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Report 21 - Access to Information Review Task Force
SELECTED CONCERNS OF ABORIGINAL PEOPLE
5. The Disclosure to Third Parties of Information Received from, or of Special Interest to, Aboriginal Peoples
This section will examine three areas of concern that involve the disclosure of information to third parties. First, there is a concern that aboriginal peoples are generally not recognized as governments under the Act. This concern has two aspects. First, there is no exemption from disclosure for information received in confidence from aboriginal peoples. Second, there is no specific protection of information the release of which may harm federal relations with aboriginal peoples, including treaty-making. The final area of concern involves the release of information of cultural significance or which has traditionally been disclosed on only a limited basis.
Some type of statutory reform will be necessary if these concerns are to be addressed. As noted above, the Act provides citizens with a right of access subject only to specified exemptions. If aboriginal peoples have a broader right of access, this may be accommodated through an alternative regime. However, limiting third parties' rights to access can only be done in one of three ways. First, the exemptions under the Act can be amended. Second, an alternative statutory regime limiting access to information relating to aboriginal peoples could be established and included in Schedule II of the Act. Finally, a separate statutory regime could be developed including a provision to ensure that it takes precedence over the scheme set out in the Act. Of these alternatives, statutory reform to the Act itself seems to be the one most in keeping with the goal of transparency and administrative simplicity.
5.1 Information Received in Confidence from other Governments
Under section 13 of the Act, information received in confidence from governments, including regional and municipal governments, is exempted from disclosure, recognizing the interest of those governments in that information. Section 13 provides that the head of a government institution shall refuse to disclose any record under the Act that contains information obtained in confidence from, inter alia, an aboriginal government, unless the aboriginal government makes the information public or consents to the disclosure. However, section 13(c) defines "aboriginal government" as meaning only the Nisga'a Government as defined in the Nisga'a Final Agreement. Information received in confidence from Indian bands may come under the exemption for confidential third party information in section 20(1)(b), but only if it is of a financial, commercial, scientific or technical nature. This fails to recognize that the functions of an Indian band are essentially governmental in nature, and that, as a result, a band's interest in its information is more akin to that of a municipal government than a corporate third party.
At least two other Canadian jurisdictions recognize aboriginal governments generally within their provisions respecting the protection of governmental information and intergovernmental relations. Section 16 of the British Columbia Freedom of Information and Protection of Privacy Act (24) (the "B.C. Act") provides for a discretionary refusal to disclose information if such disclosure could reasonably be expected to reveal information received in confidence from, inter alia, an aboriginal government. The B.C. Act defines "aboriginal government" as "an aboriginal organization exercising governmental functions". In Order No. 14-1994, the BC Office of the Information and Privacy Commissioner noted that the Policy and Procedures Manual "gives Indian bands and tribal councils as examples of aboriginal governments." The Commissioner rejected the suggestion that the meaning of "aboriginal government" should be limited to bands that had concluded agreements for self-government. In Order No. 01-13, the Commissioner stated "at the very least, an 'aboriginal government' includes a 'band' as defined in the Indian Act." The Nova Scotia Freedom of Information and Protection of Privacy Act (25) also includes "aboriginal government" in the discretionary exemption for information received in confidence from another government.
The possibility of amending the definition of "aboriginal government" to include a broader range of entities carrying out governmental functions raises competing policy concerns. On the one hand, extending the mandatory exemption contained in section 13 runs contrary to the principle of increased openness, since it means that a wider class of documents would be exempt from public disclosure. On the other hand, there does not seem to be a sound policy reason for providing this protection to municipal and regional governments, and the Nisga'a Government, without extending it to other aboriginal governments as well. While one court has declined to find that the exclusion of aboriginal governments from section 13 offends the Charter, this was based in part on the lack of evidence about the nature of band governance at issue. (26)
One distinction between aboriginal governments on the one hand, and provincial governments and those bodies created under provincial legislation on the other, is that the latter are themselves subject to provincial access legislation. It may be appropriate to extend section 13 protection to aboriginal governments but also require them to develop their own access schemes or agree to be subject to federal or provincial schemes. Another option would be to extend section 13 type of protection in a new discretionary exemption.
Even if section 13 protection is extended to aboriginal governments more broadly, information will only be protected if it is supplied "in confidence" to the federal government. The assessment of confidentiality in this context should take into account any fiduciary duty owed by the Crown. (27) However, courts have not been consistent in finding such a duty to exist in the context of disclosure of information supplied by an aboriginal government. (28) As a result, any special considerations relating to the requirement of confidentiality should be explicitly set out in the Act.
