In this article, Part 1 of a two-part series about the state of the public’s “right to know” in Nova Scotia, the focus is on what happened when the Halifax Examiner submitted a Freedom of Information (FOIPOP) request to the province about whether it would agree to protect the French River watershed — the water supply for Tatamagouche — from mining.
From Sept. 27 until Oct. 3, 2021, Nova Scotia will be marking “Right to Know Week,” which will coincide with International Right to Know Day on Sept. 28.
But what do we in this province really have a right to know?
Not all that much, if a recent Freedom of Information (FOIPOP) request is an indication.
Not that this is a new issue. Journalists have been writing about it for years. Back in 2013, when he was still with The Coast, Tim Bousquet wrote this article about the sorry state of access to information in Nova Scotia and his own frustrations with the FOIPOP process.
There is also this 2017 scathing assessment of provincial government “transparency” by Saltwire columnist Jim Vibert, and the headline-worthy egregious experiences that Mary Campbell of the Cape Breton Spectator has had trying to get information out of the Cape Breton Regional Municipality.
A watershed FOIPOP
But back to the FOIPOP request that prompted this article. It may not be the most egregious example of the provincial government refusing to divulge information of public interest, but it still illustrates how information that the public should know is kept from them.
The request was to Nova Scotia Environment and Climate Change (NSE), and I filed it on Apr. 28, 2021.
I was trying to find out what had happened to the application the Municipal Council of the County of Colchester had submitted a year earlier to the province for protection of the French River watershed on the wooded slopes of Warwick Mountain in the Cobequid Hills, just inland from Tatamagouche.
Specifically, the municipality’s goal was to keep mineral exploration and mining out of the watershed that provides Tatamagouche with its drinking water.
The issue had been simmering away since late 2017, when citizens in and around the village of Tatamagouche got wind of the plan by the then-Department of Natural Resources (DNR) to send out a Request for Proposals to mining and exploration companies to encourage them to come to the area to search for gold.
Although not something everyone is aware of, the Nova Scotia government permits mineral exploration just about everywhere, including on private land and even adjacent to lakes that provide Halifax and Dartmouth with their drinking water.
However, in a rare move in 2016, DNR had closed a huge area — 30,000 hectares (74,132 acres) stretching from Earltown in the east to the Wentworth ski hill in the west — for mineral exploration, while it prepared to advertise what it called the “Warwick Mountain Gold Project.”
The ultimate goal, of course, would be gold mining in the area.
As the Halifax Examiner and Cape Breton Spectator reported in Part 3 of the Fool’s Gold series on gold mining in Nova Scotia, the story broke in November 2017 on the front page of the free monthly community paper The Light, under the headline, “Gold in the hills?”
Garth DeMont, then a geologist with DNR but now retired and receiving government money to prospect for gold, was quoted as saying, “All we need is the discovery of one significant gold vein and the Cobequids will light up.”
The outcry was swift and strong.
It led to the creation of the citizens’ group Sustainable Northern Nova Scotia, or SuNNS, which argued against gold exploration and mining in the watershed.
Then in January 2019, CBC reporter Frances Willick broke the story that a now-defunct gold exploration company that had been working in the French River watershed in 2011, had left behind an unsealed drill hole that had been spewing high-arsenic water for eight years. DNR decided not to do anything about the leak. SuNNS saw this as a “wake-up call” for people in the area about the dangers of gold exploration in the watershed.
In September 2019, Mi’kmaq Grassroots Grandmothers held a water ceremony and led a water walk in support of protection of the French River.
Eventually, after nearly two years of public discussion, extensive consultations, and internal debate, the Municipal Council of the County of Colchester voted unanimously to apply to NSE for protection of the French River watershed.
But that vote had been back in January 2020, and we were now into April 2021.
So, what was the hold up?
That is what I hoped to find out when I submitted the FOIPOP application, requesting “all communication and documentation (internal and external) relating to the application by the Colchester County Council to have the French River watershed / Tatamagouche water supply designated a protected water area.” The date range for the search was Oct. 31, 2019 until Apr. 27, 2021.
The ABCs of FOI
But before I get to what happened next, a quick rundown of how the FOIPOP process in Nova Scotia works.
