Canada (Indian Affairs and Northern Development) v. Sawridge First Nation, 2009 FCA 245/p>

Federal Court of Appeal: August 12, 2009

http://decisions.fca-caf.gc.ca/en/2009/2009fca245/2009fca245.html

The Federal Court of Appeal granted an appeal from the Minister of Indian Affairs and Northern Development ("INAC"), authorizing release of the Sawridge Band's consolidated financial statements in the possession of INAC to the requestor, a Band member, on the grounds that they are not confidential for the purposes of paragraph 20(1)(b) of the Access to Information Act ["AIA"] when the requestor is a Band member.

The requestor, Elizabeth Poitras, had lost her Indian status and Band membership when she married a non-Indian, but was subsequently reinstated as a member of the Sawridge Band as a result of Bill C-31. The Sawridge Band challenged the constitutional validity of Bill C-31 in a separate action that has recently been dismissed by the Federal Court of Appeal in Sawridge First Nation v. Canada, 2009 FCA 123. Ms. Poitras was concerned about the Band's failure to distribute any of its oil and gas revenues to her, so she sought information about the Band's finances.

After Ms. Poitras' request to the Band for disclosure of the Band's consolidated financial statements, the Band instituted a Financial Disclosure Policy designed to protect the confidentiality of the information. The Policy requires Band members to sign a confidentiality agreement as a condition precedent to disclosure of the Band's financial statements. The confidentiality agreement provides that members may not use the information in the financial report except for the purpose of discussing it with Chief and Council or with other members who have signed the confidentiality agreement. Ms. Poitras refused to sign the confidentiality agreement, because she wanted to be able to use the Band's financial statements for the purpose of holding Chief and Council accountable for the management of the Band revenues. Ms. Poitras then requested disclosure of the Band's consolidated financial statements from INAC.

The Band had supplied its financial statements to INAC pursuant to paragraph 8(2)(b) of the Indian Band's Revenue Moneys Regulations [the "Regulations"]. The Regulations also require the Band to post a copy of the auditor's annual report in conspicuous places on the Reserve "for examination by the members of the Band" (paragraph 8(2)(a)). The Band posted only the one page opinion letter signed by the auditor respecting the Band's financial statements, which does not reveal the content of the financial statements underlying the report. Therefore, at issue in the appeal was whether otherwise confidential information supplied by a third party to a government institution ceases to be confidential for the purposes of paragraph 20(1)(b) of the AIA when its disclosure is requested by a person who has an independent legal right to the documents in question.

The Court construed paragraph 20(1)(b) of the AIA narrowly and the purpose of paragraph 8(2)(a) of the Regulations broadly. The Court held that the purpose of paragraph 8(2)(a) is to enhance the Band's accountability to INAC and Band members for the management of the Band's finances. As a result, the Court concluded that the Band members' statutory right to have the auditor's annual report posted in conspicuous places on the Reserve extends to the financial statements to which the report refers, and that Band members' rights to review the financial statements includes a right to read and use them for the purpose of holding the Band Chief and Council accountable for their management of the Band's finances.

The Court held that information cannot be confidential for the purpose for paragraph 20(1)(b) of the AIA vis-à-vis a requestor who has a right to it under another legal provision. Because paragraph 8(2)(a) of the Regulations gives Band members a right to examine the auditor's annual reports, INAC may not refuse to disclose the Band's financial statements on the ground of confidentiality when one of its members requests their disclosure under the AIA.

In doing so, the Court distinguished Montana Band of Indians v. Canada (Minister of Indian and Northern Affairs), [1989] 1 S.C. 143 (T.D.), where a journalist requested a Band's financial information from INAC but was denied on the basis that the information was confidential for the purposes of paragraph 20(1)(b) of the AIA because the journalist's interests were not consistent with that of the Band. The Band argued that the Court should follow Montana Band of Indians, as Ms. Poitras' interests were not consistent with that of the Band. The Court concluded that, unlike the journalist in Montana Band of Indians, Ms. Poitras had a right to the disclosure of the Band's financial information pursuant to paragraph 8(2)(a) of the Regulations.