Report 21 - Access to Information Review Task Force

SELECTED CONCERNS OF ABORIGINAL PEOPLE

4. The Disclosure of Information to Aboriginal Peoples

As noted above, all citizens have a right of access to records as set out in the Act. The scope of that right is determined by coverage of the Act and the exemptions set out in the Act. However, aboriginal peoples may have additional rights of access. At issue in this section is whether the application of the Act to access requests of aboriginal peoples will sufficiently accommodate their rights and needs. If these needs are not appropriately addressed in the Act as drafted, a second question is whether they are best addressed through reform of the Act or through some other means.

4.1 The Content of the Exemptions May Be Different for Aboriginal People in some Contexts

In some cases, the fiduciary relationship of the Crown towards aboriginal peoples may actually change the operation of the Act. This is because in other contexts, courts have held that the fiduciary obligation will affect the scope of a privilege, such as solicitor-client privilege, which has been incorporated into the Act. For example, in Samson Indian Nation and Band v. Canada ⁽¹⁴⁾, the Federal Court of Appeal held that certain legal opinions which would otherwise have been protected were disclosable in the litigation context. The action concerned an allegation of breach of trust or fiduciary obligations resulting from the Crown's management of oil and gas resources in surrendered reserve lands, from the Crown's management of moneys and from the Crown's provision of programs and services to the respondent Bands. The Bands argued that, where the beneficiary of a trust or a fiduciary obligation seeks information from the trustee, no privilege can be invoked for communications between the trustee and its solicitors respecting the subject matter of the trust; that the Crown was in fact acting as a trustee of the Bands' interests; and, therefore, that legal opinions received by the Crown were not subject to the solicitor-client privilege and should be disclosed.

The Federal Court of Appeal upheld the trial judge's ruling requiring the Crown to disclose documents which related to the subject matter of the trust. The Crown was required to:

produce any document in the nature of legal advice that concerns the administration of, or the discharge of, responsibilities of the Crown as trustee for the benefit of the plaintiff bands and peoples arising from the 1946 surrenders of rights in oil and gas mineral resources, including the royalties derived and the operation of programs and services where the advice sought made reference to the mineral resources surrendered and the revenues derived. ⁽¹⁵⁾

The Court of Appeal also upheld the lower court's ruling in ordering disclosure of those documents that belonged "by necessary implication" to the "trusteeship in Indian land", since they were linked to the assets in question. This included documents intimately linked to the assets, as well as documents that did not refer to the assets but which referred to the application of the Indian Oil and Gas Act or applicable regulations. In addition, the Court of Appeal upheld disclosure of those documents relating to cuts in programs and services that could have occurred considering the revenue of the assets.

However, the Court of Appeal also upheld the trial judge's rejection of the broader claim of the bands, endorsing the following statement:

The plaintiffs urge that the general fiduciary relationship of the Crown to the Indians, in light of its treaty, statutory and contractual responsibilities had trust-like responsibilities that warrant close examination of any claim to privilege of relevant documents. I am not persuaded at this stage that the general relationship of the parties, aside from relations arising out of the specific variation of a trust in Indian land created by the surrenders of natural resources, and derivative responsibilities arising from the surrenders, warrants an order to produce documents on a wider scale than that now outlined. ⁽¹⁶⁾

The Samson Indian Band case demonstrates that, in some situations at least, the Crown acts as trustee of Indian land or resources in such a manner that it is required to disclose information which would otherwise be protected from disclosure in the litigation context. Similar consideration would apply in interpreting solicitor-client privilege under the Act. As a result, those interpreting and applying the Act must be familiar with the specific entitlements of aboriginal peoples.

4.2 Discretionary Exemptions

There are numerous discretionary exemptions set out in the Act. Some of the exemptions that are most likely to affect aboriginal peoples, particularly with respect to rights and title, are section 21 (advice or recommendations to government), section 23 (solicitor and client privilege) and section 14 (injurious to federal-provincial affairs). Because discretionary exemptions allow for disclosure in some circumstances, these exemptions, if properly administered, have the capacity to accommodate the special rights of aboriginal peoples. This will likely require education of those administering the Act. In addition, it may be necessary to develop guidelines for the exercise of that discretion.