For those who haven’t had the occasion to file a Freedom of Information request for information from a government body based on Nova Scotia’s Freedom of Information and Protection of Privacy Act, it means either filling out an application in writing, enclosing a cheque for $5 for the provincial finance minister if your FOIPOP is not for personal information, and mailing it to the provincial government’s Information Access and Privacy (IAP) Services. Or, these days you can also create an account and apply online.
Once IAP has received the application, it has 30 days to respond, and according to the online government FOIPOP primer, “there may be instances where extensions of 30 to 60 days may be required.”
The same webpage gives the impression that we are entitled to just about all the information we might want from the provincial government:
The Freedom of Information and Protection of Privacy Act (FOIPOP) provides access to most records under the control of the provincial government …
The Act supports the belief that every document, record or file held by the government, regardless of format, is subject to release to the general public. Specific and limited exemptions from disclosure are provided for in the Act to protect against the unreasonable invasion of personal privacy; to prevent unfair advantages occurring in commercial or government transactions; to protect law enforcement activities; and to safeguard the business conducted by government. [emphasis added]
Applicants can also request a fee waiver for the FOIPOP, which Section 11(7) of the Act says can be granted if:
(a) the applicant cannot afford the payment or for any other reason it is fair to excuse payment; or
(b) the record relates to a matter of public interest, including the environment or public health or safety.
Being a freelance journalist, and because my FOIPOP application was clearly in the “public interest” as the issue at hand was protection of drinking water for the people of Tatamagouche, I asked for a fee waiver.
I hadn’t pitched the story yet to the Halifax Examiner or any other media outlet, and often the fees the government wants would far exceed any payment for an article that emerged from them.
In 2019, for instance, a FOIPOP I submitted to the then-Department of Energy and Mines for correspondence between government and the Cline Group and documentation relating to the opening of the Donkin coal mine invoked a fee of $4,070.
That was just one of several FOIPOP applications I’ve abandoned because of the fees.
Acknowledgement of my application to NSE about the French River watershed protection came on April 29, and two weeks later, an Information Access and Privacy administrator sent a letter saying the record was an estimated 600 pages, so I would have to pay a $540 fee.
I had the option of paying up or appealing the fee by mail to the Information Access and Privacy Commissioner. Until I did either of these, my application was on hold, and I had until July 13 to reply. After that, the file would be “abandoned and closed.”
This prompted me to approach Tim Bousquet, who kindly said the Halifax Examiner would cover the fee. The $540 fee was paid on June 21.
On July 2, IAP wrote to say that because of the “large volume of records” I would not receive the records until Aug. 6, 2021.
On Aug. 13, I wrote to IAP to ask when I could expect the records.
The package is with the department for approval. Once it is approved, we will send you the package.
I eventually received the release package on Aug. 24, a week after the provincial election.
A few crumbs of information
It had been a long wait, and I dug eagerly into the document, anxious to find out what was taking the province so long to decide on whether to approve Colchester County Council’s application to protect the French River watershed.
Over the next couple of days, I ploughed through 866 pages that were released — 304 were withheld completely — hoping to find some kernel of information that shed some light on what had happened to the Municipality of the County of Colchester application for protection of the watershed.
So much information was “withheld” that I was able to glean precious little from the release package. Below are a few bits of information that made it past the redactors.
Mining Association of Nova Scotia chimes in about “science”
On Feb. 19, 2020, less than a month after the municipality voted to apply for protection of the watershed that supplies Tatamagouche with its water supply, the Mining Association of Nova Scotia (MANS) wrote to the Ministers of Environment and of Energy and Mines, to “respectfully request that the Government of Nova Scotia decline to adopt council’s proposed regulations because they uniquely target mining activities based on misconceptions about gold mining and are not based on science.”
Although the name of the author of the letter is redacted, MANS is a one-man and one-woman show, run by Sean and Sarah Kirby, a lobby organization that gets government money to lobby the government on behalf of the mining industry. (Recall that the only metal mining in Nova Scotia right now is for gold, and that most of the mineral exploration licenses are for gold exploration, even though gold is not one of the critical minerals that the federal government has identified for the transition to a low-carbon world. Gold-mining is not defensible as part of any green transformation, despite what Kirby says over and over again in the media and on social media.)
