Access to Information Orders
Decision Information
BACKGROUND: This appeal deals with records created in the context of land claim negotiations between the Teme-Augama Anishnabai and the Temagami First Nation (Temagami) and the governments of Ontario and Canada. These negotiations stem from outstanding obligations of the Crown under the 1850 Robinson Huron Treaty (the Treaty). According to the Ontario Native Affairs Secretariat (ONAS), in 1885, following complaints by members of the Temagami community that a reserve had not been set apart for them as promised under the Treaty, Ontario surveyed a reserve but did not transfer lands to Canada for the purpose of establishing it. In 1943, Ontario provided one square mile of land, Bear Island in Lake Temagami, to establish a community, and this land became a reserve in 1971. In 1973, the Bear Island Foundation, an organization representing members of the Temagami First Nation and non-status descendants of the original Temagami Indians, placed a caution on all lands covered by the Treaty, claiming that they were not a party to the Treaty and therefore had not ceded their traditional lands. Ontario then brought an action seeking a declaration that the lands covered by the cautions were public lands and not subject to aboriginal title. After a number of hearings in lower courts, the Supreme Court of Canada issued a judgment in August 1991, finding that the Temagami Indians did not have unextinguished title to the lands claimed as their traditional territory and also that the Crown had outstanding treaty obligations owed to Temagami [ Ontario (Attorney General) v. Bear Island Foundation , [1991] 2 S.C.R. 570]. In what appears to have been a process separate from the Bear Island Foundation litigation, Temagami, Ontario and Canada had begun negotiating issues related to the land claim in 1990, prior to the Supreme Court judgment. These negotiations continued after the decision was issued. In 1993, the parties concluded an agreement in principle on the settlement of the claim. However, Temagami failed to ratify that agreement and the government of Ontario withdrew the offer in 1995. In 1997, Temagami commenced proceedings in the Federal Court of Canada and the (then) Ontario Court (General Division) against Ontario and Canada, claiming damages for breach of contract and fiduciary duty based on the outstanding treaty obligations. Following the commencement of these proceedings, the parties agreed to resume negotiations. In 2002, Temagami, Ontario and Canada reached consensus on a framework agreement that would settle the land claim as it relates to Ontario. Since that time, the parties have been refining the elements of the settlement. The proceedings commenced in 1997 are being held in abeyance pending the outcome of these negotiations. NATURE OF THE APPEAL: ONAS received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for 51 identified records. Subsequently, the requester narrowed the request to the following three records: A land appraisal report on two properties (Austin Bay and Bear Island), prepared by a real estate firm dated July 7, 1993 (117 pages) A record entitled “Austin Bay Evaluation Working Document” prepared by a named consulting firm dated June 24, 1992 (19 pages) A record entitled “Austin Bay Evaluation Working Document” prepared by Ministry of Natural Resources staff dated July 10, 1992 (91 pages) ONAS denied access to the records on the basis of the following exemptions in the Act : Records 1 and 3 - - - section 12(1)(d) (Cabinet records) section 13(1) (advice or recommendations) section 18(1)(d) (economic and other interests) Record 2 - - section 12(1)(d) section 18(1)(d). The requester, now the appellant, appealed ONAS’s decision. During the course of mediation (and in accordance with this office’s established procedures and timelines), ONAS identified two new discretionary exemption claims for all three records: - - section 15(a) (relations with other governments) section 19 (solicitor-client privilege). Mediation efforts were not successful and the appeal was transferred to me for adjudication. I started my inquiry by sending a Notice of Inquiry to ONAS, which set out the facts and issues in the appeal, and ONAS responded with representations. ONAS withdrew the section 12(1)(d) exemption, but continued to rely on the introductory words of section 12(1) as one basis for denying access to all three records. I then sent the Notice to the appellant, along with a copy of the non-confidential portions of ONAS’s representations. The appellant responded with representations, which I in turn shared with ONAS. ONAS submitted reply representations. RECORDS: The three records at issue in this appeal are described above. DISCUSSION: SOLICITOR-CLIENT PRIVILEGE General principles Section 19 of the Act reads: A head may refuse to disclose a record that is subject to solicitor-client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation. Section 19 contains two branches. Branch 1 applies to a record that is subject to “solicitor-client privilege” at common law and includes two common law privileges: solicitor-client communication privilege litigation privilege Branch 2 contains two analogous statutory privileges that apply in the context of Crown counsel giving legal advice or conducting litigation. ONAS relies on the statutory solicitor-client communication privilege in Branch 2 of section 19. Statutory solicitor-client communication privilege Branch 2 applies to a record that was “prepared by or for Crown counsel for use in giving legal advice”. The statutory and common law privileges, although not necessarily identical, exist for similar reasons. One must consider the purpose of the common law privilege when considering whether the statutory privilege applies. General principles Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice [ Descôteaux v. Mierzwinski (1982), 141 D.L.R. (3d) 590 (S.C.C.)]. The rationale for this privilege is to ensure that a client may confide in his or her lawyer on a legal matter without reservation [Order P-1551]. The privilege applies to “a continuum of communications” between a solicitor and client: Where information is passed by the solicitor or client to the other as part of the continuum aimed at keeping both informed so that advice may
Decision Content
BACKGROUND:
This appeal deals with records created in the context of land claim negotiations between the Teme-Augama Anishnabai and the Temagami First Nation (Temagami) and the governments of Ontario and Canada. These negotiations stem from outstanding obligations of the Crown under the 1850 Robinson Huron Treaty (the Treaty).
