Nunavut judge to Ottawa: cough up those documents

Federal government bureaucrats must turn over thousands of pages of documents to GN and NTI lawyers by Jan. 9, 2015, Justice Earl Johnson ruled Nov. 10. (FILE PHOTO)

Federal government bureaucrats must produce all documents related to Nunavut Tunngavik Inc.’s longstanding land claims lawsuit by Jan. 9, Justice Earl Johnson of the Nunavut Court of Justice ruled Nov. 10.

A trial on NTI’s lawsuit, filed December 2006, is set to start March 9, 2015 in Iqaluit and continue in four-week chunks, with two-week breaks, until about Sept. 25.

But federal officials have yet to finish disclosing more than 17,000 pages of documents — required as evidence — to lawyers for NTI and the Government of Nunavut.

A complicating factor is that some of those many hundreds of documents contain privileged cabinet secrets that may not be legally disclosed, even in a trial.

That means that the most powerful bureaucrat in the federal government, Janice Charette, the Clerk of the Privy Council, must review more than 1,900 documents that might be covered by cabinet privilege.

The privy council office, or PCO, acts a secretariat to the federal cabinet and the clerk of the privy council is a kind of super deputy minister who reports to the prime minister.

So far, the PCO has turned over only 613 of the required documents, in an informal process.

At some point, the privy council clerk must list all the documents that contain cabinet secrets within a special certificate.

And that vetting work must be done by a date that gives lawyers from NTI and the GN enough time to contest the PCO’s cabinet privilege determinations in court.

Also, some documents are covered by other forms of legal privilege and can’t be disclosed either.

Lawyers, in pre-trial discussions and hearings, have wrangled over the issue since at least 2013.

But Johnson said a judgment he issued on Jan. 15 2014 has not succeeded in persuading federal officials to produce documents in a timely manner.

Ottawa bureaucrats continued to turn over documents at “leisurely pace” until June 2014 and then picked up speed between then and October 2014, Johnson said.

“Only at the eleventh hour has Canada put a system into place that will pick up the pace. However, I was somewhat dismayed to find out that the Clerk [of the Privy Council] has not even started her review and that Canada failed to review the documents not subject to Cabinet privilege for other claims of privilege,” Johnson said.

At its current pace, Canada is not likely to turn over all the required documents in advance of the trial, he said.

“The problem is with the bureaucracy not responding with sufficient resources to allow a possible judicial review application to proceed sufficiently in advance of the March 9, 2015 trial date,” Johnson said.

After hearing arguments from lawyers representing NTI, the GN and Canada, Johnson said Canada must produce a final statement of documents and make all documents available to NTI and the GN by Jan. 9, 2015.

And if Canada wants to withhold certain documents that contain cabinet secrets, the clerk of the privy council must file a certificate listing them all, also on Jan. 9, 2015.

NTI filed the lawsuit in December 2006, seeking about $1 billion in compensation for numerous alleged breaches of the Nunavut land claims agreement.

The Government of Nunavut was later added to the case as a third party.

Next year’s trial on the case will likely stretch the Nunavut Court of Justice to the limits of its capacity.

After the NLCA trial begins in March, it’s expected to take 20 weeks of court time.

After each four-week sitting, the court will break for two weeks and then resume, until the trial winds up by the end of September.

2014_NUCJ_31_NTIvCanada(2)