The greater sage grouse has made a notable contribution to the understanding of cabinet confidentiality in Canada, by way of a sensible decision of the Federal Court of Appeal in a lawsuit about an apparently endangered species.
The cabinet should indeed be free to deliberate, airing a range of opinions while heading toward a conclusion, without looking like a mere mishmash of political factions in the meantime.
An actual decision, based on a statutory power of a minister or of the whole cabinet, is another matter.
The Alberta Wilderness Association and three other similar organizations believe that changes in the habitat of sage grouse in Alberta and Saskatchewan have caused a steep decline in their population. So they wrote to Peter Kent, who was then the minister of the environment, urging him to recommend to the cabinet the issuance of an emergency order under the Species at Risk Act.
Mr. Kent did not reply; consequently, he did not say he had decided against taking action on the sage-grouse front, or that he had made any decision about it at all. A known decision, one way or the other, could have been a clear basis for a lawsuit by the four groups, but they brought a court application anyway, including a request for documents.
Wayne Wouters, the Clerk of the Privy Council, objected to disclosing certain documents, saying they were subject to cabinet confidentiality. But Justice Denis Pelletier said that every ministerial decision not to make a decision surely couldn’t be off-limits; it might never reach the cabinet table at all.
The judge concluded that both sides had made the case more difficult, and that there was a risk that the litigation might go on so long that the sage grouse would already be extinct in Canada before it was resolved. The appeal court sent the case back to the trial court on the basis that the Minister of the Environment, who is now Leona Aglukkaq, would communicate her position unequivocally, so that the parties can become clear about just what the dispute is about and get on with it.
Not everything that might get to the cabinet is already at the cabinet.
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