Our group, Concerned Residents of Frost Fish Cove, made a complaint in 2006 about construction for sewage disposal at the water's edge in our community.  This led to an Investigation by the Nova Scotia Department of Environment and Labour, in part because the engineer designing the system had not done an on-site inspection as legally required.  Glen Warner is the inspector with Environment and Labour who carried out interviews and data collection for the investigation.  However, his department has refused to provide any information on what is being investigated, what the consequences might be, or the time frame of the investigation.  With total secrecy and no statement to the public, it makes you wonder whether there ever was an investigation.  Is this just an old boys' network, or is there accountability when environmental regulations are not followed? 

Our group therefore made a Freedom of Information request on  July 17 2007, for:  "Any and all files, documents, reports, email and information concerning on-site sewage disposal applications, approvals & investigations for 50 Indian Point Road".

Although the Nova Scotia government is legally required to respond to Freedom of Information requests within 30 days, this request was ignored until late September 2007.  As the spring of 2008 approaches, documents about the Investigation, interviews by Glen Warner, and written communications, continue to be withheld illegally by the Nova Scotia Department of Environment and Labour. We are now at seven months and counting. According to the law:

In response to a FOIPOP request under Nova Scotia's Freedom of Information and Protection of Privacy Act, you either have to release every document in the file requested, or provide specific exemptions from the Act. With this Investigation however, the provincial Environment officials have done neither.

Laws and Law-Breaking in Nova Scotia

The repeated suspensions of the Septic Approvals on the lot owned by Dr. Pat Croskerry have highlighted a number of systemic problems in the Nova Scotia legislation: 

1.) The engineer who designs the system also serves as the inspector (of his own work).  Why couldn't a more objective person who is not on the payroll be brought in for one day to do the inspection? This may even have economic benefits.

2.) Self-Regulating Professions in Nova Scotia:  The engineer responsible never did an inspection of the initial septic system as legally required.  Yet although he broke the law, the Association of Professional Engineers of Nova Scotia (APENS) found that he acted within the ethics and professional standards of the profession(?!). Although professional associations in Nova Scotia are self-regulating, they can be secretive, are outside the jurisdiction of the provincial Ombudsman, and can act more like lobby groups for their members than protectors of the public. They like to put a lot of nice motherhood statements about protecting the public on their web sites.  Yet the members of APENS also build bridges and skyscrapers, so this is not the place for old boys' networks and secret politics.

3.) Amazingly, the Nova Scotia septic legislation does not appear to include requirements for specifically protecting public health or the environment.  In this case there has been more regulatory protection of fish habitat than of people swimming in foamy brown water contaminated with fecal coliform. The engineer who designs the system and inspects it would ordinarily have no training in public health.  The idea of sustainable development in construction projects like this is a foreign concept.

4.) Abuse of Freedom of Information laws by Canadian public servants:  Democracy, freedom of speech, the Charter of Rights and freedom of information are held up in Canada as important principles, in our legal system, our foreign policy, and to every citizen who goes through our public education system.  In practice however, the examples in which Canadian government departments ignore the laws about accountability and Freedom of Information are legion.  When an employee in a private organization in Canada breaks the law as part of their job, they are held accountable.  But in government departments, "no-one has ever been prosecuted and to our knowledge, these apparent offences have never been the subject of a criminal investigation" (statement at the National Press Theatre, by the Canadian Newspaper Association, Sept. 27, 2007). At 50 Indian Point Road, we have seen new variances and septic approvals being issued, and a house constructed -- all while the cover-up continues with the documents on Glen Warner's supposed investigation. Intentional delay tactics in government employees releasing documents to the public became known as "amber-lighting" as a result of Judge Gomery's investigation into the Sponsorship corruption in Canada.

By withholding these Investigation documents requested under Nova Scotia's FOIPOP legislation, Gerard MacLellan and his staff broke the law and obstructed basic democratic rights.

This was confirmed in a comprehensive investigation done by the province's Freedom of Information (FOIPOP) Review Office.  The Findings were eventually released in June 2009, and are available online. On page 29, as just one of many such statements, the Report notes that "The timeframe followed by Environment leading up to Decisions #1 and #2 failed to meet the statutory requirements".

As another of many examples, on page 36 the Report notes that "On reviewing the 104 pages of the responsive Record referred to as the "Evidence" or "Investigative" file that were wittheld, I am unable to find anything that would meet the test of reasonable expectation of harm to an investigation or harm to investigative techniques that would justify Environment withholding the information under s. 15 particularly given the right to information under the Environment Act.  In the result, the Applicant has suffered double jeopardy".  

The final Report also notes that "if there had not been such an inordinate delay in responding to the Applicant, s/he may have been able to advocate more effectively with respect to potential harm to the environment" (p. 29). The complete 41-page Report is available here (PDF, 276 k).

Perhaps the real legacy of law-breaking public servants will be that this province's Freedom of Information (FOIPOP) Review Office will begin to recommend that its findings are put in the personnel file for government employees who are intentionally keeping public documents secret.  Like the Ombudsman in Nova Scotia, the Freedom of Information Review Officer is unfortunately a political appointment. Nevertheless the findings of their investigations are comprehensive legal documents. They could record who was responsible, when public documents are illegally withheld by government employees. Although it may be difficult to press criminal charges against provincial employees in this situation, it would be a simple and practical solution for the Freedom of Information Review Office to recommend that the findings are filed for use in personnel evaluations.  That would be a big step forward for democracy across Canada.

Related links:  International Freedom of Information day (Sept. 28th). The Right to Know Coalition of Nova Scotia. The Canadian Newspaper Association's Annual Freedom of Information Audit.