Order 01-11
Quicklaw Cite: [2001] B.C.I.P.C.D. No. 12City of Vancouver
David Loukidelis, Information and Privacy Commissioner
Order URL: http://www.oipc.bc.ca/orders/Order01-11.html Office URL: http://www.oipc.bc.ca ISSN 1198-6182 Summary: The applicant, owner of a commercial property in the City, sought access to a list showing street addresses of 125 sites determined by the City to have heritage value or significance. The City is authorized to refuse access under s. 18(a), but not under s. 16(1)(a)(iii). Disclosure could reasonably be expected to result in damage to sites that have anthropological or heritage value. Key Words: anthropological or heritage value sites - conservation - conduct of relations by British Columbia government - aboriginal government. Statutes Considered: Freedom of Information and Protection of Privacy Act, ss. 16(1)(a)(iii) and 18(a); Freedom of Information and Protection of Privacy Regulation, B.C. Reg. 323/93, s. 4; Heritage Conservation Act, ss. 3 and 6.
1.0 INTRODUCTION[1] There was considerable debate last summer in the media and in the Legislature about the fact that, under British Columbia's land title system, notices are not routinely placed on land titles about the heritage status of parcels of land. Concerns were expressed that purchasers or owners of land therefore may not know that use of their land is subject to heritage conservation designations, or restrictions, under the Heritage Conservation Act ("HCA") or otherwise. Such designations or restrictions can materially affect land values.[2] The applicant owns a commercial property in the City of Vancouver ("City") that is subject to a heritage designation of some kind. He believes the designation has decreased his property's value and that, as a result, his assessment for property taxation purposes is too high. To assist with an appeal of the assessment, he made an access to information request on January 11, 2000, under the Freedom of Information and Protection of Privacy Act ("Act"), to the British Columbia Assessment Authority ("BCAA") for records on any parcel "comparable to our property that has such significant archaeological designations". The BCAA had received, in confidence, a copy of the record in dispute from the City. It transferred the applicant's access request to the City, as it is entitled to do under the Act.
[3] The City responded on February 11, 2000, that it had "located a list of properties in the City of Vancouver with archaeological designations", that list having been "compiled for the City by an archaeologist in the early 1980s". The City told the applicant that the list had not been updated since it was prepared. The City refused to disclose the list to the applicant on the basis of s. 18(a) of the Act. Its reasons for doing so were as follows: We believe that all of the sites identified on the list are likely to have anthropological or heritage value, as they were identified as such by an archaeologist. We also believe that disclosure could reasonably be expected to result in damage to these sites. As this information is potentially newsworthy, it could gain wide circulation, and it is reasonable to expect that some members of the public will vandalize these sites or otherwise disturb them in a search for artifacts.[4] Dissatisfied with this response, the applicant requested a review, under s. 52 of the Act, of the City's decision. In his request for review, the applicant said that he was seeking ... to make a comprehensive presentation to the B.C. Assessment regarding the valuation of my property which is located on a National Historic Site and that contains archaeological components to the land.[5] The matter did not settle in mediation, so I held a written inquiry under s. 56 of the Act. Before I held the inquiry, the City claimed the benefit of a further exception, i.e., s. 16(1)(a)(iii) of the Act. [6] This is the first time s. 18(a) of the Act has been considered. Because of the possible significance of this case to First Nations in whose traditional territories the listed properties may exist, I invited the Squamish First Nation and the Musqueam First Nation to participate in the inquiry as intervenors, not as parties. I also invited the Ministry of Small Business, Tourism and Culture ("Ministry"), which is responsible for heritage issues at the provincial level, the BC Assessment Authority ("BCAA") and the British Columbia Real Estate Association ("BCREA") to participate as intervenors, not parties. Of the latter group, only the BCREA participated. [7] The Squamish First Nation initially failed to respond in time to the invitations to intervene, but at its request I later provided it with a further opportunity to intervene, which it in the end decided not to do. The Musqueam First Nation provided a thorough and thoughtful submission that, in the absence of participation by the Ministry, was of assistance as regards the Ministry's role and certain aspects of the HCA.
