Chief Justice Beverley McLachlin said: “Access to information is essential to democracy.”
It is a fundamental democratic principle: The public must be able to see government’s environmental decisions. Yet for far too long, the B.C. government has kept such information under lock and key — which has endangered both the environment and public safety.
For example, in 2010, a dam near Oliver collapsed, unleashing a mudslide that destroyed several houses. The Environmental Law Centre subsequently discovered that government had inspection reports warning of danger — but had failed to alert the public. In 2013, the information commissioner agreed with our argument that this failure to disclose a matter of public interest violated freedom-of-information law. The commissioner criticized government for ignoring the “urgent and compelling need” to warn the public about the “imminent risk of the dam’s failure.”
In 2014, the problem came up again when the Mount Polley Mine dam burst, blasting a torrent of toxic waste into Quesnel Lake. After this second disaster, the centre asked the B.C. government for the relevant dam-inspection reports, but was flatly refused. The government released these documents much later — after we launched a second complaint to the information commissioner. The commissioner concluded that the law obliged the government to proactively release all documents of “public interest.”
But government foot-dragging has continued. Last year, water in the Hullcar Valley near Armstrong became undrinkable because of nitrate contamination — likely linked to the spraying of manure effluent above the aquifer.
Yet the government refused to release the soil-nitrate tests taken above the drinking-water aquifer. The Ministry of Environment refused to release the test results, even though:
• the tests were conducted pursuant to ministry orders;
• the local waterworks district asked for the results, to figure out ways to reduce nitrate contamination of their drinking water; and
• local water users and the local government also asked for the results.
Again, the law centre complained to the information commissioner. Months later, the commissioner ordered the government to release the soil results immediately — noting that release was “clearly in the public interest.”
As a result of the commissioner’s decisions, one can now get mine dam-inspection reports online. And the people of the Hullcar Valley can now get soil-test results online. But that is only because of specific complaints to the information commissioner. Across the rest of government, important environmental documents are still not accessible.
For example, the government still fails to post the decision and penalty when a company breaks forest-practices laws — in spite of the fact that the Forest Practices Board strongly recommended this in 2014. Ironically, you can go online and immediately find inspection reports for any Vancouver restaurant that breaks a minor health regulation — but you can’t find out how major forest companies are breaking important laws on public land.
Similarly, other than in a couple of places where they have been challenged — such as Hullcar Valley and Shawnigan Lake — the Ministry of Environment is not publicly posting its compliance orders.
As a result, the Environmental Law Centre, on behalf of the B.C. Freedom of Information and Privacy Association, is calling for legal and policy reform to require government to publicly post all:
• environmental orders;
• environmental permits and pollution authorizations;
• environmental convictions and contravention decisions; and
• other key environmental records, including inspection reports.
See our submission to the information commissioner on this issue at: bit.ly/2o9KVMO
Here’s the point. When government efforts fall short, concerned citizens play a vital role in protecting the environment. It was concerned Hullcar Valley residents who prompted the government finally to act to protect their drinking water. It was a retired engineer named Ken Farquharson who convinced the government to clean up the old mine killing Jordan River salmon. And concerned Peace River Valley residents successfully persuaded the government to move gas-well development away from elementary schools.
But citizens cannot play this constructive role if they cannot find out what the government is doing — or not doing. That’s why it’s time for the government to unlock its vault of environmental records.
As the great American justice Louis Brandeis pointed out: “Sunlight is the best of disinfectants; electric light the most efficient policeman.”
Calvin Sandborn is legal director and Sergio Ortega is a law student at the University of Victoria Environmental Law Centre. Vincent Gogolek is executive director of the B.C. Freedom of Information and Privacy Association.