"It's getting weird," said Melissa Gorrie, an environmental lawyer involved with the case going before the Federal Court of Appeal in Vancouver on Tuesday.
The fight began with a November 2011 attempt by environmental groups before the courts to force Environment Minister Peter Kent to issue an emergency protection order for sage grouse. They say Kent is obliged to do so under terms of the Species At Risk Act when a species is threatened with immediate disappearance.
The familiar prairie bird is down to mere dozens in its grassland home and scientists say it will disappear entirely within a decade unless habitat is protected from continuing energy and industrial development.
When Kent failed to move one way or another after 10 weeks, the environmentalists requested a judicial review of what they called his refusal to carry out his responsibilities. They also asked for any materials Kent was using in his decision.
Kent's office refused to provide those documents. Nor has it offered anything beyond year-old statements saying the issue was, at that time, still under consideration. It won't even say if a decision has been made.
The government has argued that because Kent conferred with cabinet colleagues, the entire matter is covered by cabinet confidentiality.
A Federal Court judge sided with the government. Gorrie, an Ecojustice lawyer representing the Alberta Wilderness Association, said that ruling erred.
"We're saying you can't claim cabinet confidence over the very fact a decision's been made," she said. "We're just asking for that simple fact of information so that the environmental groups we represent can know and the general public can know what the government is doing."
Gorrie said that under the law, protecting sage grouse is Kent's responsibility, not cabinet's. She adds the government was willing to produce such information in a similar and recent case involving emergency protection for caribou.
"We didn't run into any of these issues. We were told when (the minister) was still thinking about it. And when the minister made a decision we were told what the decision was and we were provided with at least some form of reasons.
"In this case, it's in a black box."
In its documents, the government argues that decisions around cabinet secrecy aren't subject to legal review. It also states ministers must be able to talk about issues with their colleagues in private.
"A minister's recommendation to his colleagues, at any stage of the policy and decision-making process, is a cabinet confidence," the documents say.
Gorrie said that stretches the traditional use of cabinet confidentiality.
She said that could mean any cabinet ministers who discussed anything with a colleague would be able to dodge public scrutiny and judicial review of whether they have lived up to their responsibilities.
"This very broad claim of cabinet confidence cannot stand."
The situation is urgent, said biologist Susan Pinkus, who works for Ecojustice.
"It's excruciating to watch this procedural wrangling," she said. "The sage grouse are on their way out if nothing is done.
"We're talking a really dire emergency."
— By Bob Weber in Edmonton
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