[8] Before turning to the merits, I will comment on concerns, expressed by the applicant and the BCREA, about the lack of access by property owners to information about the heritage status of their properties or properties they may wish to buy. My role under the Act is to decide, in each case, whether a public body has correctly applied one of the Act's exceptions to the right of access. In this case, my task is to determine whether, in the specific circumstances before me, s. 18(a) of the Act applies to information in the disputed record. As appears from the discussion below, I have decided that the test has been met in this particular case. This decision has no meaning larger than that. It does not mean, for one thing, that the provincial government cannot - by legislation or otherwise - provide for appropriate access to information of this nature. This decision is not to be interpreted as making any pronouncements about what is or is not feasible or appropriate in this area. That is not my role. 2.0 ISSUES[9] The issues before me in this inquiry are as follows:
3.0 DISCUSSION[11] 3.1 Information in Dispute - The disputed record, which is three pages long, lists 125 properties in the City, each of which is identified by street address. The list has five columns. The first contains the street address for each property, the second lists the site type, the third indicates whether the site is active or inactive, and the fourth sets out the zoning for the site. In the fifth column, some sites are further identified by the name by which they are publicly known or they are cross-referenced to other sites.[12] It should be noted here that a property is not, because it is on the disputed list, necessarily subject to a heritage designation of some sort. The list identifies properties that are of heritage significance, but this is not the same thing as a heritage designation under the HCA or otherwise. [13] According to an affidavit sworn by Jeannette Hlavach - who is a heritage planner with the City - the disputed list was created by City staff, in 1986, using maps which show the specific locations of 17 archaeological sites in the City. The maps were contained in a report delivered to the City that same year, entitled Technical Report: Archaeological Sites ("Technical Report"). That report - which apparently was funded by the British Columbia Heritage Trust - formed part of the second phase of the City's heritage inventory. It was prepared by Jean Bussey, a consulting archaeologist. [14] According to Jeannette Hlavach's evidence, the site list generated from the Technical Report has remained unchanged since its creation in 1986. She also deposed that the City disclosed a copy of the list to the BCAA in 1999, on the condition that it be kept confidential and be used by the BCAA only for the purpose of "assessing the impact archaeological sites might have on assessed value" of properties in the City.
[15] 3.2 Conduct of Relations with Aboriginal Governments - Section 16(1)(a)(iii) of the Act authorizes a public body to refuse to disclose information where its disclosure could reasonably be expected to "harm the conduct by the government of British Columbia of relations between that government" and "an aboriginal government". Schedule 1 to the Act defines "aboriginal government" as "an aboriginal organization exercising governmental functions". The City's decision to refuse access to the disputed record under s. 16(1)(a)(iii), as set out in its June 13, 2000 supplemental decision letter, is as follows: We have been advised by staff of the government of British Columbia that the release of the List could reasonably be expected to harm the conduct of relations between that government and certain Aboriginal Governments.[16] The City's s. 16(1)(a)(iii) submission in this inquiry, found at p. 10 of its initial submission, reads as follows: It is respectfully submitted that the List is excepted under section 16(1) of the FIPPA because its disclosure could reasonably be expected to harm the conduct of relations between the Government of British Columbia and various aboriginal governments.[17] This merely restates the statutory test. The City did not articulate what government relations could be harmed by disclosure or with which aboriginal governments. It did not file any evidence to support its case on this point. The City's reliance, in its June 13, 2000 decision letter, on 'advice' from unnamed provincial government representatives does not advance its position.
