Crown-Indigenous Relations and Northern Affairs Canada (Re), 2024 OIC 02

Date: 2024-01-17
OIC file number: 5822-06528
Institution file number: CIRNAC-A-2021-00119

Summary

The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) failed to conduct a reasonable search for records in response to an access request under the Access to Information Act for all communications including correspondence, briefing notes, emails in writing or electronic relating to the land claim of the Wood Mountain (Lakota) First Nation, from 2000 to 2020.

The OIC’s investigation confirmed that CIRNAC responded to the request with records dated from 2017 to 2020 but no records dated earlier than 2017. The OIC sought information from CIRNAC related to the program areas tasked to search for records and the parameters of the search. Initially, CIRNAC maintained that no records earlier than 2017 could be located.

The OIC noted records from the Wood Mountain First Nation’s initial claim in 2009 to the rejection of the claim in 2012 appeared to be missing. In response, after subsequent searches, CIRNAC informed the OIC that more records had been found.

The Information Commissioner ordered that CIRNAC complete the retrieval of the records identified by CIRNAC as responsive to the request and provide a new response to the complainant no later than 60 days after the effective date of the order. CIRNAC gave notice that it would implement the order.

The complaint is well founded.

Complaint

[1]     The complainant alleged that Crown-Indigenous Relations and Northern Affairs Canada (CIRNAC) failed to conduct a reasonable search for records in response to an access request under the Access to Information Act for all communications including correspondence, briefing notes, emails in writing or electronic relating to the land claim of the Wood Mountain First Nation. This First Nations is also called the Wood Mountain Lakota First Nation. The initial submission was in the year 2000 to 2020 when it was settled.

[2]     The complaint falls under paragraph 30(1)(a) of the Act.

Investigation

Reasonable Search

[3]     CIRNAC was required to conduct a reasonable search for records that fall within the scope of the access request – that is, one or more experienced employees, knowledgeable in the subject matter of the request, must have made reasonable efforts to identify and locate all records reasonably related to the request.

[4]     A reasonable search involves a level of effort that would be expected of any fair, sensible person tasked with searching for responsive records where they are likely to be stored.

[5]     This search does not need to be perfect. An institution is therefore not required to prove with absolute certainty that further records do not exist. Institutions must, however, be able to show that they took reasonable steps to identify and locate responsive records.

Did the institution conduct a reasonable search for records?

[6]     Approximately 3,100 pages were deemed responsive to the request and processed. A response, with heavily redacted documents, was provided to the complainant in January 2023. In their complaint, the complainant alleged that records dated earlier than 2017 were not provided.

[7]     Following a preliminary review of the working copy of the records at issue, the Office of the Information Commissioner (OIC) came to the same conclusion – the records that were processed were dated 2017 and later.

[8]     The OIC posed detailed questions to CIRNAC in an attempt to understand why documents earlier than 2017 were not found. CIRNAC did not, however, provide meaningful representations regarding the search for records.

[9]     On May 19, 2023, the OIC sent CIRNAC a Request for Representations to substantiate the search conducted to locate all responsive records. In response, on June 15, 2023, CIRNAC acknowledged that no records were found dated between 2000 and 2016 and agreed to conduct additional searches. On July 5, 2023, CIRNAC advised the OIC that the subject matter expert was confident that no additional records exist.

[10]     On August 7, 2023, the OIC, still not satisfied with CIRNAC’s position that the records do not exist, sent a number of detailed questions to CIRNAC based on its own research concerning the Wood Mountain/Lakota land claim. The OIC pointed out that the Wood Mountain/Lakota First Nation's specific claim was submitted to Canada on August 31, 2009, and was filed with the Minister of Aboriginal Affairs and Northern Development (AANDC at the time) on October 8, 2009. The claim alleged that Canada breached fiduciary obligations to the First Nation by failing to fulfill the terms of a unilateral undertaking to provide certain lands, in Saskatchewan, as reserve lands for the First Nation. Initially, Canada found that it had no legal obligation to the First Nation regarding these obligations and informed the First Nation of its position in a letter dated August 24, 2012.

[11]     In February 2014, the First Nation filed a Declaration of Claim with the Specific Claims Tribunal.

[12]     At AANDC, further legal advice was sought and revealed a high legal risk that the Tribunal would validate the First Nation's claim. The file came back to negotiation and in concurrence with the recommendations of a supplemental Legal Opinion and the Declaration of Claim submitted by the First Nation, the parties agreed that the claim regards the alienation of approximately 5,600 acres of land from the First Nation's reserve and that compensation should amount to Current Unimproved Market Value (CUMV) of the claim lands and loss of use on the claim lands.

[13]     A settlement appears to have been reached in 2019.

[14]     The OIC noted that the records that are missing are the records from the initial claim in 2009 to the rejection of the claim in 2012. There is then a two year “gap” when the First Nation filed a claim with the Specific Claims Tribunal in 2014 to 2016. The records originally processed in response to the request, start in 2017 and refer to how the government will proceed with the settlement.

[15]     Based on its research, the OIC posed additional questions about the initial claim period from 2009 to 2012, the seeking of legal advice and any destruction/disposal schedules for these records should they not be found.

[16]     In response, after subsequent searches, CIRNAC informed the OIC that more records had been found and that the records would be reviewed for relevancy and processed. CIRNAC did not provide a timeline to complete this review nor when it would be in a position to issue a subsequent response to the complainant.

[17]     In light of the above, I conclude that CIRNAC did not conduct a reasonable search for records in response to the access request.

Outcome

[18]     The complaint is well founded.

Order

I order the Minister of Crown Indigenous Relations and Northern Affairs Canada to:

1. Complete the retrieval of all records responsive to the request.
2. Process all additional pages of records located as a result of the additional searches.
3. Provide a new response to the access request on the 60th business day following the date of the final report.
4. Give the complainant access to responsive records, unless access to them, or to part of them, may be refused under a specific provision(s) of Part 1 of the Act. When this is the case, name the provision(s).
5. If none of the additional records are responsive to the request, indicate this in the response.

Initial report and notice from institution

On January 8, 2024, I issued my initial report to the Minister of Crown-Indigenous Relations, setting out my order. On January 10, 2024, the Director, Access to Information and Privacy Directorate gave me notice that CIRNAC will be implementing the order by no later than January 31, 2024.

Review by Federal Court

When an allegation in a complaint falls under paragraph 30(1)(a), (b), (c), (d), (d.1) or (e) of the Act, the complainant has the right to apply to the Federal Court for a review. When the Information Commissioner makes an order(s), the institution also has the right to apply for a review. Whoever applies for a review must do so within 35 business days after the date of this report and serve a copy of the application for review to the relevant parties, as per section 43. If no one applies for a review by this deadline, the order(s) takes effect on the 36th business day after the date of this report.