In her paper The Nature and Structure of Exempting Provisions and the Use of the Concept of Public Interest Override ⁽¹⁷⁾, Barbara McIsaac, Q.C. argues that "the application of discretionary exemptions is an area which is ripe for reform." As Ms. McIsaac notes, a discretionary exemption allows the government to release information where "no injury will result from the disclosure or where it is of the opinion that the interest in disclosing the information outweighs any injury which could result from disclosure." However, Ms. McIsaac notes that the tendency is to refuse disclosure of all documents that come within the discretionary exemption, without a separate determination being made as to whether disclosure could be made.

Ms. McIsaac suggests a number of possible reforms, including additional directives or guidelines to assist government institutions in the application of discretionary exemptions. She also suggests that it may be beneficial for discretion to be more formally exercised, by requiring the head of an institution not only to identify the exemption under which information is withheld, but "also to articulate why he or she has exercised the discretion in favour of exemption."

These comments are particularly apt in the consideration of the application of the discretionary exemptions to requests made by aboriginal peoples. Those who administer and apply the access legislation must be made aware of the special obligations which the Crown may owe to aboriginal peoples, and the circumstances in which those obligations are likely to arise. Because the circumstances that give rise to special duties are so individualized and fact-specific, it would be impossible to enact statutory provisions which would ensure that the Crown fulfilled its obligations simply by complying with the provisions of the Act. However, unless ATIP co-ordinators are educated with respect to the particular situation of aboriginal peoples, they are unlikely to take all relevant factors into account in the exercise of their discretion.

The suggestion that additional guidelines or directives be developed to assist in the exercise of discretion also carries particular force in the context of aboriginal peoples. In R. v. Adams, the Supreme Court of Canada stated:

In light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in a substantial number of applications in the absence of some explicit guidance. If a statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfill their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test. ⁽¹⁸⁾

Without determining whether the Act risks infringing aboriginal rights often enough to render the lack of guidance itself an infringement, it would appear to be good policy to provide decision-makers with additional education and guidance to enable them to exercise their discretion in a manner that takes into account and respects aboriginal entitlements.

One option is for the Information Commissioner's office to work with the Treasury Board Secretariat and representatives of the aboriginal community to develop for those administering the Act guidelines and educational materials regarding the application of discretionary exemptions to requests for information by aboriginal peoples. For example, given the acknowledged fiduciary relationship of the Crown to aboriginal peoples, it may be appropriate to adopt a policy directive to the effect that where a request concerns rights that may receive constitutional protection, and there is uncertainty about the application of discretionary exemptions, that uncertainty should be resolved in favour of disclosure to aboriginal peoples.

4.3 Mandatory Exemptions

The mandatory exemptions from disclosure under the Act are found in sections 13 (information obtained in confidence from another government), 16(3) (certain policing information), 19 (personal information), and section 20 (third party information). In addition, the separate confidentiality regimes incorporated into the Act by way of section 24 and Schedule II may provide for exemptions from disclosure. Finally, those documents that are excluded from the operation of Act are not accessible under the Act. If in a particular case aboriginal peoples have a legal entitlement to documents which is broader than the right set out in the Act, application of the mandatory exemption in the Act may lead to denial of information which is otherwise required to be disclosed. This may be addressed either through statutory reform of the Act or the through the development of alternative regimes to facilitate access in the context of aboriginal peoples requestors.

One option would be to amend the Act to provide for an exception from the mandatory exemptions for aboriginal peoples seeking to pursue their legal entitlements. Such an exception already exists with respect to the personal information exemption. Section 19(2)(c) of the Act provides that personal information may be disclosed if disclosure is in accordance with section 8 of the Privacy Act. Section 8(2)(k) of the Privacy Act provides that personal information may be disclosed:

to any aboriginal government, association of aboriginal people, Indian band, government institution or part thereof, or to any person acting on behalf of such government, association, band, institution or part thereof, for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal people of Canada.

The Courts have held that for this provision to apply, there must be research being done on behalf of a group, rather than merely by an individual. ⁽¹⁹⁾ In addition, the research must be in relation to specific claims or disputes pursued by aboriginal peoples as aboriginal peoples, and not simply disputes involving or between aboriginal peoples. ⁽²⁰⁾

No similar provision currently exists for exception to the other mandatory exemptions, including third party information and information provided in confidence from another government. ⁽²¹⁾ Such an exception, based on the language set out in the Privacy Act, would make it more likely that a strict application of the Act to aboriginal peoples would be able to accommodate their special status and entitlements.