5.2 Information the Release of which May Injure Inter-Governmental Relations
Section 14 of the Act provides that the head of a government institution may refuse to disclose information that could reasonably be expected to be injurious to the conduct of federal-provincial affairs. Both the British Columbia and Nova Scotia legislation provide a discretionary exemption for information that may be injurious to the conduct of relations between the Province and an aboriginal government. The British Columbia legislation makes explicit reference to an exemption for information the release of which would harm the conduct of negotiations relating to aboriginal self-government or treaties. The negotiation of treaties and other agreements with aboriginal peoples would seem to be as deserving of protection as the conduct of federal-provincial affairs. One option would be to amend section 14 to protect information which could reasonably be expected to be injurious to federal relations with aboriginal governments. This could contain a specific reference to treaty- making, although such a reference may not be necessary, since relations between the federal and aboriginal governments should include treaty making.
5.3 Information regarding Sacred Sites or which is Traditionally Subject to Disclosure Limitations
Some access regimes provide specific protection for information the disclosure of which may result in interference with or harm to sites that have heritage value. (29) The 1998 Australian Law Reform Commission Report recommended changes to the Archives Act and the Freedom of Information Act to protect information which, under indigenous traditions, is confidential or subject to particular disclosure restrictions. The proposed Information Act of the Northern Territory Government also includes exemptions for information about an Aboriginal sacred site or Aboriginal traditions. This exemption requires a demonstration that disclosure is not in the public interest.
A discretionary exemption for information traditionally considered sacred or subject to disclosure requirements would seem to be in keeping with the honour of the Crown. The details of such an exemption should be a matter of consultation with aboriginal groups.
6.0 Summary and Conclusions
A variety of statutory and policy instruments may be utilized to address a number of concerns raised by aboriginal peoples regarding access to information under government control.
Concerns regarding timelines and expenses associated with access under the Act may be addressed by the development or expansion of informal processes.
Concerns regarding the release of information to aboriginal peoples can be dealt with largely through a program of education for those administering the Act, aimed at ensuring an understanding of the special rights of aboriginal peoples and the circumstances where a fiduciary relationship may exist. This education should assist in ensuring that the discretionary exemptions set out in the Act are administered in a manner that respects the special entitlements of aboriginal peoples.
The mandatory exemptions set out in the Act could be amended along the lines set out in section 8(2)(k) of the Privacy Act. Another option is that an alternative access regime for information relevant to the special constitutional entitlements of aboriginal peoples could be developed. Finally, such requests could be dealt with on an ad hoc basis, outside the framework of the Act as they sometimes are now.
With respect to concerns raised regarding the disclosure of information of special significance to aboriginal peoples, these are best addressed through statutory reform. The extension of the exemption set out in section 13 to all bodies exercising governance powers over aboriginal peoples raises conflicting policy concerns, particularly since these bodies may not themselves be subject to any access requirements. However, it would seem reasonable to provide the same protection to information that may harm the conduct of federal-aboriginal affairs as is provided to information relevant to federal-provincial affairs. In addition, an exemption protecting sacred information would be consistent with the honour of the Crown and the protection of the public interest
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Harmar Foster, Murray Rankin, Catherine Parker, Mark L. Stevenson Hamar Foster, a Professor of Law at the University of Victoria, teaches and researches in a number of areas. Among his publications are two books of essays (co-edited by Prof. John McLaren) and approximately 50 articles, primarily on Aboriginal Law, Legal History and Criminal Law. He is currently working on a book on the early history of the BC Indian Land Question. Murray Rankin is a partner with the law firm of Arvay Finlay with offices in Victoria and Vancouver. He holds law degrees from the University of Toronto and Harvard Law School. He taught as a professor of law at the University of Victoria for over 12 years. His areas of specialization have included administrative, environmental, information/privacy law and aboriginal law. Mr. Rankin has written numerous articles and books on these subjects and translated and edited a comprehensive text on administrative law. He co-authored the book Personal Information Protection and Electronic Documents Act: An Annotated Guide which was published by Irwin Law last year. Catherine Parker is a graduate of the Faculty of Law, University of Victoria. Ms. Parker was called to the Bar of the Law Society of British Columbia in May of 1998. Ms. Parker's areas of practice include civil litigation, administrative law, labour law and aboriginal law. In addition, Catherine has assisted Mr. Arvay with such constitutional cases as the Surrey School Board book banning case and the defence of the Nisga'a Treaty. Mark L Stevenson, BA, MA, LL. B, has an extensive background in treaty
negotiations, constitutional negotiations, and Aboriginal law. Mr. Stevenson worked
with the Privy Council in Ottawa from 1983 to 1987 and was deeply involved in
the Aboriginal Constitutional Process. After leaving the federal government, he
worked as Legal Counsel for the Ontario Native Affairs Secretariat until 1991.
He then returned to British Columbia to work with the BC Ministry of Aboriginal
Affairs. While with the province, he worked extensively on specific claims and
treaty negotiations. Mr. Stevenson left the provincial government to practice
law and is currently working for First Nations clients. He also co-instructs a
course on Aboriginal Title and Treaty Negotiations in the Faculty of Law at the
University of Victoria. Mr Stevenson is a member of the Law Society of Upper Canada
and the Law Society of British Columbia. He is also the current president of the
Indigenous Bar Association. |
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