[18] Nor do I find the Musqueam First Nation's submissions on the point persuasive. It argues, at para. 29 of its initial submission, that "the relation between the provincial government and first nations is a fiduciary one". It goes on to argue that if the City, as a public body that is ... unaffected by the fiduciary obligations of the provincial Crown, discloses this information, the fiduciary component of the relationship between the provincial government and the affected first nations is undermined and the proper conduct of the Crown's fiduciary duty is compromised.[19] I have difficulty accepting that, if the City were compelled under the Act to disclose the disputed information, the compelled disclosure would in some way affect any provincial fiduciary obligations of the Crown to first nations at large. The provincial Crown would not be directly involved in that compelled disclosure. It is not a party to this inquiry, having declined my invitation to participate even as an intervenor. It is difficult to see how the provincial Crown could be seen to have breached any fiduciary obligation it has to first nations where an entirely separate entity - the City - is compelled to disclose this information. [20] I am not persuaded that the harm identified by the City or by the Musqueam First Nation could reasonably be expected to flow from disclosure of the disputed record. Any such harm is, in my view, speculative and remote.
Confidential Information Received From Another Government
[21] In its further submission, the Musqueam First Nation attempted to raise s. 16(1)(b) as a basis for withholding the list. It argues that, because it referred to s. 16 of the Act in its June 13, 2000 supplementary decision, the City actually intended to rely on all three parts of that section. It is clear from the City's decision letter, and its submissions in this inquiry, that it has relied only on s. 16(1)(a)(iii). It is not open to the Musqueam First Nation, as an intervenor, to add a new exception. Even if s. 16(1)(b) were properly before me, however, I would not be persuaded by the Musqueam First Nation's submissions, at paras. 10-16 of its further submission, and would find that s. 16(1)(b) does not apply. [22] 3.3 Harm to Anthropological or Heritage Values - The public interests in protection of heritage sites and endangered species are acknowledged under s. 18 of the Act, which reads as follows:
[23] This section protects the public interest in preserving the past, a policy that complements the Heritage Conservation Act, local government heritage bylaws and other heritage conservation measures.
Sites Having Anthropological or Heritage Value
[24] The City submits that the first question under s. 18(a) is whether the sites identified in the disputed record have "anthropological or heritage value". It relies on definitions it cites from the previous edition of the Policy and Procedures Manual, i.e., definitions of the terms "sites of anthropological value" and "sites of heritage value". The revised version of the Policy and Procedures Manual - which can be found on the Internet at www.ista.gov.bc.ca/FOI_POP/revised_manual/ToC.htm - contains definitions for those terms. The real point of reference, however, is s. 4 of the Freedom of Information and Protection of Privacy Regulation, B.C. Reg. 323/93 ("Regulation"), which reads as follows:
[25] The definitions offered in the manual differ, of course, from the interpretation prescribed by s. 4, which prevails. The City is bound to give effect to the interpretive prescriptions of s. 4 and I must also be guided by s. 4 in addressing this issue.
[26] Turning to the Regulation, it stipulates that a site must satisfy two conditions before it has anthropological value for the purposes of s. 18. First, it must contain an "artifact or other physical evidence of past habitation or use". Second, that artifact or other physical evidence must have research value. The City relies on the Technical Report to establish that the listed sites have anthropological or heritage value. At p. 36 of the Technical Report - which has been disclosed by the City in this inquiry - it is said that the sites ... were evaluated on the basis of a physical surface examination, pertinent written documentation and, in the case of Stanley Park, through sub-surface probing.[27] The report also notes (at pp. 36-37) that - in an urban study area such as the City, "where more archaeological sites have been destroyed than remain" - all archaeological resources are significant, "as the nature of their deposition could potentially contribute to our understanding of the heritage of an area." At p. 48 and following, the Technical Report describes the evidence of prehistoric activity related to the 17 sites it ultimately identifies. At p. 48, the author concludes that, "[a]s these sites represent the only known remnants of prehistoric native use of the study area, it is strongly recommended that they be protected from future disturbance." With one possible exception, therefore, the Technical Report confirms that each of the 17 sites is associated with artifacts or other physical evidence of past habitation or use and that they each have research value, as outlined in the report. I am satisfied that the Technical Report establishes the anthropological value of the 17 sites it identifies, each of which is, in turn, linked by Jeannette Hlavach's affidavit to the 125 properties identified in the disputed record. Each of those properties, therefore, has anthropological value within the meaning of s. 18 of the Act and s. 4 of the Regulation. [28] The possible exception to this is the site identified in the Technical Report as DhRt6, which appears to have been destroyed by the time the Technical Report was prepared. Nonetheless, this site is listed in the report as one of the 17 sites of value. It is said to have a moderate scientific, ethnic and public significance and the Technical Report recommends its preservation, stabilization and testing. In my view, the Technical Report provides sufficient grounds for concluding that DhRt6 has (to quote the report) "other physical evidence of past habitation or use that has research value" for the purposes of s. 18 of the Act and s. 4 of the Regulation. The Technical Report also is a sufficient basis for establishing that DhRt6 has heritage value within the meaning of s. 4(b) of the Regulation. (The other 16 sites identified in the Technical Report also qualify as sites having heritage value within the meaning of that provision.)