Many letters support protection, government answers are secret
Between January 2020 and April 2021, concerned citizens from SuNNS and all over the province wrote dozens of letters to Gordon Wilson, then-Minister of Environment and Climate Change, asking that he act quickly to protect the French River watershed.
Emails in the FOIPOP release package show that NSE staff drafted responses to these letters for the minister, but those draft responses are all withheld throughout the release package.
Municipal Council concerns clearly spelled out
The release package also shows that after a good deal of back and forth with NSE staff on requirements for the application, on May 11, 2020, Michelle Newell (now Boudreau), Director of Public Works in the County of Colchester, couriered the application to NSE.
In the official letter, Newell wrote that the French River Source Water Protection Advisory Committee, which the Municipality had set up to protect the watershed when the Tatamagouche water facility was established in 2006, had tried, together with staff from the municipality, to “have open communications with Department of Natural Resources about possible ways to allow exploration and mining while protecting the watershed.”
“Unfortunately, the matter became very complex,” Newell wrote. “It was difficult to identify existing provincial regulations which would optimally protect water quality, and the logistics of including additional protective measures within exploration and mining permits seemed insurmountable.” And thus in August 2018, “the Committee recommended to County Council that the French River Watershed become designated as a protected area under the Environment Act.”
Newell provided a wealth of evidence showing that the public consultation on the issue had been intense and extensive, with several open houses and also a mail-out questionnaire to hundreds of landowners.
One of the regulations council was proposing was that no person be “permitted to commence mining activities within the Protected Water Area, including detailed ground exploration and processing.”
Pushback from the Mines Branch
After confirming that “no Aboriginal consultation” was required in the process, NSE staff drafted a letter for the environment minister — redacted entirely — and prepared to send the application on to the Departments of Lands and Forestry (DLF) and of Energy and Mines (DEM) for review.
An email from NSE to Don James, executive director of the Geoscience and Mines Branch of DEM, and two other DEM staff members, asks for their comments by July 15, but the documents sent to them are withheld entirely.
James replied on June 22, 2020 saying that they had “a few issues” with one of the regulations, presumably the one relating to mining, and he asked:
What’s the plan for a legal review of legislation (e.g. Mineral Resources Act, Crown Land Act … others?)
What’s the direction from Minister(s) on this file? It might be useful to set up a meeting/teleconference so that you can brief us on this file before we submit comments. Sound reasonable?
On July 3, James sent another email to NSE, copied to the DEM deputy minister, in which he writes, “Regarding Regulation 9: Mining Activities. No person is permitted to commence Mining Activities within the Protected Water Area.”
The next section is completely redacted on the basis of Section 14(1) of the FOIPOP Act, which states that:
The head of a public body may refuse to disclose to an applicant information that would reveal advice, recommendations or draft regulations developed by or for a public body or a minister.
James also wrote that the municipality had not defined mining activities, and his email continued:
We appreciate the Municipality is concerned about water quality. Mining (i.e. construction and operation of a mine for an entity holding a Mineral Lease) is only allowed to occur after a project is reviewed in an environmental assessment process and has the necessary permitting. The potential impacts to water quality will be assessed in the review process.
Many precedents for protecting watersheds
On July 7, 2020, Mike Allen, watershed planner for NSE, uncovered a document to provide some historical perspective, which he emailed to then-Environment Minister Gordon Wilson.
The document is a 2013 letter from then-Premier Darrell Dexter to the mayor of the Municipality of the District of Lunenburg, acknowledging the mayor’s concerns about “quarry and mining development in watersheds designated for municipal drinking water supplies.”
Dexter promised that the government would “not support development projects in municipal water supply areas that may threaten the quality of drinking water.”
Allen also sent a list of 13 locations in Nova Scotia where regulations prohibiting mining activities in water supply areas are either prohibited or being considered. The list includes Tatamagouche.
Towards the end of July 2020, Allen replied to Don James, pointing out that the Municipality had indeed defined mining activities in Section 3 of its submission:
“Mining Activities” are the activities of extracting materials from the earth, such as minerals, metals, coal and hydrocarbons, including but not limited to Detailed Ground Exploration and Processing.”
Allen also thanked James for the DEM submission.
No DEM submission is included in the FOIPOP package released by NSE.
