As we wrote earlier, sage grouse are on the brink of extinction in Canada due to oil sands development. The federal Minister of the Environment has refused to disclose if they will do anything about it. Last week's Federal Court of Appeal decision will require the Minister, now the Honourable Leona Aglukkaq, to tell the public whether they will. The case also shows that the public has a right to know a wide variety of government deliberations, short of those actually at the Cabinet table.
Under s. 80(2) of the Species at Risk Act, the Minister must make a recommendation to Cabinet that an emergency order is required for the protection of a listed wildlife species "if he or she is of the opinion that the species faces imminent threats to its survival or recovery." On behalf of a number of western conservation groups. Ecojustice brought an application requesting an order of mandamus in relation to the Minister's failure to recommend an emergency order and to amend the sage grouse recovery strategy, as well as for judicial review of the Minister's refusal to recommend an emergency order, to identify further critical habitat, and to amend the recovery strategy accordingly.
In response to their request for disclosure, the Minister provided a certificate, signed by the Clerk of the Privy Council, asserting that several requested documents were protected by Cabinet confidence under sections 39(2)(d) and (e) of the Canada Evidence Act. These provisions allow the Clerk of the Privy Council to assert privilege over records concerning communications between ministers relating to government decisions and ministerial briefs that are brought before, or proposed to be brought before, Council.
The Federal Court of Appeal rejected the Minister's argument that "because Cabinet deliberations are confidential, any information which is associated with such deliberation is, by that fact confidential". Rather, the Court concluded:
 Section 80 leaves open the possibility that the Minister may not, on the evidence before him, be satisfied that a species faces an imminent threat to its survival or recovery. In that case, the Minister can decide that no recommendation for an emergency order should be made to Cabinet. As a result, no recommendation will be made to cabinet. In that case, the Minister's decision not to make a recommendation does not come within the terms of section 39 of the Canada Evidence Act as a matter "that [is] brought before, or [is] proposed to be brought before, Council", or otherwise. As pointed out in Babcock, one of the criteria for the issuance of a valid certificate pursuant to section 39 is that "the information must fall within the categories described in section 39(2)": see Babcock, at paragraph 24.
 If the position asserted by the respondents is correct, it would have the effect of sheltering from review every refusal to make a recommendation for an emergency order. This cannot be so. The Minister's discretion to decline to make a recommendation to Cabinet must be exercised within the legal framework provided by the legislation. The authority for that proposition is at least as old as the seminal case of Roncarelli v. Duplessis,  S.C.R. 121, at page 140:
In public regulation of this sort there is no such thing as absolute and untrammelled "discretion", that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute. Fraud and corruption in the Commission may not be mentioned in such statutes but they are always implied as exceptions. "Discretion" necessarily implies good faith in discharging public duty; there is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.
 The Minister's decision to decline to make a recommendation is therefore reviewable. The standard of review is reasonableness: see Halifax (Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29,  2 S.C.R. 108, at paragraph 43.
 Returning to the issue of the claim of cabinet confidence made in the Certification and Objection, if the Minister has declined to make a recommendation to cabinet under section 80 of the Act, section 39 of the Canada Evidence Act does not apply. Nor does section 39 apply if the Minister has not yet decided whether or not to make such a recommendation under section 80. In the event the Minister has made a recommendation to cabinet under section 80, section 39 of the Canada Evidence Act may possibly apply to that recommendation, but in this case, no certificate has been issued under that section with respect to such a recommendation. In summary, neither the Certification and Objection nor the Clerk's Certificate disclose a legal basis for refusing to disclose whether or not a decision has been made with respect to a recommendation for an emergency order and the nature of the decision.
 That being the case, this matter should be returned to the Case Management Judge or Prothonotary on the understanding that the Minister will communicate his position unequivocally and that the appellants will tailor their Notice of Application accordingly. It should then be possible to move this matter forward without further delay.
The new Minister is now left in the unenviable position of either:
- Disclosing that she determined that the grouse do not face imminent threats to their survival or recovery (which seems implausible, given its dramatic decline and imminent extinction);
- Disclosing that no decision at all has been made (almost as uncomfortable, given the all too easy assumption that perhaps they hoped there would be no grouse to save by the time they got around to the decision); or
- Making a recommendation to Cabinet that an emergency order is required. (Putting Cabinet in the hot seat on the question – will it allow the extinction of a species to allow oil and gas development to proceed?)
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