Harm to Anthropological or Heritage Sites
[29] The next question is the central issue in this inquiry. Could disclosure of the disputed record reasonably be expected to result in damage to, or interfere with the conservation of, any of these sites? [30] Section 18(a) identifies two kinds of harm, either of which can justify the withholding of information. The first kind of harm is a reasonable expectation of "damage to" a site having anthropological or heritage value. The second type of harm is a reasonable expectation of interference with the conservation of such a site. The City argues that there "must be a direct linkage between the disclosure and the anticipated harm" and that it must establish that "certain individuals have a motive to loot, vandalize, or otherwise harm sites of anthropological or heritage value", and that "disclosure of the List supplies these individuals with an opportunity they would not otherwise have" (emphasis in original). As I have said in other cases, the reasonable expectation test under the Act is satisfied where a public body provides evidence the clarity and cogency of which is commensurate with a reasonable person's expectation that disclosure of the disputed information could lead to the harm specified in the relevant exception under the Act. While it is not necessary to establish certainty of harm, there must be a rational connection between the feared harm and disclosure of the specific information in dispute. [31] In my view, it is not necessary to establish for the purposes of s. 18(a) that one or more individuals, known or unknown, have a "motive" to despoil heritage sites. Evidence of such a motive or intent may be useful for the purposes of determining whether a reasonable expectation of harm has been established in a given case as contemplated by s. 18(a), but the section does not require it in all cases. I also consider that evidence of opportunity to harm or interfere with the interests identified in the section is relevant, but does not necessarily dispose of the s. 18(a) issue. [32] The City relies on the Policy and Procedures Manual definitions of "damage", "interfere" and "conservation". Those definitions are useful for the purposes of this decision. I note, in addition, that the Heritage Conservation Act defines "conservation" as including "any activity undertaken to protect, preserve or enhance the heritage value of heritage property". That definition is not binding for the purposes of the Act, but it is instructive. The manual's definition of "conservation" complements the non-exhaustive Heritage Conservation Act definition. [33] I accept that the applicant in this case wishes to use the list for a legitimate purpose, i.e., to compare the assessed value of his property with that of other properties affected by their heritage status. The applicant submitted a January 17, 2000 memo from the BCAA to him. In it, the BCAA provided the applicant with the "methodology" it used to provide an "archaeological adjustment" to the value of the applicant's land. He says the BCAA has told him that none of the 125 properties is comparable to his, but believes it is his "basic fundamental right" to view the list, to make his own judgement on what the BCAA has told him. (The issue of whether the BCAA is required by statute or the rules of natural justice to provide such information to the applicant, for the purposes of an assessment appeal, is not before me.) [34] The applicant's intention to use the list for property assessment purposes is by no means conclusive on the s. 18(a) issue. In light of the evidence before me of media and public attention to this issue, I accept that the City's contention (at p. 8 of its initial submission) that the list is "newsworthy and, if released, would no doubt be widely published." The applicant argues, in effect, that this would not matter, since archaeological publications such as The Midden already enable a researcher to identify heritage sites, by publishing details of site permits issued by the Archaeological Branch. Widespread publication of the list is irrelevant, he says, because the information is already out there. In support of his point, the applicant submitted back issues of The Midden and highlighted permit information in those issues. [35] These permits were issued for archaeological impact assessments or site assessments, apparently in relation to proposed activity - such as clear-cut logging - on sites that may have archaeological value. The point of these permits, it seems to me, is to identify or assess sites of archaeological or other heritage value. Moreover, those possibly valuable sites are hardly identified with any precision, since the locational data consist of forest tenure numbers or district lot or plan numbers. The disputed list, by contrast, precisely identifies, by