Meanwhile, Michelle Newell was regularly emailing for updates on the status of the application she had submitted, looking — in vain — for news to pass on to the municipal council.
Staff ministerial briefings also secret
By October 2020, NSE staff were emailing each other about the possible meeting between their deputy minister and the Department of Energy and Mines, but there are too many redactions to tell whether this actually happened.
A virtual meeting was scheduled for December and then another in January 2021, but redactions make it impossible to know what it was about and who would be present.
Almost every email from November 2020 onwards is redacted, as are all drafts of the contents of a presentation that NSE staff were preparing for the minister.
The January 2021 presentation included background, which was already well known, but the rest of its contents are “withheld.” After redactions, only the headers are visible on the presentation slides for “Considerations,” “Options,” “Longer Term Considerations,” and “Recommendation.”
The release package informs me that these redactions are justified by Section 14(1), in other words, because these pages contain advice.
But how can a list of options and considerations really be considered “advice” to a minister?
At the end of the 866 pages, I still had absolutely no idea why the province still hadn’t approved the application from a municipality seeking to protect the water supply of one of its communities.
All that time painstakingly going through hundreds of pages, making notes, and the $540 were for naught. Everything that might have shed some light on the decision process and reasons for its delay had been excised from the FOIPOP.
Why all the secrecy?
End of Part 1.
 The name of the government department that handles “natural resources” such as minerals and forests in Nova Scotia has changed frequently over the years. The Department of Natural Resources was created in 1991, bringing together the former Department of Mines and Energy and the Department of Lands and Forests. When the Liberal government of Stephen McNeil changed the Department of Natural Resources (DNR) to the Department of Lands and Forestry (DLF) in 2018, the Geoscience and Mines Branch was moved out of the department, and the Department of Energy and Mines (DEM) was created. After his election in 2021, Progressive Conservative Premier Tim Houston merged the departments into one — the Department of Natural Resources and Renewables. Citizens can be excused for finding all the name changes hard to keep track of, and also for wondering about how much the rebranding all costs.
 That there is communication from James on this file is intriguing. In May 2021, the NDP caucus submitted a FOIPOP to NSE requesting “Executive level correspondence between the Department of Environment and the Department of Energy and Mines and/or the Department of Energy and Mines and/or the Department of Municipal Affairs concerning the French River Watershed. (Date Range for Record Search: From 05/09/2020 To 05/12/2021).” NSE replied to the NDP caucus that they had no such records. However, there is correspondence between Don James — an executive director in DEM — and NSE staff about the proposal, and it showed up in the release package for my FOIPOP.
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A cash grab for sure, and designed to keep the tax-paying public from knowing what its employees are doing secretly. Disgusting.
There’s a huge gap between the ten right to know principles published by the Open Society Justice Initiative in 2003 and what we receive in Nova Scotia. The Society stated that requests should be “simple,speedy and free.” Mark a NOT ACHIEVED by that one. Also that “Access is the rule-secrecy is the exception.” Again -Not Achieved. One more, “the public interest takes precedence over secrecy.” Well? Another Not Achieved.
The Ministers in charge do not get involved, and from Deputy Ministers on down the chain , they act as if they have a gavel rather than responsibilities. There is no firm date for anything when you are doing the requesting; it’s when they finish with whatever. (four years since the last pipe break from the pulp mill and???)The firm dates are only for us – the requesters.
It isn’t enough to give sub poena power to the Commissioner; there is a need for this entire process to be more responsive and less secret. Each Minister should have in their ‘mandate letter’ this priority.
There is endless frustration to be had in making a foipop request in this province as so many of the journalists cited have experienced. Recognition and acknowledgment of Right to Know does nothing to improve the actual system that is supposed to be delivering on key principles. It’s more like we have a right to have our patience tried and a need to be able to deal with more inaction and comments from our public servants that -‘it’ll be ready when it’s ready’,or( ‘ shut up and eat what’s in front of you.’ )
The other go-to among those requested to respond is silence; they simply do not respond. This is common in many areas of provincial government. Try to e-mail a regional education director ; good luck with that. Try to get an answer to what “shortly” means- silence. Are the fees, the redactions, the delays and the dismissal felt by those doing the requesting intended to have us go away or what! In a word ‘yes’. I commend those journalists who stay with this.