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Document
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P-961
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File #
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P-9400670 and P-9400786
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Institution/HIC
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Ministry of Natural Resources
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Summary
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BACKGROUND: For a number of years, Ontario and the federal government have been engaged in discussions over Aboriginal fishing regulations. In the summer of 1992, Ontario and the seven Williams Treaty First Nations began negotiating agreements which would allow members of these First Nations to carry out traditional activities off the reserve. The implementation of these agreements depended on Ontario having the legal authority to enter into these negotiations. Ontario looked to the Aboriginal Communal Fishing Licence Regulations (the ACFLRs), regulations enacted under the federal Fisheries Act , as the only option available to provide a legal basis for those portions of the agreements related to fishing. On May 12, 1994, the Supreme Court of Canada, in the case of R. v. Howard , 18 O.R. (3d) 384, held that the seven Williams Treaty First Nations had surrendered their traditional right to fish for food when they signed the Williams Treaty in 1923. This decision meant that the province of Ontario had to resume normal enforcement activities consistent with Ontario and federal law regarding hunting and fishing carried out off the reserve by members of these seven First Nations communities. In an attempt to provide a legal framework which would permit the seven Williams Treaty communities to exercise the same Aboriginal right to fish for food enjoyed by the other First Nations in Ontario, and to provide a conservation framework for the community harvest, Ontario proposed to enter into regulations with the federal Department of Fisheries and Oceans (the DFO) respecting fishing carried on in accordance with the ACFLRs. The ACFLRs allow the federal Minister of Fisheries and Oceans, or any provincial minister designated in the regulations, to issue licences to Aboriginal communities with appropriate terms and conditions which provide for the control of fishing. As part of the ACFLRs, Community Harvest and Conservation Agreements (Harvesting Agreements) would be entered into between the province of Ontario, as represented by the Ministry of Natural Resources (the Ministry), and the First Nations for facilitating hunting and fishing by the Williams Treaty First Nations in a manner consistent with the law and conservation objectives. Prior to the promulgation of the ACFLRs and the signing of the Harvesting Agreements, the DFO required that the province of Ontario consult with stakeholders about the impact of the regulations and the agreements. These consultations were carried out between September 1994 and January 1995. A report of the public consultation was forwarded to the federal government in relation to the ACFLRs. The regulations were promulgated on February 21, 1995 and the Harvesting Agreements signed. The Ministry states, however, that many of the terms of the agreements have yet to be implemented. NATURE OF THE APPEALS: These are appeals under the Freedom of Information and Protection of Privacy Act (the Act ). The Ministry received two requests from a representative of one of the groups whose views were sought by Ontario as part of the consultation process described above. The first request was for all records of public consultation regarding the licences since 1992. The second was for copies of all correspondence between the Ministry and the DFO relating to the ACFLRs. The time period covered by the second request was from May 1992 to May 30, 1994. The records at issue in these appeals consist of the Ministry's communications strategy in conducting the consultations, as well as correspondence between the Ministry and the federal government departments involved with the ACFLRs, primarily the DFO and, to a lesser degree, the Departments of Indian and Northern Affairs, and Justice. Some of the correspondence deals directly with the proposed consultations and the regulations, while others address the more general issues of the impact of the Howard decision and Ontario enforcement of the general hunting and fishing regulations. The records are more particularly described in Appendix "A" to this order. Upon receiving the requests, the Ministry notified the DFO and the Department of Justice. The DFO and the Department of Justice consented to the disclosure of the records which the Ministry had identified as potentially affecting the interests of these federal government departments. The Ministry granted partial access to a document entitled "Aboriginal Communal Fishing Licences Regulations and Community Harvest Communications Strategy" (Record 6). The Ministry denied access to the remaining records, including those for which it had received the consents of the DFO and the Department of Justice, on the basis of the following exemptions: advice or recommendations - section 13(1) relations with other governments - section 15(a) proposed plans, projects or policies of an institution - section 18(1)(g) The requester appealed the denial of access and maintained that there is a public interest in disclosure of the requested records. Because of the similarity of the records at issue, it was agreed that both appeals would be dealt with together. A Notice of Inquiry was sent to the Ministry, the appellant, the DFO, the Department of Justice, the Department of Indian and Northern Affairs, the seven Williams Treaty First Nations, the United Indian Councils and the Chiefs of Ontario. Representations were received from the Ministry, the appellant, the three federal government departments, three of the Williams Treaty First Nations and the Chiefs of Ontario. In their submissions, the Chiefs of Ontario raised the application of the invasion of privacy exemption, section 21 of the Act , to the All Ontario Chiefs Conference Resolution (the Resolution) which is Attachment (ii) to both Records 13 and 14. DISCUSSION: RELATIONS WITH OTHER GOVERNMENTS The Ministry submits that all the records at issue are exempt pursuant to section 15(a) of the Act which states: A head may refuse to disclose a record where the disclosure could reasonably be expected to, prejudice the conduct of intergovernmental relations by the Government of Ontario or an institution. The appellant maintains that section 15(a) cannot apply to exempt Records 1-6 (the Communications Roll-Out and Strategy) as these are internal Ministry documents which did not flow between governments. As I have previously indicated, the communications strategy was devised in or
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Legislation
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Subject Index
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Signed by
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Anita Fineberg
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Published
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Jul 24, 1995
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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