street address, easily accessible sites that are already known to contain archaeological resources worthy of study and preservation - or looting and desecration. That is the purpose of the list. [36] The BCREA pointed out that, in some cases, The Midden has published street addresses of sites for which permits have been issued. These examples also involve permits for site investigation or impact assessments, generally in advance of activity that would harm or destroy any archaeological resources at the site. It is one thing to publish the street address of a site that is to be investigated for possible archaeological resources and quite another to publish the locations of sites already known to have archaeological resources that merit protection. [37] The evidence does not persuade me that other publicly available information - in academic papers or in archaeological publications - could be used by an assiduous individual to identify the sites listed in the disputed record with any specificity. By contrast, the disputed list would publicly identify all of those sites with great precision. It would serve as a veritable road-map to each site. It would provide pot-hunters and vandals with easy access to a large number of known sites. Even if I accepted that otherwise available information would or could, as the applicant argues, enable someone to divine the precise the locations of the sites in question here, the City's point about publication of the list remains valid. It argues that publication of the list - regardless of what an obsessed researcher might be able to discover on her or his own, site by site - could reasonably be expected to cause harm.
[38] The City argues, at p. 8 of its initial submission, that there is a "broad consensus in the archaeological community that a primary method of protecting archaeological sites is to restrict information about site locations." In support, the City filed a letter written by Jean Bussey - the consulting archaeologist who prepared the Technical Report - in which she says the following: I believe that to widely release information that would identify archaeological sites to the public could result to increased disturbance to these resources and I strongly recommend that the information remain restricted.[39] In addition, the City cites, as a relevant reference work, technical notes to a document entitled Archeological Sites Protection and Preservation Notebook. This publication, which was issued by the United States Army Engineer Waterways Experiment Station in 1989, recommends (at p. 5) that the locations of cultural resources not be revealed "when this is likely to unnecessarily endanger them." The handbook recommends that "regulative [sic] and interpretive signs" be posted at such locations "only when the presence of the resource is obvious."
[40] Returning to the Technical Report, the City relies on the following passage, found at p. 38: In addition, any public identification of an archaeological site must be in an area that can be patrolled to ensure it is not vandalized. Numerous individuals are intrigued by artifacts and go to great extremes to add to their personal collections. Called 'pot-hunters' (originally coined thus as the collection of pottery items and fragments was a common objective), these individuals collect only the 'best' (in their judgement) and think nothing of destroying the context of less desirable items. That pot-hunters are active in the Lower Mainland is best evidenced by the recent and extensive disturbance in the vicinity of Angus Lands Park, where prehistoric and historic artifacts have been collected. Known sites that show evidence of pothunting are often identified by formal signs erected by the Heritage Conservation Branch. These signs indicate that the site is recorded and that any disturbance, modification, or removal is prohibited by law (Heritage Conservation Act) and is punishable by a fine and/or imprisonment. Even these warnings do not stop the serious pot-hunter however, and so regular monitoring is required to protect any identified known or developed archaeological site.[41] In support of its contention that heritage sites in the Lower Mainland continue to be disturbed or destroyed by pot-hunters, the City provided extracts from site reports filed with the Archaeology Branch. Those reports refer to pot-hunting and resource disturbance at several sites in the Lower Mainland, including the St. Mungo Cannery, the Glenrose Cannery and the Stave Reservoir. For its part, the Musqueam First Nation, at para. 24 of its initial submission, says that "many archaeological sites in our territory have been damaged." It refers to the threat to the "integrity of sites posed by the pillaging of collectors called 'pot-hunters'." It does not identify which sites have been damaged this way.
