The Northwest Territories’ information and privacy commissioner ordered the territory’s industry minister to release portions of mining-regulation records and reconsider other redactions after finding that the department had improperly justified giving industry representatives access while withholding the same material from an applicant.
The September 25, 2026 ruling in Department of Industry, Tourism and Investment (Re), 2026 NTIPC 153 produced a mixed result. Commissioner Andrew E. Fox rejected several grounds for withholding information, upheld protection for separate confidential intergovernmental drafts and declined to order any further fee reduction.
The case concerned a September 2025 request for communications between the Department of Industry, Tourism and Investment and the NWT and Nunavut Chamber of Mines or individual mining companies about regulations under the Mineral Resources Act. The department delivered 807 pages on January 27, 2026, following an earlier order requiring a response, but withheld some records in whole or in part.
Industry consultation did not displace the public right of access
Among the disputed records were proposed royalty-calculation changes and draft spreadsheet forms. Officials had shared the material with the Chamber of Mines and mining-company representatives to obtain feedback on regulatory proposals.
The department said disclosure to industry experts helped it develop the regulations, whereas disclosure to the general public did not provide the same benefit. Fox accepted the value of consulting people with specialized knowledge but found that this was an improper reason to refuse an access request.
He explained that the access statute serves the public’s right to know what government is doing. Processing a request fulfils a legal obligation; it is not an opportunity for a department to obtain a benefit. The fact that responding costs public resources does not turn the decision into a departmental cost-benefit calculation.
Some of the material fell within statutory exceptions for advice, negotiations or draft regulations, giving the department discretion to withhold it. That discretion still had to be used for a lawful and proper purpose. Fox ordered the minister to reconsider the royalty-table and spreadsheet redactions and explain the decision to the applicant. He said he expected disclosure in the absence of a lawful reason to refuse it, but did not substitute a blanket release order for that reconsideration.
Different treatment for shared records and confidential drafts
Fox ordered disclosure of comments in two drafts of a ministerial letter that had been withheld as revealing Cabinet deliberations. The comments asked about an undefined future Cabinet decision and did not disclose any deliberations that had occurred. During the review, the department agreed those passages could be released.
He also ordered release of passages in meeting notes involving the Technical Working Group and Chamber of Mines representatives. The working group participates in a collaborative legislative-development process involving the territorial government and Indigenous governments or organizations through the Intergovernmental Council.
Although that process includes confidentiality commitments, the meeting summary had been sent to the chamber’s executive director with express permission to distribute it further. Fox found no reasonable basis to say that releasing the already-shared material to the applicant could impair intergovernmental relations.
A different question arose over the working group’s suggested edits to a draft ministerial letter. Comparing versions already supplied to the applicant effectively disclosed the advice, so the advice exception did not justify withholding it. However, the department also relied on potential harm to relations with Indigenous governments and organizations if it disclosed the edits without consent.
Fox recognized the importance of those relationships and the department’s better position to assess the consequences. He required reconsideration of those redactions, with an explanation to the applicant, rather than directing their immediate release. The ruling does not establish whether consent had been sought or refused.
Four separate document drafts shared with the department by other working-group members remained protected. Fox found that they were received in confidence under the legislative-development protocol and could be withheld under the intergovernmental-information exception.
Business confidentiality required more than a possible adverse effect
The commissioner also examined redactions said to protect mining companies’ commercial or financial interests. The applicable test required information of the specified kind, supplied in confidence, whose disclosure could reasonably be expected to prejudice a third party’s competitive position. All of those requirements had to be satisfied.
Two sentences in a company’s letter concerned project financing, but the evidence did not establish confidentiality or the required competitive harm. After Fox notified the company, a successor owner of the mining project said the information was no longer relevant or was already public and did not seek continued redaction. Fox ordered disclosure.
Another disputed email contained dollar figures supplied by a mining company and advice about royalty deductions. The figures had been provided in confidence, including under a non-disclosure agreement. Fox nevertheless found that a confidentiality rule in the Mining Regulations did not override the access statute, so the department still had to establish the statutory grounds for withholding.
The company was concerned that figures released without a detailed explanatory report could mislead readers and affect its ability to raise capital. Fox found the suggested effect on investment decisions speculative. The department’s assertion that disclosure could affect a competitive position was insufficient to show the required reasonable expectation of prejudice. He ordered the redacted passages released.
He also ordered disclosure of survey responses from three mining companies after the department accepted that confidentiality did not apply. Separately, he rejected the removal of part of a handwritten-notes page merely because it was said to be outside the request. Where a record contains responsive information, he said, the whole record must be disclosed unless a statutory exception applies.
Names were no longer disputed and no further refund was ordered
The applicant withdrew the challenge to redactions of private individuals’ names after considering the resources and time required for third-party notices. Fox therefore did not decide whether those personal-information redactions were justified. They were not ordered removed.
The applicant also sought a full fee waiver, arguing that scrutiny of the department’s dealings with industry served the public interest. The applicant alleged preferential access for mining interests and raised a concern about regulatory capture. Fox accepted the applicant’s civic-minded motivation but did not make a finding of regulatory capture; he found the prospect of a public benefit insufficient to displace the normal fees in these circumstances.
The department had already waived the remaining $80 because its response was late. Fox considered a fee reduction a rational way to recognize the inconvenience of delay and found no basis to disturb the department’s exercise of discretion. He declined to reduce or eliminate the fees further.
Minister directed to amend the response
The minister was ordered to provide the amended response without delay upon receiving the report and order. A separate requirement was to notify the commissioner of the compliance steps and when the records had been delivered within 20 business days after receipt. That reporting period does not run simply from the decision’s date.
The report also set out statutory appeal routes to the Northwest Territories Supreme Court, with the applicable 20-business-day periods tied to receipt of the report and order. The reasons do not establish whether an appeal followed or whether the department subsequently delivered the amended response.
