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P-908

Document		P-908


File #		P-9400365


Institution/HIC		Ontario Native Affairs Secretariat


Summary		NATURE OF THE APPEAL: The Ontario Native Affairs Secretariat (ONAS) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for access to certain letters and photographs which were referred to in two reports concerning a particular First Nation's land claim. In its initial decision letter ONAS denied access to the photographs and one of the letters on the basis that they didn't exist. ONAS notified the First Nation of the request as it had an interest in the records. After considering the objections of the First Nation to disclosure, ONAS provided a further decision letter to the requester, an individual representing an interest group located in the area of the land claim. ONAS denied access to two remaining letters based on sections 15(a) and (b) of the Act - relations with other governments. The requester appealed this decision. Given the nature of the exemption, the Notice of Inquiry was sent to the appellant, ONAS, the First Nation and Indian and Northern Affairs Canada on behalf of the federal government. Representations were received from all parties. After reviewing the representations and the records, I determined that further information was required in order to clarify certain aspects of the representations submitted by ONAS. A supplementary Notice of Inquiry was sent to ONAS and all other parties were notified of this request for further information. ONAS provided supplementary representations. The records at issue are: 1. a letter from the Chief of the First Nation to the Office of Indian Resource Policy (Ontario), dated September 9, 1982, with attachments (15 pages) 2. a letter from the Chief of the First Nation to the Minister of Natural Resources (Ontario), dated September 14, 1983, with attachments (65 pages) DISCUSSION: RELATIONS WITH OTHER GOVERNMENTS I will first consider the application of section 15(a) to the records at issue. For the records to qualify for exemption under section 15(a), ONAS must establish that: 1. disclosure of the records could give rise to an expectation of prejudice to the conduct of intergovernmental relations; and 2. the relations which it is claimed would be prejudiced must be intergovernmental, that is relations between an institution and another government or its agencies; and 3. the expectation that prejudice could arise as a result of disclosure must be reasonable. [Order 210] In the course of preparing this order I reviewed the wording of the test for exemption established in Order 210. Having done so, I feel that it would be appropriate to restate the test to make it more straightforward. Section 15(a) requires that the relations involved be intergovernmental, otherwise the exemption isn't available. Therefore, I feel that the present Part 2 of the test should be the first matter addressed when considering the application of this exemption. Furthermore, it appears to serve no useful purpose to have Part 3 of the present test separate from Part 1. These changes do not affect the substantive requirements of the test for exemption under section 15(a) which will now be stated as follows: 1. the relations must be intergovernmental, that is relations between an institution and another government or its agencies; and 2. disclosure of the records could give rise to a reasonable expectation of prejudice to the conduct of intergovernmental relations. The two records at issue were created in 1982 and 1983 in the context of the First Nation's land claim respecting the location of the northern boundary of the First Nation's reserve. These records were submitted by the First Nation to the government of Ontario and the government of Canada. ONAS indicates that the government of Ontario considers the resolution of land claims with First Nations "... to be an important and priority policy matter for the province." First Nation land claim negotiations involve complex historical, legal and policy issues. They also involve consideration of interests beyond those of the negotiating parties such as those of persons or organizations that may be affected by the terms of any settlement. For a number of reasons ONAS submits that negotiating settlements, as opposed to resorting to courts, is the preferred approach to the resolution of land claims. Negotiation is seen as providing the necessary flexibility to permit the parties to the negotiations to construct creative solutions to historically complex problems while also allowing for increased opportunities to balance the interests of those who might be affected by a land claim settlement. Part One of the Test ONAS contends that the relations which would be prejudiced by disclosure of the records are intergovernmental, because land claims can provide for: ... the amendment or alteration of existing legal regimes ... and the agreement reached at the conclusion of the negotiations can involve significant constitutional issues, and become enshrined in the Constitution under section 35(3) of the Constitution Act, 1982 . It also notes that the resolution of land claims can involve the transfer of Crown lands to First Nations. ONAS indicates that these matters are of national and provincial import. Having reviewed the representations of ONAS and Indian and Northern Affairs Canada, I am satisfied that the relations between Ontario and Canada which are described in the records are intergovernmental. Therefore, part one of the test has been satisfied. Part Two of the Test ONAS submits that disclosure of the records would jeopardize the integrity of Ontario's intergovernmental relations with Canada and the First Nation. It states that Ontario's relationship with Canada is an ongoing one, both generally, with respect to their long-term interactions and specifically, with respect to this land claim and the ongoing negotiations regarding its implementation. Indian and Northern Affairs Canada submits that disclosure of the records would prejudice the conduct of intergovernmental relations with the province of Ontario, because Canada would be less willing in the future to share material with Ontario, which is related to the negotiation and settlement of land claims. ONAS also submits tha


Legislation		FIPPA 15(a)


Subject Index		aboriginal self-government


Signed by		Tom Wright


Published		Apr 19, 1995


Type		Order


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