An alternative would be to develop an alternative access regime outside of the Act for aboriginal peoples seeking to pursue their special legal entitlements. Such a regime would need to provide for the possibility of disclosure of documents which would be exempt under the Act, in cases where it can be established that this is required to meet aboriginal peoples entitlement. The development of such a regime would have to be undertaken with care. For example, in some alternative access regimes, priority is given to requests that are undertaken pursuant to the Act, rather than under the alternative regime. This would clearly be problematic in the case of aboriginal peoples pursuing constitutional rights.

If such an alternative scheme were developed, it may be most efficient to have all requests by aboriginal peoples that require special consideration made within this framework. In other words, aboriginal peoples and aboriginal individuals would be able to utilize the regime under the Act for their requests, unless they wanted their special entitlements, such as aboriginal rights or a fiduciary duty that they may assert is owed to them, to be taken into account in processing the request. If such special considerations are deemed relevant by the requestor, the request should go through the specialized access regime. Those administering the regime would be expected to have the requisite expertise to deal with such requests having regard to all of the relevant information.

4.4 Section 24 of the Act

Section 24 of the Act provides:

The head of a government institution shall refuse to disclose any record requested under this Act that contains information the disclosure of which is restricted by or pursuant to any provisions set out in Schedule II.

Schedule II lists other statutory provisions that deal with confidential information. The combined effect of section 24 and Schedule II is that information that would otherwise be subject to disclosure under the Act will not be disclosed if such disclosure is regulated by a provision set out in Schedule II.

Aboriginal peoples may have a special interest in information that is subject to the confidentiality regimes set out in Schedule II of the Act. For example, section 17 of the Statistics Act, which is listed in Schedule II of the Act, provides for the blanket prohibition on the release of census information. Census documents, however, are often a critically important source of information for aboriginal claims researchers regarding community composition, land use and occupancy, especially for the period of 1911-1951. There is significant interest in obtaining the release of census documents by individual genealogists and other historical researchers. ⁽²²⁾ However, the interests of aboriginal peoples in researching claims involving their constitutional entitlements is unique and requires special consideration.

It should be noted that the above comments with respect to the discretionary and mandatory exemptions in the Act apply with equal force to the application of the confidentiality regimes set out in Schedule II of the Act. Those officials tasked with making discretionary decisions under those regimes need to be educated with respect to the special entitlements that aboriginal people may hold. Any mandatory prohibitions on disclosure under these regimes should be examined to determine if they could interfere with the Crown's ability to discharge its obligations to aboriginal peoples. The exception for disclosure set out in section 8(2)(k) of the Privacy Act could be incorporated into these other regimes. If a separate formal regime is set up to deal with aboriginal peoples' requests, consideration must be given to how this regime will interact with the various schemes set out in Schedule II of the Act.

4.5 Information Excluded from the Operation of the Act - Cabinet Confidences

The Act currently provides no right of access to Cabinet confidences. We adopt the concerns expressed by others with respect to the appropriateness of this exclusion. ⁽²³⁾

In addition it must be recognized that this is a matter of particular importance to aboriginal people, who may have a right to such information insofar as it relates to any fiduciary obligations of the Crown. If the scope of the Act is extended to include Cabinet confidences, any exemption from disclosure for such documents should be subject to aboriginal peoples' interests to ensure that those documents relating to the fiduciary obligation can be disclosed. If the Act is not so extended, some other formal mechanism should be developed to address aboriginal peoples' concerns in this regard.

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14. [1998] 2 F.C. 60 (C.A.)

15. At para 9, supra

16. Supra, at para 29

17. Report to Access to Information Task Force: http:/www.atirtf-geai.gc.ca/paper-nature1-e.html

18. [1996] 3 S.C.R. 101 at para 54

19. Sutherland v Canada (Ministry of Indian and Northern Affairs), [1994] 3 F.C. 527 at para 34

20. Supra at para 36

21. Grand Council of the Crees of Quebec v Canada (Minister of External Affairs and International Trade), [1996] F.C.J. No. 903

22. See Final Report of the Expert Panel on Access to Historical Census Records, and submissions received by the Expert Panel, at www.statcan.ca/english/census96/interm.htm. See also see Submissions to Access to Information Task Force at www.atirtf-geai.gc.ca/submissions-e.html.

23. See, for example, McIsaac, suprea, Note 17.