[42] The City argues that, if the list is disclosed, there is a reasonable expectation of harm to these sites of heritage value due to pot-hunting activity, even though these sites are in an urban area. The applicant's response to this argument is found in the following passage, at p. 6 of his initial submission: How absurd, we are talking in the case of the City of Vancouver - street addresses, be they commercial - industrial - residential - or possibly First Nations lands; land that is most assuredly occupied. With fines up to 1 million and jail sentences up to 1 year surely no one in their right mind would come in and start digging on privately held land that is in all likelihood already developed in some degree! As for any land that may be held by the Crown, even the majority of it is in parks or developed to some degree as well.[43] I acknowledge that this argument has some force. I have concluded, however, that the City's evidence of disturbance of other sites in the area justifies the conclusion that this information can reasonably be expected to be used by pot-hunters to identify and investigate some or all of the sites. It is reasonable to expect, therefore, that disclosure of the list would lead to site disturbance, which by damages the site. It does so because it disrupts the site's natural strata, thus removing archaeological evidence and damaging the site's archaeological meaning. It should be noted here that not all the sites are developed. A notable number of them evidently are parks, which are clearly more vulnerable to digging (even in an urban setting). [44] Until these sites are professionally excavated, so that their contents are retrieved and pertinent data are recorded, their only effective protection lies in their locations not being publicly known. In reaching this conclusion, I am not persuaded by the applicant's argument that the stiff fines and jail time provided for under the HCA in cases of damage to heritage sites meets the City's concerns. While I do not deny that such penalties have some deterrent effect, I am not persuaded that they answer the concerns just identified. It would be unwise to underestimate the greed, and perhaps stupidity, of those who engage in such illegal activity. [45] 3.4 Relationship Between the Act and the HCA - The Musqueam First Nation argues, at some length, that the HCA prevails over the Act as regards disclosure of the disputed list. Because I have found that s. 18(a) applies to the disputed record, it is not necessary to deal with that argument. I should, however, note my disagreement with the Musqueam First Nation's analysis. [46] The HCA's access provisions apply only to requests under that Act, to the responsible minister, for "information in the Provincial heritage register and other information obtained in the administration of" the HCA (s. 3(3), HCA). This case deals with a request under the Act, to another public body, for access to another record. The access to information process under the Act, which has been triggered by the applicant's access request, is completely separate from the process contemplated by s. 3 of the HCA. The HCA is not engaged here. [47] The Musqueam First Nation also relies, however, on s. 6 of the HCA, which reads as follows:
[48] This does not affect the Act's operation in relation to the applicant's request. I would have thought this refers, not to access to information requests, but to cases where another Act purports to allow someone to do something that could affect the conservation of a "heritage site" as defined in the HCA. There is, in my view, no conflict between the Act and the HCA. Even if such a conflict did exist, s. 79 of the Act gives the Act's access to information scheme primacy over conflicting statutory provisions. Section 79 says that, in the case of conflict, the Act's provisions apply unless "the other Act expressly provides that it, or a provision of it, applies despite this Act.". Section 6 of the HCA does not do that. 4.0 CONCLUSION[49] For the reasons given above, I make the following orders:
ORIGINAL SIGNED BY
David Loukidelis
 March 26, 2001 Information and Privacy Commissioner of British Columbia | |||||||||||||||||||||||||||||||||||||||||||||||||||