of developing the industry in the North, or trying to navigate the constantly evolving shape of the pandemic and its restrictions.

Many of the rolled-back redactions tried to suppress sentences that seem, at best, of mild interest – or painfully obvious. For example, a line reading “NWT could create a strategy on how to get minerals to market” was initially redacted, in the apparent belief that the public ought not to know its government was contemplating the possession of a strategy.

Before…

… and after

O’Reilly said the commissioner’s rulings “verify a number of points that I had come to expect or had concluded.”

“I really believe there is regulatory capture that’s happened within the Department of Industry, Tourism and Investment,” he said.

“I think the observations and some of the findings of the information commissioner more-or-less confirmed that.

“There’s really a culture of secrecy within the department about how they interact with the mining industry, in particular. Maybe it permeates other parts of what they do, but there seems to be a real problem there. That’s something I’ve discussed many times in the House, so I’ll be raising it once again.”

The Department of Industry, Tourism and Investment, approached for comment, said it had “accepted and complied with the orders given to us.”

“The instructions coming out of the commissioner’s review have provided greater clarity when it comes to interpreting the legislation moving forward,” ITI spokesperson Drew Williams said by email.

“Bottom line, we will take what we have learned and apply it to future requests.”

“I’ve always encouraged the department to meet with industry. I don’t think there’s anything wrong with that. But when they share information with industry without sharing it to anyone else, then try to keep some of it secret, that’s not a good thing,” O’Reilly said.

He asserts that more than two-dozen of these meetings took place from the pandemic’s onset onward.

“Detailed presentations were given, discussions back and forth on policy options, even draft language for some of the regulations started to be discussed behind closed doors. None of those presentations, no notes seemed to be kept,” he said.

“None of it was made public. I had to apply under ATIPP to get it.”