Release of confidential advice on landfill search may be too tempting for NDP

Opinion

Lurking deep in reams of privileged documents left by premier Heather Stefanson’s government is a PowerPoint presentation that, it is believed, may explain why she refused to search a landfill for the remains of Indigenous women killed by Jeremy Skibicki.

The document is described by The Canadian Press as a 13-page digital slide deck prepared by bureaucrats about options for searching the landfill. The theory is that this deck might shed additional light on Stefanson’s refusal to search the Prairie Green Landfill, one of the most wrong-headed decisions made by a Manitoba first minister.

For the time being, that slide deck is being kept from the public by the terms of the Access Convention, a constitutionally rooted tradition of parliamentary democracy that keeps cabinet documents locked away for 20 years after a government leaves office. This convention dictates that not even an incoming government can view the documents.

Before we consider whether this document should be released, we might want to consider whether it could be released.

It would be easy and acceptable for Premier Wab Kinew to respect the Access Convention and let the slide deck remain under wraps. The Kinew government moved fairly quickly to search the landfill and the remains of two victims were recovered. In following through on this promise from the 2023 election campaign, Kinew was able to provide closure to the families and demonstrate that the search could be done safely and cost-effectively.

With its actions, the Kinew government was able to expose the fact that politics, and not practical or fiscal concerns, was behind Stefanson’s decision to reject calls for a search.

However, if Kinew felt the public has the right to see what the Stefanson government saw when it first made that decision, could he make this information public?

The Access Convention is a pretty venerable feature of parliamentary democracy, although the way it is applied varies across the country. Some provinces only lock away cabinet documents for a decade; Manitoba is among the most restrictive with its 20-year waiting period.

Kinew really has limited options to get some or all of the presentation out.

He could convince Stefanson to agree to release the information in question. Given that she has put her political career in the rear view, avoiding any public appearances since her 2023 electoral humiliation, that is pretty unlikely.

Alternatively, Kinew could seek to release the facts presented in the presentation and keep anything that could be considered political advice. The Freedom of Information and Personal Privacy Act allows for factual information contained within otherwise confidential cabinet documents to be revealed.

Finally, Kinew could change the law.

FIPPA can be reviewed almost at any time. The legislation says a full review must be done “within five years.” Given that the last review was done in 2022, Kinew could easily justify a new review. A new government and pressing issues, such as a debate over exceptions to the Access Convention, would easily justify a review.

As an aside, there are examples of Manitoba governments unilaterally revealing privileged material generated for the consideration of previous governments.

In 2003, the NDP government of Gary Doer released a handwritten memo from Crown prosecutor George Dangerfield that had been written for former Tory justice minister Jim McCrae a decade earlier. The memo could have easily been classified as legal advice to government, or at the very least political advice to the attorney general.

Doer ordered it released because it substantiated a key concern that the government had been misled by Dangerfield and others in the prosecution service about a convicted man’s claims of innocence.

However, if Kinew could find a way to release some of this information, should he?

Manitobans who have followed this story know we’ve all been afforded a deep look into both the information that Stefanson had at her disposal and the cynical political motivations that drove her to shun calls to search the landfill.

A feasibility study released to the public in the spring of 2023 suggested the total cost of searching the landfill could be as much as $184 million. Stefanson seized upon that number, and and safety concerns, to justify her decision.

In the fall election campaign, the Tories created a media campaign that celebrated her decision as proof that she was a strong leader. That campaign was greeted with protest and outrage, culminating in a near wipeout for the Tories.

Following the campaign, architect Marni Larkin admitted the decision to oppose the search was part of a strategy to shore up the backing of supporters who were further out on the right wing of the party’s spectrum.

Can the confidential briefing information provided to Stefanson in 2023 move the needle on this story? It’s a long shot right now.

However, we do know that releasing the information would provide the NDP with a fantastic opportunity to pour salt in the self-inflected wound suffered by the Tories in the last election. That may prove too hard for Kinew to resist.

dan.lett@freepress.mb.ca