According to the Ontario Native Affairs Secretariat (ONAS), in 1885, following complaints by members of the Temagami community that a reserve had not been set apart for them as promised under the Treaty, Ontario surveyed a reserve but did not transfer lands to Canada for the purpose of establishing it. In 1943, Ontario provided one square mile of land, Bear Island in Lake Temagami, to establish a community, and this land became a reserve in 1971.
In 1973, the Bear Island Foundation, an organization representing members of the Temagami First Nation and non-status descendants of the original Temagami Indians, placed a caution on all lands covered by the Treaty, claiming that they were not a party to the Treaty and therefore had not ceded their traditional lands. Ontario then brought an action seeking a declaration that the lands covered by the cautions were public lands and not subject to aboriginal title. After a number of hearings in lower courts, the Supreme Court of Canada issued a judgment in August 1991, finding that the Temagami Indians did not have unextinguished title to the lands claimed as their traditional territory and also that the Crown had outstanding treaty obligations owed to Temagami [Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570].
In what appears to have been a process separate from the Bear Island Foundation litigation, Temagami, Ontario and Canada had begun negotiating issues related to the land claim in 1990, prior to the Supreme Court judgment. These negotiations continued after the decision was issued. In 1993, the parties concluded an agreement in principle on the settlement of the claim. However, Temagami failed to ratify that agreement and the government of Ontario withdrew the offer in 1995.
In 1997, Temagami commenced proceedings in the Federal Court of Canada and the (then) Ontario Court (General Division) against Ontario and Canada, claiming damages for breach of contract and fiduciary duty based on the outstanding treaty obligations. Following the commencement of these proceedings, the parties agreed to resume negotiations. In 2002, Temagami, Ontario and Canada reached consensus on a framework agreement that would settle the land claim as it relates to Ontario. Since that time, the parties have been refining the elements of the settlement. The proceedings commenced in 1997 are being held in abeyance pending the outcome of these negotiations.
NATURE OF THE APPEAL:
ONAS received a request under the Freedom of Information and Protection of Privacy Act (the Act) for 51 identified records. Subsequently, the requester narrowed the request to the following three records:
1. A land appraisal report on two properties (Austin Bay and Bear Island), prepared by a real estate firm dated July 7, 1993 (117 pages)
2. A record entitled “Austin Bay Evaluation Working Document” prepared by a named consulting firm dated June 24, 1992 (19 pages)
3. A record entitled “Austin Bay Evaluation Working Document” prepared by Ministry of Natural Resources staff dated July 10, 1992 (91 pages)
ONAS denied access to the records on the basis of the following exemptions in the Act:
Records 1 and 3 - section 12(1)(d) (Cabinet records)
- section 13(1) (advice or recommendations)
- section 18(1)(d) (economic and other interests)
Record 2 - section 12(1)(d)
- section 18(1)(d).
The requester, now the appellant, appealed ONAS’s decision.
During the course of mediation (and in accordance with this office’s established procedures and timelines), ONAS identified two new discretionary exemption claims for all three records:
- section 15(a) (relations with other governments)
- section 19 (solicitor-client privilege).
Mediation efforts were not successful and the appeal was transferred to me for adjudication.
I started my inquiry by sending a Notice of Inquiry to ONAS, which set out the facts and issues in the appeal, and ONAS responded with representations. ONAS withdrew the section 12(1)(d) exemption, but continued to rely on the introductory words of section 12(1) as one basis for denying access to all three records. I then sent the Notice to the appellant, along with a copy of the non-confidential portions of ONAS’s representations. The appellant responded with representations, which I in turn shared with ONAS. ONAS submitted reply representations.
RECORDS:
The three records at issue in this appeal are described above.
DISCUSSION: