The Information and Privacy Commissioner of Ontario (IPC) has ordered the Township of Oro-Medonte to conduct another search for documents about consultation with Aboriginal groups related to the development of Burl’s Creek.
In 2016, Keith Doxsee, the grand chief of Montagnais Métis First Nation, asked the IPC to investigate the consultation process and to order the township to release documents about the process.
“Our community was a party at the Burl’s Creek hearing before the Ontario Municipal Board,” said Doxsee. “At that time, we got a little suspicious that maybe we weren’t getting all the information we needed, so we filed an information request related to consultation records dealing with all the Aboriginal communities” in 2016.
“Part of our assertion is they weren’t doing proper consultation with Aboriginal communities,” said Doxsee, who said his community believes Burl’s Creek was home to at least one historic Native settlement.
The process got off to a rocky start when the township requested what Doxsee said was “an exorbitant” amount of money to conduct the search. When they agreed to a “more reasonable” amount of money, the search was conducted.
However, Doxsee was not satisfied with the results of the search. He said several key documents were not released. Through a mediation process, a second search was ordered, but the documents in question were not found.
“I made the assertion that unless this was grossly mismanaged, the records were either withheld or destroyed and, if that’s true, that is not acceptable,” said Doxsee. He said there are detailed “processes that governments are supposed to follow when they do consultation … (They) can’t just say, 'We spoke with them and they’re fine with it.' That’s not good enough.”
The IPC seems to have agreed. It has now ordered a third search. And this time, it has decreed the search must be done with 21 days. On top of that, staff involved in the search must sign affidavits about the process.
Doxsee said the order rules that staff must disclose to the IPC “where they searched, what they found and if you don’t find anything, you have to give a reasonable explanation as to why you didn’t find it.”
Oro-Medonte clerk Karen Way says she was not surprised by the IPC’s request.
“This is how the IPC tends to process their orders,” said Way. “I’ve seen similar situations in the past. It’s kind of like a needle in a haystack … How hard is it to prove there wasn’t a needle in the haystack?”
However, she stressed the township takes the process “very seriously” and will “pull all the files, cross-reference to make sure nothing was missed” and conduct a “thorough” search.
Having said that, she doesn’t expect the documents in question will be found.
“I don’t think (anything) is going to magically appear,” she said. She also expressed confidence in the township’s record-management system and said she believes the township has followed all rules.
She said the documents in question – one is a letter from the Chippewas of Rama to the township’s mayor expressing concern about the possibility of human remains and requesting soil screening – may have been destroyed as a matter of procedure.
“Under our retention schedule, for example, letters filed under ‘general correspondence’ only have to be kept for one year,” explained Way, who was not the clerk when the original request was filed in 2016.
She said the township, like most municipalities, adheres to the Ontario Municipal Records Management System. While there are many variables and legislations in play, that system “follows a provincial, commonly-accepted standard.”
Way stressed she could not address the fate of specific documents. “I can’t say that is what happened … but it is a possibility as to why someone might have a copy of a letter” that is no longer in the township’s files.
“For example, finance records have to be kept for seven years … there are rules and regulations that we follow,” she said. “But it is our right to destroy records. We can’t keep every record forever.” She added the township keeps a record of what documents are destroyed.
Doxsee said he believes the documents exist in the township’s files.
“If they don’t find the documents after this next search, you start wondering if there is something more than just being sloppy. Is it mismanagement? Is it carelessness? Things just don’t add up,” he said.
He said he and his community are committed to ensuring the process is “exhausted.” If the documents aren’t produced and the reasons behind that “aren’t reasonable,” other avenues – including, potentially, a request for the Ministry of the Attorney General to investigate – will be pursued, he said.
“If questions are still unanswered and we have this nagging doubt, what’s the course of action? Do we just walk away and let those doubts fester?”
The answer, he said, is no. “We have no intention of going away.”
The IPC’s order, issued Nov. 15, gives the township 21 days to conduct its search. However, the township did not hear of the order until Nov 22, when OrilliaMatters asked to speak about it.
Way said she’s not sure if she can meet the deadline as she is overseeing pre-planned orientation seminars and activities for the incoming council.
“Normally, it would be tight” to do the search within 21 days, she said. “I may ask for an extension (because) basically we are doing the whole search all over again and it takes a substantial amount of time.”
The IPC’s ‘Notice of Interim Order’ has not been posted on its website. You can read the 16-page document here.
